_________________________________________________________ No. 11-2096 _________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT _________________________________________________________ Oral Argument Requested _________________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. TRICORE REFERENCE LABORATORIES, Defendant-Appellee. _________________________________________________________ On Appeal from the United States District Court for the District of New Mexico (1:09-cv-00956-JEC-DJS) The Honorable John E. Conway, Presiding _________________________________________________________ OPENING BRIEF OF PLAINTIFF-APPELLANT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _________________________________________________________ P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) corbett.anderson@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF RELATED CASES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 B. District Court's Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . 11 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 The Evidence Creates a Genuine Fact Question Regarding Whether TriCore's Explanation for Wagoner-Alison's Termination is Pretextual, Thus Requiring a Factfinder to Decide Whether Discrimination Occurred. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 28 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1 ECF CERTIFICATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-2 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-3 ADDENDUM (R.96, MEMORANDUM OPINION AND ORDER). . . . . . . . . . . . . . . . . . . . A-1 TABLE OF AUTHORITIES Cases Adler v. Wal-Mart Stores, Inc., 144 F.3d 664 (10th Cir. 1998). . . . . . . . . . . . 13 Ainsworth v. Independent Sch. Dist. No. 3 of Tulsa, Okla., 232 F. App'x 765, 2007 WL 1180420 (10th Cir. 2007). . . . . . . . . . . . . . 19 Butler v. City of Prairie Village, Kan., 172 F.3d 736 (10th Cir.1999). . . . . . . . . . . . . . . . . . . . . . . .17, 22 Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29 (2d Cir. 1994). . . . . . . . . . . . 20 EEOC v. Heartway Corp., 466 F.3d 1156 (10th Cir. 2006). . . . . . . . . . . . . . . 14 Garrett v. Hewlett Packard Co., 305 F.3d 1210 (10th Cir. 2002). . . . . . . . . . 21, 23 Greene v. Safeway Stores, Inc., 98 F.3d 554 (10th Cir. 1996). . . . . . . . . . . . . .14 Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991). . . . . . . . . . . . . . . . . . 24 Jones v. Okla. City Pub. Sch., 617 F.3d 1273 (10th Cir. 2010). . . . . . . . . . . . 14 Kendrick v. Penske Transp. Serv., Inc., 220 F.3d 1220 (10th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . 17 Kirk v. City of Tulsa, Okla., 72 F. App'x. 747, 2003 WL 21662097 (10th Cir. 2003). . . . . . . . . . . . . . . . . . . . . 24 McCowan v. All Star Maintenance, Inc., 273 F.3d 917 (10th Cir. 2001). . . . . . . . . . . . . . . . . . . . . 13, 15 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). . . . . . . . . . . . . . . 14-15 Morgan v. Hilti, Inc., 108 F.3d 1319 (10th Cir. 1997). . . . . . . . . . . . 15, 16, 17 Plotke v. White, 405 F.3d 1092 (10th Cir. 2005). . . . . . . . . . . . . . . . . . 25 Randle v. City of Aurora, 69 F.3d 441 (10th Cir. 1995). . . . . . . . . . . . . . . 28 Reeves v. Sanderson Plumbing Prods. Co., 530 U.S. 133 (2000). . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 15, 24 Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999). . . . . . . . . . . . 19 United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 28 Woodman v. Runyon, 132 F.3d 1330 (10th Cir. 1997). . . . . . . . . . . . . . . . . . 27 Statutes 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1337. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1343. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1345. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 451. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 12101. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Rules Fed. R. App. P. 34(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Fed. R. Evid. 401. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 10th Cir. R. 28.2(C)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 STATEMENT OF RELATED CASES This appeal is related to Appeal No. 11-2132, which pertains to the district court's rulings related to attorney's fees. STATEMENT OF JURISDICTION The U.S. Equal Employment Opportunity Commission's ("EEOC" or "Commission") Second Amended Complaint alleges that TriCore Reference Laboratories ("TriCore") violated the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq. AA19 ¶11 (R.61).