IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ______________________ 03-1648 ______________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. WARFIELD-ROHR CASKET CO., Defendant-Appellee. ____________________________________________________ On Appeal From the United States District Court For the District of Maryland ____________________________________________________ REPLY BRIEF FOR THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ____________________________________________________ ERIC S. DREIBAND SUSAN L.P. STARR General Counsel Attorney VINCENT J. BLACKWOOD Acting Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 202/663-4727 202/663-7090 (fax) TABLE OF CONTENTS Pages TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 13 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Conner v. Schrader-Bridgeport Intern., Inc., 227 F.3d 179 (4th Cir. 2000) 4 Danzer v. Norden Systems, Inc., 151 F.3d 50 (2nd Cir. 1998) . 4 FDIC v. Henderson, 940 F.2d 465 (9th Cir. 1991) . . . . . . . 8 Kubicko v. Ogden Logistics Servs., 181 F.3d 544 (4th Cir. 1999)) 6-7 Palasota v. Haggar Clothing Co., 342 F.3d 569 (5th Cir. 2003) 6 Rowland v. American General Finance, Inc., 340 F.3d 187 (4th Cir. 2003) 6-7 Taylor v. Virginia Union University, 193 F.3d 219 (4th Cir.1999), cert. denied, 528 U.S. 1189 (2000) . . . . . . . . . . . 5 FEDERAL STATUTES 42 U.S.C. 1983 . . . . . . . . . . . . . . . . . . . . . . . 8 Fed. R. App. P. 29(d) . . . . . . . . . . . . . . . . . . . . 14 Fed. R. App. P. 32(a)(5) . . . . . . . . . . . . . . . . . . . 14 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ______________________ 03-1648 ______________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. WARFIELD-ROHR CASKET CO., Defendant-Appellee. ____________________________________________________ On Appeal From the United States District Court For the District of Maryland ____________________________________________________ REPLY BRIEF FOR THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ____________________________________________________ INTRODUCTION The Commission alleges that Warfield-Rohr violated the ADEA by terminating Frederick Kuehnl because of his age. The district court granted summary judgment notwithstanding evidence that, when he fired Kuehnl, the company president told Kuehnl that he was firing him because he was "too fucking old" and that he was retaining Kuehnl's younger co-worker instead of Kuehnl because he "could get more years out of him." In our opening brief, we argued that the district court, in ruling on Warfield-Rohr's motion for summary judgment, correctly recognized that it must credit this direct evidence that Kuehnl's age was a factor in the decision to fire him. We argued that the court erred, however, in ruling that Warfield-Rohr was entitled to summary judgment on the ground that the evidence compelled the conclusion that it would have fired Kuehnl even if his age had not been a factor. We argued that, while it is possible that Warfield-Rohr felt it was necessary to fire its only experienced casket trimmer in light of the company's financial difficulties, the evidence does not compel that conclusion particularly when Kuehnl offered to take a pay cut. Given the evidence that defendant's president rejected that offer because, in his words, the younger casket trimmer could "give him more years," a reasonable jury could find that Warfield-Rohr would not have fired Kuehnl if he had been younger. Warfield-Rohr's response to the Commission's opening brief is an exercise in avoidance and distraction. The company offers no plausible rationale for upholding the award of summary judgment in light of the direct evidence of age discrimination. Instead, Warfield-Rohr's strategy is to present a one-sided version of the facts as if its version of the facts were already endorsed by a jury and to ignore evidence that does not support its arguments. For example, defendant's brief contains no mention of the evidence that the company president in rejecting Kuehnl's offer to take a pay cut said that the younger casket trimmer could "give him more years." The defendant also attempts to minimize the evidence that the owner said Kuehnl was too old by characterizing it as "uncorroborated," a characterization that is factually inaccurate and legally irrelevant. Finally, to bolster its argument that a reasonable jury would be compelled to find that Kuehnl would have been fired even if his age were not a consideration, the defendant describes at length all of Kuehnl's faults and omits any reference to the evidence that he was a highly skilled and productive employee. We submit this short reply brief to correct the company's distorted recital of the evidence and to refocus