No. 11-5238 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ____________________________________________ MARANDA TIBBS, Plaintiff-Appellant, v. CAVALRY UNITED METHODIST CHURCH, Defendant-Appellee. ____________________________________________ On Appeal From the United States District Court for the Middle District of Tennessee, Case No. 09-1205 ____________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF APPELLANT AND REVERSAL ____________________________________________ P. DAVID LOPEZ EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel LORRAINE C. DAVIS 131 M St. NE, 5th Fl. Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4724 ANNE NOEL OCCHIALINO Annenoel.Occhialino@EEOC.gov Attorney TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. Nature of the Case and Course of Proceedings Below. . . . . . 3 B. Statement of Fact. . . . . . . . . . . . . . . . . . . . . . . .3 C. District Court Opinion. . . . . . . . . . . . . . . . . . 15 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 I. The court erred in granting summary judgment because Tibbs presented sufficient circumstantial evidence to allow a factfinder to determine that YCS fired her because of her race or that race was a motivating factor in her termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 A. The "honest belief" rule does not apply here and circumstantial evidence, especially as to the treatment of similarly-situated Caucasian co-workers, would support a finding that YCS fired Tibbs because of her race. . . . . . . . 16 B. Tibbs' evidence was more than sufficient to overcome summary judgment on her mixed-motive claim. . . . . . . . . . . . . . . . . . . . . . . . . . . 28 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Archer v. Mesaba Aviation Inc., 2000 WL 376677 (6th Cir. April 3, 2000). . . 20-21 Campbell v. Univ. of Akron, 211 Fed. Appx. 333 (6th Cir. Oct. 17, 2006). . . 25 Clay v. United Parcel Serv., Inc., 501 F.3d 695 (6th Cir. 2007). . . . . . . . .18 Desert Palace Inc. v. Costa, 539 U.S. 90 (2003). . . . . . . . . 16, 17, 29, 30 Escher v. BWXT Y-12, LLC, 627 F.3d 1020 (6th Cir. 2010). . . . . . . . . passim Graham v. Best Buy Stores, 298 Fed. Appx. 487 (6th Cir. Oct. 22, 2008). . . 30 Hamilton v. Gen. Elec. Co., 556 F.3d 428 (6th Cir. 2009). . . . . . . . . . . . 19 Harrison v. Metro. Gov., 80 F.3d 1107 (6th Cir. 1996). . . . . . . . . . . .22, 27 Ladd v. Grand Trunk W. R.R., Inc., 552 F.3d 495 (6th Cir. 2009). . . . . . . . .21 Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106 (6th Cir. 2001). . . 20 Perry v. McGinnis, 209 F.3d 597 (6th Cir. 2000). . . . . . . . . . . . . . .25, 26 Shaw v. Tulsa Dynaspan Arrow Concrete, 408 Fed. Appx. 177 (10th Cir. Jan. 28, 2011). . . . . . . . . . . . . . . 23 Smith v. Chrysler Corp., 155 F.3d 799 (6th Cir. 1998). . . . . . . . . . . .passim Spees v. James Marine, Inc., 617 F.3d 380 (6th Cir. 2010). . . . . . . . . . . .30 Weigel v. Baptist Hospital of East Tenn., 302 F.3d 367 (6th Cir. 2002). . . . . 22 White v. Baxter Healthcare Corp., 533 F.3d 381 (6th Cir. 2008). . . . . . 29, 30 Wright v. Murray Guard, Inc., 455 F.3d 702 (6th Cir. 2006). . . . . . . . . passim TABLE OF AUTHORITIES (con't) FEDERAL STATUTES 42 U.S.C. § 2000e-2(m). . . . . . . . . . . . . . . . . . . . . . . . . . . 29 42 U.S.C. § 2000e-5(g)(2)(B). . . . . . . . . . . . . . . . . . . . . . . . 29 FEDERAL RULES Fed. R. App. P. 29. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF INTEREST Congress established the Equal Employment Opportunity Commission to administer, interpret, and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This appeal raises questions concerning the proper application of this Court's "honest belief" rule and this Court's standard for determining when comparators are "similarly situated" to a plaintiff. This appeal also raises questions concerning the amount of evidence a plaintiff asserting a mixed-motive claim of discrimination must produce in order to overcome a motion for summary judgment. Because of the importance of these issues to the effective enforcement of Title VII, the Commission respectfully offers its views to the Court. See Fed. R. App. P. 29(a) (agency of the United States may file amicus brief without consent of the parties or leave of court). STATEMENT OF THE ISSUES <1> 1. Did the district court err in granting summary judgment on the plaintiff's discriminatory discharge claim where she offered evidence that the "honest belief rule" did not apply because the employer did not honestly believe she had engaged in misconduct, and where she offered other circumstantial evidence suggesting that the reason given for her termination was a pretext for race discrimination, including that similarly-situated co-workers outside her protected class were treated more favorably? 2. Did the district court err in granting summary judgment on the plaintiff's mixed-motive discrimination claim where she offered evidence that even if she engaged in misconduct, the defendant did not fire similarly-situated Caucasian co-workers who engaged in similar, or more egregious, misconduct? STATEMENT OF THE CASE A. Nature of the Case and Course of Proceedings Below This is a Title VII and § 1981 employment discrimination case alleging that the plaintiff's termination was based on her race.