No. 08-16749 _______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _______________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff/Appellant, v. TIN, INC., Defendant/Appellee. _______________________________________________________ On Appeal from the United States District Court for the District of Arizona (No. 2:06-cv-1899-NVW) _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _______________________________________________________ RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ELIZABETH E. THERAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L St., N.W. Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . iv STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Course of Proceedings. . . . . . . . . . . . . . . . . . . . . . . 2 B. Statement of the Facts. . . . . . . . . . . . . . . . . . . . . 2 C. District Court's Decision. . . . . . . . . . . . . . . . . . . . 18 STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . 27 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 28 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO TIN BECAUSE THERE IS SUFFICIENT EVIDENCE TO SUPPORT A JURY FINDING THAT CLASS MEMBERS NEAL, MCGRAW, AND VANECKO WERE TERMINATED BECAUSE OF THEIR AGES. . . . . . . . . . . . . . 29 A. The district court erred in holding that the age-related remarks at issue do not constitute direct evidence of age discrimination under binding precedent of this Court. . . . . . . . . . . . . . . . . . . . . . . . . .32 B. Even if this Court were to find that the age-related remarks at issue were not direct evidence of age discrimination, they are unquestionably circumstantial evidence of age discrimination. . . . . . . . . . . . . . 38 C. As to each remaining class member, the direct and circumstantial evidence of age discrimination in the record, taken together and viewed as a whole, is sufficient to support a jury finding that he was terminated because of his age. . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 1. Neal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 2. McGraw. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 3. Vanecko. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 STATEMENT OF RELATED CASES. . . . . . . . . . . . . . . . . . . . . . . . 50 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . 51 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079 (9th Cir. 2005). . . . . 27 Am. Bankers Ass'n v. Gould, 412 F.3d 1081 (9th Cir. 2005). . . . . . . . 27 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). . . . . . . . . 27, 31 Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006). . . . . . . . . . . . . . 48 Bergene v. Salt River Project Agr. Imp. & Power Dist., 272 F.3d 1136 (9th Cir. 2001). . . . . . . . . . . . . . . . . . 32 Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . passim Coghlan v. Am. Seafoods Co., 413 F.3d 1090 (9th Cir. 2005). . . . . . passim Connecticut v. Teal, 457 U.S. 440 (1982). . . . . . . . . . . . . . . 37-38 Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018 (9th Cir. 2006).21, 30 Davis v. Team Elec. Co., 520 F.3d 1080 (9th Cir. 2008). . . . . . . . . 21 Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). . . . . . . . . 20, 29, 30 Diaz v. Am. Tel. & Tel., 752 F.2d 1356 (9th Cir. 1985). . . . . . . . . 38 Dominguez-Curry v. Nev. Transp. Dep't, 424 F.3d 1027 (9th Cir. 2005) .passim EEOC v. United Parcel Serv., Inc., 424 F.3d 1060 (9th Cir. 2005) . . . 27 Enlow v. Salem-Keizer Yellow Cab Co., 389 F.3d 802 (9th Cir. 2004).18-19, 32 Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840 (9th Cir. 2004).20 Godwin v. Hunt Wesson, Inc., 150 F.3d 1217 (9th Cir. 1998) . . . 19-20, 32 Kang v. U Lim Am., Inc., 296 F.3d 810 (9th Cir. 2000) . . . . . . . . . 34 Lowe v. City of Monrovia, 775 F.2d 998 (9th Cir. 1985). . . . . . . . . 28 Lyons v. England, 307 F.3d 1092 (9th Cir. 2002). . . . . . . . . . . . . .28 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). . . . . . . . . . . . . . . . . . . . . . . .27 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). . . . .18, 19, 39, 43 McGinest v. GTE Serv. Corp., 360 F.3d 1103 (9th Cir. 2004). . . 30, 39, 43 Menotti v. City of Seattle, 409 F.3d 1113 (9th Cir. 2005). . . . . . 27 Merrick v. Farmers Ins. Group, 892 F.2d 1434 (9th Cir. 1990). . . 22, 40 Metoyer v. Chassman, 504 F.3d 919 (9th Cir. 2007). . . . . . . . . passim Nesbit v. Pepsico, Inc., 994 F.2d 703 (9th Cir. 1993). . . . . . . . . 40-41 Nidds v. Schindler Elevator Corp., 113 F.3d 912 (9th Cir. 1997). . . . . .40 Odima v. Westin Tucson Hotel, 53 F.3d 1484 (9th Cir. 1995). . . . . . 48, 49 Pottenger v. Potlatch Corp., 329 F.3d 740 (9th Cir. 2003). . . . . . passim Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185 (9th Cir. 2003). . . . . . . . . . . . . . . 48, 49 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). . . . . . 31 Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406 (9th Cir. 1996). . . . . .39 Sischo-Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104 (9th Cir. 1991). . . . . . . . . . . . . . . . . . 39 Stegall v. Citadel Broad. Co., 350 F.3d 1061 (9th Cir. 2004). . . . . 20, 30 U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983). . . 30 STATUTES 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1343. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1345. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. . . 1 29 U.S.C. § 623(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . 29 RULES Fed. R. App. P. 32(a)(7)(B)(iii). . . . . . . . . . . . . . . . . . . . . 51 Fed. R. App. P. 32(a)(7)(C). . . . . . . . . . . . . . . . . . . . . . . 51 Fed. R. App. P. 34(a)(1). . . . . . . . . . . . . . . . . . . . . . . . 1 Ninth Cir. R. 28-2.6. . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Ninth Cir. R. 32-1. . . . . . . . . . . . . . . . . . . . . . . . . . . 51 STATEMENT REGARDING ORAL ARGUMENT This appeal raises significant issues involving the proper standards for evaluating direct and circumstantial evidence of age discrimination and the correct application of summary judgment standards. These principles are critical to civil rights enforcement, and Plaintiff/Appellant the Equal Employment Opportunity Commission (hereinafter "EEOC" or "Commission") believes that further exploration of these issues at oral argument would assist this Court in properly resolving this appeal. See Fed. R. App. P. 34(a)(1). STATEMENT OF JURISDICTION This is an enforcement action brought by the EEOC pursuant to the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621 et seq. The district court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1345. Final judgment was entered on June 2, 2008. I-ER-1. The EEOC filed a timely notice of appeal on July 31, 2008. II-ER-30. This Court has jurisdiction under 28 U.S.C. § 1291. STATEMENT OF ISSUES 1. Whether the district court erred in ruling that none of the comments made by the decisionmakers in this case constituted direct evidence of age discrimination. 2. Whether the district court erred in ruling that the EEOC failed to adduce sufficient evidence of age discrimination as to class members Neal, McGraw, and Vanecko to survive summary judgment. STATEMENT OF THE CASE A. Course of Proceedings This is an appeal from a final judgment of the district court dismissing this ADEA enforcement action. The EEOC's complaint alleges that the defendant violated the ADEA by terminating the employment of David C. Neal and a class of individuals, age 40 or older, because of their ages. III-ER-439. On June 2, 2008, the district court granted the defendant's motion for summary judgment with respect to all claims. I-ER-2. The district court entered judgment the same day. I- ER-1. The EEOC filed a notice of appeal on July 31, 2008. II-ER-30. B. Statement of the Facts The defendant, Temple Inland, Inc. ("TIN"), is a manufacturing company that makes containerboard, a type of heavy brown paper that it converts into corrugated packaging products and specialty point-of-purchase displays. III-ER- 418. TIN operates several paper mills that produce containerboard and a number of box plants that convert containerboard into end products, located across the United States and in Mexico. Id. In 2002, TIN acquired several corrugated box plants previously owned by Gaylord Container Corporation, including the plant at issue in this case, which is located in Glendale, Arizona, but is consistently referred to as the "Phoenix plant." III-ER-418-19. After TIN acquired the Gaylord plants, it placed three of them, including the Phoenix plant, into TIN's International Group, of which Birg Mishurda (d/o/b 3/11/51) was the Vice President. Id.; II-ER-86. Management of the plants within the International Group, including Phoenix, reported to Mishurda. III-ER-418-19, 425, 426. In the summer of 2002, Mishurda created geographical regions within the International Group and placed the Phoenix plant within the Pacific Frontier Region, which meant that the plant would report directly to Regional Manager Juan Ramon Garza (d/o/b 8/19/61). III-ER-425-26. The three class members at issue in this appeal, David Neal, Clifton McGraw, and John Vanecko,<1> were all over age 40 at the time of their respective terminations and all worked at the Phoenix plant, but did so at somewhat different times and held different positions. David Neal (d/o/b 7/31/46) was the General Manager of the Phoenix plant from June 1997, prior to its acquisition by TIN, through January 10, 2003, when Mishurda terminated Neal's employment. II-ER- 218, 268. According to Neal, at his very first meeting with Mishurda in the spring of 2002, Mishurda asked him "the age, energy level and commitment of each member of [his] management team at the Phoenix plant," and told him various stories of how younger members of his staff, to whom he referred as "young lions" and the "dream team," had used their vitality and "new blood" to their advantage on the job. II-ER-246, 247, 268-69. Neal also testified that Mishurda asked Neal his own age at that first meeting and discussed Neal's "lifestyle, [] vitality, [] mental acuity, [] physical condition, and [] energy." II-ER-269. Neal related that Mishurda told him a story about how Mishurda had