<1> The U.S. District Court for the District of New Mexico had jurisdiction over this matter under 28 U.S.C. §§ 451, 1331, 1337, 1343, and 1345. On February 7, 2011, the district court granted TriCore's motion for summary judgment and dismissed the EEOC's suit. AA339- 46 (R.96). The EEOC filed a notice of appeal on May 6, 2011, AA347-48 (R.115), which was timely pursuant to an extension granted by the district court. Id. This Court now has jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUE In an employment discrimination case, summary judgment is improper when there is a genuine fact question on the employer's nondiscriminatory explanation, i.e., when a rational jury could find the explanation pretextual. There is evidence that TriCore frustrated and severely delayed the return to work of its disabled employee Rhonda Wagoner-Alison and, within weeks of finally bringing her back, terminated her according to an explanation contradicted by her testimony and other record evidence. Was summary judgment improper? STATEMENT OF THE CASE In this enforcement action, the EEOC's Second Amended Complaint alleges that TriCore violated the ADA by failing to provide a reasonable accommodation to its disabled employee, Rhonda Wagoner- Alison, and by terminating her because of her disability. AA19 ¶11 (R.61). At the close of discovery, TriCore moved for summary judgment (AA29 (R.76)), which the EEOC opposed. AA182 (R.85). The district court granted TriCore's motion for summary judgment as to both the reasonable accommodation claim and the termination claim. AA339-46 (R.96). This appeal presents for review only the district court's dismissal of the termination claim. STATEMENT OF FACTS A. Background TriCore provides medical laboratory and testing services. On October 20, 2004, TriCore hired Wagoner-Alison as a Technical Lab Assistant I (AA218 (R.85-1 at 4)), a job which consists of phlebotomy (i.e., drawing blood), registering patients into TriCore's computer system, processing specimens, and various other duties. AA230-32 (R.85-1 at 16-18). Wagoner-Alison's job title changed from Technical Lab Assistant I to Clinical Lab Assistant I ("CLA-I") on July 6, 2005, as a result of a change in terminology at TriCore. AA56 (R.76-1 at 4, Wagoner-Alison Dep. 99), AA235 (R.85-1 at 21). Wagoner-Alison received a promotion to Clinical Lab Assistant II ("CLA-II") effective October 30, 2005. AA236 (R.85-1 at 22). In February 2006, Wagoner-Alison had surgery on her left foot/ankle and took leave under the Family and Medical Leave Act ("FMLA") to recover. AA57 (R.76-1 at 5, Wagoner-Alison Dep. 106), AA97-100 (R.76-6 at 1-4, FMLA certification). Her doctor initially approved her return to work in a part-time "desk duty only" capacity until further notice. AA271-72 (R.85-1 at 57-58). Upon her return to work in March 2006, TriCore let Wagoner-Alison work part-time and perform only the patient-registration portion of her CLA-II job. AA58 (R.76-1 at 6, Wagoner-Alison Dep. 112-13). About three months later, in June 2006, she resumed working full time and performing the full scope of her CLA-II job. AA59 (R.76-1 at 7, Wagoner-Alison Dep. 114- 15), AA264 (R.85-1 at 50). In January 2007, TriCore adopted a new policy on registration errors, stating that only one missed or incorrect test would be permitted per quarter and anything beyond that would be grounds for corrective action, and everyone received a verbal coaching setting forth the new policy. AA181 (R.76-28). The standard for deciding what corrective action would be taken in any particular circumstance was somewhat broad and vague, with management having discretion to handle employee errors on an individualized basis, taking into account the person's training, previous record, and whether personal or other non- work-related issues may be at play. AA283 (R.85-1 at 69, Rogers Dep. 126). On May 18, 2007, Wagoner-Alison underwent a second surgery, this time on her right foot/ankle, and again took approved FMLA leave to recover. AA102-04 (R.76-8, FMLA certification), AA216 (R.85-1 at 2, Wagoner Alison Decl. ¶13). While she was out, Tami McMahon replaced Marina Salazar as Wagoner-Alison's second-level manager. AA267 (R.85-1 at 53, McMahon Dep. 15). Wagoner-Alison attempted to return to work the following month and, just as she did in 2006, she provided a doctor's note authorizing her to return in a "non-weight- bearing, desk-duty only" capacity until further notice. AA265 (R.85-1 at 51). This time, however, TriCore would not let Wagoner-Alison return to work without providing more information on what she could do. AA80-81 (R.76-2 at 6-7, McMahon Dep. 56-67), AA216 (R.85-1 at 2, Wagoner-Alison Decl. ¶15). Wagoner-Alison attempted to comply with TriCore's request and provided a second doctor's note a week later, stating she was "ok to return to strict non-weight bearing duties ... until further notice." AA270 (R.85-1 at 56). Yet TriCore still would not permit Wagoner-Alison to return to work. AA216 (R.85-1 at 2, Wagoner-Alison Decl. ¶18). Because TriCore refused to permit Wagoner-Alison to return to work as authorized by her doctor's notes, Wagoner-Alison was forced to remain on leave for months despite expressing frustration with having to do so. AA109 & AA269 (R.76-9 at 5 & R.85-1 at 55, Hahn Dep. 66), AA216 (R.85-1 at 2, Wagoner-Alison Decl. ¶18). TriCore finally permitted Wagoner-Alison to return to work on August 21, 2007. AA216 (R.85-1 at 