this appeal on the issue presented. ARGUMENT 1. Warfield-Rohr first argues that the district court erred in applying a mixed motive analysis to this case. According to Warfield-Rohr, the district court's conclusion was based entirely on Kuehnl's testimony that Ayres told him that he was being fired because he was too old. Def.'s Br. at 9. The company argues that this testimony is insufficient to trigger a mixed motive analysis because "there is no evidence corroborating Mr. Kuehnl's claim of discrimination." Id. at 10. Whether Warfield-Rohr is arguing that the evidence is insufficient because there was no other witness to Ayres's statements to Kuehnl or because there are no other circumstances from which a jury could infer that age motivated Ayres's decision to fire Kuehnl, Warfield-Rohr's position is both legally and factually untenable. Contrary to the suggestion in the defendant's brief, there is no requirement that a statement of discriminatory motive be witnessed by a party other than the victim of discrimination before it can trigger a mixed motive analysis. Corroboration of testimony or the lack thereof goes to its credibility. However, the credibility of a witness's testimony is the quintessential province of the fact-finder. See Danzer v. Norden Sys., Inc., 151 F.3d 50, 57 (2nd Cir. 1998) ("Since the defendant will rarely admit to having said or done what is alleged, and since third-party witnesses are by no means always available, the issue [in discrimination cases involving direct evidence] frequently becomes one of assessing the credibility of the parties. At summary judgment, however, that issue is necessarily resolved in favor of the nonmovant.") . It is for the jury, not the court, to say what evidence it will believe and what inferences or conclusions it will draw. See Conner v. Schrader-Bridgeport Intern., Inc., 227 F.3d 179, 199-200 (4th Cir. 2000) (issue of plaintiff's credibility is a jury issue). Accordingly, in ruling on defendant's motion for summary judgment, the district court was required to assume that Kuehnl's testimony is credible, and that Ayres made the statements attributed to him. Assuming Kuehnl's testimony to be true, Ayres's statement that he was firing Kuehnl because he was "too fucking old" is sufficient by itself to support a finding that Kuehnl's age was a factor in the decision to fire him since it was made by the decision maker, expressly reflects a discriminatory animus, bears directly on the contested employment decision, and occurred at the time of the discharge. Taylor v. Virginia Union Univ., 193 F.3d 219, 232 (4th Cir.1999) (en banc). Furthermore, contrary to the implication in defendant's brief, Kuehnl's testimony that Ayres said he was firing Kuehnl because he was too old is not the only evidence that Ayres's decision was motivated by age. As noted, Kuehnl also testified that Ayres rejected his offer to take a pay cut by saying that the company could get "more years" out of Kuehnl's younger co-worker. In addition, Kuehnl also testified that Ayres asked him how old he was and whether he was planning to retire. Notably, Kuehnl's testimony regarding all three of these statements was corroborated by his contemporary journal entries. A. 31, 32. Warfield-Rohr argues that Ayres's questions about Kuehnl's age and his retirement plans, standing alone, are insufficient to establish age discrimination. Warfield-Rohr Br. at 19, n.8. However, the Commission does not present this evidence in isolation. Rather, we pointed out that the questions about retirement and age were made by the same decision maker who said he was firing Kuehnl because he was too old and because his younger co-worker could give the company more years. When viewed in conjunction with this direct evidence of age bias, the questions about age and retirement are probative of the employer's intent to discriminate based on age. See, e.g., Palasota v. Haggar Clothing Co., 342 F.3d 569 (5th Cir. 2003) (although "the offer of a severance package is not, by itself, evidence of age discrimination," when coupled with evidence that the individuals were targeted because of their age, this evidence is appropriately taken into account as proof of age discrimination). Thus, contrary to Warfield-Rohr's assertion, Kuehnl's testimony that Ayres said he was firing Kuehnl because he was too old does not stand in isolation. Warfield-Rohr takes issue with the Commission's reliance on two cases from this Court, and suggests that those cases support its novel theory that the mixed motive analysis does not apply where direct evidence is "uncorroborated." Warfield-Rohr Br. at 9-10 (citing Rowland v. Am. Gen. Fin., Inc., 340 F.3d 187 (4th Cir. 2003); Kubicko v. Ogden Logistics Servs., 181 F.3d 544 (4th Cir. 1999)). The company misses the point. As we argued in our opening brief, these cases stand for the proposition that a plaintiff may trigger the mixed motive analysis by presenting evidence that reflects a discriminatory animus of the decision maker and is directly connected to the challenged decision. EEOC Br. at 15. Neither of these cases states that evidence which satisfies this standard must somehow be "corroborated." In Rowland, this Court held that the district court erred in rejecting plaintiff's request for a mixed motive jury instruction where the decision maker stated in a meeting with Rowland that he would not promote her because he did not "need another woman in this position." 