EEOC & Hussein v. Trans State Airlines, Inc. (8th Cir.) Reply brief Oct. 17, 2005 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 __________________________________________________ REPLY/CROSS-APPELLEE BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ___________________________________________________ JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT BLACKWOOD Assistant General Counsel JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7032 Washington, D.C. 20507 (202) 663-4718 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . .1 ARGUMENT AS APPELLANT. . . . . . . . . . . . . . . . . . . . . .1 ARGUMENT AS CROSS-APPELLEE THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE DEFENDANT'S REQUEST FOR ATTORNEY'S FEES. . . . . . . . . . 21 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 25 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Bassett v. City of Minneapolis, 211 F.3d 1097 (8th Cir. 2000). 24 Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). . . . 22 Connecticut v. Teal, 457 U.S. 440 (1982) . . . . . . . . . . . .8 EEOC v. Kenneth Balk &Assocs., Inc., 813 F.2d 197 (8th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . .22 El-Hakem v. BJY Inc., Nos. 03-35514, 03-35544, 04-35063, 2005 WL 1692470 (9th Cir. July 21, 2005) . . . . . . . . . 18 Graham v. Long Island R.R., 230 F.3d 34 (2d Cir. 2000) . . . . .8 Herrnreiter v. Chicago Housing Auth., 315 F.3d 742 (7th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . 20 Illinois Migrant Council v. Pilliod, 540 F.2d 1062 (7th Cir. 1976) . . . . . . . . . . . . . . . . . . . . . .18 Keathley v. Ameritech Corp., 187 F.3d 915 (8th Cir. 1999). . . .4 Kline v. City of Kansas City, 245 F.3d 707 (8th Cir. 2001) . . 22 Lynn v. Deaconess Med. Center-West Campus, 160 F.3d 484 (8th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . 4 NAACP-Special Contribution Fund v. Atkins, 908 F.2d 336 (8th Cir. 1990). . . . . . . . . . . . . . . . . . . . . . 22 Orhorhaghe v. INS, 38 F.3d 488 (9th Cir. 1994) . . . . . . . . 18 Peterson v. Scott County, 406 F.3d 515 (8th Cir. 2005) . . . . 20 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). . . . . . . . . . . . . . . . . . . . . . . 6, 10, 14 Rosen v. Thornburgh, 928 F.2d 528 (2d Cir. 1991) . . . . . . . 19 STATUTES 28 U.S.C. § 1927 . . . . . . . . . . . . . . . . . . . . . . . 22 42 U.S.C. § 2000e-5(k) . . . . . . . . . . . . . . . . . . . . 21 ARTICLES William B. Rubenstein, The Real Story of U.S. Hate Crimes Statistics: An Empirical Analysis, 78 Tul. L. Rev. 1213, 1235 (2004). . . . . 21 ARGUMENT AS APPELLANT Introduction The Commission alleges in this action that Trans State Airlines violated Title VII by terminating the employment of Mohammed Hussein, a Muslim probationary pilot who appears to be of Middle Eastern descent, a week after the September 11 terrorist attacks because of his religion, race, and national origin. Hussein has intervened as a plaintiff. TSA maintains that it fired Hussein based solely on an uncorroborated, anonymous call reporting that he was in a bar in uniform in violation of a company rule. The district court granted summary judgment for the defendant but denied TSA's request for attorney's fees, determining that although the Plaintiffs' case was not meritorious, it was not frivolous. All parties have appealed. In our opening brief, we argued that a reasonable jury could infer from the evidence that, had Hussein not been a Muslim who appears to be Middle Eastern, TSA would not have fired him without taking reasonable steps to verify the truth of the anonymous report that he was in a bar in uniform. We noted that there is evidence that TSA's explanation for its decision is not true. First, we argued that a jury could infer that Vice President of Flight Operations Daniel Reed's current explanation for firing Hussein is false because it is inconsistent with the explanation he first gave for the decision. Reed initially stated that, although he knew Hussein was a probationary pilot, he instructed his flight managers to investigate the report about Hussein before he took action but called off the investigation when the FBI called and wanted to interview him about Hussein. Reed later admitted that the FBI did not call him until after he had fired Hussein and now maintains that he never investigates anonymous accusations against probationary pilots. We argued that, in light of this inconsistency, a jury could find that Reed's statements about his actions are merely pretextual cover stories that change over time as new evidence comes to light. We also argued that a jury could reject Reed's current version of events because it is inherently unbelievable. According to Reed, TSA fired a pilot in whom it had invested seven