IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT _______________________________ Nos. 05-2009, 05-2010, 05-2046 _______________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant/Cross-Appellee, and MOHAMMED SHANIF HUSSEIN, Plaintiff-Intervenor-Appellant/Cross-Appellee, v. TRANS STATES AIRLINES, INC., Defendant-Appellee/Cross-Appellant. ___________________________________________________ On Appeal from the United States District Court for the Eastern District of Missouri ___________________________________________________ PETITION OF THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION IN SUPPORT OF REHEARING AND SUGGESTION FOR REHEARING EN BANC ___________________________________________________ RONALD S. COOPER EQUAL EMPLOYMENT OPPORTUNITY General Counsel COMMISSION VINCENT J. BLACKWOOD Office of General Counsel Acting Associate General Counsel 1801 L Street, N.W., 7th Floor Washington, DC 20507 BARBARA L. SLOAN (202) 663-4721 JULIE L. GANTZ (202) 663-4718 Attorneys STATEMENT OF COUNSEL This appeal presents a question of exceptional importance because it involves an issue on which the panel decision conflicts with authoritative decisions of other United States Courts of Appeals that have addressed the issue. Specifically, contrary to this decision, other courts have held that a reasonable jury could find that an individual's name may be a proxy for his national origin, race, and/or religion. See, e.g., EEOC v. Target Corp., 460 F.3d 946, 960-62 (7th Cir. 2006) (evidence that "some people can determine a speaker's race based on his . . . name" supports a finding that decisionmaker, who never met applicants who had African-American- sounding names, rejected them because of race); El-Hakem v. BJY Inc., 415 F.3d 1068, 1073 (9th Cir. 2005) ("Names are often a proxy for race and ethnicity."). cert. denied, 126 S. Ct. 1470 (2006); Orhorhaghe v. INS, 38 F.3d 488, 503 (9th Cir. 1994) ("[l]ike one's appearance, one's name is frequently correlated with one's racial or ethnic background"); see also Hernandez v. Texas, 347 U.S. 475, 480 n.12 (1954) (names, like color, provide "ready identification" of persons in a protected class). ______________________________ Barbara L. Sloan TABLE OF CONTENTS STATEMENT OF COUNSEL . . . . . . . . . . . . . . . . . . . . . .i TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . ii TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . .iii STATEMENT OF ISSUES. . . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .1 A. Statement of Facts and Decision Below. . . . . . . . . . .1 B. Panel Opinion. . . . . . . . . . . . . . . . . . . . . . .4 ARGUMENT I. THE PANEL DECISION CONFLICTS WITH DECISIONS FROM OTHER COURTS RECOGNIZING THAT AN EMPLOYER'S AWARENESS OF A PERSON'S NAME MAY SUPPORT A FINDING THAT THE EMPLOYER ALSO ASSUMED THAT THE PERSON WAS OF THE NATIONAL ORIGIN, RACE AND/OR RELIGION ASSOCIATED WITH HIS NAME. . . . . . . . . .6 II. THE PANEL DECISION MISAPPLIES LEGAL STANDARDS IN ASSESSING EEOC'S EVIDENCE OF PRETEXT BY DISREGARDING EVIDENCE THAT TSA'S EXPLANATION FOR DISCHARGING HUSSEIN CHANGED SUBSTANTIALLY ONCE KEY PARTS OF THE ORIGINAL VERSION OF THE STORY WERE PROVEN FALSE. . . . . . . . . . . . . . . . . .11 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 15 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . 16 CERTIFICATE OF SERVICE ADDENDUM Panel Decision TABLE OF AUTHORITIES CASES Bennun v. Rutgers State University, 941 F.2d 154 (3d Cir. 1991). . . . . . . . . . . . . . 4, 8 Diaz v. Pan American World Airways, 442 F.2d 385 (5th Cir. 1971). . . . . . . . . . . . . . . 9 EEOC v. Sears Roebuck & Co., 243 F.3d 846 (4th Cir. 2001). . . . . . . . . . . . . 11, 12 EEOC v. Target Corp., 460 F.3d 946 (7th Cir. 2006). . . . . . . . . . i, 7, 9, 10 El-Hakem v. BJY Inc., 415 F.3d 1068 (9th Cir. 2005), cert. denied, 126 S. Ct. 1470 (2006). . . . . . . . . . i, 7 Hernandez v. Texas, 347 U.S. 475 (1954). . . . . . . . . . . . . . . i, 6-7, 10 Hossaini v. Western Missouri Medical Center, 97 F.3d 1085 (8th Cir. 1996). . . . . . . . . . . . . . . 14 Kobrin v. University of Minnesota, 34 F.3d 698 (8th Cir. 1994). . . . . . . . . . . . . .11, 14 Orhorhaghe v. INS, 38 F.3d 488 (9th Cir. 1994). . . . . . . . . . . . . . i, 7 Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000). . . . . . . . . . . . . . . . . . . .12 Rosen v. Thornburgh, 928 F.2d 528 (2d Cir. 1991). . . . . . . . . . . . . . . 