taken his management team up to Montana and "the senior guys, the older guys sat around inside while he and the younger people went outside and jogged, skied, horse backed, whatever they did, and he made a correlation between their lack of involvement and their performance on the job and how that bothered him that they weren't really engaged, they weren't really creative, they weren't really vital, they were not part of the dream team. He also called it the roster of champions, as I recall." II-ER-248-49, 269. Neal also testified that, in November of 2002, Mishurda made several age- related remarks pertaining to the selection of a new Production Manager for the Phoenix plant. Neal testified that Mishurda vetoed one candidate, Greg Moss, because of his relative older age and because of concerns about his "energy, creativity, retiring on the job, . . . [and] not [being] part of that young thinking sort of mentality.'" II-ER-242, 254, 270. Neal also testified that, when he sought to hire Cliff McGraw for the same position, Mishurda cautioned him against doing so, "launch[ing] into a conversation on age, energy, this is a man who is at the end of his career, is he going to retire on the job. We need energy, we need new ideas, we need new blood and these kinds of comments." II-ER-240. Neal testified that he responded by reviewing the various ways in which McGraw fit all the criteria for the position, and Mishurda replied, "You seem to have a tendency to hire older people." II-ER-241. Neal related that Mishurda also observed that McGraw "has the same kind of profile of some of the other people, to include Mr. Moss, . . . and that it appeared to him that he might have a tendency to retire on the job, that he might have a tendency not to have the energy, as a production manager's position was a very fast moving, energetic kind of position." II-ER-241-42. According to Neal, Mishurda concluded that he did not feel that McGraw was the best candidate for the job, but that he would allow Neal to hire him, cautioning Neal that "[t]his is a significant decision you are making for your future. . . . This person had better be the right person to help take the plant to the next step." II-ER-242. Neal testified that, during his time as General Manager, he had heard Mishurda make age-biased comments about other TIN employees and job candidates as well, asking one candidate for a sales manager position, Mike Ulrich, in approximately June of 2002 whether he "really want[ed] to go back to a young man's game. . . . [I]t's hot out there, do you really want to go pounding the bricks? It's a young man's job. This job requires adroitness, flexibility, new thinking, young blood." II-ER-227. Ulrich corroborated Neal's recollection of the meeting with Mishurda, recalling that Mishurda questioned whether, "compared to a young guy, would you be willing to go out into that hot Phoenix sun, climb the stairs and make the sales calls with your sales rep? A young guy would be hungry and maybe have more energy." II-ER-212. According to Neal, Mishurda specifically forbade Neal to hire Ulrich, who was in his early to mid-fifties at the time, because of his concerns with respect to Ulrich's "energy and age and vitality." II-ER-230. Neal also testified about a meeting with Mishurda and Garza at which Mishurda expressed his concern that two other employees in their fifties, Dick Bergren and Dick Reed, were older, lacking in energy, and could potentially be "retiring on the job." II-ER-250. Neal related that, at the meeting where Bergren and Reed were discussed, he fell on the floor and feigned a heart attack to "try to bring some humor to the situation and [say], 'Hey, look, I jog three times a day, I'm vital. We are always talking about this subject matter. It's not appropriate.'" II-ER-250-51. According to Neal, Mishurda and Garza responded by saying to Neal, "Well, we are not talking about you." II-ER-251. Neal also testified about another meeting at which Mishurda stated that "we need an all out, high-energy sales effort and perhaps it was time to move Martin Monkewicz, a younger field sales manager, into [Bergren's] position." II-ER-252. At the time of the meeting, Monkewicz was thirty-seven.<2> Id. By December 2002, Mishurda and Garza were discussing Neal's potential termination. III-ER-427. Over the course of the next month, Mishurda and Garza made the decision to terminate Neal, ostensibly based on the following three reasons: Mishurda's belief that Neal could not improve the plant's performance as quickly as TIN wanted; Mishurda's perception that Neal did not accept Garza as his manager; and Mishurda's belief that Neal was more focused on receiving a payout under the Severance Compensation Agreement and Change of Control Agreement executed between Neal and Gaylord, the previous owner of the plant, than he was on the business of the plant. III-ER-421, 427. However, Neal testified that neither Mishurda nor Garza ever gave him a negative performance review or told him that his job was in jeopardy because of the plant's lack of profitability or for any other reason. II-ER-222-23, 270. According to Neal, the only performance review he had was a meeting that he specifically requested with Garza in November 2002 "[b]ecause up to that point there was no written review, there was no formal sit-down about how we were doing." II-ER-244, 270. Neal testified that, at that meeting, Garza stated that he was "happy with our business plan" and with its implementation, and that, when Neal asked Garza how he was feeling about Neal's future with the company, Garza told him that he had a positive view of his performance, although Neal did not recall the exact words Garza used. II- ER-245-46, 270. Neal also testified that he confronted Garza about Mishurda's age-related comments, and that Garza told him that these remarks were "just the way Birg talks, don't worry about it. It doesn't mean anything for you." II-ER- 246-47, 270. Neal also offered testimony about the various factors that affected whether a given plant was performing adequately and contributing to the overall viability and profitability of the parent company. According to Neal, there are factors other than profitability that are relevant to a plant's contribution to the parent company's overall well-being, including the role that plant plays in the company's integrated strategy (i.e., consuming roll stock from the mill system), supporting national business at sister plants, geographic issues, functioning as a proving ground for future managers, innovation of key initiatives, and so forth. II-ER-270. Moreover, Neal related, there are various factors that affect a plant's profitability that cannot be attributed to the performance of a single factor or person, including "the amount of competition in the market place (supply and demand), roll stock cost, labor market, age of the equipment, appropriate equipment for mix of business the plant is forced or requested to run, labor contracts, distance to key customers (freight cost[)], local tax structure, [and] corporate allocations." II-ER-271. Other witnesses also testified about the extent to which the overall profitability of any given plant, or the Phoenix plant specifically, was outside of a given General Manager's control and/or subject to the control of TIN's central corporate management. Hector Flores, who worked at the Phoenix plant as its General Manager from approximately May 2004 through February 2006 (and for about eight months prior to that as a consultant at the plant), explained that the paper industry, including TIN, is "fully integrated," meaning that the same company "owns both the box plants that produce corrugated products, and the mills that produce and supply the raw paper used by the plants in making corrugated products." II-ER-202. As a result, Flores testified, the price that the plants pay the mills for the paper they use is set by TIN; "[w]hen TIN increases the price of paper, the mills become more profitable, and the box plants become less profitable." Id. As Flores explained, a plant can try to preserve its profit margin by passing the price increase along to customers, which is what TIN did, but in a heavily oversupplied product market such as the one in the Phoenix area, the customers responded simply by putting their business up for bid, which resulted in TIN's having to "bid a lower selling price than before the attempt to increase the price in order to keep the customer's business." II-ER-202-03. Flores's testimony on these points was corroborated by John Vanecko, the Controller of the Phoenix plant from approximately October 2000 through January 2005. Vanecko testified that, although "Dave Neal would say that we should do our darnedest to achieve a profit," the paper industry was "somewhat unique in the fact that it's fully integrated. The box plants are the other end. The money is made at the mills." II-ER-128. As Vanecko explained, because "[t]he corporate office determines to a large degree what the box plant will pay for its paper," the Phoenix plant became more profitable immediately after it was acquired by TIN because TIN "used a different transfer pricing mechanism. And so immediately the paper cost became less." II-ER-128-29. Vanecko also testified that "[m]ultiple factors, some outside the control of local management, contribute to whether a box plant is making money, including depreciation costs, other fixed costs, sales, and paper costs, as well as whether the plant is focused on maximizing the capacity of the supplying paper mill." II-ER-208. He noted that the Phoenix plant had particularly high depreciation costs for its capital items that appeared as fixed costs and affected the plant's profitability, and that TIN's corporate office had several options available to it to write off the depreciation costs on these items, reduce fixed costs, and improve the plant's future profitability, but the corporate office never did so. II-ER-209. Vanecko also testified about the problem of the Phoenix market being oversupplied, and that TIN's corporate management made a significant change in its business strategy in an attempt to address the problem: "[T]he initial message