2, Wagoner-Alison Decl. ¶22), AA273 (R.85-1 at 59). She was assigned to perform patient- registration duties only, similar to the duties she performed when she returned from surgery in 2006. AA64 (R.76-1 at 12, Wagoner-Alison Dep. 167-68), AA275 (R.85-1 at 61). Around this time, TriCore created a new "Registration Specialist" position which encompassed the patient registration duties of the CLA-II position. AA83 & AA267 (R.76-2 at 9 & R.85-1 at 53, McMahon Dep. 94). Employees transferring to the Registration Specialist position had to pass a 30-words-per-minute typing test. AA83 (R.76-2 at 9, McMahon Dep. 93, 96). Although Wagoner-Alison did not pass the typing test, TriCore put her in the Registration Specialist job for a 30-day trial period because it believed she was qualified given her successful performance of the same function as a TriCore phlebotomist the previous three years. AA83 (R.76-2 at 9, McMahon Dep. 94), AA107 (R.76-9 at 3, Hahn Dep. 42), AA275 (R.85-1 at 61). Wagoner-Alison's return to work was short-lived, as she was terminated on October 8, 2007, less than two months after returning. AA276 (R.85-1 at 62). The reason stated for Wagoner-Alison's termination on her employee status sheet, signed by Tami McMahon on October 8, 2007, is "LOA [leave of absence] expired" and "[h]ealth." Id.; AA85 (R.76-2 at 11, McMahon Dep. 111). But TriCore contends that within weeks of Wagoner-Alison's return to work she began committing numerous registration errors that impacted patient safety. AA32 (R.76 at 4, TriCore's Memorandum Motion for Summary Judgment at 4 ¶14).<2> TriCore contends that McMahon and one of her key subordinates, Andrea Rogers, met with Wagoner-Alison and told her she had committed too many registration errors to continue as a Registration Specialist, AA84 (R.76-2 at 10, McMahon Dep. 107-08), and placed her on leave for three weeks during which she was encouraged to apply for other positions. AA32 (R.76 at 4, TriCore's Memorandum Motion for Summary Judgment at 4 ¶15). TriCore says Wagoner-Alison's employment ended when she did not apply for other positions. AA33 (R.76 at 5, TriCore's Memorandum Motion for Summary Judgment at 5 ¶¶17, 18). The EEOC adduced testimonial and documentary evidence disputing TriCore's explanation. Wagoner-Alison stated in her declaration that "in all [her] years of working for TriCore, [she] never had any issues with [her] error rate or patient registration skills," and that prior to her return to work after her second surgery in 2007, she "had never been coached or disciplined for patient registration errors." AA215 & AA217 (R.85-1 at 1 & 3, Wagoner-Alison Decl. ¶¶6 & 26). Wagoner-Alison further declared that she never received a "TR2" for patient registration errors during her TriCore career. AA215 (R.85-1 at 1, Wagoner-Alison Decl. ¶7). "TR2" is shorthand for "TriCore Risk/Complaint Reporting," and is the company's system for tracking reports of errors, complaints, or failed processes or systems. AA285-86 (R.85-1 at 71-72, TriCore TR2 Policy), AA288-89 (R.85-1 at 74-75, Crossey Dep. 56-57).<3> Indeed, the record evidence indicates that she successfully performed patient registration for three years as part of her phlebotomy jobs at TriCore. She in fact earned a promotion from CLA-I to CLA-II in October 2005, which necessarily depended on her having demonstrated proficiency in registering patients. AA236 (R.85-1 at 22), AA280 (R.85-1 at 66, Rogers Dep. 46). And the next year, 2006 - a year which included an extended period in which Wagoner-Alison performed patient-registration duties only - not only did she receive several awards for specific acts of noteworthy performance, the latest dated August 2006 (AA247-60 (R.85-1 at 33-46)), but her 2006 year-end performance evaluation stated, in part, that she "me[t] expectations" on the essential functions of the CLA-II job and that her "work [was] accurate." AA129 (R.76-14 at 4, Aguirre Dep. 77), AA242 (R.85-1 at 28, Wagoner-Alison 2006 performance evaluation subsections 7 and 11). Although TriCore states that Wagoner-Alison's performance problems manifested within weeks of her return, TriCore's routinely generated monthly error report does not show Wagoner-Alison among the randomly selected Registration Specialists who committed errors in August 2007, and there is no error report for September 2007. AAII349 (R.86 at 1, filed under seal), AA280-81 (R.85-1 at 66-67, Rogers Dep. 74- 75). The only documented blemish on Wagoner-Alison's performance record that is proper for consideration on summary judgment is a verbal coaching for a "misref" error, which simply means that she mistakenly ordered a test unavailable at TriCore. AA133 (R.76-15 at 3, Cowboy Dep. 121), AA144 (R.76-16). There is no evidence that TriCore considered this verbal coaching alone to be grounds for termination. See AA84 (R.76-2 at 10, McMahon Dep. 105). In fact, Wagoner-Alison testified that she was not informed that she was purportedly making an inordinate number of registration errors