7 Sarmiento v. Queens College CUNY, 386 F. Supp. 2d 93 (E.D.N.Y.), aff'd, 153 F. App'x 21 (2d Cir. Oct. 28, 2005). . . . . 7 Teamsters v. United States, 431 U.S. 324 (1977). . . . . . . . . . . . . . . . . . . . 7 Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). . . . . . . . . . . . . . . . . . . .11 Wallace v. DTG Operations, 442 F.3d 1112 (8th Cir. 2006). . . . . . . . . . . . . . .14 OTHER AUTHORITY M.I. Ahmad, A Rage Shared By Law: Post-September 11 Racial Violence As Crimes of Passion, 92 Cal. L. Rev. 1259 (Oct. 2004). . .9 S. Ahmad, Dictionary of Muslim Names, (NYU Press 1998). . . . . . . . . . . . . . . . . . . . 8 STATEMENT OF ISSUES 1. Whether the panel erred in suggesting that no reasonable jury could find that the decisionmaker inferred that an individual was a particular race, national origin, and/or religion based solely on his name. 2. Whether the panel misapplied the law in holding that no reasonable jury could reject an employer's proffered explanation as pretextual where although one part of the explanation remained the same, the overall story changed substantially once key elements of the original version were proven false. STATEMENT OF THE CASE A. Statement of Facts and Decision Below A few days after the September 11, 2001, terrorist attacks, Trans States Airlines ("TSA") Vice-President Daniel Reed received an anonymous phone tip. According to the tipster, a TSA pilot named Hussein was in the lower bar at the Howard Johnson's hotel in uniform and was making comments about 9/11. Slip op. at 2-3. Reed did not identify the caller, nor did he call the bar or hotel to verify the allegation. Rather, he said, he merely confirmed that TSA employed a pilot named Hussein -- specifically, Mohammed Shanif Hussein -- who was probationary and "should have been" in St. Louis -- somewhere -- at the time. Id. at 3. Reed then had Hussein fired. Id. When informed of the decision, Hussein was told he was not entitled to an explanation and was given none. See id. The official reason for Hussein's discharge was appearing in a bar in uniform. Slip op. at 13. At no point, however, did Reed attempt to determine whether Hussein actually was in the bar or, indeed, anywhere near the hotel, much less "in uniform," a term whose meaning is unclear. See EEOC's Brief at 4-6 (noting conflicting interpretations). During the investigation of Hussein's charge, Reed told EEOC's investigator that he commenced an investigation after receiving the anonymous call but decided to fire Hussein upon learning that the FBI wanted to interview him following a tip from the same tipster. Slip op. at 5. Later, when it became clear that Reed had ordered Hussein's discharge before the FBI called, Reed changed his story, explaining that the tip alone was decisive. He had done no investigation, he stated, because his practice is summarily to fire all probationary pilots accused of a rule violation, regardless of prior disciplinary record, without checking whether they in fact have violated the rule. Id. As proof of this unlikely practice, Reed cited an earlier incident in South Bend where an anonymous caller had reported that probationary and non-probationary pilots were drinking in a bar during a TSA training exercise, and, he recalled, he had fired the probationary pilots summarily. See id. at 10-11. Before the September 11 attacks, Mohammed Hussein had had no discipline or performance problems at TSA. PA310. A Muslim from Fiji, of Indian descent, Hussein moved to the United States in 1997 and was hired as a probationary pilot in February 2001. When commercial air travel was suspended after 9/11, Hussein returned a TSA plane to St. Louis, the company's base, on September 13 and checked into the hotel to wait out the suspension. Slip op. at 2. According to Hussein, he believed the attacks were "contemptible and horrific." Id. at 5. The tipster was later identified as Emmet Conrecode, a TWA pilot who was also staying at the hotel. Conrecode stated that, while at the bar on September 13, he saw a man in a pilot's uniform drinking a beer and when the television showed a replay of a plane hitting the World Trade Center, the man seemed to raise his bottle and drink as if in a salute. A hotel employee identified the man as a TSA pilot named Hussein, and Conrecode recognized the name