<2> The defendant filed a motion for summary judgment, and the district court granted that motion. R.50,51. The plaintiff timely appealed. R.53. B. Statement of Facts Plaintiff Maranda Tibbs, who is African-American, worked as a pre-school teacher for Defendant Cavalry United Methodist's Young Children's School ("YCS") for nearly twenty years before her abrupt termination on July 29, 2008 for purported insubordination. R.50. Tibbs' co-worker of nearly twenty years, Hedy Morrison, described Tibbs as "one of the most loving, caring people I have ever known" and called her termination "unfair, unkind and unjust." R.26-3,Ex.1. Another teacher, Kaye Stevens, described Tibbs in similarly glowing terms, saying she was "very good . . . with children," "valuable" to the program, and "well loved." R.26-4(Stevens Depo.41). In November 2007, YCS hired Sharon Golden, who is Caucasian, as its new director. R.37,¶1. YCS tasked Golden with implementing some rules and licensing standards required by state law and the National Association for the Education of Young Children. Id. at¶¶ 1,3. Pursuant to these standards, YCS determined to have for the next school year one "lead" teacher in each classroom (requiring a degree) and one "assistant" teacher (not requiring a degree). Id. at¶¶ 5-7. At the time, Tibbs was working in one of the two nursery rooms with a Caucasian teacher named Lynn Short. Id. at ¶10. Because neither teacher had a degree, neither could be a "lead teacher," which meant that the duo would be split up in the 2008/2009 school year. Id. In January 2008, Tibbs injured her back outside of work and took sick leave. R.39-2(Tibbs Depo.54). When Tibbs' back improved a few days later, she called Golden and told her she was ready to return to work. Id. Golden, however, told Tibbs she had to first obtain a medical release from her doctor. Id. Tibbs asked her why, since other employees never had to furnish such a note, and Golden said the YCS board required it.<3> Id. at 54-55. Indeed, a Caucasian teacher named Brenda Farmer took four consecutive days of sick leave in October 2007, before Golden's arrival, but was not required to produce a doctor's note before returning to work. R.28,Ex.C;R.48(Decl.¶3). It is also undisputed that after Golden's arrival, a Caucasian teacher named Lori Murray also missed three consecutive work days for medical reasons but was not required to obtain a doctor's note before coming back to work. R.37,¶12. Similarly, Kaye Stevens, who is Caucasian, missed four consecutive days because of minor surgery but Golden did not require her to obtain a doctor's release. R.28,Ex.C,p.3;R.43,¶ 60. Tibbs eventually obtained the note and returned to work.<4> R.39-2(Tibbs Depo.55). While Tibbs was out, however, another teacher filled in with Short. One day during nap time, the other teacher left the room. R.39-4,Ex.A. Short remained in the room but had her back turned to the cribs when a baby climbed out of her crib and fell to the ground. Id. Golden warned Short and the other teacher that they must always be in the room with the children and must watch them. Id. Although Tibbs was out, Golden called her at home to tell her that adequate state-mandated coverage in the nap room must always be maintained. Id.; R.28,Ex.C,p.3. In March 2008 Golden made staffing recommendations for the 2008/2009 school year. R.26-1,Ex.6. Although Golden purported to "give preceden[ce] to those with seniority," she moved Tibbs-who had nearly 20 years seniority-out of the nursery room and instead left a new Caucasian teacher named Emily Tomlin as the assistant teacher in the nursery room (only one nursery was planned for the 2008/2009 school year). Id.; R.28,¶¶11. Although Tibbs had been working without incident in the nursery since her return, Golden justified her decision to leave Emily in the nursery based, in part, on her purported concern that the lifting/bending required to care for infants would cause Tibbs to re-injure her back. R.26-1,Ex.6. Golden paired Tibbs with lead teacher Kimberly Hommel, who was "thrilled" to work with Tibbs, in one of the four-year old rooms. Id. In the next few months, Tibbs was counseled about a few incidents that really centered on Short. Golden repeatedly testified, however, that these incidents had nothing to do with Tibbs' termination. R.26-1(Golden Depo.18,20,33,203- 04);R.43,¶42. On June 19, 2008, Short received a written warning for breaking "[t]wo very critical licensure rules" when she warmed a bottle in the microwave and took a baby's temperature rectally. R.39-4,Ex.B. She was also written up for picking up the ill child "by his arm roughly and bec[oming] angry when he was less than compliant" and speaking to him "in very unkind terms as he cried in discomfort." Id. Although Tibbs had not been present and had never even taken a baby's temperature rectally while Golden was director, Tibbs was also told that she must immediately cease taking temperatures rectally (a practice their previous director had endorsed), and warming bottles in the microwave. R.26-1,Ex.9;R.39- 2,pp.49-52. On July 9, 2008, before Tibbs arrived for work, a child in Short's care was bitten but Short failed to write up an accident report, as the practice had been to write such reports only when a child's skin had been broken. R.39-2(Tibbs Depo.84-86). Johnson later told Short and Tibbs that they must write accident reports for all biting incidents. Id. at 89;R.26-1,Ex.12. The next day Golden e- mailed YCS board members that she intended not to re-hire Short and Tibbs for the 2008/2009 school year because of their resistance and hostility to following rules and regulations. R.26-1,Ex.36. On July 23, 2008, Golden held a staff meeting. While discussing staffing issues, a Caucasian teacher named Linda Scott objected to her proposed pairing with another teacher, saying she "sure as hell don't want to work" with him. R.38- 2(Morrison Depo.49). Scott's statement "was shocking" and people "gasped." R.38-2(Morrison Depo.49). Golden denies having heard the comment, but Tibbs and two other teachers testified that Scott made the inappropriate remark. R.39- 2(Tibbs Depo.158);R.26-4(Stevens Depo.41). Golden did not reprimand Scott for her outburst. R.43,¶83. Also towards the end of July, Golden determined that YCS would not have enough four-year olds for three separate classrooms. R.37,¶¶ 21-22. She decided to disband Tibbs/Hommel's four-year old classroom and make it a two-year old classroom. R.37, ¶¶ 22,24. On the morning of July 29, 2008, Golden mentioned this change to Hommel. R.37,¶¶25-26. Golden then went to lunch with Cavalry's youth minister, Jule Nyhuis. R.26-1(Golden Depo.203-05). According to Golden, they discussed Golden's intent not to re-hire Short and Tibbs. Nyhuis convinced Golden that the two women should be put on a performance improvement plan ("PIP") instead of being fired. R.26-1(Golden Depo.204). However, as discussed below, Golden fired Tibbs later that afternoon, and thus never put Tibbs on the PIP.