months of training without even a cursory investigation into an uncorroborated, anonymous phone call. This story is particularly implausible, we argued, because the rule Hussein was accused of violating was vague at best. TSA's own managers could not agree on what it means to be "in uniform" under TSA's rules, and yet Reed says that he fired Hussein without even asking the anonymous tipster what Hussein was wearing or whether the caller knew anything about TSA's policies. Finally, we argued that a jury could find Reed's current explanation to be pretextual because, if it were true, it would represent a deviation from the company's normal practices. We pointed out that, on its face, TSA's Employee Handbook affords all employees, including probationary employees, progressive discipline and fair treatment. Furthermore, the record contains statements from a number of TSA managers indicating that it is not company policy to fire an employee based on an anonymous phone call without at least determining who the caller is or giving the employee an opportunity to respond. Accordingly, we argued, a jury could conclude that Reed's assertion that he treated Hussein in this manner is a pretext intended to cover up the fact that Reed was motivated, at least in part, by hostility based on the fact that Hussein was a Muslim who appeared to be Middle Eastern. In its brief as appellee, TSA overlooks the fact that, in considering the company's motion for summary judgment, the district court and this Court are required to resolve any factual disputes in favor of the Commission, the non- moving party. Instead, TSA repeatedly presents its version of disputed facts as true and ignores contrary evidence. The company also distorts the legal principles applicable to this case, suggesting incorrectly that, even if the evidence would support a finding that Reed's explanation for his decision to fire Hussein is not true, the Commission can prevail only if it produces additional evidence affirmatively establishing that Reed acted for a discriminatory motive. In this reply we explain why, when TSA's obfuscations are put aside and the evidence is viewed under the proper standard, it is sufficient to support a finding that the company violated Title VII by firing Mohammed Hussein because of his religion and national origin/race. 1. In our opening brief, we argued that the district court erred in granting summary judgment for the Defendant in this case because there is sufficient evidence in the record to support a finding that TSA's stated explanation for firing Hussein is not the true explanation and that the fact that Hussein is a Muslim who appears to be Middle Eastern was a motivating factor in the company's decision. We noted that summary judgment would be appropriate in this case only if, construing the evidence in the light most favorable to the Plaintiffs, no reasonable fact finder could find that Hussein was terminated because of his religion, race, and national origin. See, e.g., Lynn v. Deaconess Med. Center-West Campus, 160 F.3d 484, 486-87 (8th Cir. 1998) (because employment discrimination cases "often depend on inferences rather than on direct evidence, summary judgment should not be granted unless the evidence could not support any reasonable inference for the nonmovant"); Keathley v. Ameritech Corp., 187 F.3d 915, 919 (8th Cir. 1999) (summary judgment is appropriate only if no reasonable fact finder could return a verdict for the plaintiffs.). See EEOC Br. at 29-30. Although TSA pays lip service to the summary judgment standard in its brief as appellee, the company in responding to the Plaintiffs' arguments repeatedly ignores evidence in the record supporting the Plaintiffs' claims. Instead of addressing the evidence that TSA's nondiscriminatory explanation for firing Hussein is pretextual, TSA simply repeats its disputed version of events. As we demonstrate below, the company's failure to acknowledge or address the evidence in the record supporting the key elements of the Plaintiffs' claims renders its defense of the district court's judgment ineffectual. Similarly, the company employs a distorted legal standard in responding to the Commission's explanation of how a jury could find for the Plaintiffs based on the evidence in the record. We argued in our opening brief that a jury could find that TSA's explanation that its decision to fire Hussein based solely on an uncorroborated, anonymous report that he was in a bar "in uniform" was false and could infer from that finding that Hussein would not have been fired under these circumstances if he had not been a Muslim who appears to be Middle Eastern. EEOC Br. at 36-52. In response, TSA emphasizes that, in order to establish pretext, a Title VII