as Arab. Slip op. at 3-4; PA191. Conrecode testified that he heard the man say he would "get to fly" the next day – a statement Conrecode interpreted to mean that Hussein was about to "betray" the United States by flying into a building. PA204. Around 3:00 a.m., therefore, Conrecode called the FBI and/or airport police. Id. at 4. This call prompted a brief FBI investigation, with interviews of Conrecode, Reed, and Hussein. Id. at 5. The FBI took no further action. After investigating Hussein's charge, the EEOC filed suit, alleging that TSA violated Title VII by firing Hussein because of his national origin, race, and/or religion. Hussein intervened. The district court granted summary judgment to TSA. The court credited TSA's position that Hussein was not entitled to the disciplinary procedures in the employee handbook or collective bargaining agreement and that probationary pilots seen drinking in a bar in uniform had previously been fired summarily. The court found no evidence that Hussein's race, religion, and/or national origin played a role in his discharge. Slip op. at 5-6. B. Panel Opinion A panel of this Court affirmed. The panel noted that EEOC's case relied on circumstantial evidence including inferences drawn from Hussein's name, the timing of the discharge, Reed's shifting explanations, and "alleged deviation from progressive discipline procedures outlined in the employee handbook." Slip op. at 7. In the panel's view, this evidence did not support a finding of discrimination. Regarding the inferences, the panel stated that the EEOC contends that "Reed must have assumed that a pilot named ‘Mohammed Hussein' was Muslim and Arab." Slip op. at 8. The panel noted, however, that "Hussein is not Arab" but of Indian descent. Id. (emphasis in original). The panel stated: "The contention that a jury necessarily would infer that Reed engaged in inaccurate stereotyping is not attractive." Even assuming a "non-Arab" might have a claim if his "‘objective appearance to others' was as an Arab," the panel added, there is "no evidence that Reed ever observed Hussein." Id. (quoting Bennun v. Rutgers State Univ., 941 F.2d 154, 173 (3d Cir. 1991)). As for religion, the panel continued, the "asserted inference that a person named ‘Mohammed Hussein' would follow the Islamic faith is at least consistent with the facts of this case, although we think it is generally understood that most persons are named at birth by their parents but develop their religious beliefs over a lifetime." Id. Nevertheless, the panel reasoned, Reed "testified that he never thought about Hussein's religion, and the inference that he assumed it and then considered it in making the employment determination is rather tenuous." Id. at 8-9. In any event, the panel held, even assuming a reasonable jury could find that Reed inferred that Hussein was Muslim or Middle-Eastern, there is insufficient evidence of pretext. Slip op. at 9. In particular, the panel noted EEOC's argument that pretext may be inferred from the fact that Reed changed his story over time: his deposition states that he fired Hussein, without investigation, upon confirming that he was probationary and "should have been" in St. Louis whereas he told EEOC's investigator that he had started to investigate but stopped and fired Hussein after the FBI phone call. In the panel's view, these "allegedly ‘shifting explanations'" do not "reasonably support an inference of unlawful motive." Distinguishing three cases where such shifts did raise an inference of pretext on the ground that those employers "gave two completely different explanations," the panel noted that TSA "has not wavered" from its "explanation" that Hussein was fired for appearing in a bar in uniform. Although Reed offered "inconsistent explanations for precisely what convinced him to act based on the anonymous accusations," the differences are "too fine" to constitute substantial evidence of pretext. Id. at 12-13. Reed's earlier discharge of probationary pilots in South Bend also confirmed his testimony that he summarily fires probationary pilots accused of rule violations without investigation. Id. at 10-11. ARGUMENT I. THE PANEL DECISION CONFLICTS WITH DECISIONS FROM OTHER COURTS RECOGNIZING THAT AN EMPLOYER'S AWARENESS OF A PERSON'S NAME MAY SUPPORT A FINDING THAT THE EMPLOYER ALSO ASSUMED THAT THE PERSON WAS OF THE