<5> It is also undisputed that the proposed PIP had nothing to do with Tibbs' termination. R.43,¶46. Short completed her 15-day PIP and was rehired for the next year. R.26-1(Golden Depo.205). While Golden and Nyhuis had lunch, Tibbs and Hommel discussed their proposed classroom change with another teacher named Kelly Harper. R.26- 5,Ex.1. According to Harper, Tibbs was "resigned" to the change and not upset about it. R.26-5(Harper Depo.18). Rather, it was Hommel who was upset, saying she would quit rather than work with two-year olds. Id. at 16,18. As Hommel became "more and more distraught," Tibbs tried to calm her and said she (Tibbs) could change all the diapers. R.26-5,Ex.1. When Hommel remained upset, Harper suggested they speak to Golden. Id. The two women went to the office to do so. Id. Harper described Tibbs as "disappointed" when she left for the meeting but "express[ing] that she would be okay working with either age group." Id. Golden subsequently met with Tibbs and Hommel, and at some point Assistant Director Jennifer Johnson joined them. According to Tibbs, she told Golden that she would "work wherever [Golden] needed" her but that she had come on behalf of Hommel, who was upset about the classroom change. R.26- 2,Ex.6. While discussing the assignment, Golden brought up seniority. R.39-2 (Tibbs Depo.121). Tibbs pointed out that she had seniority over Brenda/Emily in the infant room, and Golden then made disparaging remarks about Tibbs' lack of a degree. Id. at 121-22. Golden also made hurtful comments implying that Tibbs was not as loving and nurturing as Brenda or Emily. Id. at 122,129. When Tibbs mentioned the possibility of working with Scott, Golden told her Scott did not want to work with her. Id. at 126. Eventually Tibbs, who felt particularly hurt that Golden was criticizing her in front of her younger co-worker (Hommel), started crying and left the office. Id. at 120,123,130. Tibbs denied that she yelled or was insubordinate, rude, or disrespectful. Id. at 114,120;R.26-2,Ex.6,p.2. Instead, she testified, it was Golden who raised her voice and yelled. R.39-2(Tibbs Depo.120). Hedy Morrison overheard most-but not all-of the conversation as she waited outside of Golden's office and corroborated Tibbs' account of the meeting. R.37, ¶¶ 45, 46. Morrison stated that Golden and Tibbs both have "loud voices" and that their conversation was "heated" but that Tibbs said nothing insubordinate or disrespectful. R.26-3(Morrison Depo.27,31,32);R.26-3,Ex.1. Rather, it was Golden who "was very disrespectful to Tibbs," "ma[king] several derogatory comments" while Tibbs "never fired back." R.26-3(Morrison Depo.27);R.26-3, Ex.1. According to Morrison, Tibbs said she was ok working with two-year olds and would work anywhere but was there on behalf of Hommel. R.26-3,Ex.1. But Tibbs did ask why their room assignment had changed and why Golden had not made Scott's room into a two-year old room. Id. When Golden responded that Linda had seniority, Tibbs pointed out that she had more seniority than Brenda and Emily in the infant room. Id. Golden told Tibbs, "'You don't even have a degree.'" Id. Morrison viewed Golden's comment as "demeaning" and insulting because Tibbs was asking about being the assistant teacher, not the lead teacher. Id. According to Morrison, Golden "was the first to raise her voice when she began to say very loudly that Brenda and Emily were loving and nurturing," clearly implying that Tibbs was not. Id. Golden "went on a tirade about how she wasn't going to split" up Brenda and Emily or anyone else. Id. By the time she finished talking, Golden "was yelling," id., and she "started slamming the table." R.38-2(Morrison Depo.61). Golden also told Tibbs that Scott did not want to work with her, which Morrison found to be "inflammatory" and "unnecessary," as Tibbs had said she did not want to bump anyone. Id. Tibbs, who was crying, told Golden that her comments made her feel unimportant, as if she did not matter, and like she had been "stabbed through the heart." R.26-3,Ex.1. According to Golden, it was Tibbs who yelled and was insubordinate, R.26- 1,Ex.15, although Golden admitted that Tibbs never used profanity. R.38- 3(Golden Depo.207-08). Johnson also said that Tibbs yelled at Golden, became increasingly angry, and repeatedly said her feelings had been hurt. R.26-1,Ex.14. Hommel stated that Tibbs "was talking loudly." R.26-1,Ex.17. Another teacher named Ashley Farmer overheard some of the meeting and stated that Tibbs spoke "in a raised, angry voice." R.26-1,Ex.16. After Tibbs left, Hommel stayed and finished the meeting. After the meeting, Golden called YCS's attorney, Chris Anderson, and told him she intended to fire Tibbs for her inappropriate behavior during the meeting. R.26-1,Ex.25,p.3. Anderson, who is not a YCS employee and has no authority to fire employees, told Golden to call Tibbs and fire her. R.38-3(Golden Depo.89). Golden also called the YCS Personnel Chair, Leslie Calvert, and told her that she intended to fire Tibbs. R.26-1,Ex.25,p.3. Calvert later came over to the office. With Calvert and Johnson on the line, Golden called Tibbs and fired her. Id. When Tibbs said it was unfair for Golden to fire her without talking to the YCS Board, Calvert said she was the YCS Board and agreed with the firing. R.26-1, Ex.22,p.2. The next day Calvert sent an e-mail to the YCS personnel committee stating that Golden "terminated [Tibbs] after speaking with Chris Anderson" and that Golden "made the right decision." R.26-1,Ex.24. At the time of Tibbs' termination, she was the only full-time African-American teacher on staff; four other African-American teachers were part-time or seasonal employees. R.26-1, Ex.25; R.43,¶53;R.28,Ex.C. Tibbs tried to appeal the decision to the YCS Board. R.26-1,Ex.22. But YCS upheld the termination and replaced her with a Caucasian teacher. R.26-1(Golden Depo. 134). On August 6, 2008, YCS held a staff meeting to address questions about Tibbs' termination. R.38-2(Morrison Depo.38). Morrison, who is Caucasian, asked why Tibbs had been moved around from room to room when she had twenty years of seniority. Id. She also said that "nobody else was treated like that" and that Golden "would not have moved me [Morrison] out of my room." Id. Morrison then read aloud her resignation letter, which she had already drafted. Id. at 36. The letter explained that Morrison could no longer work where employees had to fear termination for disagreeing with the administration. R.26-3,Ex.2. Quoting Reverend Martin Luther King Jr., Morrison wrote, "Our lives begin to end the day we become silent about things that matter." Id. After the staff meeting, Stevens, who is also Caucasian, also resigned because of what happened with Tibbs. R.39-1(Stevens Depo.36,62). Stevens told Golden that she "kn[e]w the quality of [Tibbs'] character," had "seen her work with children," and was "no longer comfortable working in an establishment that would fire [Tibbs] without letting her work through the grievance process." Id. at 36. Stevens later testified that, based on her conversations with Golden, she believed that Golden treated Tibbs differently than Caucasian employees. R.43, ¶9. She also testified that she believed Golden singled out Tibbs to provide a medical release because of her race. Id.,¶8. Morrison also testified that Golden treated Tibbs differently because of her race, citing as an example Golden's requirement that Tibbs obtain a doctor's release before returning to work, which was unprecedented. R.38-2(Morrison Depo.44). Although Golden summarily fired Tibbs for her purported insubordination, in the next two years Golden tolerated insubordination from Caucasian teachers without firing them. On March 6, 2009-just seven and a half months after firing Tibbs-Golden wrote up Short and another teacher named Laura McCluney for their "appalling," "horrendous" "unprofessional and unethical" behavior when they accused Golden-in front of state assessors who had come to the school-of "rigging" a drawing as to which classrooms the assessors would observe that day. R.39-4,Ex.E. On August 4, 2010, Golden wrote an internal memorandum memorializing that Short had told Golden that the plans to expand the "Zebra" room were "ludicrous" and she was "asking for trouble," and McCluney similarly told Golden that the plans for the "Giraffe" room would not work and that Golden was "singling us out," not "respect[ing] us" or "being fair." R.39-4,Ex.G. Finally, on August 13, 2010, Golden wrote a memorandum reciting verbatim a conversation in which Short, McCluney, and another Caucasian teacher named Amy Erickson spoke in a "hostile, insubordinate, and unprofessional" manner about state assessors coming to visit the school. R.39-4,Ex.H. Golden described McCluney and Erickson's tone as "angry" and noted that Erickson even said she "did not believe" Golden's explanation about the law's requirements for toddler rooms. Id. Again, Golden did not fire anyone.<6> R.43,¶¶ 93,94. Acting pro se, Tibbs filed suit under Title VII alleging race discrimination. R.1. She subsequently obtained legal representation and filed an amended complaint adding an age discrimination claim. R.12. YCS filed a motion for summary judgment. R.24. Tibbs responded, arguing that she had established a fact question as to whether the reason given for her termination-insubordination in the July 29, 2008 meeting-was a pretext for race discrimination. R.35. Tibbs also argued that even if a factfinder determined that YCS had a legitimate non- discriminatory motive, a factfinder could determine that race also motivated her termination. Id. at 15-16. Because Tibbs never requested a jury trial, the case was set for a bench trial. C. District Court Decision The district court assumed that Tibbs had established a prima face case of race discrimination but concluded summarily that she had failed to show that YCS's legitimate non-discriminatory reason for her termination-insubordination during the July 29, 2008 meeting-was a pretext for race discrimination. R.50,pp. 9-10. According to the court, Tibbs produced "no evidence" that YCS fired her because of her race rather than because it believed she had been insubordinate. Id. at 10. The court appeared to be referencing its earlier finding that this Court's "honest belief rule" precluded Tibbs' age discrimination claim, as, according to the court, Golden honestly believed that Tibbs had been insubordinate. Id. at 7-8 (relying on Smith v. Chrysler Corp., 155 F.3d 799 (6th Cir. 1998)). The court did not acknowledge Tibbs' evidence of similarly-situated Caucasian teachers who were treated differently for engaging in similar misconduct or her other evidence of pretext. The court stated in a footnote that Tibbs did not have to show that race was the "but for" cause of her termination but failed to address Tibbs' argument that she could prevail on a mixed-motive theory of race discrimination even if she could not prove that racial discrimination was the sole reason for her termination. Id. at 9 n.1. ARGUMENT I. The court erred in granting summary judgment because Tibbs presented sufficient circumstantial evidence to allow a factfinder to determine that YCS fired her because of her race or that race was a motivating factor in her termination. Disparate treatment claims brought under Title VII "are often categorized as either single-motive claims, i.e., when an illegitimate reason motivated an employment decision, or mixed-motive claims, when 'both legitimate and illegitimate reasons motivated the decisions.'" Wright v. Murray Guard, Inc., 455 F.3d 702, 711 (6th Cir. 2006) (quoting Desert Palace v. Costa, 539 U.S. 90, 93 (2003)). In this case, Tibbs argued both claims, but the district court addressed only her "single-motive claim." As discussed below, the court erred in granting summary judgment on her single-motive claim based on the court's misapplication of the "honest belief" rule. The court also erred in overlooking Tibbs "mixed- motive claim," as the evidence was more than sufficient to allow a factfinder to determine that Tibbs' race was a motivating factor in her termination, even if other factors also motivated her termination. Accordingly, summary judgment should be reversed. A. The "honest belief" rule does not apply here and the circumstantial evidence, especially as to the treatment of similarly-situated Caucasian co-workers, would support