until the day she was terminated, and does not recall any meeting with McMahon or Rogers prior to her termination. AA225 (R.85-1 at 11, Wagoner-Alison Dep. 182-83). She also said she heard about her purported errors more in litigation than when she was at TriCore. AA229 (R.85-1 at 15, Wagoner-Alison Dep. 295-96). B. District Court's Decision The district court held that no rational jury could find that TriCore terminated Wagoner-Alison because of her disability. AA344- 45 (R.96 at 6-8). In arriving at this holding, the court first stated that there is no dispute that Wagoner-Alison committed numerous errors in registering patients, and that TriCore produced business records and testimony demonstrating that such errors occurred. AA345 (R.96 at 7). The court then stated that Wagoner-Alison's statements that she does not recall meeting with supervisors about her typing speed or error rate and that she only heard about her errors more recently in the depositions are self-serving and not sufficient to create a genuine dispute of material fact. Id. And the court observed that while the EEOC argued that Wagoner-Alison is not listed on TriCore's error log in August 2007, TriCore explained that that error log included only Registration Specialists, "a job not applicable to [Wagoner-Alison]." Id. SUMMARY OF ARGUMENT Summary judgment is improper in this case. A rational jury could find that after Wagoner-Alison had surgery on her right foot, TriCore simply no longer wanted to employ her because of her disability, and that TriCore's alternative explanation for these events is pretextual. Specifically, a jury could find that disability bias explains why TriCore stonewalled Wagoner-Alison's attempt to return to work in June 2007 and let her languish on leave for months; that her performance history makes it simply implausible that an experienced and well-performing phlebotomist such as Wagoner-Alison committed registration errors so numerous and serious as to warrant her removal from the position within just a few weeks; that the broad and vague discipline standard applied to Wagoner-Alison for her purported registration errors is inherently suspect; that Wagoner-Alison is credible in stating that McMahon and Rogers did not tell her of her purported errors until she was terminated - and thus McMahon and Rogers made up their story that they told her three weeks prior; that Wagoner-Alison simply did not commit the errors TriCore claims were the basis for her removal; and that, ultimately, the preponderance of the evidence demonstrates that TriCore terminated Wagoner-Alison because of her disability. STANDARD OF REVIEW The standard of review is de novo, meaning this Court applies the same summary judgment standard as the district court. E.g., McCowan v. All Star Maintenance, Inc., 273 F.3d 917, 921-22 (10th Cir. 2001). Summary judgment is not proper if the moving party - here, TriCore - has failed to show that there is no genuine issue as to a material fact and that it is entitled to judgment as a matter of law. Id.; Fed. R. Civ. P. 56(a). The Court should make this determination from the district court's perspective, limiting its review to the materials the district court considered. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998). In doing so, moreover, the Court must give credence to the evidence of the nonmoving party - here, the EEOC - without assessing its credibility or weight, and must draw all reasonable inferences from it in the EEOC's favor. Reeves v. Sanderson Plumbing Prods. Co., 530 U.S. 133, 150 (2000) (also stating inquiry under standards for summary judgment and judgment as a matter of law are the same). The Court must review the entire record but "must disregard all evidence [supporting TriCore] that the jury is not required to believe," i.e., disregard all TriCore evidence unless it is "uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses." Id. at 151. The EEOC is entitled to present its case to a factfinder unless "the evidence and all inferences to be drawn therefrom are so clear that reasonable minds could not differ on the conclusion." Greene v. Safeway Stores, Inc., 98 F.3d 554, 557 (10th Cir. 1996). This means that if a jury could conclude from the evidence that Wagoner-Alison was fired for her disability, summary judgment is improper even if there also is evidence weighing heavily in the opposite direction. See EEOC v. Heartway Corp., 466 F.3d 1156, 1167-68 (10th Cir. 2006); cf. Jones v. Okla. City Pub. Sch., 617 F.3d 1273, 1282 (10th Cir. 2010). ARGUMENT The Evidence Creates a Genuine Fact Question Regarding Whether TriCore's Explanation for Wagoner-Alison's Termination is Pretextual, Thus Requiring a Factfinder to Decide Whether Discrimination Occurred. In this disability-based discharge case, under the traditional three-pronged framework first set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the EEOC is required to establish a prima facie case, which TriCore could then rebut by articulating a