NATIONAL ORIGIN, RACE AND/OR RELIGION ASSOCIATED WITH HIS NAME. The panel decision conflicts with numerous cases from other circuits and the Supreme Court recognizing that an individual's name may be a proxy for his national origin, race, and/or religion. According to the panel, because it turns out that "Hussein is not Arab," no reasonable jury could find that Reed assumed that he was Middle Eastern, based solely on the fact his name is Mohammed Hussein. Slip op. at 8 (emphasis in original). As for religion, the panel stated, without citation to authority, that while Hussein is Muslim and Mohammed is a Muslim name, Reed testified that he "never thought about Hussein's religion," so the "inference that he assumed it and then considered it in making the employment decision is rather tenuous." Id. The panel thus apparently believes that, even where, as here, an individual's name correlates closely to national origin, race, and religion, the jury may not find that these characteristics played a role in the decisionmaking as long as the decisionmaker denies making the connection. Such a ruling cannot be reconciled with caselaw from other courts. The Supreme Court, for example, has recognized that names, like color, provide "ready identification" of persons in a protected class. See Hernandez v. Texas, 347 U.S. 475, 480 n.12 (1954) (jury pools); see also, e.g., El-Hakem v. BJY Inc., 415 F.3d 1068, 1073 (9th Cir. 2005) (names are "often a proxy for race and ethnicity"). Courts also find that "discrimination against people who possess surnames identified with particular racial or national groups is discrimination on the basis of race or national origin." Orhorhaghe v. INS, 38 F.3d 488, 498 (9th Cir. 1994). Thus, the Seventh Circuit reversed a summary judgment for the employer where qualified applicants with African-American-sounding names were not interviewed. See EEOC v. Target Corp., 460 F.3d 946, 962 (7th Cir. 2006). In the Court's view, a jury could find that the decisionmaker inferred the applicants' race from their names. Id. Similarly, the Second Circuit held that a jury could find the plaintiff's religion "was apparent" from his name. Rosen v. Thornburgh, 928 F.2d 528, 534 (2d Cir. 1991) (Jewish religion). See also Sarmiento v. Queens College CUNY, 386 F. Supp.2d 93, 109 (E.D.N.Y.) (employer knew plaintiff was Hispanic from his name), aff'd, 153 F. App'x 21 (2d Cir. Oct. 28, 2005). In addition, both courts and other governmental entities frequently treat people with certain types of names as distinct ethnic groups for special programs as well as litigation. See Orhorhaghe, 38 F.3d at 498 (e.g., affirmative action policies); Teamsters v. United States, 431 U.S. 324, 329 (1977) (Title VII race/national origin case alleging bias against "Negroes and Spanish-surnamed individuals"). Neither defendant nor the panel cited any contrary authority, and we are aware of none. Here, however, the panel dismissed as "unattractive" the possibility that a jury would find that Reed identified Hussein as an Arab from his name because such an identification would have been an "inaccurate" stereotype. Slip op. at 8 ("contention that a jury necessarily would infer that Reed engaged in inaccurate stereotyping is not attractive"). The panel's ruling runs contrary to both law and logic. Inferring that people named Mohammed Hussein are of Middle-Eastern descent is not a "stereotype" or, necessarily, inaccurate. The name "Hussein" is Arabic and Muslim in origin. S. Ahmad, Dictionary of Muslim Names 74 (NYU Press 1998). Thus, Hussein likely is of Arabic or Middle-Eastern ancestry, and there is no evidence Reed was specifically aware that Hussein was born in Fiji. Furthermore, as the panel recognized, Hussein is a Muslim, and, contrary to the panel decision, the link between his name Mohammed and the religion of Islam could not be more direct. See slip op. at 8-9 (describing as "tenuous" the idea that Reed might assume Hussein was Muslim and base decision on that assumption). Instead of addressing other applicable cases, the panel simply mentioned and distinguished Bennun, 941 F.2d at 172-73. In Bennun, a Sephardic Jewish Argentine was found protected by Title VII based on his "objective appearance to others" -- speech, appearance, mannerisms. In contrast, here, the panel noted, "there is no evidence Reed ever observed Hussein." Slip