I was hearing was we want you to be profitable and we want you to go after profitable business. And then later I'm hearing, no, what's really going on is we want the mills to be operating at 100 percent capacity, go out there and get whatever business it takes to fill up the box plant to use the tonnage." II-ER-170. Vanecko testified that it was under Neal as General Manager when he was told that profitability was critical, but, after Neal left, he heard from various individuals, including Garza, that profitability was no longer of paramount concern. II-ER- 172-73. Neal's employment was terminated on January 10, 2003. III-ER-427. Neal was replaced in his position by Garza, who, at forty-one, was fifteen years younger. III-ER-421. Garza served as the interim General Manager from January 2003 through May 2004, while also remaining the Regional Manager for the Pacific Frontier Region. III-ER-428. The Phoenix plant continued to be unprofitable under Garza's management, with the plant suffering its largest monthly loss for the period from January 2002 through December 2004 in August 2003, when Garza was General Manager. II-ER-65. Clifton McGraw (d/o/b 4/23/41), the second class member, was hired as the Production Manager for the Phoenix plant on November 4, 2002. III-ER-380. In this position, he reported to the General Manager of the Phoenix plant; at the time McGraw was hired, this was David Neal. After Garza replaced Neal in the General Manager position in early 2003, McGraw began reporting directly to Garza. III-ER-385, 428. McGraw testified that, based on the "few conversations" that he had with Garza about his performance as Production Manager, Garza "seemed to be satisfied with what I was doing." III-ER-385. In late 2003, Garza created a new position at the Phoenix plant, Logistics Manager, which included responsibility for the customer service department, the shipping department, and the scheduling department, as well as obtaining the paper purchases in the plant.<3> II-ER-69. Garza transferred McGraw into the Logistics Manager position on January 5, 2004, and replaced him in the Production Manager position with Felipe Juarez (d/o/b 1/18/61), who was twenty years younger than McGraw and had previously been working at a TIN plant in Mexico. II-ER-70; III-ER-385-86. McGraw testified that he viewed the Logistics Manager position as a demotion from the Production Manager position, even though it involved the same pay and benefits, because it gave him "less to do" and removed the engineering aspects of his job, focusing more on the sales service side. III-ER-389-90. Meanwhile, Flores, who supervised Juarez as Production Manager, testified that Juarez was "overbearing and unable to get along with or communicate effectively with his peers or with the employees he supervised" and that at least one of Flores's employees complained to an employee hotline about Juarez's behavior. II-ER- 204-05. Mishurda also testified that Juarez "was having a rough time as a production manager" at the Phoenix plant, meaning that "[h]e wasn't getting the results that we had hoped for," and that, as a result, Mishurda decided to promote Juarez to a potentially more lucrative position as a staff engineer in TIN's Mexican operations division. II-ER-92-95. McGraw remained in the Logistics Manager position until May 13, 2004, when Garza, with Mishurda's approval, eliminated the position and terminated McGraw's employment. II-ER-72. According to TIN, the reason for eliminating the Logistics Manager position was solely related to its effort to reduce fixed costs at the Phoenix plant. Id. However, the record reflects that TIN in fact created the Logistics Manager position - a move that increased its fixed costs by increasing salary costs - during this same time period when it was allegedly trying to decrease its fixed costs. II-ER-209. Moreover, the record also reflects that the 2004 budget for salaries for the Phoenix plant was higher than the 2003 actual salary costs, which reflects that TIN was not trying to reduce overall fixed costs at the Phoenix plant through reducing salary costs, i.e., by eliminating McGraw's position. IV-ER-460. John Vanecko (d/o/b 4/24/44), the third class member, was employed as the Controller for the Phoenix plant prior to its acquisition by TIN, and remained employed in that capacity after the acquisition. II-ER-208. As Controller, he was responsible for: collecting the plant's financial data and reporting it to corporate headquarters; analyzing the results of operations and progress against budget objectives and reporting them to the management team; supervising invoicing of customers and collection of accounts receivable; signing checks to pay operating expenses; supervising accounts payable and preparation of plant payroll; maintaining the plant cost accounting systems; and preparing and analyzing requests for capital expenditures. Id. Vanecko testified that he did not recall having any long discussions about his performance with Garza, and that Garza had never indicated to him that he had any problems with his performance as Controller; Garza also testified that he was not aware of any performance problems with Vanecko. II-ER-73, 174. In approximately early 2003, Garza decided to promote Denise Cervantes (d/o/b 6/1/68) to the position of Regional Controller, a senior-level controller position responsible for the entire Pacific Frontier region, with her office in Phoenix. III-ER-431. The Regional Controller was responsible for: the efficient and effective analysis of all financial information and systems for the Pacific Frontier region; monitoring and implementing internal control procedures; identifying, assessing, and developing plans to optimize operating results effectively and efficiently; controlling assets of plants and analyzing budget requests to identify best practices, benchmarks, trends, and deviations from budget to determine areas of improvement; preparing and reviewing capital projects for the region; establishing budget guidelines and five-year strategic plans; and preparing and comparing reports within the plants in the division. III-ER-431-32. According to Vanecko, Cervantes sometimes assisted him in his duties as Plant Controller, including on one occasion during the preparation of the 2005 budget when his senior accountant quit just as budget season began. II-ER-196-97, 209. Subsequently, in January 2005, Garza decided to replace Cervantes's and Vanecko's respective positions with a single Controller position and hired Cervantes, rather than Vanecko, for the new position.<4> II-ER-73-75. According to Garza, the sole reason for consolidating the two positions was to reduce costs. II- ER-74. Garza testified that Cervantes was chosen to fill the consolidated position due to her expertise in "Mexican tax laws and the Mexican way of doing business, knowledge of the exchange rate and knowledge on the impact of the exchange rate and the . . . financials." II-ER-75. Garza also testified that Cervantes's speaking Spanish assisted her in her duties as Regional Controller "because one of the plants is in Mexico." II-ER-82. However, Vanecko testified, based on his knowledge of the job requirements for the Regional Controller position, neither knowledge of Mexican tax law nor Spanish language proficiency was required for that job, because "[a]ny tax issues for the Mexican plants would have been discussed with the TIN Corporate tax specialists and not decided by the Regional Controller." II- ER-209-10. Moreover, although Garza initially claimed that Vanecko lacked the knowledge of the exchange rate information that Cervantes had, he later admitted that Vanecko also had this knowledge. II-ER-75. Flores, who was General Manager of the plant at the time, testified that he disagreed with the decision to hire Cervantes rather than Vanecko for the consolidated position because he believed that Vanecko was better qualified due to his "many years of controllership, financial, and management experience," because he was a "seasoned businessman," and because he "could be assertive, involved, articulate, incisive, and very analytical. He was a key member of my management team. Besides, he was very hard working." II-ER-205. Flores also testified that, "[w]hile in his position of Plant Controller during my tenure as General Manager, Vanecko performed his duties, including attendance at management meetings and preparation of analyses and commentaries, faithfully and thoroughly. Ms. Cervantes did not." II-ER-206. Flores also corroborated Vanecko's testimony that neither knowledge of Spanish nor experience with Mexican tax law was a requirement for the consolidated Controller position. Id. On January 20, 2005, Vanecko was notified that his employment was terminated. II-ER-131-32. Flores testified that his initial concerns that Cervantes was not qualified for the consolidated Controller position were later confirmed, when she "failed to attend management meetings and failed to prepare appropriate analyses of and commentaries on the plant's monthly performance," "was not a team player," and "treated her staff poorly," with the result that "many of her staff members quit their jobs." II-ER-205-06. Flores related that he had brought his dissatisfaction with Cervantes's job performance to Garza's attention, but Cervantes was never disciplined, and her performance never improved. II-ER-206. In late 2005, Cervantes resigned from the consolidated Controller position. II-ER- 81. TIN subsequently hired Arnie Kessler (d/o/b 12/17/52) in November or December of 2005 as Plant Controller, responsible only for controller duties pertaining to the Phoenix plant. II-ER-45-46, 299. Kessler did not speak Spanish or have any knowledge of Mexican tax law. II-ER-207. C. District Court's Decision After reviewing the factual background of the case, the district court turned to the legal standard governing ADEA claims in this Court. I-ER-8. The court began by observing that the burden-shifting analysis enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), does not apply to disparate treatment claims based on direct evidence; as the court noted, "'[d]irect evidence, in the context of