a finding that YCS fired Tibbs because of her race. The district court granted summary judgment on Tibbs' "single motive" claim of discrimination based on its finding that Tibbs had presented "no evidence" that the reason given for her termination-subordination during the July 29 meeting with Golden-was a pretext for racial discrimination. R.50, p.10. The court appeared to base this conclusion on its belief that the "honest belief rule" precludes Tibbs' claim. See id. It does not. This Court adopted the "honest belief" rule in Smith v. Chrysler Corp., 155 F.3d 799, 806-07 (6th Cir. 1998). As this Court explained in Smith, the Seventh Circuit developed the honest belief rule in a series of cases. Id. at 806. The Seventh Circuit's rule provides that "so long as the employer honestly believed in the proffered reason given for its employment action, the employee cannot establish pretext even if the employer's reason is ultimately found to be mistaken, foolish, trivial, or baseless." Id. The rule's rationale is that discrimination suits focus on an employer's intent, so if an "employer honestly, albeit mistakenly, believes in the non-discriminatory reason it relied upon . . . then the employer arguably lacks the necessary discriminatory intent." Id. While this Court adopted the Seventh Circuit's rule, it criticized the Seventh Circuit's version of the rule as being entirely subjective. Id. Accordingly, this Court modified the rule, holding that it applies only when an employer reasonably relies on the particularized facts before it. Id. at 806-07. This Court explained that its standard does "not require that an employer's decisional process . . . be optimal or that it le[ave] no stone unturned" but that an employer must make "a reasonably informed and considered decision before taking an adverse employment action." Id. at 807-08. Thus, in applying the rule, courts must strike a balance between "micro-manag[ing]" an employer's decisional process and "blindly assum[ing] that an employer's description of its reasons is honest." Id. at 808. Since Smith, this Court has repeatedly stated that employers bear the burden of showing that the honest belief rule applies. See, e.g., Wright, 455 F.3d at 708; Clay v. United Parcel Serv., Inc., 501 F.3d 695, 714 (6th Cir. 2007). This Court has also explained that the honest belief rule comes into play only after the plaintiff establishes the prima facie case, the defendant proffers a legitimate non- discriminatory reason for the adverse action, and the plaintiff offers evidence that the reason is a pretext for discrimination because it is "'mistaken, foolish, trivial, or baseless.'" Wright, 501 F.3d at 714 (quoting Smith, 155 F.3d at 806). Only then does the employer have the opportunity of "rebut[ting] the plaintiff's evidence of pretext, by demonstrating that [its] actions, while perhaps mistaken, foolish, trivial, or baseless, were not taken with discriminatory intent" because the defendant honestly believed in the reason for its actions. Id. (internal quotation marks and citation omitted). In this case, Tibbs met her burden of offering evidence that YCS's proferred reason for her termination-purported insubordination during the July 29, 2008 meeting with Golden-was "baseless." Id. According to Tibbs and Morrison,<7> Tibbs was not insubordinate or disrepectful. Rather, it was Golden who yelled at Tibbs, made demeaning comments, slammed her fist on the table, and brought Tibbs to tears. See supra pp. 8-10. Harper's testimony also tends to corroborate Tibbs' account of the meeting, as Harper's undisputed testimony was that it was Hommel-not Tibbs-who had been upset, angry, and threatening to quit prior to meeting with Golden. Thus, a factfinder hearing all of the evidence and weighing the credibility of the witnesses could credit Tibbs' and Morrison's testimony and determine that although Tibbs left the meeting with Golden prematurely-after being insulted and yelled at in front of her younger co-worker-she was not insubordinate. Because Tibbs "contested the facts underlying [her] termination," a factfinder could infer that the real reason for her termination was her race. See Hamilton v. Gen. Elec. Co., 556 F.3d 428, 437-38 (6th Cir. 2009) (plaintiff established a fact question as to whether his termination for misconduct was a pretext for retaliation where he denied using profanity or refusing orders to return to work and said he had been subject to increased scrutiny). YCS nevertheless argued below that Tibbs' evidence was insufficient to overcome summary judgment because Golden honestly believed that Tibbs had been insubordinate.<8> R.42, p.5-6. This argument, which the district court evidently accepted, misses the mark. The honest belief rule comes into play only where information about an employee's conduct, performance, or condition is relayed to a decisionmaker who takes an adverse action based on an honest belief in the veracity of that information, even if the information later proves to be mistaken; the rule does not apply where, as here, the decisionmaker herself observes and acts on the employee's purported misconduct and the employee produces evidence disputing that any misconduct occurred. See, e.g., Escher, 627 F.3d at 1031 (rule applied where decisionmaker fired the plaintiff after receiving reports of his computer misuse and conducting an investigation); Wright, 455 F.3d at 708-09 (rule applied where decisionmaker decided to terminate the plaintiff after information about the plaintiff's misconduct and performance were relayed to him by others); Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001) (rule applied where employer verified the plaintiff's performance lapses, investigated his relationship with his supervisor, documented his declining performance, and investigated a payroll incident before firing him); Archer v. Mesaba Aviation Inc., 2000 WL 376677, at *5 (6th Cir. April 3, 2000) (rule did not apply where decisionmaker's investigation of plaintiff's purported misconduct was not reasonably thorough); Smith, 155 F.3d at 16 (rule applied where employer relied on three doctor's opinions in concluding that plaintiff lied on his driver's license exam about being narcoleptic). Accordingly, the district court erred in holding that YCS showed that the honest belief rule bars Tibbs' claim.