EEOC v. Wal-Mart Stores,8th Cir. Reply Brief August 18, 2006 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ______________________ No. 06-1583 ______________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. WAL-MART STORES, INC., Defendant-Appellee. _______________________________________________ On Appeal from the United States District Court for the Western District of Missouri _______________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ______________________________________________ RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street N.W., 7th Floor Washington, DC 20507 202-663-4721 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 26 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . 27 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Page(s) Benson v. Northwest Airlines, 62 F.3d 1108 (8th Cir. 1995). . . . . . . . . . . . . . 4, 9 Branham v. Snow, 392 F.3d 896 (7th Cir. 2004). . . . . . . . . . . . . . . 17 Canny v. Dr. Pepper/Seven-Up Bottling Group, 439 F.3d 894 (8th Cir. 2006). . . . . . . . . . . . . . . 9 Chevron USA v. Echazabal, 536 U.S. 73 (2002). . . . . . . . . . . . . . . . . . . . 15 EEOC v. Sears, Roebuck & Co., 243 F.3d 846 (4th Cir. 2001). . . . . . . . . . . . . . . 22 Harvey v. Anheuser Busch, 38 F.3d 968 (8th Cir. 1994) . . . . . . . . . . . . . . . 23 Kobrin v. University of Minnesota, 34 F.3d 698 (8th Cir. 1994) . . . . . . . . . . . . . 19, 20 Lynn v. Deaconess Medical Center, 160 F.3d 484 (8th Cir. 1998). . . . . . . . . . . . . . . 23 Maschka v. Genuine Parts Co., 122 F.3d 566 (8th Cir. 1997). . . . . . . . . . . . . 24-25 McClean v. Case Corp., 314 F. Supp.2d 911 (D.N.D. 2004). . . . . . . . . . . . . 16 Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000) . . . . . . . . . . . . . . . . . . . 24 Wallace v. DTG Operations, 442 F.3d 1112 (8th Cir. 2006) . . . . . . . . . . . . . . 21 Yeazel v. Apfel, 148 F.3d 910, 912 (8th Cir. 1998) . . . . . . . . . . . . 15 Young v. Warner-Jenkinson Co., 152 F.3d 1018 (8th Cir. 1998) . . . . . . . . . . . . 19-20 STATUTES, REGULATIONS and RULES The Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. . . . . . . . . . . . . . passim 42 U.S.C. § 12112(5)(A) . . . . . . . . . . . . . . . . . . . . . 9 29 C.F.R. § 1630.2(m). . . . . . . . . . . . . . . . . . . . . . . . . 4 29 C.F.R. § 1630.2(r). . . . . . . . . . . . . . . . . . . . . . . 16, 18 29 C.F.R. Pt. 1630, App. § 1630.2(r) . . . . . . . . . . . . . . . . . 16 OTHER AUTHORITY S. Rep. No. 116, 101st Cong., 1st Sess. (1991) . . . . . . . . . . . . 10 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ______________________ No. 06-1583 ______________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. WAL-MART STORES, INC., Defendant-Appellee. _______________________________________________ On Appeal from the United States District Court for the Western District of Missouri _______________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _______________________________________________ INTRODUCTION The Commission alleges that Wal-Mart violated the ADA by refusing to hire Steven Bradley as a greeter or cashier because of his disability. Although he is personable, healthy, intelligent and strong, Bradley has limited mobility due to cerebral palsy and, so, gets around using forearm crutches or a wheelchair. The district court granted summary judgment, ruling that the Commission offered insufficient evidence that Bradley is qualified for these minimum-wage, minimally-skilled positions or that Wal-Mart's summary judgment explanation for rejecting Bradley was a pretext for discrimination. In our opening brief, we challenged these rulings, arguing that the record evidence amply supports a finding for the Commission on both issues. Regarding qualifications, we noted in particular that EEOC's expert, Kent Jayne, identified several "possible" accommodations, including a handscanner for prices or inventory control and a sit-to-stand wheelchair to increase Bradley's vertical and horizontal reach, which, he explained, would facilitate Bradley's ability to perform those mobility-related essential functions that his disability impedes him from doing. We also pointed out that, while Wal-Mart's expert, Dr. Fevurly, concluded that Bradley is not qualified, his conclusions are based on the faulty assumption that cashiers and greeters must stand for all or part of their shifts, an assumption belied by Wal-Mart's own witnesses and other evidence. As for pretext, we pointed out, inter alia, that, at various times in the proceedings, Wal-Mart has offered and abandoned at least five different reasons for rejecting Bradley's application in addition to the explanation credited by the court. We also noted that a number of these reasons are factually inaccurate, internally inconsistent and/or highly implausible. In light of this evidence, we argued, the district court erred in granting Wal-Mart summary judgment. In its brief, Wal-Mart