an ADEA claim, is defined as evidence of conduct or statements by persons involved in the decision-making process that may be viewed as directly reflecting the alleged discriminatory attitude . . . sufficient to permit the fact finder to infer that that attitude was more likely than not a motivating factor in the employer's decision.'" I-ER-8-9 (quoting Enlow v. Salem-Keizer Yellow Cab Co., 389 F.3d 802, 811 (9th Cir. 2004) (internal quotations, alterations, and citations omitted)). When an employee must rely on circumstantial evidence, however, the district court observed that the McDonnell Douglas burden-shifting framework does apply: the employee bears the initial burden of establishing a prima facie case of discrimination; the burden then shifts to the employer to articulate a legitimate nondiscriminatory reason for its employment decision; and the employee ultimately bears the burden of proving that "the employer's alleged reason for the adverse employment decision constitutes mere pretext for another motive that is discriminatory." I-ER-9-10. According to the district court, at the pretext stage, "the employee must do more . . . than establish a prima facie case and deny the credibility of the employer's witnesses." I-ER-10. Rather, the court observed, "[a]t this stage, the employee may defeat summary judgment by satisfying the usual standard of proof for summary judgment, i.e., evidence in the record such that a reasonable jury could find by a preponderance of the evidence the employer's actions were based on the employee's age." Id. The court noted that the employee may establish pretext "(1) directly, by persuading the court a discriminatory reason more likely motivated the employer, or (2) indirectly, by showing the employer's explanation is unworthy of credence because it is internally inconsistent or otherwise not believable," or by a combination of both types of evidence. Id. (citing Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998); Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 849 (9th Cir. 2004); Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000)). The court observed that "'[d]irect evidence is evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption,'" and noted that "'[w]hen the plaintiff offers direct evidence of discriminatory motive, a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial.'" I-ER-10-11 (quoting Godwin, 150 F.3d at 1221, and Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1066 (9th Cir. 2004)). The court noted, "'The plaintiff is required to produce "very little" direct evidence of the employer's discriminatory intent to move past summary judgment.'" I-ER-11 (quoting Godwin, 150 F.3d at 1221, and Chuang, 225 F.3d at 1128). With respect to circumstantial evidence, the district court observed that there has been some disagreement among different panels of this Court with respect to how much evidence is required to survive summary judgment. I-ER-11. The court noted that some decisions have held that the plaintiff must adduce "'specific' and 'substantial' evidence of pretext to create a triable issue and survive summary judgment," while others have interpreted the Supreme Court's decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), and other precedent of this Court to hold that "in the context of summary judgment, a plaintiff relying on circumstantial evidence is not required 'to produce more, or better, evidence than a plaintiff who relies on direct evidence.'" Id. (quoting Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1030 (9th Cir. 2006); see also id. (observing that Davis v. Team Electric Co., 520 F.3d 1080, 1091 (9th Cir. 2008), notes that this Court "'has not clearly resolved this issue'"). The district court went on to note that "[g]enerally, in an employment discrimination action, the employee need produce 'very little evidence' to overcome an employer's motion for summary judgment," observing that "[t]his is because the resolution of the ultimate question requires 'a searching inquiry' that is most appropriately conducted by a fact finder on a full record." Id. (citing Chuang, 225 F.3d at 1124). The district court then went on to hold that none of the comments made by Mishurda or Garza constituted direct evidence of age discrimination. I-ER-12. The court began by noting that "'[d]irect evidence typically consists of clearly sexist, racist, or similarly discriminatory statements or actions by the employer.'" Id. (quoting Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095 (9th Cir. 2005)). The court stated that, "[w]hen the employer's statements do not directly concern the plaintiff employee, some inference is necessary to establish discrimination with regard to that plaintiff, but '[w]hen the evidence establishes the employer's animus toward the class to which the plaintiff belongs, the inference to the fact of discrimination against the plaintiff is sufficiently small that [the court has] treated the evidence as direct.'" Id. (quoting Coghlan, 413 F.3d at 1095 n.6). The court noted, however, that what it termed "stray remarks" - "isolated discriminatory comments unrelated to the decision-making process" - "are insufficient to establish discrimination. Id. (citing Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438 (9th Cir. 1990)). Turning to the evidence in the record, the district court stated that "the EEOC concedes the comments it alleges to be direct evidence of discriminatory motivation were not directed at any of the class members or related to their terminations." I-ER-13. After reviewing the testimony in the record about the various comments made by Mishurda and Garza, the district court then concluded that "Mishurda and Garza's comments do not establish Mishurda or Garza had animus toward people over the age of 40 years old from which it may be inferred that age-based animus was more likely than not a motivating factor in the terminations of [the class members]." I-ER-16. Although the court noted that "[t]he evidence shows that Mishurda, and perhaps also Garza, were concerned that older employees may not perform as well as younger employees in positions requiring physical endurance and energy, may not be willing to adopt new strategies, and may prefer a job that permits them to collect a paycheck without continuing to work as hard as before, i.e., 'retire on the job,'" the court reasoned that "the evidence does not establish that Mishurda or Garza assumed those characteristics applied to all older workers - in fact, their cautiousness did not prevent TIN from hiring 61-year-old McGraw or Childress." I-ER-16-17. The court also noted that Mishurda's comment that "we are replacing older employees" was referring to the change of personnel at the Imperial Valley plant, not the Phoenix plant, and that there was no evidence connecting that comment to the terminations of Neal, McGraw, or Vanecko. I-ER-17. The district court then proceeded to analyze the case under the circumstantial evidence rubric. With respect to all of the class members at issue in this appeal, the district court found that the EEOC had established a prima facie case of age discrimination, in that each was terminated, each was at least forty years old at the time of his termination, each was replaced by "a substantially younger employee with equal or inferior qualifications," and each performed his job satisfactorily. I-ER-17-20. The district court then went on to note that TIN articulated legitimate nondiscriminatory reasons for terminating Neal, McGraw, and Vanecko. According to TIN, Neal failed to meet TIN's, and Mishurda's, legitimate expectations for moving the plant towards profitability; McGraw's Logistics Manager position was eliminated by Garza in order to reduce excessive fixed costs; and Vanecko's position was consolidated with the Regional Controller position, also to reduce fixed costs, and awarded to Cervantes as the better qualified candidate for the consolidated position. I-ER-22-23. The district court then turned to the EEOC's proffered evidence of pretext. The court began by describing the Ninth Circuit's decision in Pottenger v. Potlatch Corp., 329 F.3d 740 (9th Cir. 2003), in which the court affirmed summary judgment for the employer, and emphasizing what it viewed as the similarity of the circumstances in Pottenger to those in the present case. I-ER-24-25. The district court observed that, although the plaintiff in Pottenger, a sixty-year-old former divisional vice president, was able to establish a prima facie case of age discrimination, "[t]he employer articulated a legitimate, nondiscriminatory reason for terminating [him]: 'a lack of confidence that [he] could make the hard decisions necessary to turn around the ailing [] Division, which he headed.'" I-ER-24 (quoting Pottenger, 329 F.3d at 746). The district court also took note of the fact that "[t]he former vice president also attempted to prove discriminatory motive for his termination through evidence that his supervisor, the company president, made comments referring to an 'old management team,' an 'old business model,' and 'deadwood,'" and observed that "[t]he appellate court found these remarks, in the context of that case, did not support an inference of age discrimination and, therefore, did not create a triable issue of material fact that would defeat summary judgment." I-ER-24-25 (quoting Pottenger, 329 F.3d at 747). The district court continued, "[a]fter considering all of the former vice president's evidence of pretext, the court concluded that it did not refute the employer's basic rationale for the termination, i.e., the division was losing money and the company lacked faith that this individual was the one to turn the division around." I-ER-25. Finally, the district court noted the Pottenger court's explanation that "the company 'has leeway to make subjective business decisions, even bad ones,' and although it may have been unfair and perhaps unwise to blame the former vice president for the division's losses, 'it is not surprising that [the company's] bosses would try to make a change in leadership in a division that was having such consistent trouble.'" Id. (quoting Pottenger, 329 F.3d at 749) (alteration