340 F.3d at 193. The only other evidence presented was a statement made by someone with no involvement in the decision-making process, and at a time after the promotion was denied, that "men run the company." Id. Despite other evidence suggesting non-discriminatory reasons for the failure to promote, this Court held that "a reasonable jury, properly instructed, could have decided the matter in [Rowland's] favor." Id. at 193. Similarly, in Kubicko, this Court held that a mixed motive analysis applied because there was evidence which "both reflects directly the alleged retaliatory attitude against [plaintiff] and bears directly on [defendant's] decision to terminate [plaintiff]." 181 F.3d at 553. There is nothing in the Court's decision to support Warfield-Rohr's argument that evidence which meets this standard is insufficient to invoke the mixed motive analysis unless it is "corroborated." 2. Warfield-Rohr also argues that, even assuming that Kuehnl's age was a factor in Ayres's decision to fire him, the district court correctly ruled that the company is still entitled to summary judgment. As we pointed out in our opening brief, the defendant is not entitled to summary judgment on this issue "unless undisputed evidence compels the conclusion that it would have made the same decision to fire Kuehnl and retain Moore if Kuehnl had not been more than 20 years older than Moore." EEOC Br. at 16. Warfield-Rohr initially states the correct legal standard on this point. In its argument heading, Warfield-Rohr correctly assumes that it would be entitled to summary judgment only if "the undisputed evidence establishes overwhelmingly that Warfield-Rohr would have terminated Mr. Kuehnl in the absence of any purported discriminatory motive." Def.'s Br. at 12. In the discussion that follows, however, the company argues only that there is undisputed evidence that nondiscriminatory considerations entered into Ayres's decision to fire Kuehnl. The company does not present a plausible argument that the evidence conclusively establishes that Ayres would have made the same decision if Kuehnl had not been considerably older than Moore. Nowhere is this clearer than in the discussion of the role that cost considerations played in the decision to fire Kuehnl. As we noted in our opening brief, the evidence of the company's financial circumstances may support a finding that it needed to cut costs, but it does not compel the conclusion that the cost-cutting measure had to be Kuehnl's termination. We pointed out that this is particularly true given Kuehnl's immediate offer to work for less money to meet the company's financial concerns and keep his job. In response Warfield-Rohr cites a string of cases for the proposition that the law permits an employer to fire a higher-salaried employee to cut costs. Warfield-Rohr Br. at 14-15. This misses the point. These cases stand for the unremarkable proposition that a plaintiff cannot establish an ADEA claim based on evidence that an adverse employment action was taken against an older employee based wholly on a factor other than age, such as cost, even if the employer could have taken other measures to avoid adversely affecting the plaintiff. The issue in this case is whether, assuming Kuehnl's age was a factor in Ayres's decision, would he have made a different decision if Kuehnl had been younger. Ayres's refusal of Kuehnl's offer to work for less is relevant because there is evidence that Ayres rejected this offer precisely because Kuehnl was older than Moore. Accordingly, a jury could find that, notwithstanding the company's financial situation, Ayres would have permitted Kuehnl to keep his job if he were younger. The district court also alluded to evidence that two other nondiscriminatory factors may have affected Ayres's decision to fire Kuehnl: Kuehnl's unwillingness, two years before he was fired, to work in a two-person trimming room; and Kuehnl's difficulties getting along with other employees in the trimming room. We argued in our opening brief that this