plaintiff must ultimately prove not only that the employer's non-discriminatory explanation is false, but also "that discrimination was the real reason for the employment action." TSA Br. at 39 (citations omitted). In making this point—which we do not dispute—TSA leaves the impression that a plaintiff must offer additional evidence besides the evidence that TSA's explanation for firing Hussein is unworthy of credence in order to carry its burden of proof. However, in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000), a case which is not cited by the Defendant in this section, the Supreme Court expressly held that "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." The Court explained that, "once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision." Id. at 147. 2. TSA argues that "the EEOC did not believe TSA's legitimate, nondiscriminatory explanation for terminating Hussein was false" because EEOC investigator James Gall did not find evidence to suggest TSA never received an anonymous call from Conrecode reporting Hussein in a bar in uniform or find evidence that Reed did not believe Hussein was in a bar in uniform. TSA Br. at 41. TSA goes on to argue that the EEOC's determination letter never challenged that Hussein was in a bar in uniform and therefore "it is clear Appellants failed to establish TSA's legitimate, non-discriminatory explanation for terminating Hussein is false." Id. The Defendant misses the point. We do not dispute that the anonymous call reporting Hussein in a bar in uniform triggered Hussein's discharge. We argued instead that a jury could find that the call alone does not explain Hussein's abrupt termination, one week after the September 11 attacks, without any investigation into the veracity of the report. The Commission's theory of the case does not require a finding that Reed was bent on purging all Muslims and Arabs from the company's ranks. Instead, a jury could find a violation of Title VII if it believes that the anonymous call reporting Hussein in violation of TSA's policy presented Reed with an opportunity to get rid of Hussein and Reed took advantage of that opportunity by overreacting to the call and firing Hussein on the spot without giving him the benefit of the doubt he would have afforded him had he not been Muslim or perceived as Arab. Accordingly, TSA's assertion that the Commission's claim is disproved by the fact that the company still employs other pilots "with the same ethnic background as [Hussein's]" is unavailing. TSA Br. at 22-23, 45. The fact that TSA has hired other Muslims or Arabs and did not fire all of them after September 11 hardly compels a factfinder to conclude that Reed did not overreact to Conrecode's call and discriminate against Hussein. See Connecticut v. Teal, 457 U.S. 440, 453-55 (1982) ("Congress never intended to give an employer license to discriminate against some employees . . . merely because he favorably treats other members of the employees' group."); Graham v. Long Island R.R., 230 F.3d 34, 43 (2d Cir. 2000) (evidence that similarly situated non-black employees were treated in the same manner as plaintiff and that one other black employee was treated more favorably was insufficient to sustain summary judgment for employer because of Title VII's focus on protecting individuals, rather than a protected class as a whole). 3. We argued in our opening brief that, because there is evidence that Reed gave inconsistent and contradictory explanations for his decision to fire Hussein, a jury could find that his current explanation is not credible. EEOC Br. at 37-39. When Reed was first contacted by the EEOC about the circumstances surrounding Hussein's termination, Reed did not say that he fired Hussein on the spot based on an anonymous phone call because he was a probationary employee. Instead, Reed said he had initiated an investigation of the anonymous call but canceled it when he got a call from the FBI that the FBI wished to interview Hussein. Later, perhaps realizing that it would become evident that the FBI contacted him after he had terminated Hussein, Reed changed his story and testified at his deposition that he fired Hussein without an investigation because the company never investigates reports of misconduct by probationary employees. We noted in our brief that courts have held that such shifting justifications constitute evidence of pretext. EEOC Br. at 37-38 (citing Young v. Warner-Jenkinson Co., 152 F.3d 1018, 1024 (8th Cir. 1998), and EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994)). In its appellate brief, TSA argues that the inconsistency in Reed's statements relates only to the timing of the FBI's first contact with Reed and "does not bear on" the issue in this case