distorts or simply ignores the evidence and arguments advanced in the Commission's brief. Instead, the company merely asserts that the Commission offered "no evidence" either that Bradley is qualified or that its proffered explanation is pretextual, and proceeds to address facts the Commission has not relied on and arguments the Commission has not made. With respect to qualifications, for example, although it highlights and dismisses accommodations proposed for jobs the Commission is not pursuing, Wal-Mart does not explain why the accommodations proposed for the greeter and cashier jobs would not work. The company also asserts, illogically and without record support, that Bradley would be as likely to fall and seriously injure himself or others in a wheelchair as on crutches. As for pretext, Wal-Mart's brief makes several factual and legal misstatements, including, most seriously, that the Commission's brief relies on non-record evidence. A glance at the exhibits submitted below confirms that this is false. Beyond that, ignoring the various shifting reasons, internal inconsistencies and factual inaccuracies that the Commission documented in its brief, Wal-Mart simply denies and denies again that its reasons have been anything but "constant." Denying that evidence exists does not, however, make it disappear. Based on the record, a jury could find that, with reasonable accommodation, Bradley was qualified to be a greeter or cashier, and that Wal-Mart's proffered reasons for not hiring him were a mere pretext, advanced to hide the fact that he was rejected because of his disability. The judgment should therefore be reversed. ARGUMENT 1. Under the ADA, an individual is "qualified" if he meets the "requisite skill, experience, education and other job-related requirements" and can, with or without reasonable accommodation, "perform the essential functions of the desired job." 29 C.F.R. § 1630.2(m). To establish an ADA violation a plaintiff must first make a "facial showing" that the disabled individual is "qualified" and, if reasonable accommodation is required, that such accommodation is "possible." See, e.g., Benson v. Northwest Airlines, 62 F.3d 1108, 1112 (8th Cir. 1995). At that point, the burden shifts to the employer to produce evidence showing that it cannot accommodate the individual. Id. If the employer shows the individual cannot do the job even with accommodation, the plaintiff must rebut that showing with evidence of the individual's capabilities, at which point the plaintiff's burden merges with its ultimate burden of proving unlawful discrimination. Id. See EEOC Brief 27-28. We argued in our opening brief that, applying this standard, the evidence is sufficient to support a finding that Bradley is qualified to be a greeter or cashier. Because his disability primarily limits his ability to walk and stand, our brief focused on evidence that, with reasonable accommodation, he can do the mobility-related essential functions of the greeter and cashier positions -– tasks such as securing shopping carts for customers, scanning merchandise for pricing or inventory control purposes, and lifting and bagging purchases. EEOC Brief 29-31 (citing, e.g., Plaintiff's Appendix ("PA")219-22)).<1> We noted that EEOC's expert, Kent Jayne, observed employees doing both jobs, took measurements and, based on his knowledge of Bradley's disability-related limitations, proposed several simple accommodations including an electric scooter, a lightweight or sit-to-stand wheelchair, a handscanner, a convex mirror for seeing under carts in the check-out line and removing several inches of the divider to the right of the checkstand. EEOC Brief 30-31 (also suggesting drafting stool with armrests); see also PA109 (Dr. Singh, suggesting swivel seat on stool to facilitate turning). We also noted that there is evidence, including testimony of Wal- Mart managers Janet Daugherty and Maxine Hicks, that Wal-Mart itself contemplates that cashiers and greeters need not stand since both jobs can be done from a wheelchair. See PA152(26-27) (Daugherty); PA182(118) (Hicks). We further noted that Wal-Mart's expert, Dr. Fevurly, erroneously assumed that both jobs require standing. See EEOC Brief 31-33. Wal-Mart's brief in opposition does not directly respond to our arguments or evidence. Rather, the company's argument is three-fold. First, Wal-Mart challenges Jayne's credibility and the correctness of his findings. See generally Defendant's Brief ("Def.Br.") 9, 16-19, 31-33. While these challenges may be appropriate for a jury, they do not justify the grant of summary judgment. The company initially notes that, unlike Dr. Fevurly, Jayne is not a "licensed health care provider" and, so, cannot give medical opinions. Def.Br.17, 37. That is true, but Wal-Mart does not explain why it is material. As the company admits, the Commission offered health-related evidence through Bradley's treating physician, Dr. Singh. Def.Br.9. More