evidence falls far short of compelling a finding that Kuehnl would have been fired if he were younger. Warfield-Rohr does not directly respond to this argument. Instead the company presents a distorted picture of Kuehnl as an employee by describing in detail every negative aspect of his personality and omitting any mention of the abundant evidence that Kuehnl was a highly skilled and productive employee who was consistently praised and rewarded for his performance. Warfield-Rohr's approach, which reads more like a closing argument to a jury than an argument to an appellate court, serves only to reinforce the Commission's argument that summary judgment was inappropriate in this case. There are two sides to the story of Kuehnl's discharge, and a trier of fact should decide which side is true. With respect to the evidence that Kuehnl previously expressed the view that the trimming room was not a two-person operation, we pointed out in our opening brief that "[t]here is no evidence that Kuehnl retained that view at the time of his discharge when, according to the company, the workload in the casket trimming room had significantly declined. On the contrary, by suggesting that Ayres terminate Moore instead of himself, Kuehnl demonstrated his willingness to work as the sole casket trimmer." EEOC Br. at 19-20. Warfield-Rohr makes no response to this argument, instead erroneously stating that the Commission "completely ignores" its argument that "Kuehnl had refused to work in the casket trimming room with only one other person." Warfield-Rohr Br. at 16. With respect to the evidence of Kuehnl's difficulties with other employees, we noted a number of factors which suggest that this would not have caused Ayres to fire Kuehnl if his age had not been a factor. First, we noted, Ayres failed to mention this reason in his notes, which he testified included all of his reasons for terminating Kuehnl. EEOC Br. at 19. Furthermore, we pointed out that, although the evidence suggested that Kuehnl's interpersonal problems had been occurring for at least 15 years, "there is nothing to suggest that these personality problems were ever a subject of serious concern for the company." Id. We noted that, "[n]otwithstanding the evidence that other employees had left Warfield-Rohr because of conflicts with Kuehnl, Kuehnl was never disciplined or even reprimanded for his conduct. On the contrary, he was consistently praised for his work and he continued to run the trimming room with minimal oversight." Id. The company's only response to this argument is to note that there is evidence that Kuehnl "began experiencing problems with management" in the years immediately preceding his discharge. Def.'s Br. at 17. While this evidence could support a finding that Warfield-Rohr would have terminated Kuehnl even if his age had not been a factor based on the personality problems it had tolerated for many years, it surely does not compel that conclusion. As we noted in our opening brief, although it is possible that a jury would accept Warfield-Rohr's contention that it "decided to fire a highly skilled and experienced casket trimmer and leave that operation in the hands of Moore, a younger employee with relatively little experience who needed help performing some of the functions of the job," a reasonable jury could instead conclude that "the company would not have made the same decision if Kuehnl was not substantially older than Moore." EEOC Br. at 20. CONCLUSION For the foregoing reasons and for the reasons stated in our opening brief, the judgment of the district court should be reversed and this case remanded to the district court for further proceedings. Respectfully submitted, ERIC S. DREIBAND General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel _______________________ SUSAN L.P. STARR Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4727 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in F.R.A.P. 32(a)(7)(B). This brief contains 2,669 words. See Fed. R. App. P. 29(d). The brief was prepared using the WordPerfect 9 processing system, in 14-point proportionally spaced type for text and 14-point type for footnotes, both in Times New Roman. See Fed. R. App. P. 32(a)(5). _________________________ Susan L.P. Starr, Esq. October 31, 2003 CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief have been sent via first class mail, postage prepaid, to the following counsel of record: COUNSEL FOR DEFENDANT-APPELLEE WARFIELD-ROHR CASKET CO. Charles S. Hirsch, Esq. BALLARD SPAHR ANDREWS & INGERSOLL, LLP 300 East Lombard Street, 18th Floor Baltimore, MD 21201 ________________________ Susan L.P. Starr, Esq. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7042 Washington, D.C. 20507 October 31, 2003