legitimate, nondiscriminatory reason. The EEOC would have to demonstrate that the employer's reason is unworthy of belief such that a jury could infer discrimination. Morgan v. Hilti, Inc., 108 F.3d 1319, 1321-23 (10th Cir. 1997). To withstand a motion for summary judgment, however, the evidence need only create a genuine issue of material fact on matters for which the EEOC bears the burden of proof. The district court held that the EEOC failed to create a genuine issue as to pretext. The question on appeal is whether the district court erred in so holding. McCowan, 273 F.3d at 923 (stating that because the district court assumed, without deciding, that a prima facie case had been established, on appeal it was appropriate for this Court to focus only on whether the evidence created a genuine fact question as to pretext). See also Reeves, 530 U.S. at 142-43, 146-47; United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714-15 (1983). The Commission submits that the district court did err. The evidence adduced on summary judgment was sufficient to permit a jury to find that the reason given for Wagoner-Alison's removal - poor performance - was not true and thus infer that discrimination was the real reason for her termination. TriCore's purported nondiscriminatory reason for firing Wagoner- Alison is that she had a high error rate in registering patients, causing the company to remove her from the Registration Specialist position, and that she failed to apply for other positions. The district court, after performing a perfunctory analysis rejecting the EEOC's evidence, concluded that "the undisputed material facts provide no evidence of discrimination." AA345-46 (R.96 at 7-8). To the extent the district court believed that the EEOC must demonstrate directly that discriminatory reasons motivated TriCore, it erred. To survive summary judgment, the EEOC need "only ... demonstrate a genuine dispute of material fact" as to whether TriCore's proffered reasons were unworthy of credence. Morgan, 108 F.3d at 1321-22. This Court has held that such "[p]retext can be shown by such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in [an employer's] proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that [it] did not act for the asserted non-discriminatory reasons." Id. at 1323 (citation and internal quotation marks omitted). And "a plaintiff [such as EEOC] may not be forced to pursue any particular means" of raising a fact question on the issue of pretext, as such evidence "may take a variety of forms." Kendrick v. Penske Transp. Serv., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000) (citation and internal quotation marks omitted). In this case, the sequence of events leading to Wagoner-Alison's termination permits an inference of pretext. See Butler v. City of Prairie Village, Kan., 172 F.3d 736, 749 (10th Cir. 1999) (endorsing the view that a sequence of events leading to discharge can raise inference of disability bias). Simply put, a jury could find that TriCore wanted to rid itself of her because of her disability, as evidenced by the way TriCore attempted to thwart her effort to return from leave in 2007 and then later made up a performance-based reason to terminate her that simply is not credible in light of the whole record. TriCore's disfavorable treatment of Wagoner-Alison began when she returned from her second foot surgery in June 2007. The evidence shows TriCore "repeated[ly] refus[ed] to accept Ms. Wagoner's doctor's notes and ... unjustified[ly] refus[ed] to let her return in any capacity for months following the 2007 surgery." AA203 (R.85 at 22, EEOC's Summary Judgment Opposition Brief). TriCore says it needed more information about what Wagoner-Alison could do. A jury could disbelieve this because the nature of her impairment was obvious, and the type of duties she could perform - desk-only - was relatively straightforward. Indeed, because the nature of Wagoner-Alison's impairment and the duties she could perform were virtually identical to those in 2006, a jury could conclude that TriCore knew very well what she could do and its request for more information was merely an effort to impede her return to work. Rather than facilitate her return to work, TriCore stonewalled her. TriCore forced her to remain on leave despite her continued expressions of frustration at not being permitted to return to work as authorized by her doctor's notes. AA109 & AA269 (R.76-9 at 5 & R.85-1 at 55, Hahn Dep. 66), AA216 (R.85-1 at 2, Wagoner-Alison Decl. ¶18). Although the EEOC has not appealed the district court's dismissal of its reasonable accommodation claim, it is important to note that TriCore should have engaged in an interactive process with Wagoner-Alison in June 2007 when she asked for a sedentary desk job, which amounted to a request for a reassignment if she could not be accommodated in her current position. See Smith v. Midland Brake, Inc., 180 F.3d 1154, 1171-72 (10th Cir. 1999) (holding that an employee giving the employer