importantly, Bradley's medical condition is undisputed. He has cerebral palsy which mainly limits his ability to walk and to stand for prolonged periods of time; typically, he gets around using forearm crutches or a wheelchair. See, e.g., Def.Br.37-38. The issue here is whether, given his disability-related limitations, there are accommodations which would enable him to do the mobility-related essential functions of the greeter and cashier positions. As noted in our opening brief, Jayne is a vocational rehabilitation counselor, a Diplomate of the American Board of Vocational Experts who has practiced in the field of rehabilitation counseling and job analysis for over 17 years. EEOC Brief 42. Identifying possible accommodations falls well within his area of expertise. Wal-Mart also notes that Jayne proposed "over 30 devices," including various lifts, as possible accommodations. Def.Br.32, 45 n.13; cf. id. at 17 ("total job restructuring for all associates"). That is also true. What Wal-Mart neglects to add, however, is that virtually all of those "devices" were for jobs such as sales floor associate that the Commission is not pursuing in this case. See PA95-100 (Jayne Report, adding that sales floor associate is "most physically demanding job" evaluated). As noted above and in our opening brief, Jayne also proposed specific accommodations for the greeter and cashier positions. See EEOC Brief 13 (citing PA91-92(94-100); PA116- 17(Rebuttal Report 3-4); PA100-01(Decl. ¶¶ 27-36)). Wal-Mart does not explain why these proposed accommodations are not "possible." Instead, the company complains that Jayne did not "show how any of these devices would be used in a retail environment or, more importantly, how they would specifically be used by Bradley." Def.Br.32, 33. That is not correct. Jayne in fact explained how each of these proposed accommodations would work. See EEOC Brief 29-31. For the cashier position, for example, Jayne stated that the convex mirror would enable Bradley to spot merchandise under a customer's shopping cart. PA91-92(95-98). The sit-to-stand wheelchair would permit supported standing thus increasing Bradley's horizontal and vertical reach while freeing up his upper extremities for performance of work tasks, allowing him to scan and bag merchandise normally. PA116 (Rebuttal Report). Removing a few inches of the divider would permit access and use of a regular wheelchair in the checkstand area. Id.; cf. PA230 (Wal-Mart's managerial resource guide, suggesting accommodations for cashier in a wheelchair). As for greeter, Jayne opined that Bradley might not need an accommodation but suggested that he could do tasks such as emptying the trash or securing shopping carts more efficiently with an electric scooter or similar device, a hand-controlled miniature push- pull tug, and/or a sit-to-stand wheelchair. See, e.g., PA116-17 (Rebuttal Report 3-4); cf. PA122-23 (greeters were observed using motorized wheelchairs at other Wal-Mart stores). It is true, as Wal-Mart states, that "Bradley never attempted to use any of the proposed equipment," but the equipment is not complex.<2> Moreover, had it actually considered Bradley for employment, Wal-Mart would or, in the normal course of events, should have engaged in the interactive process during which time proposed accommodations could have been explored and tested. See Canny v. Dr. Pepper/Seven-Up Bottling Group, 439 F.3d 894, 902 (8th Cir. 2006) (ADA requires employer to "engage in an interactive process to identify potential accommodations that could overcome the employee's limitations"; failure to do so is "prima facie evidence that the employer may be acting in bad faith"). Having circumvented that entire process, Wal-Mart should not now complain that absolute certainty is lacking. Furthermore, Wal-Mart overstates the Commission's burden. As noted above, plaintiffs need only make a "facial showing" that accommodation is "possible." Benson, 62 F.3d at 1112. That we did. At least until Wal-Mart showed that it could not accommodate Bradley's limitations in either position –- something it has not done, the Commission was not required to prove that Jayne's proposals would be effective.<3> In addition to its complaints about Jayne's credentials and proposals, Wal-Mart argues that Jayne "never considered serious issues that impact Bradley's mobility such as wet floors, objects on the floors, constant movement of others in a crowded situation, or the increased amount of time required for Bradley to complete a series of functions just to accomplish one task." Def.Br.32. Notably, Wal-Mart cites no evidence -– and we are aware of none -- that "wet floors" or "objects on the floors" would have any greater "impact" on Bradley's mobility in a wheelchair than they would on other Wal-Mart workers. Dr. Fevurly identified these as potential hazards for Bradley on his crutches (PA68-69), but Bradley testified that he has never fallen out of his wheelchair because of a wet floor or while shopping at Wal-Mart. PA118 (Bradley Decl.