because "TSA has consistently maintained from the very beginning that it terminated Hussein because it received a report that he was in a bar while in uniform." TSA Br. at 52-53. Once again the company misses the point. The central factual issue in this case is why Reed decided to fire Hussein based on an uncorroborated, anonymous phone call without conducting even a minimal investigation. A jury would be asked to decide whether it was because Hussein was a Muslim who appeared to be Middle Eastern, or for some non-discriminatory reason. The inconsistency in Reed's statements bears directly on this point. In his first statement he indicated that he was not going to fire Hussein without an investigation, but called off the investigation once the FBI indicated that it was interested in Hussein. Now Reed says that he did not investigate the anonymous accusation against Hussein because he never investigates complaints against probationary employees. This inconsistency on a point that is at the heart of the company's non-discriminatory explanation is strong evidence of pretext. Contrary to TSA's assertion, this case is not distinguishable from Young and Ethan Allen, the cases relied on by the Commission. In those cases, as in this case, the employer gave an initial explanation, and then, after inconsistent evidence came out, changed its story. Particularly where, as here, the same manager gives irreconcilable explanations for his actions, a jury is entitled to infer that his current explanation is not an honest statement of his reasons, but rather a cover up concocted to mask a discriminatory motive. See Reeves, 530 U.S. at 147 ("In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as ‘affirmative evidence of guilt.'"). 4. We also argued that the evidence would support a finding that, in terminating Hussein without investigating the anonymous accusation against him or giving him an opportunity to respond, TSA deviated from its usual policies and customs in handling a report of misconduct. We noted that this Court has held that an employer's unexplained failure to follow its usual policies is evidence of pretext. EEOC Br. at 43 (citing Russell v. TG Missouri Corp., 340 F. 3d 735, 746 (8th Cir. 2003)). In response, TSA simply repeats its assertion below that it never investigates allegations against probationary employees and ignores the contrary evidence cited in the Plaintiffs' briefs. TSA Br. at 47-48. As we detailed in our opening brief, see EEOC Br. at 17-19, 49-51, several flight managers, whose job included investigation of allegations of pilot misconduct, indicated in their testimony that TSA did in fact typically take basic steps to at least verify the truth of an allegation of misconduct by a probationary pilot, such as finding out the identity and motivation of the tipster. One manager even testified that he assumed an investigation had been done and that he would have wanted to know if Hussein had witnesses and agreed that TSA should have asked Hussein if he had any witnesses. See EEOC Br. at 17-18, 47. We argued that a jury could conclude from these statements that such measures were typically taken, and that TSA had departed from its usual practice in its handling of the call about Hussein and its decision to terminate him on the spot. In its appellate brief, TSA offers no response to the testimony of these managers and instead relies on Reed's testimony to assert incorrectly that this point is "undisputed." TSA Br. at 48. However, as we pointed out in our opening brief, even Reed's testimony on this issue is internally inconsistent since his statement to the EEOC investigator that he instructed his flight managers to investigate the allegation against Hussein even though he knew Hussein was a probationary employee is inconsistent with his later assertions that the company never investigates allegations of rule violations by probationary pilots. EEOC Br. at 33. TSA also asserts in its brief that the so-called "South Bend incident" in which probationary pilots were fired following an anonymous call reporting that they were drinking shortly before reporting for duty compels a finding that TSA treated Hussein the same as other probationary pilots. TSA Br. at 48. In our opening brief, however, we pointed to evidence in the record indicating that at least a cursory investigation was done for the South Bend pilots. While Reed testified that he summarily fired the entire group of six to eight pilots involved, we noted that a TSA pilot who was present in South Bend at the time testified that only three pilots were fired "within a week" of the report, and they were part of a larger group at a hotel bar. We argued that a jury could find based on this evidence that at least