in original). The district court then advanced two separate grounds for rejecting the EEOC's pretext arguments with respect to each of the remaining three class members. First, the district court found that the EEOC had failed to establish that TIN's proffered justifications for each of its respective employment decisions were unworthy of credence. I-ER-26. The court rejected the EEOC's arguments that plant profitability was not a priority for TIN and that Mishurda and Garza were the ones responsible for many of the decisions affecting the plant's profitability. Id. With respect to Neal, the court characterized TIN's decision as a "subjective business decision" analogous to the one in Pottenger. Id. With respect to McGraw, the court found it probative that Garza could have terminated McGraw as soon as he replaced Neal as General Manager, had he wished to discriminate against McGraw on the basis of age, but did not do so. Id. Finally, with respect to Vanecko, the court found credible "Garza's opinion that the person holding the consolidated position should speak Spanish and understand Mexican tax law . . . where the consolidated position included responsibilities for a plant in Mexico, even if the controllers did not prepare income tax filings." I-ER-27. Second, the district court found that the EEOC had failed to produce credible evidence that a discriminatory reason more likely than not motivated TIN to terminate Neal, McGraw, and Vanecko. I-ER-27. The district court found that Mishurda's and Garza's comments "do not suggest that Mishurda and Garza made employment decisions based on stereotypes about age instead of evaluating each applicant's or employee's actual abilities." Id. The court stated, "Questioning whether an experienced sales manager is willing and able to climb stairs in the Phoenix summer heat, wondering whether a sales manager in his 70's is actively pursuing new customers, and expressing concerns about an overweight sales manager spending too much time drinking, golfing, and possibly coasting into retirement while still on the payroll may be legitimate business concerns." Id. The court noted that, notwithstanding these concerns, the evidence showed that Mishurda and Garza hired older employees, and that they "replaced Neal [] and McGraw with employees who were more than 40 years old." Id. The court concluded, "a company's preference for 'energetic,' 'fresh,' and 'youthful,' rather than 'old school' and 'old fashioned,' does not necessarily reflect age-based animus or provide credible evidence that a discriminatory reason motivated TIN to terminate" Neal, McGraw, and Vanecko. I-ER-28. STANDARD OF REVIEW This Court reviews a district court's grant of a motion for summary judgment de novo. See EEOC v. United Parcel Serv., Inc., 424 F.3d 1060, 1068 (9th Cir. 2005); Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079, 1091 (9th Cir. 2005). In deciding whether there is a genuine issue for trial, the court cannot weigh the evidence, make credibility determinations, or decide the truth of disputed material facts. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Menotti v. City of Seattle, 409 F.3d 1113, 1120 (9th Cir. 2005). Rather, the court must view the evidence and draw all reasonable inferences in the light most favorable to the nonmoving party (here, the EEOC). See, e.g., Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Am. Bankers Ass'n v. Gould, 412 F.3d 1081, 1086 (9th Cir. 2005). In the employment discrimination context, this Court has specifically observed that "summary judgment for the defendant will ordinarily not be appropriate on any ground relating to the merits because the crux of a[n] [employment discrimination] suit is the elusive factual question of intentional discrimination." Lowe v. City of Monrovia, 775 F.2d 998, 1009 (9th Cir. 1985) (internal quotations omitted). See also Lyons v. England, 307 F.3d 1092, 1113 (9th Cir. 2002) ("[A]ny indication of discriminatory motive . . . may suffice to raise [a] question that can only be resolved by a fact finder . . . .") (internal citation omitted); Chuang, 225 F.3d at 1124 ("As a general matter, the plaintiff in an employment discrimination action need produce very little evidence in order to overcome an employer's motion for summary judgment . . . because 'the ultimate question is one that can only be resolved through a searching inquiry - one that is most appropriately conducted by a factfinder, upon a full record.'") (internal citation omitted). SUMMARY OF ARGUMENT The district court erred in granting summary judgment to TIN with respect to class members Neal, McGraw, and Vanecko because there was more than sufficient evidence in the record from which a reasonable jury could find that age discrimination was more likely than not the true motivation for their respective terminations. In undertaking its analysis, the district court failed to draw all inferences supported by the record in the light most favorable to the EEOC, the nonmoving party on summary judgment, and repeatedly substituted its own view of the facts and credibility determinations for those of a jury. The district court erred, first, in ruling that none of the remarks made by the decisionmakers in this case constitute direct evidence of age discrimination. The remarks at issue directly reflect bias against older workers, and thus constitute direct evidence of age discrimination under the governing law of this Court. However, even if this Court should find that the remarks at issue do not meet the legal definition of direct evidence, they are unquestionably strong circumstantial evidence of age discrimination against Neal, McGraw, and Vanecko. The district court erred in ruling that these remarks, in combination with the other circumstantial evidence of age discrimination in the record, were insufficient to survive summary judgment with respect to these three class members. ARGUMENT THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO TIN BECAUSE THERE IS SUFFICIENT EVIDENCE TO SUPPORT A JURY FINDING THAT CLASS MEMBERS NEAL, MCGRAW, AND VANECKO WERE TERMINATED BECAUSE OF THEIR AGES. Section 4(a)(1) of the ADEA declares it unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual . . . because of such individual's age." 29 U.S.C. § 623(a)(1). The Supreme Court in Desert Palace, 539 U.S. at 98, ruled that the parallel provision in Title VII "unambiguously states that a plaintiff need only 'demonstrat[e]' that an employer used a forbidden consideration with respect to 'any employment practice.'" "As in any lawsuit," the Court has emphasized, the plaintiff claiming employment discrimination "may prove his case by direct or circumstantial evidence," and the "trier of fact should consider all the evidence, giving it whatever weight and credence it deserves." U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 n.3 (1983); see also Desert Palace, 539 U.S. at 99-100 ("conventional rule of civil litigation" that "requires a plaintiff to prove his case by a preponderance of the evidence, using direct or circumstantial evidence, applies in Title VII cases") (internal citations omitted). The district court erred in failing to recognize that the remarks made by the decisionmakers in this case constitute direct evidence or, at a minimum, strong circumstantial evidence of age discrimination.<5> In addition, in granting summary judgment to TIN, the district court usurped the role of the jury, as trier of fact, to weigh the evidence, make credibility determinations, and draw legitimate inferences. See Liberty Lobby, 477 U.S. at 255 ("Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge."). "Thus, although the court should review the record as a whole, it must disregard all evidence favorable to [TIN] that the jury is not required to believe." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000). The district court departed from these principles in numerous instances, refusing to draw reasonable inferences favorable to the Commission, discounting the probative weight of evidence supporting its claims, and crediting evidence produced by TIN that a jury could choose not to believe. The EEOC presented both direct and circumstantial evidence that Mishurda and Garza held negative and biased views about older workers and that they relied on those views in deciding to terminate the employment of Neal, McGraw, and Vanecko, while they treated younger workers with comparable or, in some cases, demonstrably inferior performance records more favorably. Because this evidence, viewed in the light most favorable to the Commission, is sufficient to demonstrate an unlawful employment practice under the ADEA, summary judgment was improper. A. The district court erred in holding that the age-related remarks at issue do not constitute direct evidence of age discrimination under binding precedent of this Court. Pursuant to the standards applied in this Circuit, the Commission has presented "direct evidence" of discrimination - i.e., "evidence, which, if believed, proves the fact [of discriminatory animus] without inference or presumption." Dominguez-Curry v. Nev. Transp. Dep't, 424 F.3d 1027, 1038 (9th Cir. 2005) (quoting Godwin, 150 F.3d at 1221); see also Bergene v. Salt River Project Agr. Imp. & Power Dist., 272 F.3d 1136, 1141 (9th Cir. 2001) (same). This Court has emphasized that "[d]irect evidence, in the context of an ADEA claim, is defined as evidence of conduct or statements by persons involved in the decision-making process that may be viewed as directly reflecting the alleged discriminatory attitude . . . sufficient to permit the fact finder to infer that that attitude was more likely than not a motivating factor in the employer's decision." Enlow, 389 F.3d at 812 (emphasis in original). This Court has also repeatedly stated that direct evidence qualifies as such regardless of whether the biased individual happened to give voice to his or her bias directly in connection with the challenged employment practice. See, e.g., Metoyer v. Chassman, 504 F.3d 919, 937-38 (9th Cir. 2007) (biased remarks by a member of senior management held to be "direct evidence of discrimination" "even if directed at someone other than the