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 ____________________________________________________ BRIEF FOR THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ____________________________________________________ ERIC S. DREIBAND VINCENT J. BLACKWOOD General Counsel Assistant General Counsel CAROLYN L. WHEELER SUSAN L.P. STARR Acting Associate General Counsel Attorney 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 STATEMENT OF JURISDICTION 1 STATEMENT OF ISSUE 2 STANDARD OF REVIEW 2 STATEMENT OF THE CASE 3 1. Course of Proceedings 3 2. Statement of Facts 3 3. District Court Decision 8 SUMMARY OF ARGUMENT 11 ARGUMENT THE DEFENDANT WAS NOT ENTITLED TO SUMMARY JUDGMENT BECAUSE THE EVIDENCE DOES NOT COMPEL A FINDING THAT IT WOULD HAVE FIRED FREDERICK KUEHNL IF HIS AGE HAD NOT BEEN A FACTOR IN THE DECISION 13 CONCLUSION 21 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES 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 ____________________________________________________ BRIEF FOR THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ____________________________________________________ STATEMENT OF JURISDICTION This is an appeal from a final judgment of the United States District Court for the District of Maryland. The district court had subject matter jurisdiction over the Equal Employment Opportunity Commission's claims under the Age Discrimination in Employment Act, ("ADEA"), 29 U.S.C. § 621 et seq., pursuant to 28 U.S.C. §§ 1331 and 1343(a)(4). This Court has jurisdiction over this appeal from a final judgment under 28 U.S.C. § 1291. STATEMENT OF ISSUE Whether the district court erred in granting summary judgment to the defendant where there was affirmative evidence that Kuehnl's age was a factor in the company owner's decision to fire him, and the evidence does not conclusively establish that the defendant would have terminated Kuehnl if his age had not been a factor in the decision. STANDARD OF REVIEW This Court reviews a district court's grant of summary judgment de novo. Denzler v. Questech, Inc., 80 F.3d 97, 101 (4th Cir. 1996). In considering a motion for summary judgment, a court must view the evidence in the light most favorable to the party opposing the motion and must draw all reasonable inferences from the evidence in that party's favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Henson v. Liggett Group, Inc., 61 F.3d 270, 274 (4th Cir. 1995). At the summary judgment stage the function of the trial or reviewing court is not to step into the place of the jury and weigh the evidence, but to determine whether there exists a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Fed.R.Civ.P. 56(c). For a fact to be material, it must be probative as to the legally relevant questions at hand, and for the dispute to be genuine, the disputing party must submit evidence which could serve as a reasonable basis for finding in the disputing party's favor. Smith v. Virginia Commonwealth Univ., 84 F.3d 672, 675 (4th Cir.1996) (en banc ). Where, as here, the party moving for summary judgment bears the burden of proof on a material issue, summary judgment should be denied unless undisputed evidence compels a finding for the moving party on that issue. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). STATEMENT OF THE CASE 1. Course of Proceedings This is a government enforcement action under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. The complaint alleges that defendant violated the ADEA by firing Frederick Kuehnl, who was 56 years old when he was fired, because of his age. A. 6. Both parties moved for summary judgment. The district court denied the Commission's motion and granted defendant's motion on March 17, 2003. A. 19. The Commission timely noticed an appeal on May 16, 2003. A. 20. 