¶¶ 4-5); see also id. ¶ 6 (has fallen out of wheelchair only once, playing basketball). As for Wal-Mart's suggestion that, merely because Bradley is disabled, he could not work at a normal pace, the company cites no support for this assumption. Cf. S. Rep. No. 116, 101st Cong., 1st Sess. 28 (1991) (ADA violation to deny job based on "presumptions" about disabled individual's abilities). We note that Dr. Fevurly opined that Bradley might have efficiency problems, but that was based on the faulty assumption that he would often need to transfer from a sitting to a standing position, using his crutches, a process Dr. Fevurly estimated could take up to four seconds. PA69; PA82(99). A jury could find this concern insubstantial, however, since both jobs can be done without standing up at all. See EEOC Brief 32- 33 & n.5 (citing, e.g., testimony of managers Janet Daugherty and Maxine Hicks as well as Wal- Mart's managerial retention guide). Finally, Wal-Mart asserts, without citation to the record, that Jayne "admitted" that he "failed to account" for what Wal-Mart describes as "crucial facts." Def.Br.33. The company complains that Jayne "never provided any explanation for how the devices would enable Bradley to perform on- going, multi-task jobs" and "never provided reliable information regarding how the devices would increase Bradley's endurance." Jayne made no such admissions. In any event, Jayne did explain how his proposed accommodations would enable Bradley to do the jobs at issue. Furthermore, Wal- Mart points to nothing that suggests that Bradley lacks "endurance" except when standing for prolonged periods. Consistent with the evidence that greeters and cashiers need not stand, Jayne proposed accommodations aimed at allowing Bradley to work while sitting down.<4> 2. Besides its discussion of Jayne, Wal-Mart's brief makes two additional arguments. Neither has merit. The company first addresses the testimony of Janet Daugherty and Maxine Hicks that wheelchair users can, with reasonable accommodation, be cashiers and greeters. Misconstruing our argument, Wal-Mart asserts that the Commission "represented" this testimony "as an admission by Wal-Mart that anyone utilizing a wheelchair can perform the essential functions of a Greeter and a Cashier." Def.Br.34-35 (EEOC cannot "reasonably or even sensically" [sic] contend that this testimony "alone" means that all wheelchair users can be cashiers or greeters). That was not our argument. See EEOC Brief 34 (noting that if Bradley's hand condition precluded him from making change, for example, he might not be qualified to be a cashier in a wheelchair or on crutches). What we argued is that this testimony, along with other evidence, supports a finding that standing is not a requirement for these jobs. Id. at 31-33 & n.4. Wal-Mart does not dispute this point in its brief. Thus, the fact that Bradley uses a wheelchair would not disqualify him from working as a cashier or greeter, and there is ample evidence that, if he used a wheelchair or other similar device, Bradley could do the essential functions of these jobs. Id. Wal-Mart also argues that "uncontroverted" evidence "proves" that Bradley is not qualified to do the essential functions of a Greeter or Cashier," citing its expert evidence as support. Def.Br.36. The company stresses that Dr. Fevurly opined that Bradley cannot squat, walk or stand for prolonged periods of time; bend over frequently using his crutches; transition quickly from a sitting to a standing position; or operate a push mower; he would also pose a serious risk of falling, particularly if he worked at heights. Id. at 37; see also id. at 9-13. These tasks do not, however, correspond to essential functions of the greeter and cashier positions. Compare PA219-22; cf. PA81(91) (Fevurly, agreeing that jobs would seldom require Bradley to bend down using his crutches). Moreover, as our opening brief explained, in forming his opinions, Dr. Fevurly assumed that cashiers and greeters must stand up for all or much of their shifts and that Bradley would rely on his crutches, rather than a wheelchair or other similar device. EEOC Brief 15 (citing PA67- 68(Report 6-7), PA198(171) (Fevurly)); cf. Def.Br.44-46 (acknowledging that Wal-Mart assumed Bradley would use his crutches). Since Dr. Fevurly's assumptions are erroneous, a jury could find that his findings not only do not "prove" that Bradley is unqualified but actually shed little light on whether he can, with reasonable accommodation, perform the essential functions of the greeter and cashier positions. 