<9> Tibbs also presented evidence that even if her purported insubordination had some basis in fact, it "did not actually motivate the adverse employment action" and/or "was insufficient to warrant the adverse action," which would allow a factfinder to determine that race was the reason for her termination. Ladd v. Grand Trunk W. R.R., Inc., 552 F.3d 495, 502 (6th Cir. 2009); see also Smith, 155 F.3d at 805-06 (pretext can be shown by offering evidence that the proffered reason "was never used in the past to discharge an employee"). Most significantly, Tibbs offered evidence-which the district court did not even acknowledge-that similarly-situated Caucasian teachers engaged in the same or similar misconduct but were not fired. The district court clearly erred in overlooking this evidence, as this Court has held that it can establish pretext. See Harrison v. Metro. Gov't, 80 F.3d 1107, 1117 (6th Cir. 1996) (affirming that proffered reason for plaintiff's termination was a pretext for racial discrimination where employer treated Caucasian and African-American employees differently under its "clean slate" and progressive discipline policies), overruled on other grounds by Harris v. Forklift Sys., 510 U.S. 17 (1993); see also Weigel v. Baptist Hosp. of East Tenn., 302 F.3d 367, 378 (6th Cir. 2002) (employees can show pretext by pointing to similarly- situated employees who received disparate treatment for the same conduct). To be "similarly situated" in the disciplinary context, the plaintiff and the proposed comparators must have engaged in misconduct of "comparable seriousness." Wright, 455 F.3d at 710. In determining whether acts of misconduct were of "comparable seriousness," this Court may look at whether the comparators had the same supervisor, were subject to the same standards, and "engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it." Id. (internal quotation marks and citation omitted). When such factors are not relevant, however, this Court does not consider them. Id. Rather, this Court makes an independent determination as to the relevance of a particular aspect of the plaintiff's employment status and that of a proposed comparator. Id. Here, Tibbs' comparators were similarly situated. Even if Tibbs' conduct during the July 29 meeting could be characterized as misconduct, she identified three Caucasian teachers working under Golden who were subject to the same conduct standards and engaged in similar conduct but were not fired: Lynn Short, Laura McCluney, and Amy Erickson. On March 6, 2009, Golden herself wrote up Short and McCluney for engaging in conduct she labeled "unprofessional," "unethical," "destructive," and "appalling" when they accused Golden and Johnson of rigging a drawing as to which classroom would be assessed. On August 4, 2010, Short told her the plans for the Zebra room were "ludicrous" and Golden was "asking for trouble," and McCluney reacted negatively to hearing the plans for her room, telling Golden that she was not "respect[ing] us," was "singling us out," and was being unfair. Most tellingly, on August 10, 2010, Short, McCluney and Erickson used a "tone and attitude" that-according to Golden herself-was "very hostile, insubordinate and unprofessional" in talking with her. But, again, Golden did not fire anyone. This evidence is more than enough to allow a factfinder to determine that race discrimination was the real reason for Tibbs' termination, not her purported insubordination. See Shaw v. Tulsa Dynaspan Arrow Concrete, 2011 WL 263205, at *3 (10th Cir. Jan. 28, 2011) (unpublished) (plaintiff established a fact question as to whether his termination was based on race where he presented evidence that a similarly-situated non-protected employee violated the same work rule (arguing with a customer) but was not fired). YCS argued below, however, that this evidence was insufficient to establish a fact question as to pretext because "there is no testimony regarding the circumstances surrounding these incidents." R.42,p.8. This argument is meritless. The documents in the record, which are YCS's own internal documents, sufficiently detail the circumstances surrounding these incidents. Indeed, Golden's March 6, 2009 written reprimand of Short and McCluney provides a page-long description of the circumstances surrounding their misconduct. Similarly, Golden's August 4, 2010 memorandum about Short's and McCluney's reaction to proposed changes to their rooms provides a bullet-point list of what each woman said during the conversation. Finally, Golden's August 20, 2010 memorandum is even more detailed; it reads as a verbatim transcript of the conversation she had with Short, Erickson, and McCluney and describes their "insubordinate and unprofessional" tone and attitude. Given the detail contained in these documents, no testimony was needed to allow a fact finder to determine that no "differentiating or mitigating circumstances" justifies Golden's disparate treatment of Tibbs and her Caucasian co-workers for the same or similar misconduct. Wright, 455 F.3d at 710. YCS also argued below, without citation to any authority, that the lapse in time between Tibbs' termination and the misconduct of Short, Erickson, and McCluney destroys their similarity. R.42,pp.8-9. It does not.