2. Statement of Facts Warfield-Rohr Casket Company sells caskets and other burial products to funeral homes throughout Maryland, Virginia and Delaware. A. 45-47 (Ayres Depo.). As part of its business, Warfield-Rohr installs custom interiors in caskets for its customers. This process, called "trimming" a casket, is performed by "sewers" who sew the fabrics used to trim the caskets, and "trimmers" who install the fabrics in the caskets. A. 114-15 (Kuehnl Depo.). Frederick Kuehnl has worked as a casket trimmer since about 1964. A. 112 (Kuehnl Depo.). In 1971, Warfield-Rohr hired Kuehnl and his only responsibility was to trim caskets. A. 113 (Kuehnl Depo.). At the time, there were approximately thirteen employees working in Warfield-Rohr's casket trimming room. A. 114-15 (Kuehnl Depo.). As a casket trimmer, Kuehnl custom-designed and built casket interiors. His work consisted of designing, cutting, and installing wood and fabric trim beneath and around the interior bed of the casket. A. 135-45 (Kuehnl Depo.). During his employment at Warfield-Rohr, Kuehnl was a highly-skilled craftsman who did very good work. A. 40 (Ayres Interview); A. 99 (Osmeyer Depo.); A. 107 (Rosenberger Depo.). Between 1971 and 1982, Kuehnl's job responsibilities as a casket trimmer stayed essentially the same. A. 117 (Kuehnl Depo.). In 1982, William Ayres, the owner of Warfield-Rohr, promoted Kuehnl to the position of foreman. Id. As foreman, Kuehnl was in charge of both the sewers and the trimmers, and he trained sewers and apprentice casket trimmers. A. 117-19 (Kuehnl Depo.). When he took on these new supervisory responsibilities, Kuehnl continued to work as a casket trimmer. A. 120, 160 (Kuehnl Depo.). Casket trimming was always part of Kuehnl's job at Warfield-Rohr. Id. Throughout his employment at Warfield-Rohr, Kuehnl was a hard worker. A. 117, 122 (Kuehnl Depo.). Kuehnl kept contemporary logs of his trimming work. A. 25-33. These reflect that, right up until his termination, Kuehnl worked long hours, including weekends and nights, to ensure that work was completed on time. Id. Ayres often complimented Kuehnl on his work ethic, stating that he was from the "old school," working "from morning to night." A. 149 (Kuehnl Depo.). Although Kuehnl never received a formal performance evaluation (A. 150 (Kuehnl Depo.)), he received a year-end bonus every year he worked at Warfield-Rohr. A. 34-38 (Earnings Statements 1995-99). Over the years, Warfield-Rohr's trimming work declined, and by 1997 there were only three employees remaining in the trimming room: two casket trimmers, Kuehnl and Michael Eisenhardt; and one sewer, Elizabeth Skenderovic. A. 52-54 (Ayres Depo.); A. 146 (Kuehnl Depo.). In December 1997, Eisenhardt resigned, saying that he could not get along with Kuehnl. A. 108 (Eisenhardt Depo.). Ayres initially was reluctant to hire another trimmer, questioning the need for a third person in the trimming room. A. 154-55 (Kuehnl Depo.). However, Kuehnl insisted that another employee was needed to keep up with work in the casket trimming department. A. 155 (Kuehnl Depo.). Ayres ultimately went along with Kuehnl's recommendation and hired Matt Moore, then age 33, to replace Eisenhardt. A. 54-55, 166 (Kuehnl Depo.). Moore had some experience in upholstering but had never worked as a casket trimmer before. A. 42-43 (Ayres Interview). Over the next couple of years, Kuehnl worked in the trim room with Moore, instructing him and answering his questions on how to perform his job. A. 81-82 (Moore Depo.). Even after Moore was fully trained, he was far less accomplished than Kuehnl. While Kuehnl could trim six or seven caskets in a day, Moore could not trim more than one. A. 168 (Kuehnl Depo.). During this time, Warfield-Rohr was losing business because a conglomerate began purchasing funeral homes in Maryland and Virginia and these funeral homes would then buy their products from a national distributor rather than from an independent like Warfield-Rohr. A. 52-53 (Ayres Depo.). Either on his own initiative or in response to Ayres' request, Kuehnl kept busy by performing odd jobs for the company and personal jobs for Ayres and members of his family, both on and off company time. A. 48-49, 76-77 (Ayres Depo.); A. 121 (Kuehnl Depo.). Kuehnl noted in his log on April 7, 2000, that Ayres asked him how old he was and whether he was planning to retire. Three weeks later, Ayres called Kuehnl into his office and fired him. A. 157 (Kuehnl Depo.). Kuehnl was 56 years old at the time. According to Kuehnl, the following conversation occurred: He said to me, "you're fired. You're getting too fucking old, you're making too much fucking money. Get the fuck out. I said, Howard, can't I work less time and less pay to keep my job until 65? He says no, get the fuck out. I said, why can't you get rid of Matt [Moore] instead of myself? He said to me, Matt could give him more years and he needed a job. I said I need a job too. Id. Ayres denies that he referred to Kuehnl's age when he fired him. A. 78-79 (Ayres