3. In our opening brief, we also pointed to evidence showing that Bradley meets the skill, education and experience requirements and can do the non-mobility-related functions of the greeter and cashier positions. See PA219 (greeter); PA221(cashier). We noted, for example, that he is personable, lives independently, has completed two years of college and worked as a cashier. In addition, he is healthy, strong and dexterous enough to operate his wheelchair with one hand, carry heavy loads and bend over to pick up small items off the floor.<5> See EEOC Br.28-29 (discussing evidence supporting Bradley's ability to do simple arithmetic and reading, make change, greet and thank customers, and keep work area tidy, as required by greeter and cashier job descriptions). Ignoring this discussion and evidence, Wal-Mart argues that the Commission "offers no evidence" either that Bradley satisfies the "prerequisites of the Greeter or Cashier jobs" (Def.Br.30), or that he can do the "non-mobility-related essential functions" of these jobs (id. at 38). This argument is frivolous. As "prerequisites," Wal-Mart's brief lists retail or customer-service experience and availability (Def.Br.30), but, while these attributes may be desirable, they are not job requirements. Indeed, Wal-Mart admits as much by describing them as "priorities" and "important" (Def.Br.30); the job descriptions specify that "no experience or qualification is required." See PA220 (greeter); PA222 (cashier). As for Bradley's ability to do "non-mobility-related" job functions, Wal-Mart does not explain what those functions are, what it is that Bradley cannot do, or why the cited evidence is insufficient. Def.Br.38. In any event, the company's summary judgment motion did not question these abilities. Thus, even if it were meritorious, the argument would be waived. Yeazel v. Apfel, 148 F.3d 910, 912 (8th Cir. 1998) (argument not made in district court is waived). 4. Although the district court did not reach this issue in its rulings, our opening brief also argued that Wal-Mart is not entitled to summary judgment on the alternative ground that Bradley would pose a "direct threat" if employed as a greeter or cashier. In particular, we argued that Wal- Mart bears the burden of proof on this affirmative defense. EEOC Brief 44-46 (noting inter alia that Chevron USA v. Echazabal, 536 U.S. 73, 81 (2002)), describes "direct threat" as "affirmative defense). We also noted that Wal-Mart's direct threat evidence consisted of Dr. Fevurly's findings that, if he used his crutches, Bradley would likely fall or cause others to fall and that prolonged standing could cause wear and tear on his back and knees. We argued that, even assuming those alleged risks would support a finding that Bradley would pose a "direct threat" if he relied primarily on his crutches, Wal-Mart offered no evidence that Bradley would pose a similar risk -- or indeed any heightened risk -- in a wheelchair. See generally EEOC Brief 36-49. Wal-Mart offers no cogent response to this argument.<6> The company asserts that the same risks exist "whether Bradley uses crutches or a wheelchair" (Def.Br.46; id. at 47 (EEOC "fails to refute" Dr. Fevurly's "uncontroverted medical evidence")), but it cites only to statements involving crutches.<7> The argument that Bradley is as likely to fall in a wheelchair as on crutches, for example, not only lacks record support but makes no sense as a matter of logic. PA118 (Bradley fell out of wheelchair once, playing basketball). The company characterizes as "pure speculation" what it identifies as "Jayne's assumptions" that "Bradley can safely utilize devices such as an electric scooter" and "is more ‘stable' when sitting" (Def.Br.47 (citing EEOC Brief 40)), but in fact these are Dr. Fevurly's conclusions. See EEOC Brief 40 (citing Fevurly's deposition). The company also ignores Dr. Fevurly's admissions that he had never seen Bradley in a wheelchair and that Bradley would pose "much less of a threat" when not on crutches. PA78(76-77); PA79(79); PA80(85); see also PA198(170) (noting that he would not have "a huge problem" with Bradley using motorized scooter or similar device). At a minimum, therefore, Wal-Mart's arguments and evidence do not compel a finding of direct threat. See, e.g., Branham v. Snow, 392 F.3d 896, 907 (7th Cir. 2004) (defendant entitled to summary judgment on direct threat only if "evidence is so one-sided" that "no reasonable jury could find" for plaintiff). Apart from its misreading of the evidence, Wal-Mart's most substantial error here is its interpretation of the burden of proof. Wal-Mart does not dispute that it bears the burden of proving that Bradley would pose a "direct threat" if employed as a greeter or cashier. See Def.Br.47 (assumes "arguendo" that this is correct). Without citation to authority, however, the company adds that, under this standard, "once Wal-Mart offered evidence Bradley posed a direct threat of harm, the burden then shifted to the EEOC to prove the existence of a reasonable accommodation that would allow Bradley to perform the jobs without creating the harm." Id.; see also id. at 26. That misunderstands the definition of "direct threat." "Direct threat" means more than risk; it means a "significant risk of substantial harm to the health or safety of the individual or others than cannot be eliminated or reduced by reasonable accommodation." 