notice of his or her disability and limitations and a desire to remain with the company triggers a mandatory interactive process). TriCore's inexplicable resistance to this process can be indicative of pretext. Cf. Ainsworth v. Independent Sch. Dist. No. 3 of Tulsa, Okla., 232 F. App'x 765, 774-75, 2007 WL 1180420, at *7 (10th Cir. 2007) (stating failure to engage in the interactive process could not show pretext because the interactive process was not triggered because plaintiff "ha[d] not suggested, and the record [did] not reflect, that he ever expressed the requisite desire for reassignment"). Wagoner-Alison did all she could reasonably be expected to do to return to work at TriCore but was rebuffed. A jury could find it quite implausible that Wagoner-Alison would have received such shabby treatment were it not for her disability. When TriCore finally allowed Wagoner-Alison to come back to work in August 2007, she was fired within less than two months. Her termination was precipitated, according to TriCore, by Wagoner-Alison committing a high number of registration errors impacting patient safety. A jury, however, could easily find otherwise. To start, the jury need look no further than the reasons for Wagoner-Alison's termination stated on her employee status sheet, signed by Tami McMahon on October 8, 2007: "LOA [leave of absence] expired" and "[h]ealth." AA85 (R.76-2 at 11, McMahon Dep. 111), AA276 (R.85-1 at 62). These contemporaneous reasons, on their face, contradict TriCore's explanation and raise the specter that Wagoner-Alison's disability and need for leave in the past (and possibly the future) were determining factors in her termination. While "employers are rarely so cooperative as to include a notation in the personnel file that their actions are motivated by factors expressly forbidden by law," Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994), TriCore did so here. Wagoner-Alison's successful performance history also undercuts TriCore's explanation - as well as the district court's finding - that Wagoner-Alison committed terminable errors in the patient registration position. Wagoner-Alison had never been coached or disciplined for registration errors and had never received an official complaint (a "TR2") for such errors. AA215 (R.85-1 at 1, Wagoner-Alison Decl. ¶¶6, 7). Indeed, she had performed patient registration duties for three years as a TriCore phlebotomist, was trained on patient registration, received a promotion from CLA-I to CLA-II that necessarily depended in part on her proficiency in patient registration, and her performance evaluation for 2006 - which included a period in which she performed patient-registration-only duties after returning from surgery - said she met expectations in regard to accuracy. AA129 (R.76-14 at 4, Aguirre Dep. 77), AA242 (R.85-1 at 28, Wagoner-Alison 2006 performance evaluation subsections 7 and 11), AA247-60 (R.85-1 at 33-46, Certificates of Recognition), AA280 (R.85-1 at 66, Rogers Dep. 46). Against this backdrop of successful performance history, the precipitous change in TriCore's evaluation of Wagoner-Alison's performance can and should be considered along with other evidence to determine pretext. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1219 (10th Cir. 2002) ("The inconsistencies and contradictions noted above between Mr. Garrett's 1972 to 1989 evaluations and those from 1990 to 1993 raise disputed issues of fact as to whether Mr. Garrett's evaluations and rankings were truly the reason for the supervisors' actions towards their employee."); Butler, 172 F.3d at 749 (stating the temporal proximity of drop in performance evaluations to request for accommodation can contribute to an inference of discriminatory intent). The evidence of procedural irregularity in TriCore's termination of Wagoner-Alison - and the vague and broad nature of the disciplinary standard applied to her - also support an inference of pretext. In particular, TriCore's practice was to handle employee errors on an individualized basis, taking into account the person's training, previous record, and whether personal or other non-work-related issues may be at play. AA283 (R.85-1 at 69, Rogers Dep. 126). The district court failed even to address whether TriCore's termination of Wagoner-Alison was consistent with the company's stated practice. But in any case a jury is best positioned to consider and make a finding based on such fact-specific circumstances. See Butler, 172 F.3d at 750 (stating a broad and vague nondiscriminatory reason "underscores the need for [the] evidence to be presented to the trier of fact"). This is particularly so here, given Wagoner-Alison's testimony that, by her recollection, she was simply removed from the Registration Specialist job and not informed of the reason until later when she was fired. If believed, the jury could find this to be a procedural irregularity consistent with a pretext finding. See Garrett, 305 F.3d at 1220 ("'disturbing procedural