Depo.). He testified that he fired Kuehnl because the company could not afford his salary and because Kuehnl had difficulties with his co-workers. A. 234-35 (Ayres Depo.). Ayres acknowledged that he rejected Kuehnl's offer to work fewerhours or to work for less money. Id. Ayres prepared notes in anticipation of histermination discussion with Kuehnl for the purpose of "includ[ing] everything and[to] make sure I said it accurately." A. 50 (Ayres Depo.). The notes stated that he was terminating Kuehnl because he "can't afford" him. A. 22. The notes do notreference problems co-workers had with Kuehnl or anything about Kuehnl'sperformance. A. 22-24. C. District Court Decision In a decision issued on March 17, 2003, the district court denied the Commission's motion for summary judgment and granted Warfield-Rohr's motion. The court stated that a plaintiff in an ADEA action may "establish a prima facie case of discrimination in one of two ways, using direct proof or circumstantial evidence." A. 13. "When direct evidence of discrimination exists," the court added, "a prima facie case of age discrimination has been established." Id. The court noted that there is evidence in this case, which is disputed by the defendant, that Ayres told Kuehnl that he was too old when he fired him. Id. In considering the Commission's motion for summary judgment, the court held, it "must draw all inferences in favor of the Defendant and assume that the statements were not made." Id. Accordingly, the court ruled, for purposes of its summary judgment motion, the Commission "cannot establish a violation of the ADEA, as a matter of law, through the use of direct evidence," and must instead "use circumstantial evidence and proceed under the burden-shifting scheme of McDonnell Douglas v. Green, 411 U.S. 792, 804-05 (1973)." A. 13-14. According to the court, even if it were to assume that the Commission established aprima facie case, Warfield-Rohr, by introducing evidence that it "terminated Kuehnl's employment as part of an effort to save costs," satisfied its burden to articulate a legitimate, non-discriminatory reason for firing Kuehnl." A. 14-16. The court stated that the Commission "has offered no evidence that this reason was pretextual." A. 16. The court concluded that, "[b]ecause Plaintiff cannot prove through undisputed facts that Kuehnl was terminated from his employment because of his age, the Court must deny Plaintiff's motion for summary judgment." A. 16- 17. The court then addressed defendant's motion for summary judgment. For purposes of this motion, the court noted, it must "[d]raw all inferences in favor of Plaintiff." A. 17. Therefore, the court assumed "that when Ayres fired Kuehnl, Ayres told him that he was too old and made too much money." Id. According to the court, "[t]his direct evidence establishes a prima facie case of age discrimination." Id. The court added, "Once a prima facie case of age discrimination is established through such evidence, ‘the employer can avoid liability only if he or she satisfies the trier of fact by a preponderance of the evidence that the same employment decision would have been reached in the absence of the discriminatory motive.'" Id. (quoting Burns v. Gadsden State Cmty. Coll. , 908 F. 2d 1512, 1518 (11th Cir. 1990) (per curiam)). According to the court, Warfield-Rohr "presents two justifications for its actions: 1) it could no longer afford Kuehnl because of its financial difficulties and 2) Kuehnl had problems with his co-workers and superiors." Id. The court summarized the evidence supporting each of these justifications and concluded that "a reasonable jury could only find that Defendant did not fire Kuehnl because of his age." A. 18. The court stated that "[t]he evidence compels the conclusion that Defendant needed to cut costs." Id. The court also noted that, although Ayres's contemporary notes "do not reflect that Kuehnl was told that poor performance and poor relationships with his co-workers were factors in the decision to terminate his employment, there is evidence that Kuehnl was aware that some of his co-workers and supervisors had problems with his job performance." A. 18, n. 4. Finally, the court noted that "Kuehnl and Ayres had discussed that the casket trimming room had become a two-person operation, yet Kuehnl insisted on a third person being hired." A. 18. The court concluded, "Because Defendant has