<10> This Court has apparently never addressed explicitly whether comparators' misconduct must precede or occur within close temporal proximity of the plaintiff's misconduct in order to show pretext. While in one case this Court suggested it may be a factor, in other cases this Court has relied on evidence of how similarly-situated employees were treated months or even years after the plaintiff's misconduct to show discrimination. Compare Escher, 627 F.3d at 1030 (treatment of similarly-situated individuals who also misused the internet and computer did not show discrimination where "these employees were disciplined after" the plaintiff's termination and "none of them engaged in personal business or had the same degree" of personal e-mail use) with Perry v. McGinnis, 209 F.3d 597, 601 (6th Cir. 2000) (plaintiff was similarly-situated to Caucasian co-workers where they testified in depositions taken at least three years after his termination that they "commit[] a typographical error in every hearing report" and make other errors but are never disciplined) (emphasis added); Campbell v. Univ. of Akron, 211 Fed. Appx. 333, 346 (6th Cir. Oct. 17, 2006) (unpublished) (where plaintiff was disciplined in December 2004 for improper use of locks, relying on Caucasian co- worker's July 29, 2005 affidavit stating that the locks "were and are routinely" misused without consequence in finding that the plaintiff established a fact question as to pretext). Any requirement that in order to be similarly situated comparators must engage in their misconduct before, or soon after, the plaintiff's misconduct would be inconsistent with this Court's repeated admonition that in applying the similarly-situated standard, "courts should not demand exact correlation, but should instead seek relevant similarity." Perry, 209 F.3d at 601. As this Court has noted, to require exact correction would make claims of discrimination "'inoperable'" because employees are not products of a set of cookie cutters. Wright, 455 F.3d at 709-10 (internal quotation and citation omitted). Finally, the adoption of a per se rule requiring that comparators engage in misconduct prior to, or shortly after, the plaintiff would seriously undermine the vitality of circumstantial evidence. Here, Tibbs' proposed comparators engaged in their misconduct seven and a half months to twenty-five months after her termination. Given the other compelling evidence of similarity between Tibbs and her comparators-same position, same supervisor, same conduct standards, and same (or very similar) misconduct-the lapse in time between Tibbs' termination and her comparators' misconduct does not destroy their similarity. In any event, a factfinder could also find that Golden's failure to fire Short in January 2008 after a baby under her supervision fell from her crib, or in June 2008 for treating a sick child with anger and roughness while taking her temperature rectally, shows racial discrimination. Short was certainly "similarly situated" in terms of having the same supervisor, holding the same position as Tibbs (and even at the same time), and being subject to the same standards as Tibbs. A factfinder could also conclude that Short's misconduct on these occasions was at least of "comparable seriousness" to Tibbs' purported insubordination. While Tibbs may have offended Golden by speaking loudly and talking over her, Short's conduct endangered two babies and cast into doubt her ability to adequately and affectionately care for babies. See Harrison, 80 F.3d at 1116 (Caucasian co- workers at animal control center engaged in conduct "at least as comparable in seriousness" as the plaintiff where they had multiple vehicular accidents, were caught speeding, improperly removed dogs from pound property, showed up drunk to work, drove without a driver's license and while intoxicated, and where the plaintiff allegedly had four driving accidents but was ticketed for just two of them, encouraged an employee to pick up cats, was rude to the public, and failed to report an accident). Similarly, a factfinder could determine that Golden's failure to fire Linda Scott after she said at the July 23, 2008 staff meeting that she "sure as hell don't want to work" with another employee showed that Tibbs' termination was due to her race; a factfinder could determine that using profanity during a staff meeting in responding to Golden was at least-if not more-egregious than Tibbs' use of a loud voice in talking with Golden and leaving their meeting early because she was in tears. And, certainly, this incident occurred within close proximity (six days) of Tibbs' termination. Finally, a factfinder could conclude that Golden's other disparate treatment of Tibbs showed that her termination was based on race. Tibbs offered evidence that Golden required her to obtain a doctor's release before returning to work but did not require Caucasian employees who missed more than three days of work to obtain a doctor's release. Additionally, Morrison and Stevens testified that Golden singled Tibbs out because of her race and treated her differently. B. Tibbs' evidence was more than sufficient to overcome summary judgment on her mixed-motive claim. The district court erred in failing to address Tibbs' mixed-motive claim because a factfinder could easily determine that Tibbs' race was a motivating factor in her termination, even if Tibbs' conduct during the meeting with Golden also motivated the termination. To prevail under the mixed-motive paradigm, a plaintiff must show only that race was "a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e-2(m). Direct or circumstantial evidence can support a mixed-motive claim. Desert Palace, 539 U.S. at 101-02. If a plaintiff shows that race was a motivating factor, even though other factors motivated the decision, the employer can avail itself of a limited defense by showing that it "would have taken the same action in the absence of the impermissible motivating factor." 42 U.S.C. § 2000e-5(g)(2)(B). This limited defense applies to damages, back pay, and reinstatement, but not to declaratory or injunctive relief or attorneys' fees. Id. This Court has held that in order to overcome a motion for summary judgment, "a Title VII plaintiff asserting a mixed-motive claim need only produce evidence sufficient to convince a [factfinder] that: (1) the defendant took an adverse employment action against the plaintiff; and (2) 'race, color, religion, sex or national origin was a motivating factor' for the defendant's adverse employment action," even though other factors also motivated the action. White v. Baxter Healthcare Corp., 533 F.3d 381, 400 (6th Cir. 2008) (quoting 42 U.S.C. § 2000e- 2(m)) (holding that the McDonnell Douglas burden-shifting framework does not apply at summary judgment to mixed-motive claims). "This burden of production is "not onerous and should preclude sending the case to" trial "only