irregularities' can satisfy the requirements of a pretext claim") (citation and internal quotation marks omitted). In other words, the jury could certainly consider it implausible that an experienced and heretofore well-performing employee such as Wagoner- Alison committed registration errors so numerous and serious as to warrant her removal from the position within just a few weeks, and not have been told about those errors until the day she was terminated. The district court's error in holding the EEOC's evidence was insufficient to raise a question of fact as to pretext was likely caused by a fundamental misapplication of the summary judgment standard. Not only did the court fail to recognize considerable evidence tending to undermine TriCore's contention that she had performance problems, the court also erroneously credited TriCore's evidence instead of the EEOC's. The district court rejected as "self-serving" Wagoner-Alison's testimony that she does not recall meeting with her supervisors about her typing speed or error rate and that she heard about these purported errors more in litigation than when she was with the company. AA345 (R.96 at 7, citing Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991)). The court erred because Wagoner-Alison's testimony satisfies the Rule 56 requirement that testimony and affidavits used to defeat summary judgment be based on personal knowledge and set forth facts that would be admissible. Kirk v. City of Tulsa, Okla., 72 F. App'x. 747, 751, 2003 WL 21662097, at *3 (10th Cir. 2003) ("The testimony and averments of a party, however, are legally competent to oppose summary judgment, notwithstanding their inherently self-serving nature, provided they are 'based on personal knowledge and set forth facts that would be admissible in evidence.' Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991)."). Wagoner-Alison certainly has personal knowledge that she does not recall her supervisors meeting with her about her typing speed or error rate and that she heard about her purported errors more in litigation than while she was at TriCore. Under well-established summary judgment standards, the district court was required to credit this testimony over the contradictory testimony of TriCore witnesses McMahon and Rogers. See Reeves, 530 U.S. at 151. And viewed in the light most favorable to the EEOC, a jury could believe that McMahon and Rogers did not inform Wagoner-Alison in September 2007 that she had committed too many errors because she had not in fact committed such errors (and they did not believe that she had), and that this was simply a post-hoc, pretextual explanation. See Plotke v. White, 405 F.3d 1092, 1102-03 (10th Cir. 2005) ("The plaintiff's evidence can also show that the employer's proffered non-discriminatory reasons were either a post-hoc fabrication or otherwise did not actually motivate the employment action (that is, the proffered reason is a pretext).") (citation and internal quotation marks omitted). The district court similarly erred in summarily discrediting the EEOC's evidence that Wagoner-Alison did not appear on the August 2007 document showing the registration error rates of Registration Specialists. AA345 (R.96 at 7). See also AAII349 (R.86 at 1, filed under seal), AA280-81 (R.85-1 at 66-67, Rogers Dep. 74-75). While TriCore says Wagoner-Alison did not appear on the August 2007 error log because she was not a Registration Specialist, a jury could find that she was a Registration Specialist. AA216 (R.85-1 at 2, Wagoner-Alison Decl. ¶23), AA267 (R.85-1 at 53, McMahon Dep. 94:10-11 ("so that's where I put her"), AA275 (R.85-1 at 61). Indeed, early in the litigation, TriCore itself admitted as much. AA15-16 (R.19 at 2-3, TriCore Response to EEOC Motion for Leave to File Second Amended Complaint; representing that "TriCore placed her in a less strenuous position. . . . Specifically, she was allowed to take the position of a Registration Specialist"). The district court thus improperly credited TriCore's attempt to explain away the relevance of the August 2007 error report. Had the court not done so, it would have drawn the reasonable inference that this evidence makes less probable TriCore's contention that Wagoner-Alison began committing an inordinate number of errors within weeks of her return in August 2007. Fed. R. Evid. 401. The district court also improperly credited "business records" that TriCore says show that such errors occurred. AA345 (R.96 at 7). The court cited a record of verbal coaching Wagoner-Alison received for a "misref" error on September 6, 2007. Id. (citing Exh. P to TriCore Summary Judgment Memorandum (AA135 (R.76-16))). Notably, while TriCore contends it gave this coaching to Wagoner-Alison "because it became clear that she was committing numerous errors," AA32 ¶14 (R.76 at 4), the document itself says nothing of the sort. AA135 (R.76- 16). A factfinder should be permitted to weigh Wagoner-Alison's receipt of verbal coaching for the "misref" error along with