plaintiff" and "even if several years old"); Coghlan, 413 F.3d at 1095 (observing that direct evidence "typically consists of clearly sexist, racist, or similarly discriminatory statements or actions by the employer," and noting that, "[w]hen the evidence in question is of an employer's statements that do not directly concern the plaintiff, . . . [but] when evidence establishes the employer's animus toward the class to which the plaintiff belongs, the inference to the fact of discrimination against the plaintiff is sufficiently small that we have treated the evidence as direct"); Dominguez-Curry, 424 F.3d at 1038 (holding that "where a decisionmaker makes a discriminatory remark against a member of the [charging party's] class, a reasonable factfinder may conclude that discriminatory animus played a role in the challenged decision"). Applying these standards in Metoyer, for example, this Court found that the (African American) plaintiff had adduced direct evidence of race discrimination where she presented evidence that the decisionmaker who terminated her employment in 2001 had made the following remarks to her in 1999 about other employees: (1) when another manager stated that "'I'm keeping [African Americans in low-paying jobs] because I want to keep an eye on them because black people like to party and eat and don't do their work,'" the decisionmaker responded, "'[t]hey ought to be glad they have a job,'" and (2) "'All of these people are lazy and malingerers. Is that something special with African Americans that they have to socialize all the time and they are never happy? They should be happy to have this job.'" 504 F.3d at 937-38. This Court held that both statements made by the decisionmaker, even though not directed at the plaintiff and not made in the context of her termination, were direct evidence of racial bias and discrimination. Id. This Court has held that, "[b]ecause direct evidence is so probative, the plaintiff need offer 'very little' [of it] to raise a genuine issue of material fact." Coghlan, 413 F.3d at 1095; see also Kang v. U Lim Am., Inc., 296 F.3d 810, 819 (9th Cir. 2000). Indeed, this Court has emphasized that "in this circuit we have repeatedly held that a single discriminatory comment by a [charging party's] supervisor or decisionmaker is sufficient to preclude summary judgment for the employer." Dominguez-Curry, 424 F.3d at 1038 (emphasis added); see also Chuang, 225 F.3d at 1128 & n.13 (comment about "two chinks in the pharmacology department" was direct evidence of national origin bias, and sufficed to preclude summary judgment; fact that that faculty member who related this remark was not the plaintiff actually "strengthens its value as direct evidence of discriminatory intent"). The repeated, extensive, and explicit age-related comments made by Mishurda and Garza constitute direct evidence of age discrimination under established precedent of this Court, and the district court erred in concluding otherwise. Mishurda and Garza are the undisputed decisionmakers with respect to the terminations of Neal, McGraw, and Vanecko. III-ER-373. With respect to McGraw, Mishurda made age-biased comments that did in fact involve him directly, when he cautioned Neal against hiring McGraw in the first place because of his concerns about his age, lacking energy, being "at the end of his career," potentially "retir[ing] on the job, and being unable to handle the "fast moving, energetic" position of Production Manager. II-ER-240-242. The fact that Mishurda reluctantly allowed Neal to hire McGraw, over his objections and only after warning him that "[t]his is a significant decision you are making for your future" and "[t]his person had better be the right person to help take the plant to the next step," II-ER-242, in no way diminishes the value of Mishurda's statements as direct evidence of age discrimination. With respect to all three class members, the remainder of Mishurda's and Garza's age-biased statements, as recounted by Neal, Salomon, and Ulrich, are more than sufficient to qualify as direct evidence of age discrimination because they directly reflect a discriminatory attitude toward the class of older workers. Coghlan, 413 F.3d at 1095; Dominguez-Curry, 424 F.3d at 1038. Neal testified that, at their first meeting, Mishurda interrogated him about his own age and physical condition and about "the age, energy level and commitment of each member of [Neal's] management team at the Phoenix plant," and compared the older employees unfavorably to the younger members of Mishurda's staff, whom he termed his "young lions," "dream team," and "roster of champions," and whom he praised for their vitality and "young blood." II-ER-246-49, 268-69. Neal then testified that, at subsequent meetings, Mishurda repeatedly referred to older job candidates and current employees as lacking vitality, creativity, and energy, and retiring on the job. II-ER-242, 254, 270. Neal and Ulrich testified that Mishurda questioned whether Ulrich, as a candidate for a sales manager position in his fifties, would really be willing to "go back to a young man's game," telling him that "[a] young guy would be hungry and maybe have more energy." II-ER-212, 227. Salomon, who was twenty-nine in 2002, testified that Mishurda complained to him repeatedly about his team being older and "age getting in the way," "wish[ing] that his team was younger and in better shape," and preferring younger managers. III-ER-330, 350. Salomon recalled Mishurda's use of the term "young blood" and his commenting that "we" were "replacing older employees" and "replacing older ways of doing business with his roster of champions." III-ER- 334. Salomon also testified about Garza's remarking that one employee was too old to do his job and that another employee, and the Phoenix team generally, were "viejos perros," a Spanish term meaning an "old dog." III-ER-326-28, 341-42, 344. Finally, and significantly, Salomon recalled that Mishurda told him specifically that "the older people should move on and learn new tricks" - reminiscent of the denigrating remarks about older employees as "viejos perros," or old dogs, and precisely what old dogs are proverbially said to be incapable of doing. III-ER-358. The district court gave two principal reasons for concluding that none of the above evidence constituted direct evidence of age discrimination, neither of which has any merit. The first was that the comments at issue "were not directed at any of the class members or related to their terminations" (I-ER-13); as explained above, this is (a) untrue with respect to McGraw, and (b) not the standard in this Court for what constitutes direct evidence. See Metoyer, 504 F.3d at 937-38; Coghlan, 413 F.3d at 1095; Dominguez-Curry, 424 F.3d at 1038. Second, the district court reasoned that, although Mishurda's and Garza's comments may reflect that they had some "concerns" about older employees' performance vis-à- vis younger employees, the record did not establish that they had any age-based animus because they did not allow their "concerns" to act as a total bar on the hiring of older employees, as they permitted Neal to hire McGraw and hired one other older employee as well. I-ER-16-17. However, as the Supreme Court observed in Connecticut v. Teal, "[i]t is clear that Congress never intended to give an employer license to discriminate against some employees on the basis of [a protected characteristic] merely because he favorably treats other members of the employees' group." 457 U.S. 440, 455 (1982); see also id. at 455-56 (observing that every individual employee is protected against [] discriminatory treatment) (emphasis in original); Diaz v. Am. Tel. & Tel., 752 F.2d 1356, 1360 (9th Cir. 1985) (quoting Teal, 457 U.S. at 455). In any case - especially given the circumstances under which McGraw was hired - the district court's characterization of the remarks at issue here as not directly reflecting age bias is simply incorrect. Just as this Court found that the statements in Metoyer directly reflected racial bias, the statements in this case reflect a belief that older employees are less creative, less vital, less energetic, lazier, and prone to on-the-job retirement. A reasonable jury could easily find that Mishurda's and Garza's remarks constitute direct evidence of age discrimination, and this Court should reverse the district court's grant of summary judgment on this basis. B. Even if this Court were to find that the age-related remarks at issue were not direct evidence of age discrimination, they are unquestionably circumstantial evidence of age discrimination. Even if this Court were to disagree that the statements at issue constitute direct evidence of age discrimination, they are unquestionably strong circumstantial evidence of age discrimination as to Neal, McGraw, and Vanecko, particularly when viewed in light of the record as a whole. As this Court has held, "'very little[] evidence is necessary to raise a genuine issue of fact regarding an employer's motive; any indication of discriminatory motive . . . may suffice to raise a question that can only be resolved by a fact-finder.' . . . 'When the evidence, direct or circumstantial, consists of more than the McDonnell Douglas presumption, a factual question will almost always exist with respect to any claim of a nondiscriminatory reason.'" McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1124 (9th Cir. 2004) (quoting Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1409 (9th Cir. 1996), and Sischo-Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1111 (9th Cir. 1991)). As the McGinest court observed, even when a case is close, "[s]uch uncertainty at the summary judgment stage must be resolved in favor of the plaintiff." Id. In its summary judgment decision, the district court found that Mishurda's and Garza's comments did not reflect that they made employment decisions based on age stereotypes, but rather that they reflected what "may be legitimate business concerns." I-ER-27. The court also reasoned that "a company's preference for 'energetic,' 'fresh,' and 'youthful,' rather than 'old school' and 'old fashioned,' does not necessarily reflect age-based animus or provide credible evidence that a discriminatory reason motivated TIN to terminate" Neal, McGraw, and Vanecko. I-ER-28. In so holding, the district court failed to draw all inferences in favor of the EEOC, the nonmoving party on summary judgment, and unquestionably substituted its own view of the evidence for that of a jury. The remarks in question, as described above, are evidence from which a reasonable jury could easily infer that age bias was the real motivation for Mishurda's and Garza's termination of the class members.