29 C.F.R. § 1630.2(r). Thus, to carry its burden on this defense, Wal-Mart must prove both that Bradley would pose this type of risk and that no reasonable accommodation is available. The company's efforts to shift any part of that burden to the Commission should be rejected. 5. Finally, our opening brief challenged the district court's ruling that the Commission "put forth absolutely no evidence from which a reasonable factfinder could infer that Wal-Mart's reasons for not hiring Bradley were a pretext for discrimination." EEOC Brief 49 (quoting PA271 (12/2005 Order)). In moving for summary judgment, Wal-Mart asserted that Bradley was rejected based on "limited availability, work history and lack of retail experience." DA55 (SJ Suggestions at 53); accord PA270 (12/2005 Order at 10); compare PA44 (Daugherty's SJ Aff.¶ 17 (Bradley's "rather specific restrictions on available hours, work experience and lack of work experience directly working with the general public or in retail operations"). We argued that, although the district court uncritically credited that explanation, a jury could discredit it for several reasons. We argued that pretext may be inferred from the fact that Wal-Mart's explanation changed repeatedly over time. See, e.g., Kobrin v. University of Minnesota, 34 F.3d 698, 703 (8th Cir. 1994) ("Substantial changes over time in the employer's proffered reason for its employment decision support a finding of pretext."). We pointed out that, at various points in the proceedings, Wal-Mart offered at least eight different reasons for its decision, most of which the company later abandoned. We also noted that in her deposition, Janet Daugherty, who Wal-Mart eventually settled on as the decisionmaker, herself offered shifting, factually inaccurate and even contradictory reasons for her alleged decision, and these reasons did not accord with the reasons in her affidavit. See generally EEOC Brief 52-61. Further, we pointed to Deborah West and Donald Walker, two non-disabled applicants who were hired even though their availability and/or work experience were comparable to Bradley's. Id. at 58- 61. In response, Wal-Mart misstates the legal standard, purporting to quote Young v. Warner- Jenkinson Co., 152 F.3d 1018, 1024 (8th Cir. 1998), for the proposition that the pretext cases EEOC relied on "are not applicable until there are actually ‘conflicting explanations' offered by the defendant." Def.Br.40-41. The company then denies, again and again, that it "has offered conflicting explanations," describing as "nonsensical and based on semantics" EEOC's argument that it has. Id. at 41-42 ("the burden is on the EEOC to prove, with evidence, that the reasons are truly conflicting"); see also id. at 26 ("nonsensical and immaterial"). Rather, the company asserts, its reasons -– limited availability and lack of experience in retail or with customer service -- have remained "constant" throughout the investigation and litigation. Id. at 26 ("soundly constant"); 41- 43 ("entirely" and "soundly" "consistent").<8> There are several problems with this argument. Initially, notwithstanding Wal-Mart's quotation marks, the phrase "conflicting explanations" does not appear in Young, nor does the case stand for the proposition that explanations must "conflict" to support a pretext finding. Rather, as we argued, pretext may be inferred where the company's explanation has changed over time. See, e.g., Kobrin, 34 F.3d at 703; Young, 152 F.3d at 1024 ("different reasons"); accord Wallace v. DTG Ops., 462 F.3d 1112, 1124 (8th Cir. 2006) ("shifting" reasons is evidence employer "is dissembling to cover up an impermissible motive"). Based on the evidence cited in our opening brief, a jury could, at a minimum, find some lack of constancy in Wal-Mart's proffered reasons. Moreover, having settled on limited availability and lack of retail or customer service experience as its proffered explanation, Wal-Mart makes no attempt to explain the five or six other proffered reasons documented in our brief.