some investigation had been done to identify which pilots had been drinking. Accordingly, the jury could conclude, these pilots were treated more fairly than Hussein. See EEOC Br. at 45. TSA makes no response to this argument. We also argued in our opening brief that Hussein's treatment is inconsistent with the policies set out in TSA's Employee Handbook, which states that TSA employees shall be treated fairly and afforded progressive discipline. EEOC Br. at 32-33, 43, 47-49. In response, TSA repeats its assertion that, notwithstanding the fact that the Handbook makes no distinction between probationary and nonprobationary employees, these provisions of the Handbook do not apply to probationary employees because they conflict with the provision of the collective bargaining agreement which excepts probationary employees from the contractual grievance procedure. TSA argues that insofar as the Handbook can be read to give probationary pilots "some protection . . . for notice and opportunity to be heard and/or progressive discipline" [sic], the collective bargaining agreement "specifically removed any such rights . . . from probationary pilots." TSA Br. at 47. Once again, TSA misunderstands our argument. We do not rely on the Handbook for the proposition that probationary pilots have enforceable "rights" to fair treatment or progressive discipline, but simply as evidence that it is the company's normal practice to afford them those benefits. The plain language of the Handbook, along with the testimony of a union official that nothing in the CBA conflicts with the Handbook's stated policy of affording fair treatment to all TSA employees, creates at least a triable issue of fact. Because the district court was required to accept the Commission's version of the facts as long as the record contains evidence to support it, summary judgment was inappropriate. See Reeves, 530 U.S. at 152 (faulting court of appeals for disregarding critical evidence favorable to petitioner and for failing to draw all reasonable inferences in favor of petitioner). We pointed out in our opening brief that Reed's explanation for the decision to fire Hussein based on an uncorroborated, anonymous complaint is particularly suspect because the policy Hussein was accused of violating is ambiguous, and no one else has ever been fired for violating it. See EEOC Br. at 31, 43-44. Reed testified that he did not obtain the identity of the anonymous caller because the caller said he would call back "explaining everything." II-P.A.400, 401. However, it is undisputed that Reed fired Hussein without waiting for the caller to "explain everything." There is also evidence that he had not even learned whether Hussein was in St. Louis at the time Reed ordered him fired.<1> See EEOC Br. at 17, 32. In response, TSA accuses the Commission of usurping the company's authority to determine what it means to be "in uniform" by arguing that Hussein was not "‘in uniform' according to [the Commission's] interpretation of ‘in uniform.'" TSA Br. at 48. According to TSA, "it is clear Hussein was at least in partial uniform" under the company's interpretation of its policy. Id. This argument misses the mark. As TSA and the district court correctly note, this case does not turn on whether the information we now have demonstrates that Hussein was or was not in a bar "in uniform."<2> The central question is whether Reed, based on the information he had at the time he decided to summarily fire Hussein and applying the standard he would have applied to a pilot who was not a Muslim who appeared Middle Eastern, could reasonably have concluded that Hussein committed a dischargeable offense. The confusion about TSA's policy is relevant to this point because it demonstrates how unreasonable it would be for Reed to conclude that Hussein should be fired for violating the policy based on the conclusory statement of an anonymous stranger. Even if Reed himself had a clear idea as to which items of clothing constituted a full or partial uniform, it is undisputed that he did not know what Hussein was allegedly wearing in the bar when he decided to fire him. A jury could thus conclude that Reed jumped to the conclusion that Hussein had committed a dischargeable offense based not on firm evidence or a reasonable belief, but on religious or ethnic hostility. 