<6> While this Court has acknowledged that certain types of arguably age- related remarks are insufficient by themselves to raise a triable issue of fact on the ultimate issue of age discrimination, these have invariably been single, isolated and/or ambiguous remarks, and thus readily distinguishable from the ones at issue in this case. See, e.g., Merrick, 892 F.2d at 1438-39 (decisionmaker's single comment that he chose younger candidate because he was a "bright, intelligent, knowledgeable young man" insufficient to establish discrimination); Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918-19 (9th Cir. 1997) (single comment by supervisor that he "intended to get rid of all the 'old timers' because they would not 'kiss my ass'" held not to support an inference of age discrimination on grounds that it was ambiguous and not directly tied to plaintiff's layoff); Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir. 1993) (single comment by supervisor that "we don't necessarily like grey hair" found to be "at best weak circumstantial evidence of discriminatory animus" on grounds that it was uttered in an ambivalent manner and not tied directly to plaintiff's termination). The remarks at issue in this case, on the other hand, are greatly more numerous and more explicitly age-based, and, in most cases, specifically tied to known stereotypes about age - i.e., that older workers lack energy and creativity, want to retire or are planning to retire imminently, are less physically fit than younger workers, and are generally less desirable as employees. For these same reasons, the district court's extensive reliance on the Ninth Circuit's decision in Pottenger and its emphasis on the supposed similarities between that case and this one were misplaced. The panel in Pottenger undertook an extensive discussion of the Ninth Circuit's standard for what constitutes evidence of age discrimination, and concluded that the three total comments at issue in that case - one in which a management committee resolved to "eliminate deadwood," and two in which the company president referred to the plaintiff's team as an "old management team" and said that the plaintiff's team used an "old business model" - did not, in the context of that case, support an inference of age discrimination. 329 F.3d at 747. However, the context of this case is different, involving a significantly greater number of ageist remarks made to a number of different people that, in context, unambiguously refer to old age and stereotypes about older workers. Moreover, the district court here compounded its error with respect to Pottenger by treating that case as if it stood for the proposition that a company's financial trouble automatically justifies whatever "unfair and perhaps unwise" employment decisions it should choose to make as a result. I-ER-25. Pottenger announces no such broad rule, however, and certainly no such rule that would apply to the facts of this case. In Pottenger, the court reached the result it did because the totality of the evidence of age discrimination in the record - the three remarks discussed above, an inadequate statistical analysis of the RIF that affected Pottenger, and the fact that Pottenger's replacement was younger - did not suffice to create a genuine issue of material fact as to pretext in light of the defendant's proffered reason for terminating Pottenger. 329 F.3d at 748-49. The Pottenger Court in no way suggested that the fact that a defendant may be in financial trouble, like the defendant in Pottenger or the Phoenix plant here, allows it to seek to remedy that trouble by discriminating against older workers. In any case, Pottenger is also inapposite here for another reason: the evidence of age discrimination with respect to each of the class members in this case is significantly greater. When all of the evidence, consisting of both the remarks at issue and the other circumstantial evidence, is taken together, viewed in the light most favorable to the Commission, it is easily sufficient for a reasonable jury to find in the Commission's favor. C. As to each remaining class member, the direct and circumstantial evidence of age discrimination in the record, taken together and viewed as a whole, is sufficient to support a jury finding that he was terminated because of his age. 1. Neal As this Court observed in McGinest, a plaintiff responding to a summary judgment motion "may proceed by using the McDonnell Douglas framework or alternatively, may simply produce direct or circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated" the defendant. 360 F.3d at 1122. With respect to Neal, the Commission adduced both direct and circumstantial evidence that was more than sufficient for a reasonable jury to find that TIN's proffered reason for terminating him was pretextual and that its decision to terminate his employment was due to his age. In addition to the age-biased remarks already discussed above, the record also contained further circumstantial evidence from which a reasonable jury could disbelieve TIN's proffered reason for Neal's termination, i.e., Neal's allegedly deficient performance as General Manager of the Phoenix plant and his failure either to render the Phoenix plant profitable or to move it toward profitability. First, Neal testified that, not only had he never had a negative performance review or other similar conversation with Mishurda or Garza, but the only performance review he did have with Garza in November 2002 was positive. II- ER-222-23, 244-46, 270. Second, several witnesses testified that, based on the way the paper business worked generally, the way TIN's operations worked specifically, and the nature of the oversupplied Phoenix market, TIN's management was well aware that many of the crucial factors affecting any given plant's profitability were not within the control of any given General Manager; rather, they were either more within the control of TIN's central management or simply not directly controllable by the company at all. See II-ER-270-71 (Neal's testimony that plant profitability is affected by degree of market competition, roll stock cost, labor market, age of equipment, appropriate equipment for mix of business the plant is forced or requested to run, labor contracts, distance to key customers, local tax structure, and corporate allocations); II-ER-202-03 (Flores's testimony that, in a fully integrated industry such as this one, the price that the plants pay the mills for the paper they use is set by TIN; "[w]hen TIN increases the price of paper, the mills become more profitable, and the box plants become less profitable."); II-ER-208-09 (Vanecko's testimony that multiple factors affect plant profitability, some outside the control of local management, including depreciation costs, other fixed costs, sales, and paper costs, as well as whether the plant is focused on maximizing the capacity of the supplying paper mill; noting that the Phoenix plant had particularly high depreciation costs for its capital items that undermined its profitability). Moreover, Vanecko testified that, no sooner did Mishurda replace Neal with Garza as General Manager, than TIN essentially switched its operating model for the Phoenix plant from one that focused on maximizing profits to one where the focus was operating the mills at 100% capacity and where profitability was no longer the top priority. II-ER-170, 172. Based on Vanecko's testimony, which must be credited at the summary judgment stage, a reasonable jury could find that TIN could not have sincerely held the belief that Neal's failure to render the Phoenix plant profitable, or more profitable, was its reason for terminating his employment, since it immediately switched objectives for the plant away from profitability soon after firing him. This circumstantial evidence would support a finding that TIN was well aware that there were many factors affecting the profitability of any given plant that were not only beyond the control of any given General Manager, but that were in fact within the control of TIN's central management. It would also support a jury finding that TIN was not in fact motivated by a desire to render the Phoenix plant profitable in the immediate future when it terminated Neal, in light of the fact that it switched from a profitability-based business plan to a mill-capacity-based business plan shortly after terminating him. Thus, when this evidence is viewed in conjunction with the other evidence in the record - i.e., the evidence of Mishurda's and Garza's repeated age-biased comments - a reasonable jury could find TIN's proffered explanation for terminating Neal unworthy of credence, and it could also find that age discrimination more likely than not was TIN's true motivation for terminating Neal's employment when it did. 2. McGraw Likewise, there was more than sufficient direct and circumstantial evidence in the record for a reasonable jury to conclude that McGraw was demoted and ultimately terminated on the basis of his age. The record reflects that McGraw was hired by Neal over Mishurda's initial, explicitly age-related objections, II-ER-240- 42, and terminated by Garza with Mishurda's approval. II-ER-72. Like Neal, McGraw testified that he was never given a negative performance evaluation by Garza or anyone else at TIN, and that, based on what Garza had told him, Garza seemed to be satisfied with his performance. III-ER-385. That said, a reasonable jury could take note of the fact that TIN's response to what it claims to have been McGraw's performance problems was to remove him from the Production Manager position, transfer him to the