<9> Nor does the company attempt to reconcile the numerous discrepancies within Daugherty's deposition testimony. However, the credibility of its most recent reasons is impugned by Daugherty's deposition testimony. As our opening brief points out, she testified that the availability Bradley listed in his 2001 application was acceptable, and, despite repeated prodding to list all the reasons for her decision, she never mentioned lack of relevant experience as a reason at all. EEOC Brief 54, 57; see EEOC v. Sears, Roebuck & Co., 243 F.3d 846, 853 (4th Cir. 2001) (late appearance of reason suggests post-hoc rationale, rather than true reason). Wal-Mart ignores these contradictions in denying that its reasons are "conflicting." Furthermore, as we noted, Wal-Mart hired Deborah West even though her availability was substantially more limited than Bradley's and Donald Walker even though his application is so sketchy that it is impossible to tell what kind of work experience he had. See EEOC Brief at 58, 61 (citing PA216 (West's application); PA213-14 (Walker's application)). Wal-Mart's response to this comparative evidence is even more curious. Regarding Donald Walker, Wal-Mart takes the remarkable position that it was "inappropriate" for the Commission to rely on Walker's application in its appellate brief because, according to the company, this document was "not previously submitted by the EEOC for the district court's consideration" and, so, was not "part of the record below." Def.Br.42-43. That is false. As stated in the Table of Contents to EEOC's Appendix, Walker's application was, in fact, submitted to the district court, along with West's, in Exhibit 19 to EEOC's Opposition to Summary Judgment. See R.131, Exh.19. As for Deborah West, the company asserts, without citation, that her "availability is more open than Bradley and also open in the evening, overnight, and early morning." Def.Br.43. The only record evidence is to the contrary. As our brief noted, West specified that she was available only from 5:00 or 6:00 until 10:00 or 11:00 on five evenings and not at all on Thursday or Sunday (PA218). Bradley, by contrast, was available from 4:00 to 10:00 every evening including Saturday and Sunday. PA212. Yet West was hired, notwithstanding Daugherty's testimony that availability for Sunday work was not "negotiable." EEOC Brief 9 (citing PA163(123-24)). Wal-Mart also argues that West is "not similarly situated to Bradley" because "unlike Bradley, [West] had extensive experience with the public." Def.Br.43. Comparative evidence is relevant where the comparator is "similarly situated in all relevant respects" to the plaintiff. See Harvey v. Anheuser Busch, 38 F.3d 968, 972 (8th Cir. 1994) (disparate discipline case). In Lynn v. Deaconess Medical Center, 160 F.3d 484, 488 (8th Cir. 1998), this Court held that plaintiff was similarly situated to his comparator where he was disciplined more harshly for different but arguably less serious infractions. The Court explained that the alleged infractions must be at least of "comparable" seriousness but they need not be identical. Id. Under this standard, a jury could find that Bradley and West had comparable, though not identical, experience and, so, were similarly situated.<10> West's application lists experience as a "medical assistant" (PA217), a job involving no "retail" or "customer service" experience -- what Wal-Mart elsewhere states that it was seeking. See, e.g., Def.Br.30. By contrast, Bradley had some experience as a cashier (PA120), and Daugherty's deposition testimony suggests that she believed he had experience both as a cashier and with the public (EEOC Brief 50-51) -– which would explain her failure to list lack of relevant experience as a reason for rejecting Bradley. Finally, Wal-Mart argues that it is "inappropriate and meritless" for the Commission or the Court to "question" its "business motives; the EEOC must prove the real reason for defendant's actions was discrimination." Def.Br.43-44. That statement is half-true. At trial, the Commission must prove that the real reason for Wal-Mart's actions was discrimination, but the Commission may do that by showing that Wal-Mart's proffered "business reasons" are unworthy of credence; no more is required. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 147 (2000); Maschka v. Genuine Parts Co., 122 F.3d 566, 571 (8th Cir. 1997) (jury question normally presented where "plaintiff offers evidence tending to show that the defendant's proffered reasons . . . were not the real reason"). For summary judgment purposes, the Commission more than met this burden. Virtually all of Wal-Mart's brief is devoted to assertions that the Commission has offered "no evidence," but merely denying that evidence exists does not make it disappear. Because the cited evidence amply supports a finding that Bradley is qualified to be a greeter or cashier and that the company has simply made up reasons to hide the fact that he was rejected because of his disability, Wal-Mart was not entitled to summary judgment. The judgment should therefore be reversed. CONCLUSION For the foregoing reasons, the judgment below should be reversed and the case remanded to the district court for further proceedings. Respectfully submitted, RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ______________________________ BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202)663-4721 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 4794 words, from the Introduction, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 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 monospaced typeface using Microsoft Word 2003 with