5. TSA argued below that Reed could not have been motivated by the fact that Hussein was a Muslim who appeared Middle Eastern because Reed testified that he was unaware of Hussein's religion or national origin. We argued in our opening brief that a reasonable jury could discredit Reed's testimony. We noted that there is evidence in the record that would support a finding that Reed was informed that the pilot who was allegedly in a bar in uniform appeared to be Middle Eastern. EEOC Br. at 55-57. We also argued that Reed could have inferred that Hussein was a Muslim and probably Middle Eastern from his name. Id. In its brief, TSA distorts and ridicules the Commission's argument, but does not respond to it. TSA twists the Commission's argument into an assertion that, because Hussein's first name is Mohammed, "Reed necessarily perceived [him] to be Muslim and a terrorist," and then characterizes that distorted argument as "absolutely ludicrous" and "offensive." TSA Br. at 43. TSA suggests that, by making this argument, the Commission is fostering the sort of stereotyping that Title VII is designed to combat. Id. at 43-44. On the contrary, fairly understood, the Commission is arguing only that, where, as here, an employer takes an otherwise unexplained adverse action against an employee with a name associated with a particular religion or ethnic group, a reasonable factfinder can conclude that the employer made a stereotypical judgment about the employee based on his name. As we noted, other courts have recognized the validity of this argument. See cases cited in EEOC Br. at 55-56; see also El-Hakem v. BJY Inc., Nos. 03- 35514, 03-35544, 04-35063, 2005 WL 1692470, at *2 (9th Cir. July 21, 2005) ("Names are often a proxy for race and ethnicity."); Orhorhaghe v. INS, 38 F.3d 488, 498 (9th Cir. 1994) ("The sound of one's name often serves as a proxy in many people's minds for one's race or national origin."). Cf. Illinois Migrant Council v. Pilliod, 540 F.2d 1062, 1070 (7th Cir. 1976) (treating seizure based on foreign appearance and seizures based on foreign-sounding surnames as raising identical issues). The Defendant's effort to distinguish the cases cited in the Commission's opening brief is based on a mischaracterization of the point for which these cases were offered—to make the argument that a jury could disbelieve Reed's assertion that he did not know or consider whether Hussein was Arab or Muslim. Although there are some factual differences between this case and the cited cases, they all stand for the proposition that evidence that a decision maker knew an individual had a name associated with a particular religion, race or national origin can support a finding that the employer believed the individual was of that religion, race or national origin. Cf. Orhorhaghe, 38 F.3d at 498 ("As courts have recognized, discrimination against people who possess surnames identified with particular racial or national groups is discrimination on the basis of race or national origin.") (internal citations omitted). Furthermore, TSA's argument that Rosen v. Thornburgh, 928 F.2d 528 (2d Cir. 1991), is distinguishable because there was additional evidence in that case that the employer knew the plaintiff's religion beyond the fact that they knew his name ignores the fact that there is also additional evidence in this case. As we pointed out, there is evidence indicating that Conrecode told Reed that Hussein was of Middle Eastern descent and making comments in favor of the September 11 attacks and that such information influenced Reed's decision to terminate Hussein so abruptly. EEOC Br. at 55-57. Accordingly, a jury would not have to rely solely on the fact that Reed knew Hussein's name to find that he assumed Hussein was a Middle Eastern Muslim. 6. TSA argues that the fact that Reed approved Hussein's hiring and two raises despite knowing his name raises a presumption that Reed did not discriminate against Hussein based on his name when he fired him several months later. See TSA Br. at 44. This Court has recognized that the fact that the same decision maker hired and fired an individual may support an inference that the decision maker did not act for a discriminatory motive. However, the Court has never characterized this as a "presumption" of nondiscrimination, as TSA terms it. As Judge Posner has explained: When the same person hires and later fires the employee who claims that his firing was discriminatory, judges are skeptical, because why would someone who disliked whites, or Germans, or members of some other group to be working for him have hired such a person in the first place? It is misleading to suggest (as some cases do), that this skepticism creates a ‘presumption' of nondiscrimination, as that would imply that the employee must meet it or lose his case. It is just something for the trier of fact to consider. Herrnreiter v. Chicago Housing Auth., 315 F.3d 742, 747 (7th Cir. 2002) (internal citations omitted). Where there is a logical explanation for the decision maker's changed attitude, the fact that the same person who fired an individual had earlier approved his hiring loses its