op. at 8. However, nothing in Bennun suggests that only physical characteristics can give rise to discriminatory inferences. On the contrary, courts have not differentiated between inferences based on physical appearance and inferences based on name, and neither should this Court. Compare Target, 460 F.3d at 962 (applicants rejected based on paper applications). Where an employment decision is based on any characteristic, including name, that is indicative of national origin, race, and/or religion, the victim is entitled to Title VII protection. It is important that the panel's error be corrected because if a jury did find that Reed inferred that Hussein was Middle-Eastern and/or Muslim from his name, the jury could also find that Reed's discharge of Hussein constituted ethnic and/or religious discrimination, rendering summary judgment for the employer inappropriate. Furthermore, we note that Reed's personal views are not dispositive. Conrecode thought Hussein was Arabic, based on his name, and this fueled his concern about Hussein's flying. If Reed fired Hussein at least in part because he feared that other airline staff and/or the public would, like Conrecode, react negatively to Hussein's name, that is unlawful. See Diaz v. Pan Am. World Airways, 442 F.2d 385, 389 (5th Cir. 1971) ("totally anomalous" to let customers' "preferences and prejudices" determine whether discrimination was valid). See also M.I. Ahmad, A Rage Shared By Law: Post-September 11 Racial Violence As Crimes of Passion, 92 Cal. L. Rev. 1259, 1269 & nn.26-32 (Oct. 2004) (describing post-9/11 incidents where flight personnel refused to fly until Arab, Muslim, and/or South Asian passengers, including one named "Mohamed," were removed from plane). Of course, the jury was not compelled to find that Reed assumed, from Hussein's name, that he was Muslim and/or Middle-Eastern. But especially given the timing and the association both names have with Islam and the Middle East (e.g., the Prophet Mohammed, Mohammed Atta, Sadaam Hussein), the jury would also be free to reject Reed's testimony that he drew no such inference. Moreover, because the panel decision, as written, is susceptible to the interpretation that even names that are readily identified with a specific race, national origin, or religion are not a proxy for those characteristics, it could have serious consequences, especially in hiring cases where an employer simply rejects an applicant, based on his name, before scheduling interviews. Where an employer has never seen the applicant screened out by such a process, the panel decision could make challenging this obvious discrimination difficult, if not impossible. Nothing in Title VII would sanction such a result, and, as noted above, the Seventh Circuit recently rejected a similar argument. See Target, 460 F.3d at 962; cf. Hernandez, 347 U.S. at 481 (barring exclusion of potential jurors based on name). Because of these potential consequences of the panel decision and because the ruling lacks any basis in law or logic, this petition should be granted. Initially, we ask the panel to delete the two paragraphs addressing this issue, on pages 8 and 9, beginning with "In support of" and ending with "is rather tenuous." Alternatively, we urge the en banc Court to rehear the case and hold that an individual's name, like his appearance, provides important clues to his race, national origin, and/or religion such that a jury reasonably could find that an employer, seeing the name, inferred that the individual was the national origin, race, and/or religion reflected by his name. II. THE PANEL DECISION MISAPPLIES LEGAL STANDARDS IN ASSESSING EEOC'S EVIDENCE OF PRETEXT BY DISREGARDING EVIDENCE THAT TSA'S EXPLANATION FOR DISCHARGING HUSSEIN CHANGED SUBSTANTIALLY ONCE KEY PARTS OF THE ORIGINAL VERSION OF THE STORY WERE PROVEN FALSE. The panel decision misapplies settled legal standards in holding that the EEOC did not present sufficient proof of pretext. In a McDonnell Douglas pretext case like this, once the plaintiff makes out a prima facie case, the burden shifts to the employer to "explain what he has done." Texas Dep't of Comm'y Affairs v. Burdine, 450 U.S. 248, 256 (1981). That "explanation" must be "clear and specific" enough to afford the plaintiff a "full and fair opportunity" to prove that it is unworthy of credence and that