Courier New 12-point font. Attorney for Equal Employment Opportunity Commission Dated: _________________________ CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing Reply Brief of the Equal Employment Opportunity Commission were sent August 18, 2006, by first-class mail, postage prepaid, to: Denise M. Anderson ANDERSON LAW GROUP 110 West Ninth Street Kansas City, MO 64105 A courtesy copy was also e-mailed to counsel. ________________________________ Barbara L. Sloan ******************************************************************************** <> <1> Wal-Mart’s brief cites the 2000 version of the cashier and greeter job descriptions whereas EEOC and the district court cited the 2002 version. Compare DA206-13 (2000 version) with PA219-22 (2002 version). For purposes of this appeal, the two versions are not materially different. Although the 2000 version, unlike the 2002 version, states that associates “are regularly required to stand” (DA208 (greeter), DA212 (cashier)), Wal-Mart does not argue that standing is an essential function of either job. As noted infra and in our opening brief (EEOC Brief 31-33), Wal-Mart contemplates that wheelchair users can be cashiers and greeters. <2> Wal-Mart also stresses that Jayne did not observe people “with cerebral palsy” using his proposed accommodations. Def.Br.17-19. It would not matter, however, whether Bradley’s mobility limitations resulted, for example, from polio, rather than cerebral palsy. What matters are the limitations, not the name of the disorder. See 42 U.S.C. § 12112(b)(5)(A) (violation not to reasonably accommodate known disability-related “limitations”). <3> Wal-Mart’s argument suggests that an accommodation is acceptable only if it has already been used successfully by someone with the same disorder and same limitations as the plaintiff, for the same job, in the same work environment and for the same employer. If that were the case, no new or different accommodations could be tried. <4> Dr. Fevurly did opine that Bradley had never worked 8-hour shifts (PA69-70 (Fevurly Report 8, 9)), but that is simply wrong. Bradley worked full-time at Banta and had near perfect attendance. See, e.g., EEOC Brief 16 (citing PA139(192)). <5> See, e.g., PA64 (Fevurly, lift and carry objects using a wheelchair “in a nearly unlimited fashion”); PA66 (Fevurly, “very good” bilateral grip strength; can do “normal fine motor activities”); PA94 (Jayne, “independent in all activities of daily living”); PA118 (Bradley, can bend repeatedly and pick up items off the floor, operate wheelchair with one hand); PA120 (Bradley, experience as a cashier); PA192(99-100) (Fevurly, “outstanding” upper-body strength). <6> Wal-Mart asserts that EEOC’s argument on direct threat “acknowledges” that “a determination whether an individual can safely perform the essential functions of a job must be based on medical evidence.” Def.Br.46 (citing EEOC Brief 38). That misreads our brief. We noted that 29 C.F.R. § 1630.2(r) specifies that the determination may also be based on “the best available objective evidence.” See EEOC Brief 38; id. at 42 (citing 29 C.F.R. Pt. 1630, App. § 1630.2(r), listing “rehabilitation counselor” as relevant witness)). While EEOC offered evidence from Bradley’s treating physician, we expressly argued that expert medical evidence might well be unnecessary in a case like this. Id. at 41-43. <7> The case Wal-Mart cites to support this argument, McClean v. Case Corp., 314 F.Supp.2d 911 (D.N.D. 2004), is telling. See Def.Br.44 & n.12. There, the district court found that plaintiff would pose a direct threat because, due to multiple sclerosis, he had trouble walking. 314 F. Supp.2d at 919-20. Unlike here, there is no evidence the plaintiff in McClean used a wheelchair. <8> Wal-Mart also asserts that EEOC “blanketly claims that [its] reasons for not hiring Bradley are unworthy of credence yet fails to explain why.” Def.Br.40. However, the entire last section of our brief is devoted to a detailed explanation of just that issue. EEOC Brief 49-63. <9> Ironically, Wal-Mart’s explanation is not consistent even in its appellate brief. On the one hand, the company states that Bradley was rejected because of limited availability and lack of “retail and customer service experience.” Def.Br.30 (“priorities”); accord id. at 42. However, when Wal-Mart attempts to distinguish Deborah West, who also lacks those attributes, “customer service experience” becomes a “job history working with the public” (Def.Br.41, 43), which is not the same as “customer service experience.” Both terms are inconsistent with Daugherty’s deposition testimony, which, as noted above, does not mention an alleged lack of relevant experience as a factor in her decision. <10> In addition, both had two years of post-high-school education; both were available to work part-time; and neither was a student. Compare PA208-12 (Bradley’s application) with PA216-18 (West’s application).