persuasive force. See Peterson v. Scott County, 406 F.3d 515, 522 (8th Cir. 2005) (despite the fact that the same person hired the plaintiff and rejected her for a more desirable position, evidence of a changing hiring process and fluid standards for applicants and defendant's evolving explanation of its hiring decision allowed a finding that the defendant's explanation is a pretext for discrimination). In this case, there is an obvious explanation for Reed's changed attitude toward Hussein—the September 11 terrorist attacks, which caused many Americans to develop hostility towards Muslims and persons from the Middle East. See William B. Rubenstein, The Real Story of U.S. Hate Crimes Statistics: An Empirical Analysis, 78 Tul. L. Rev. 1213, 1235 (2004) (confirming the rise of Arab and Muslim-related hate crimes following September 11). A jury could find it plausible that Reed would hire Hussein despite his name before the September 11 terrorist attacks but then overreact to Conrecode's call and fire Hussein because of religion, race, or national origin right after September 11. Given the evidence of pretext offered by the Plaintiffs, a reasonable jury could attach little or no significance to the fact that Reed was the same person who hired and fired Hussein. ARGUMENT AS CROSS-APPELLEE THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE DEFENDANT'S REQUEST FOR ATTORNEY'S FEES. TSA has cross-appealed from the district court's decision denying the company's request that the Commission and Hussein be ordered to pay its attorney's fees. TSA argues that it is entitled to fees under both 42 U.S.C. § 2000e-5(k) and 28 U.S.C. § 1927. A defendant who prevails in a Title VII action is entitled to attorney's fees only if the underlying action was "frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978). "So long as the plaintiff has ‘some basis' for the discrimination claim, a prevailing defendant may not recover attorneys' fees." EEOC v. Kenneth Balk &Assocs., Inc., 813 F.2d 197, 198 (8th Cir. 1987) (citation omitted). Sanctions under 28 U.S.C. § 1927 are available only upon a finding of "both a finding of objectively unreasonable behavior and a finding of bad faith." NAACP-Special Contribution Fund v. Atkins, 908 F.2d 336, 340 (8th Cir. 1990). As TSA acknowledges, TSA Br. at 54-55, a district court's decision denying attorney's fees may be reversed only if it is an abuse of discretion. Kline v. City of Kansas City, 245 F.3d 707, 709 (8th Cir. 2001). The district court did not abuse its discretion in denying the Defendant's request for fees in this case because the court correctly determined that the Plaintiffs' claims are not frivolous and TSA points to no evidence that either the Commission or Hussein acted in bad faith in bringing this action. TSA's argument on attorney's fees is simply a rehash of its argument on the merits. The company insists that it should have been obvious to the Commission that its claim was not meritorious because it knew or should have known that Reed did in fact receive an anonymous phone call reporting that Hussein was in a bar in uniform. For example, TSA faults the Commission for failing to contact the FBI and asserts that "[h]ad it done so, EEOC could have learned Conrecode's identity and spoken with Conrecode about what he observed in Hussein's conduct, and confirmed the fact he reported it to TSA, thereby corroborating TSA's reason for discharge." TSA Br. at 57-58. TSA also states that the Commission's investigation "revealed that TSA did receive a report that Hussein was in a bar in uniform and, further, believed the report was accurate," but the Commission "chose to ignore the facts" and found cause to believe discrimination had occurred. TSA Br. at 60. However, as we argued above and in our opening brief, we have never disputed that Reed received a phone call reporting that Hussein was in a bar in uniform and making comments in favor of the September 11 attacks. Instead we reasonably argued that a jury could find that Reed overreacted to the call in firing Hussein on the spot without any investigation or corroboration of the brief anonymous call, and failed to give Hussein the same benefit of the doubt he would have had he not known or suspected Hussein was Muslim and/or Arab. It was also reasonable to argue that a jury could discredit TSA's explanation for Hussein's termination because Reed offered contradictory explanations over time and TSA's action in handling the anonymous report deviated from its written policies and typical practices. Accordingly, the court did not abuse its discretion in concluding that this case was not frivolous or without foundation. TSA's principal complaint appears to be that the Commission did not believe