proven that there was an age-neutral reason for its employment decision, the Court will grant Defendant's motion for summary judgment." Id. SUMMARY OF ARGUMENT The Commission alleges in this action that Warfield-Rohr fired Frederick Kuehnl because of his age. The district court granted summary judgment for the company notwithstanding evidence that, when he fired Kuehnl, the company's president told Kuehnl that he was "too fucking old" and that he was retaining Kuehnl's younger co-worker because he "could get more years out of him." The district court correctly recognized that, in considering the company's motion for summary judgment, it must credit this direct evidence that Kuehnl's age was a factor in the decision to fire him. Accordingly, Warfield-Rohr was entitled to summary judgment only if undisputed evidence compels the conclusion that it would have fired Kuehnl even if his age had not been a factor. The evidence does not compel this conclusion. Warfield-Rohr maintained below that, in response to reduced sales, it decided to fire a highly skilled and experienced casket trimmer and leave the operation in the hands of Matt Moore, a younger employee with relatively little experience who needed help performing some of the functions of the job. While it is possible that Warfield-Rohr believed that this drastic step was necessary in light of the company's financial difficulties, Kuehnl offered to take a pay cut. When company president Ayres told Kuehnl he was being fired because he was too old and too expensive, Ayres responded to Kuehnl's offer to work for less money by saying that the younger employee, Moore, could "give him more years." A reasonable jury could conclude that the company would not have made the same decision if Kuehnl was not substantially older than Moore. A jury could infer that, based on Kuehnl's age, Ayres assumed Kuehnl would retire soon and was concerned that, if Moore was fired instead of Kuehnl, the company would soon find itself with no casket trimmers. In that case, the company cannot escape liability for its age-based decision to fire Kuehnl. ARGUMENT THE DEFENDANT WAS NOT ENTITLED TO SUMMARY JUDGMENT BECAUSE THE EVIDENCE DOES NOT COMPEL A FINDING THAT IT WOULD HAVE FIRED FREDERICK KUEHNL IF HIS AGE HAD NOT BEEN A FACTOR IN THE DECISION Section 4(a)(1) of the ADEA makes it unlawful for an employer to "discharge any individual . . . because of such individual's age." 29 U.S.C. § 623(a)(1). There is evidence in the record in this case that William Ayres, the president of Warfield-Rohr Casket Company, told Frederick Kuehnl as he was firing him that he was "too fucking old," and that he chose Kuehnl for termination rather than his co-worker Matt Moore because Moore, who was more than 20 years younger than Kuehnl, could "give him more years." Warfield-Rohr argued below that the evidence of Ayres' statements, which consists entirely of Kuehnl's testimony about his meeting with Ayres, should not be credited for various reasons. However, the district court correctly recognized that, although the evidence that Ayres made these statements is disputed, it must be accepted as true for purposes of Warfield-Rohr's motion for summary judgment. See Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001) ("disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment"). Where a plaintiff in a discrimination action can establish by direct evidence that a challenged employment decision was based, at least in part, on a discriminatory motive, the defendant can avoid liability only if it can prove that it would have made the same decision if the discriminatory factor had not been considered. Price Waterhouse v. Hopkins, 490 U.S. 228, 252 (1989). This Court has held that a plaintiff can trigger the "mixed motive" analysis set out in Price Waterhouse by providing evidence that "both reflect[s] directly the alleged discriminatory attitude and ... bear[s] directly on the contested employment decision." Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995). The evidence that Ayres told Kuehnl when he was firing him that Kuehnl was "too fucking old" and that he was retaining his younger co-worker because he "could get more years out of him" clearly meets this standard. Ayres' statements directly reflect a discriminatory animus toward Kuehnl because of his age and bear directly on the decision to fire him. See , e.g., Rowland v. American General Finance, Inc., ___ F.3d. ___, No. 01-2481, 2003 WL 21912173, *4 (4th Cir. August 12, 2003) (evidence that the decision-maker stated that he decided not to promote plaintiff because "I just don't need another woman in this position" was sufficient to trigger mixed motive analysis); Kubicko v. Ogden Logistics Serv., 181 F.3d 544, 551-52 (4th Cir. 1999 (evidence that decision-maker referred to plaintiff's prior sexual harassment allegation in explaining why he decided to fire her was sufficient to trigger mixed motive analysis of plaintiff's retaliatory discharge claim). The district court correctly recognized that the evidence of Ayres' statements would establish a violation of the ADEA unless Warfield-Rohr can prove that it would have made the same decision absent a discriminatory motive. See A. 17. Because it bears the burden of proof on this issue, the company is entitled to summary judgment only if undisputed evidence compels the conclusion that it would have made the same decision absent a discriminatory motive. See Burns, 908 F.2d at 1519 (employer is entitled to summary judgment in the face of direct evidence of a discriminatory motive "only if the record evidence that its employment decision was not based on discrimination is so strong that a reasonable trier of fact must so conclude"). This is a difficult standard to meet. "[O]nce the plaintiff has presented direct evidence that a forbidden factor contributed to the employer's decision to take adverse action against her, a trial will normally be necessary in order to determine whether the employer would have taken the same action in the absence of the illicit consideration." Frobose v. Am. Sav. & Loan Ass'n of Danville, 152 F.3d 602, 615 n. 12 (7th Cir. 1998). See also Adler v. Madigan, 939 F.2d 476, 479 (7th Cir. 1991) (mixed-motive cases "are ordinarily not grist for the summary judgment mill"). Although the district court stated the legal standard correctly, it appears that the court lost sight of the issue in reviewing the evidence because it ultimately based its decision to award summary judgment on its conclusion that defendant "has proven that there was an age-neutral reason for its employment decision." A. 18. It is not enough for the defendant to establish that its decision was based on non- discriminatory considerations; that merely demonstrates that there were mixed motives for the decision. Summary judgment should not have been awarded to Warfield-Rohr 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. The evidence fails to meet that standard. As the district court noted, Warfield-Rohr advanced two non-discriminatory reasons for firing Kuehnl: "1) it could no longer afford Kuehnl because of its financial difficulties and 2) Kuehnl had problems with his co-workers and superiors." A. 17. While there is evidence in the record to support both of these asserted reasons, the evidence does not compel a finding that the company would have fired Kuehnl for these reasons, either separately or taken together, if he had been younger. With respect to the first reason, the court stated that "[t]he evidence compels the conclusion that Defendant needed to cut costs." A. 18. The court does not state, however, that the evidence compels the conclusion that the company's financial problems would have caused Ayres to fire Kuehnl if Kuehnl had been younger. The evidence does not compel that conclusion. Even if the company felt it was necessary to reduce the staff in the casket trimming room, it is not clear that the company would have chosen to retain Moore, who was much less experienced and much less proficient than Kuehnl, if Moore had not also been much younger than Kuehnl. This is especially true in light of the undisputed evidence that, at the time of his termination, Kuehnl offered to accept a salary reduction or a decrease in his hours to reduce his cost to the defendant. Furthermore, in deciding whether Kuehnl's age entered into Warfield-Rohr's decision to retain Moore rather than Kuehnl, a jury would be entitled to consider the evidence that Ayres told Kuehnl that he decided to retain Moore because the company could get more years out of him and that he asked Kuehnl, shortly before he fired him, when he was planning to retire. The district court also concluded that Kuehnl's difficulty getting along with other employees in the casket trimming room provided a non-discriminatory