all the other evidence to determine whether TriCore's assertion of numerous errors warranting termination is pretextual. The jury could also find troubling TriCore's treatment of Wagoner- Alison after it removed her from the Registration Specialist position. Although TriCore faults Wagoner-Alison for not finding another position when she was removed from the Registration Specialist job, TriCore did not help Wagoner-Alison find other positions for which she might qualify. AA107 (R.76-9 at 3, Hahn Dep. 41-42), AA227 (R.85-1 at 13, Wagoner-Alison Dep. 231-32). TriCore could have, and arguably should have, done more. Cf. Woodman v. Runyon, 132 F.3d 1330, 1345 (10th Cir. 1997) (analyzing case under heightened requirements of Rehabilitation Act for federal employers, but citing private sector cases and stating that once employee notifies employer of disability and requests reassignment, "the employer is obliged to assist her in the effort to identify an available job"). A jury could easily draw the inference that TriCore did not affirmatively identify other jobs for Wagoner-Alison because it no longer wanted her employed there due to her disability. CONCLUSION Viewing all the evidence in the light most favorable to the EEOC, and drawing all reasonable inferences in the EEOC's favor, summary judgment is improper, as a jury could very well find that Wagoner- Alison's disability was a determining factor in her termination. Of course the jury might instead believe TriCore. But this is a quintessential jury determination. See Randle v. City of Aurora, 69 F.3d 441, 453 (10th Cir. 1995) ("Judgments about intent are best left for trial and are within the province of the jury."). The EEOC thus respectfully asks the Court to reverse summary judgment and remand the case so a jury can determine "which party's explanation of [TriCore's] motivation it believes." Aikens, 460 U.S. at 716. STATEMENT REGARDING ORAL ARGUMENT The EEOC believes that further exploration of this issue at oral argument is warranted, and would assist this Court in properly resolving this appeal. See Fed. R. App. P. 34(a)(1); 10th Cir. R. 28.2(C)(4). Respectfully submitted, P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel /s/ Corbett L. Anderson____ CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) corbett.anderson@eeoc.gov CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 5,263 words excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I certify that 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 Word 2003 in Century Schoolbook 14 point. /s/ Corbett L. Anderson____ CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) ECF CERTIFICATE I certify that: A. All required privacy redactions have been made; B. The hard copies of this brief submitted to the Clerk's office are exact copies of the ECF filing; and C. The ECF submission was scanned for viruses with Trend Micro and Avira Antivir. According to these programs, this submission is free of viruses. /s/ Corbett L. Anderson____ CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) CERTIFICATE OF SERVICE I certify that on August 4, 2011, I filed this Appellant's Opening Brief via the ECF system. I further certify that on August 4, 2011, I sent seven hard copies of this Opening Brief, and two hard copies of Volumes I and Volume II (sealed) of Appellant's Appendix, by UPS for next-day delivery to: Elisabeth A. Shumaker, Clerk of Court, U.S. Court of Appeals for the Tenth Circuit, Byron White U.S. Courthouse, 1823 Stout Street, Denver, CO 80257. I certify that on August 4, 2011, I served this Appellant's Opening Brief via the ECF system on Appellee TriCore Reference Laboratories. I further certify that on August 4, 2011, I sent one hard copy of this Opening Brief, and one hard copy of Volumes I and Volume II (sealed) of Appellant's Appendix, by UPS for next-day delivery to Counsel for Appellee, Lisa Mann and Alex Walker, of Modrall Sperling, P.O. Box 2168, Albuquerque, NM 87103-2168. /s/ Corbett L. Anderson____ Corbett L. Anderson Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202)663-4579 ADDENDUM (R.96, MEMORANDUM OPINION AND ORDER) ********************************************************************************** <> <1> All references to "AA " and "AAII__" are to pages in Volumes I or II of Appellant's (EEOC's) Appendix. All references to "R. " are to the corresponding docket entry on the docket sheet. <2> The document TriCore purports to corroborate its witness testimony on this point was submitted only as Exhibit CC to its summary judgment reply brief. The district court held this and other exhibits submitted with TriCore's reply brief were new evidence and thus it did "not consider[] any of these exhibits in ruling on Defendant's Motion for Summary Judgment." R.95 at 1. <3> TriCore attempted to attach to its summary judgment reply brief evidence purporting to show that Wagoner-Alison had been the subject of a TR2, but the district court properly did not consider that evidence. See note 2, supra.