discrimination played a role in the challenged action. Id. at 258. Evidence that over time the employer's explanation changed "substantially" is, in and of itself, probative of pretext. See, e.g., Kobrin v. Univ. of Minn., 34 F.3d 698, 703 (8th Cir. 1994); EEOC v. Sears Roebuck & Co., 243 F.3d 846, 853-54 (4th Cir. 2001) ("different justifications at different times"). Here, the EEOC offered evidence that Reed's explanation for firing Hussein changed substantially as the case progressed. Specifically, the evidence showed that Reed first told EEOC's investigator that, on receiving the anonymous tip, he commenced an investigation that ended only after he learned that the FBI was interested in Hussein's conduct; the inference is that his decision was based on both the tip and the FBI call. However, when it became clear that the FBI called after Hussein was fired, Reed changed his story. He testified that his decision was based solely on the tip and that no investigation was ever ordered; his practice is never to investigate allegations of misconduct involving probationary pilots. TSA did not attempt to reconcile these two stories: in light of Reed's alleged practice, a jury could find that he was unlikely to have forgotten whether he had ordered an investigation for this probationary pilot or waited until after the FBI contacted him to order Hussein's discharge. Cf. Sears, 243 F.3d at 853 (employer presumably knew importance of responding "truthfully and completely" to EEOC charge). In addition, given the concerns and fears surrounding September 11, a jury could also find suspicious the precipitous nature of Reed's actions. Since key elements of the original version are clearly false and the timing is suspect, a jury reasonably could find the explanation was simply a fabrication to cover up the fact that Hussein's name and, so, his race, national origin, and/or religion played a role in his discharge: Reed chose to rid the airline of a pilot with a Middle-Eastern/ Muslim- sounding name. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 146 (2000) ("disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination"). In holding that, despite their obvious significance, these changes in TSA's explanation are not "material" and, so, do not support an inference of unlawful motive, the panel improperly focused on only a narrow piece of the story -– the statement that Hussein was fired because he reportedly appeared in a bar in uniform. Slip op. at 12-13 (discrepancies do not bear on "material" disputed fact). This was error. TSA's "explanation" encompassed more than just the fragment the panel noted; it included all the contextual information Reed provided. Indeed, the EEOC did not dispute that Reed received an anonymous tip nor that TSA could validly fire Hussein for appearing in a bar in uniform. Rather, the issue with respect to pretext was whether Reed was covering up the fact that Hussein's name and, so, his national origin, race, and/or religion played a substantial role in the discharge decision. Evidence that Reed fabricated much of the information he initially supplied the EEOC strongly suggests a cover up. Although a jury could of course consider the "unwavering" fragments of the story (see slip op. at 13), it might also be persuaded by the substantial inconsistencies in the remainder of the story. Contrary to the panel opinion, therefore, the evidence that TSA made substantial changes in its explanation is "material," and the changes are not<1> "too fine" to suggest that the explanation is pretextual. Slip op. at 12-13. The panel distinguished several "shifting reasons" cases on the ground that, unlike here, the employers there "gave two completely different explanations for their decisions." Slip op. at 13. Even assuming that was true in those specific cases, however, there is no general requirement that explanations be "completely different." On the contrary, for example, this Court found the pretext evidence sufficient where, while continuing to press its initial reason, the employer added a second reason (Hossaini v. Western Mo. Med. Ctr., 97 F.3d 1085, 1089 (8th Cir. 1996)), or offered after-the-fact "make-weight" motives, with its original reason, for discharging the plaintiff. Wallace v. DTG Ops., 442 F.3d 1112, 1125 (8th Cir. 2006); but see id. at 1127-28 (Colloton, J., dissenting) (shifting