its version of disputed facts. See, e.g., TSA Br. at 58 (criticizing the Commission for not uncovering and believing statements that Hussein admitted being in a bar in uniform during FBI interview, notwithstanding Hussein's denial and statement in a report confirming that denial); 59 (criticizing the Commission for failing to accept Reed's testimony that he did not know Hussein's religion, national origin or race). However, the Commission was not required to accept TSA's explanations as true, particularly where, as here, they were internally inconsistent. See supra at 8-10 (internal inconsistency of Reed's statements); Bassett v. City of Minneapolis, 211 F.3d 1097, 1107 (8th Cir. 2000) ("[I]f the proffered reason is shown by conflicting evidence to be untrue, then the nonmoving party is entitled to all favorable inferences that the false reason given masks the real reason of intentional discrimination."). TSA's criticisms of the Commission's case are fully addressed in our opening brief and in the reply section of this brief. We will not repeat our arguments here. We believe, as stated above, that the evidence in this case is sufficient to support a finding that TSA fired Hussein because he was a Muslim who appeared to be Middle Eastern. At the very least, as the district court found, the Commission's claim was not frivolous, nor is there any evidence that this case was brought in bad faith. TSA has provided no reason for this Court to second- guess that conclusion. CONCLUSION For the reasons stated here and in the Commission's opening brief, the judgment of the district court should be reversed and the case remanded for further proceedings. The denial of attorney's fees should be affirmed. Respectfully submitted, JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ___________________________________ JULIE L. GANTZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 CERTIFICATE OF COMPLIANCE Pursuant to FRAP 32(a)(7)(C), I certify that this brief has been prepared in proportionally spaced typeface using Corel Word Perfect 9, Times New Roman 14-point font, and the textual portion contains 5828 words. _________________________ Julie L. Gantz CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief have been sent by first-class 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 ____________________________ Julie L. Gantz Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 October 17, 2005 ******************************************************************************** <> <1> Reed testified that he felt the call was reliable because he verified that Hussein was in St. Louis on the night in question, and that if he had not been in St. Louis, he would have disregarded the call. TSA asserts that within an hour of receiving Conrecode’s call, “Reed was informed that Hussein was in town on the night in question.” TSA Br. at 19. TSA cites Reed’s testimony that he asked one of his flight managers to check if Hussein had been in St. Louis, but fails to acknowledge that there is contrary evidence indicating that no one checked on Hussein’s whereabouts before he was fired. See EEOC Br. at 13-14, 17, 41. We pointed out that, although TSA might argue Reed could assume Hussein was in St. Louis on the night of September 13 because Swoboda told him Hussein was based there, a jury could find otherwise. See EEOC Br. at 41. Because Reed testified that he trusted the anonymous call because he knew Hussein was in St. Louis that night, II-P.A.404, the evidence that he did not in fact verify that Hussein was in St. Louis would allow a reasonable jury to conclude that Reed overreacted to the call and fired Hussein out of discriminatory animus. <2> Although it is not material to the issue on appeal, we feel compelled to respond to TSA’s assertion that Hussein admitted that he was in a bar in uniform on the night in question. TSA states that Hussein admitted to the FBI agent and police officer who interviewed him on the morning of September 14th that he was in a bar wearing a pilot’s shirt with epaulets on the shoulder, citing a declaration by Detective Moore and FBI Agent Vera’s response to an e-mail from TSA’s counsel. TSA Br. at 18, 58. However, as we noted in our opening brief, Hussein testified that he denied that he was in uniform and the FBI’s official report of the interview with Hussein states that he told the officers that he was not wearing anything that would signify he was a pilot. EEOC Br. at 4. Furthermore, as we noted, there is conflicting evidence in the record concerning Hussein’s attire. EEOC Br. at 8. Accordingly, on summary judgment, the court must credit the evidence that Hussein denied he was in uniform and, in fact, was not in uniform when he was in the bar on September 13.