Logistics Manager position, and terminate his employment four months later, whereas TIN's response to the undisputed, serious performance problems of McGraw's replacement, Juarez, who was twenty years younger, was to promote him to a more lucrative position in a different division. II-ER-92-95, 204-05. A jury could also take note of the inconsistencies in TIN's proffered reasoning for why it created, and then so quickly eliminated, McGraw's Logistics Manager position in the first place. Garza created the Logistics Manager position (and transferred McGraw into it) in January 2004, a move that increased fixed costs at a time when, according to Garza, TIN was looking to reduce fixed costs at the Phoenix plant. II-ER-209. He then terminated McGraw only four months later, ostensibly in the name of reducing fixed costs. II-ER-72. Furthermore, a jury could also take note of the record evidence that TIN's budget planning for 2004 showed that, while it did intend to reduce fixed costs in 2004, it did not plan to do so by paying out less in salaries. IV-ER-460. A reasonable jury could thus find that TIN's proffered reasons for transferring McGraw to the Logistics Manager position and ultimately terminating his employment - dissatisfaction with his performance as Production Manager and a desire to reduce fixed costs at the Phoenix plant - were pretextual. Taking all of this circumstantial evidence together with the age-biased comments of Mishurda and Garza, there is more than enough evidence in the record to support a jury finding that age discrimination was the real motivation for TIN's termination of McGraw's employment. 3. Vanecko Finally, with respect to Vanecko, the record is also more than sufficient to support a jury finding that his termination was because of his age. Garza and Mishurda were the decisionmakers responsible for awarding the consolidated Regional Controller position to the younger Cervantes and terminating Vanecko. A reasonable jury could find, based on the evidence in the record, that TIN's proffered reasons for preferring Cervantes over Vanecko for the consolidated position were false, based on: Vanecko's and Flores's testimony that neither knowledge of Spanish nor experience with Mexican tax law was in fact a requirement for the consolidated Controller position, II-ER-205, 209-210; Garza's admission that Vanecko had the same knowledge of the exchange rate information that Cervantes had, II-ER-75; and Vanecko's superior qualifications for the position, as testified to by Flores, II-ER-205-06, and borne out in Cervantes's extremely poor performance in the position that resulted in her resignation by the end of 2005. II-ER-205-06, 81. As both the Supreme Court and this Court have observed, evidence that a non-selected job candidate was better qualified for the position, whether standing alone or in conjunction with other evidence of discrimination, constitutes evidence of pretext. Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006) (citing Supreme Court precedent); Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1194 (9th Cir. 2003) ("[W]e have held that a finding 'that a Title VII plaintiff's qualifications were clearly superior to the qualifications of the applicant selected is a proper basis for a finding of discrimination[.]'") (quoting Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1492 (9th Cir. 1995)). See also Raad, 323 F.3d at 1194 (noting that the standard in Odima established the benchmark for when "the plaintiff's superior qualifications standing alone were enough to prove pretext") (emphasis in original). Again, this evidence of pretext, viewed in conjunction with the age-biased comments of the decisionmakers in the record, is more than adequate to support a jury finding of discrimination with respect to Vanecko. CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings. Respectfully submitted, RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ______________________________ ELIZABETH E. THERAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov STATEMENT OF RELATED CASES Pursuant to Ninth Circuit Rule 28-2.6, Plaintiff/Appellant EEOC hereby states that it is not aware of any cases related to this appeal pending before this Court. CERTIFICATE OF COMPLIANCE I certify that, pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, the attached opening brief is proportionately spaced, has a typeface of 14 points or more and contains 11,641 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). _________________________________ Elizabeth E. Theran Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov Dated: November 17, 2008 CERTIFICATE OF SERVICE I, Elizabeth E. Theran, hereby certify that I filed one original and fifteen copies of the foregoing brief and five copies of the Excerpts of Record with this Court this 17th day of November, 2008, by overnight delivery, postage pre-paid. I also certify that I served two copies of the foregoing brief and one copy of the Excerpts of Record this 17th day of November, 2008, by overnight delivery, postage pre-paid, to the following counsel of record: Camille Olson Christopher DeGroff Cintra D. Bentley Seyfarth Shaw, LLP 131 South Dearborn St. Chicago, IL 60603-5803 (312) 460-5000 Stacy Meryl Gabriel Gabriel & Ashworth PLLC 10105 E. Via Linda Scottsdale, AZ 85258 480-368-2790 Fritz Joseph Aldrine Temple-Inland 1300 Mo-Pac Expressway Austin, TX 78746 512-434-8004 ________________________________ Elizabeth E. Theran Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov *********************************************************************** <> <1> The Commission is not appealing from the district court's grant of summary judgment with respect to class members Hector Flores or Paul Ives. <2> Another TIN employee, Alex Salomon (d/o/b 2/15/73), who worked under Mishurda as a Sales Manager contemporaneously with Neal, also testified about various age-related comments by Mishurda and Garza pertaining to older TIN employees, including Mishurda's statement that "the older people should move on and learn new tricks." III-ER-358. Salomon testified that he heard Mishurda repeatedly refer to Sergio Lavalle, the older General Manager of the Monterrey, Mexico plant who was ultimately replaced by Garza, as "old and not as energetic as he should be," "old school," "stuck in the past," and "old-fashioned." III-ER- 314-15, 318. Salomon also testified that, on one or more jogging excursions with Mishurda in Chile sometime between 1999 and 2001, Mishurda told him that he "wished that his team was younger and in better shape, and taking better care of themselves, and age was getting in the way." III-ER-330. Salomon related that Mishurda "ma[de] comments that his team was an old team and that what he was doing with his young managers he couldn't do with them," and talked about the young managers being more fit and active. III-ER-350. Salomon also described a phone conversation with Mishurda in mid-June 2002 in which Mishurda specifically stated that "we" were "replacing older employees" and "replacing older ways of doing business with his roster of champions," and specifically recalled that Mishurda used the term "young blood." III-ER-334. With respect to Garza, Salomon testified that Garza and another manager, Sean O'Halloran, made age-biased comments about another employee, Dick Cumby, a commission-based broker in his seventies: that he was too old to do his job, lacked the physical ability to do so, and was no longer worth compensating. III-ER-326-28. Salomon also testified that, with respect to the Phoenix plant, Garza had made remarks that the Phoenix team was "lacking juice" and used the Spanish term "viejos perros," meaning "old dog[s]." III-ER-341-42. Salomon testified that, although the Spanish term "viejos" can have other meanings in other contexts, in this context it means "old age." III-ER-342. Salomon testified that he recalled Garza using the term "viejos perros" to refer to Dick Bergren, an older employee. III-ER-344. <3> Garza had also been responsible for establishing Logistics Manager positions at two other TIN plants in addition to the Phoenix plant. II-ER-70-71. <4> TIN identified Mishurda, Garza, and Flores as the decisionmakers responsible for choosing Cervantes for the position and terminating Vanecko. III-ER-373. However, Flores testified specifically that he did not approve of the choice of Cervantes and thought that Vanecko should have been chosen instead. II-ER-205. <5> As the district court in this case noted, both prior to and after the Supreme Court's decision in Desert Palace, some panels of this Court have held plaintiffs to different evidentiary standards on summary judgment depending on whether they adduce direct or circumstantial evidence of discrimination, while other panels have held that Desert Palace stands for the proposition that plaintiffs cannot be held to a more stringent standard based solely on their reliance on circumstantial evidence. Compare, e.g., Dominguez-Curry v. Nev. Transp. Dep't, 424 F.3d 1027, 1038 (9th Cir. 2005) (observing that "specific and substantial" requirement applies to circumstantial evidence, but not to direct evidence), and Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1066 (9th Cir. 2004) (applying "specific and substantial" standard to circumstantial evidence), with Cornwell, 439 F.3d at 1030 ("in the context of summary judgment, Title VII does not require a disparate treatment plaintiff relying on circumstantial evidence to produce more, or better, evidence than a plaintiff who relies on direct evidence"), and McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004) (noting Desert Palace's holding that "the distinction between direct and circumstantial evidence is irrelevant to determining what analytical framework to apply"). The resolution of which standard controls in this Circuit, however, makes no difference to the outcome of this appeal, because, whether the evidence of discrimination in this case is viewed as direct, circumstantial, or a mixture of both, it is more than sufficient to survive summary judgment. <6> They are not, however, the sole evidence of age bias in the record, as we describe in further detail below.