explanation for his termination. While there is evidence that other employees found Kuehnl to be a difficult person with whom to work, that evidence falls short of establishing that this problem would have caused Warfield-Rohr to fire him if he had been younger. The evidence indicates that Kuehnl's interpersonal problems were not new. The testimony on which the district court relied described problems spread over at least 15 years and there is nothing to suggest that these personality problems were ever a subject of serious concern for the company. Notwithstanding 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. Furthermore, Ayres did not mention Kuehnl's difficulty with other employees in his contemporaneous notes explaining his decision to fire Kuehnl. This evidence does not compel a finding that Kuehnl's personality problems would have precipitated his discharge if he had been younger. This is particularly true if one accepts Warfield-Rohr's assertion that it found it necessary to eliminate one of the casket trimmer positions since, if Kuehnl had been allowed to remain, he would have been the only casket trimmer, thus reducing the importance of his difficulty in getting along with coworkers. The district court also alluded to evidence that Kuehnl had indicated two years prior to his discharge that he believed Warfield-Rohr needed to have two casket trimmers. However, there 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. Accordingly, a jury that credited the evidence that Ayres told Kuehnl that he was being fired because he was too old would not be compelled to find that Kuehnl would have been fired if his age was not taken into account. Warfield-Rohr maintains that, in response to reduced sales, 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. While it is possible that Warfield-Rohr believed that this drastic step was necessary in light of the company's financial difficulties, a reasonable jury could conclude that the company would not have made the same decision if Kuehnl was not substantially older than Moore. A jury could infer that, based on Kuehnl's age, Ayres assumed he would retire soon and was concerned that if Moore was fired instead of Kuehnl, the company would soon find itself with no casket trimmers. In that case the company could not escape liability for its age- based decision to fire Kuehnl. CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed and this case should be remanded to the district court for further proceedings. Respectfully submitted, ERIC S. DREIBAND General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant 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 words 4,511. 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. September 5, 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 September 5, 2003 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 ____________________________________________________ APPENDIX OF APPELLANT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ____________________________________________________ ERIC S. DREIBAND VINCENT J. BLACKWOOD General Counsel Assistant General Counsel CAROLYN L. WHEELER SUSAN L.P. STARR Acting Associate General Counsel Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 202/663-4727 202/663-7090 (fax) TABLE OF CONTENTS Page 1. Docket Sheet 1 2. Complaint 6 3. District Court Memorandum 10 4. Notice of Appeal 20 5. Charge 21 6. Exh. 4 to EEOC's Motion for Summary Judgment William Ayres Handwritten Notes 22 7. Exh. 1 to EEOC's Reply Memorandum in Support of its Motion For Summary Judgment and Opposition to Defendant's Cross Summary Judgment Frederick Kuehnl's Business Journal 25 8. Exh. 1 to EEOC's Motion for Summary Judgment; Frederick Kuehnl's Earnings Statements 34 9. Exh. 3 to EEOC's Reply Memorandum in Support of its Motion For Summary Judgment and Opposition to Defendant's Cross Summary Judgment Administrative Interview Transcript of William Ayres 39 10. William Ayres Deposition 44 11. Matthew Moore Deposition 80 12. Elizabeth Skenderovic Deposition 91 13. Michael W. Osmeyer Deposition 98 14. John Rosenberger Deposition 105 TABLE OF CONTENTS (cont.) Page 15. Michael Eisenhardt Deposition 107 16. Orva Kencel Deposition 109 17. Frederick Kuehnl Deposition 111 CERTIFICATE OF SERVICE I hereby certify that one copy of the foregoing appendix has 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 September 5, 2003