where the record is devoid of evidence that could reasonably be construed to support the plaintiff's claim." Id. While this summary judgment standard is "relatively lenient," it "is counterbalanced by [the] restrictions on a plaintiff's recovery for a mixed-motive claim." Spees v. James Marine, Inc., 617 F.3d 380, 390 (6th Cir. 2010). Here, Tibbs more than satisfied her burden of production. Her termination unquestionably constitutes an adverse action. Even assuming that Tibbs was insubordinate during the July 29 meeting, her considerable evidence of similarly- situated Caucasian employees who engaged in the same or similar misconduct but were not fired, which is discussed above in Section I.A., raises a question of fact as to whether her race was a motivating factor in her termination. See Desert Palace, 539 U.S. at 101-02 (circumstantial evidence can support a mixed-motive claim); Graham v. Best Buy Stores, 298 Fed. Appx. 487, 495 (6th Cir. Oct. 22, 2008) (unpublished) (considering whether the plaintiff's evidence of a similarly-situated Caucasian employee who was punished less harshly for violating same employee discount policy established mixed motive). A factfinder could also determine that Tibbs' race was a motivating factor based on her co-workers' testimony that Golden singled her out for disparate treatment, including having to produce a doctor's note after being out on leave. Accordingly, YCS was not entitled to summary judgment on this claim. See generally White, 533 F.3d at 404-06 (summary judgment on mixed-motive claim inappropriate where plaintiff offered evidence that decisionmaker's discriminatory animus was a motivating factor in his downgraded performance evaluation). Respectfully submitted, P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel ________________________ /s/ ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, 5th Fl. Washington, D.C. 20507 (202) 663-4724 Annenoel.Occhialino@EEOC.gov CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the type-volume requirements set forth in Fed. R. App. P. 32(a)(7)(B) and Fed. R. App. P. 29(d). This brief contains 6,968 words, from the Statement of Interest through the Conclusion, as determined by the Microsoft Word 2003 word processing program, with 14-point proportionally spaced type for text and 14-point proportionally spaced type for footnotes. ________________________ s/ ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, 5th Fl. Washington, D.C. 20507 (202) 663-4724 Annenoel.Occhialino@EEOC.gov CERTIFICATE OF SERVICE I hereby certify that on June 15, 2011 I electronically filed the foregoing with the Clerk of Court using CM/ECF, which will provide notice to counsel and parties listed below: Plaintiff-Appellant David L. Cooper Third Ave. North Building 208 Third Ave. North, Ste. 300 Nashville, TN 37201 Defendant-Appellee Matthew C. Lonergan Bradley, Arant, Boult & Cummings, LLP 1600 Division St., Ste. 700 P.O. Box 340025 Nashville, TN 37203 _________________________ s/ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, 5th Fl. Washington, D.C. 20507 (202) 663-4724 Annenoel.Occhialino@EEOC.gov ********************************************************************************** <> <1> The Commission expresses no opinion on any other issue presented. <2> The Plaintiff also brought an ADEA claim. That claim is discussed only as it relates to the court's ruling on Tibbs' race discrimination claims. <3> According to Golden, the assistant director said that Tibbs wanted to return on "light duty," which was unavailable, and Golden wanted to be sure Tibbs could work regular duty. R.28,¶¶ 4-6. Tibbs denied requesting light duty. R.43,¶ 70. <4> According to Golden, Tibbs was out for three days in April 2008 and was not required to submit a doctor's note because she had not requested to return on light duty. R.28,¶7. <5> The record contains a draft PIP for Tibbs. R.26-1,Ex.3. This seems peculiar given Golden's testimony that she only decided at lunch on July 29 to put Tibbs on a PIP and that she never had the opportunity to do so because she fired her that afternoon. R.26-1(Golden Depo.204). In her deposition, Golden first testified that she drafted the PIP after July 29. R.38-3(Golden Depo.200). Then she back- tracked, saying alternately that it was written before July 29 or that she could not recall when she wrote it. Id. at 200-02. <6> Golden put McCluney on a PIP; McCluney refused to sign it and instead resigned. R.48,9. <7> While Morrison did not overhear the entire meeting, she clearly overhead most of it. <8> YCS's argument is premised on Golden being the decisionmaker. R.43,p.5. The record supports this conclusion. While Golden consulted with Anderson and Calvert before firing Tibbs, it is clear she made the final decision. See Escher v. BWXT Y-12, LLC, 627 F.3d 1020, 1030 (6th Cir. 2010) ("[W]hile Johnson may have consulted with others before making her decision [to fire the plaintiff], the record makes it unambiguously clear that she made the ultimate decision . . . ."). <9> Even if YCS stretched the record to say that Calvert was the decisionmaker, the honest belief rule would not apply here because YCS failed to show that Calvert's decision to fire Tibbs for insubordination was based on an honestly held belief grounded on particularized facts before her at the time. There is no evidence that Calvert conducted any kind of investigation-such as interviewing Tibbs, Morrison, Hommel or any employees besides Golden and Johnson-or that she considered how other employees who engaged in "insubordination" were treated. Cf. Escher, 627 F.3d at 1031 (honest belief rule applied where decisionmaker "made a reasonably thorough investigation" including reviewing documents, talking to the plaintiff and others, and "carefully consider[ing] the treatment of other employees" and the company's conduct policy). In fact, employers often point to such evidence to show that they did not discriminate. See, e.g., Campbell v. Univ. of Akron, 211 Fed. Appx. 333, 337 (6th Cir. Oct. 17, 2006) (unpublished) (relying on evidence that a year after African- American plaintiff was disciplined for insubordination so was a Caucasian employee).