reasons rubric should not apply since employer's core reason never changed). Rather, the question is whether the changes were "substantial" enough to support a finding that the employer is dissembling to cover up an unlawful motive. See Wallace, 442 F.3d at 1125 (citing Kobrin, 34 F.3d at 703). Here, they clearly were. In short, the discrepancies in Reed's explanations would support a jury finding that he was dissembling to cover up the fact that he had seized the opportunity to rid TSA of a pilot with a Middle-Eastern/Muslim-sounding name, whether because he saw the pilot as a potential terrorist or merely a liability due to the post-9/11 fears of customers and other airline personnel. The panel's contrary decision is based on a faulty reading of this Court's pretext caselaw. We therefore urge the Court to rehear the case en banc and clarify that substantial shifts in the employer's explanation for its actions, especially after key elements in the initial story are proven false, support a finding of pretext even if a narrow piece of the overall explanation did not change. CONCLUSION For the foregoing reasons, the Commission urges this Court to grant the petition for rehearing and/or the suggestion for rehearing en banc. Respectfully submitted, RONALD S. COOPER General Counsel ____________________________ BARBARA L. SLOAN VINCENT J. BLACKWOOD Attorney Acting Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION JULIE L. GANTZ Office of General Counsel Attorney 1801 L Street, NW, 7th Floor Washington, DC 20507 (202) 663-4721 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 29(d), 32(a)(7), and 40(b) because it contains 3623 words, from the Statement of Issues through the Conclusion, as indicated by Fed. R. App. P. 32(a)(7)(B). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Office Word 2003 with 14 point Times New Roman. ________________________________ Barbara L. Sloan CERTIFICATE OF SERVICE I certify that I filed this petition with the Court on November 2, 2006, by express-mailing 21 paper copies pursuant to Rule 35A(1) of the Eighth Circuit Rules, as well as a computer disk containing a digital version of the brief in PDF format pursuant to Rule 28A(d) of the Eighth Circuit Rules. The diskette has been scanned for viruses and is virus-free. I also certify that I served two paper copies and one digital copy of the petition on November 2, 2006, by express mail, postage pre-paid, to: William B. Jones MCMAHON, BERGER, HANNA, LINIHAN, CODY & MCCARTHY 2730 North Ballas Road, Suite 200 St. Louis, MO 63131 Jerome J. Dobson Michelle D. Neumann WEINHAUS, DOBSON, GOLDBERG & MORELAND 906 Olive Street, Suite 900 St. Louis, MO 63101 Kansas City, MO 64105 ________________________________ Barbara L. Sloan ADDENDUM Eighth Circuit Panel Decision *********************************************************************** <> <1> Reed’s statement that he never investigates allegations of misconduct involving probationary pilots but simply fires the pilot, despite the pilot’s extensive training, regardless of prior record, could also be rejected as implausible. See Reeves, 530 U.S. at 146 (disbelief accompanied by suspicion of mendacity); cf. Sears, 243 F.3d at 854 (jury could find it “implausible” that employer would reject qualified applicant without verifying that he was, in fact, the person accused of violation). To bolster the plausibility of this alleged practice, TSA cited the “South Bend incident.” Slip op. at 10-12. A jury could find that incident distinguishable, however, since, even crediting TSA’s position that no investigation was done, Reed knew at least that those pilots were where they were accused of being whereas he had no idea whether Hussein was anywhere near the hotel or bar. The offense in South Bend -- drinking alcohol within 12 hours of reporting for duty -- is also undeniably more serious than merely appearing in a bar in uniform. As EEOC noted, there is no evidence that any other pilot was ever fired for this offense. EEOC Brief at 15. Finally, and significantly, there was disputed evidence as to exactly what Hussein was wearing, and even TSA’s witnesses disagreed as to the meaning of the term “in uniform,” so a reasonable jury could question why and whether Reed reportedly relied exclusively on an anonymous tipster’s interpretation of the term in deciding that the rule was violated.