J. R. Ridgley Wyvill and Gerald W. Waldrop v. United Companies Life Insurance Company 98-30287 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _________________________________________ No. 98-30287 _________________________________________ J.R. RIDGLEY WYVILL and GERALD W. WALDROP, Plaintiffs-Appellees-Cross-Appellants, v. UNITED COMPANIES LIFE INSURANCE COMPANY, et al., Defendants-Appellants-Cross-Appellees. _________________________________________ On Appeal from the United States District Court for the Middle District of Louisiana _________________________________________ Brief of the Equal Employment Opportunity Commission as Amicus Curiae in Support of Petition for Rehearing En Banc _________________________________________ C. GREGORY STEWART DORI K. BERNSTEIN General Counsel Attorney PHILIP B. SKLOVER EQUAL EMPLOYMENT Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L Street, N.W. - Room 7046 Assistant General Counsel Washington, D.C. 20507 (202)663-4734 FED. R. APP. P. 35(b)(1) STATEMENT Pursuant to Fed. R. App. P. 35(b)(1)(A), I express a belief, based on a reasoned and studied professional judgment, that the panel decision is contrary to the following decision of the Supreme Court of the United States, and that consideration by the full Court is therefore necessary to secure and maintain uniformity of decisions in this Court: Reeves v. Sanderson Plumbing Products, Inc., 2000 WL 743663 (June 12, 2000). _____________________________ Dori K. Bernstein Attorney Equal Employment Opportunity Commission TABLE OF CONTENTS Page FED. R. APP. P. 35(b)(1) STATEMENT i TABLE OF CONTENTS ii TABLE OF AUTHORITIES iii STATEMENT OF INTEREST 1 STATEMENT OF THE ISSUE 2 STATEMENT OF FACTS 2 PANEL OPINION 9 ARGUMENT 12 THE PLAINTIFFS' PRIMA FACIE CASE, COUPLED WITH EVIDENCE DISCREDITING UNITED COMPANIES' PROFFERED EXPLANATIONS FOR FIRING THEM, IS SUFFICIENT TO SUSTAIN THE JURY'S VERDICT OF AGE DISCRIMINATION. 12 CONCLUSION 21 CERTIFICATE OF COMPLIANCE 22 CERTIFICATE OF SERVICE 23 TABLE OF AUTHORITIES Page Cases Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978) 19 Hazen Paper v. Biggins, 507 U.S. 604 (1993) 17 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) 18, 19, 20 O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996) 16 Patterson v. McLean Credit Union, 491 U.S. 164 (1989) 18 Reeves v. Sanderson Plumbing Products, Inc. 2000 WL 743663 (June 12, 2000) passim Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981) 19 U.S. Postal Service Bd. of Govs. v. Aikens, 460 U.S. 711 (1983) 19, 20 Wyvill v. United Companies Life Insurance Co., 2000 WL 621305 (5th Cir., May 31, 2000) passim Statutes Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. 1 Rules Fed. R. App. P. 29(a) 1 Fed. R. App. P. 29(d) 22 Fed. R. App. P. 32(a)(5) 22 Fed. R. App. P. 32(a)(7)(B) 22 Fed. R. App. P. 35(b)(1)(A) i Fed. R. Civ. P. 50 1, 12, 13, 14, 18 Fifth Cir. Rule 32.1 22 STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("EEOC") is the federal agency charged with interpreting and enforcing the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., and other federal laws barring employment discrimination. As a United States government agency, the EEOC is authorized to file an amicus curiae brief "without the consent of the parties or leave of court." Fed. R. App. P. 29(a). In these consolidated ADEA suits, a panel of this Court reversed the jury's verdict holding United Companies<1> liable for willful age discrimination in firing Gerald Waldrop and Ridgley Wyvill. See Wyvill v. United Companies Life Insurance Co., 2000 WL 621305 (5th Cir., May 31, 2000). In ruling that the evidence was insufficient to support the verdict, the panel applied the same flawed analysis that the Supreme Court has since unanimously disapproved in Reeves v. Sanderson Plumbing Products, Inc., 2000 WL 743663 (June 12, 2000). The Supreme Court in Reeves clarified the nature of proof required to sustain a jury's finding of age discrimination, and the standard of review under Fed. R. Civ. P. 50 for judgment as a matter of law. Because the full Court's application of this recent Supreme Court precedent will have a significant impact on the EEOC's enforcement efforts, we offer our views to the Court. STATEMENT OF THE ISSUE Whether plaintiffs' prima facie proof of age discrimination, coupled with evidence discrediting United Companies' proffered explanations for firing them, is sufficient to sustain the jury's verdict of willful age discrimination? STATEMENT OF FACTS<2> Ridgley Wyvill and Gerald Waldrop worked as managers for subsidiaries of United Companies. Waldrop was branch manager of United Companies Lending Corporation in Dalton, Georgia from 1983 until he was fired in January 1993, at age 47. Wyvill was hired by United Companies in 1978, and managed the credit life department of United Companies Life Insurance Company in Baton Rouge, Louisiana from 1980 until his dismissal in February 1993, at age 53. See Wyvill v. United Companies Life Insurance Co., 2000 WL 621305, *1-*3 (5th Cir., May 31, 2000). Waldrop was replaced by assistant manager Sandy Stafford, who was under 40. T.Vol.I, p114. Wyvill's supervisory duties were assumed by his younger assistant, Margaret Moon, then 33 years old. See T.Vol.II, p242. Wyvill and Waldrop sued United Companies, claiming they were discharged because of age in violation of the ADEA. United Companies denied that age was a factor in either termination, and asserted that Waldrop was fired for abusive treatment of employees and customers, and Wyvill was fired because he had made disruptive phone calls. See RE, Ex.I, p2. At trial, Waldrop and Wyvill sought to discredit the proffered reasons for their terminations, and presented "extensive evidence that they were well-qualified for their respective jobs and that they had achieved considerable success" at United Companies. Wyvill, at *9. According to Wyvill, the phone calls that purportedly led to his discharge were made at the behest of Tee Brown, Jr., son of Terrell Brown, Sr., the CEO of United Companies. See id. at *2. Wyvill testified that Tee Brown asked him to investigate an underground company newspaper (the "Unlink"), which was critical of management. Wyvill's testimony was corroborated to some extent by the testimony of Tee Brown, who "admitted that, in a conversation with Wyvill, he had made a passing reference to a situation in the Tennessee office that was reported in the . . . 'Unlink,' but denied ever having asked Wyvill to investigate the matter." RE, Ex.I, p7. Following his conversation with Tee Brown about the "Unlink," Wyvill called Carl Scott, branch manager of United Companies' Nashville office, and Sandy Stafford, Waldrop's assistant manager. Id., pp7-8; Wyvill, at *2. Scott and Stafford complained to upper management about the calls. Senior managers learned from office telephone records that Wyvill had also called several disgruntled former employees. Id. at *2-*3. Management met with Wyvill on February 1, 1993, and asked for an explanation. Wyvill testified that, out of loyalty to Tee Brown, he did not mention to his superiors Brown's request to investigate the "Unlink." Wyvill was fired on the spot, ending 15 years of previously successful employment with United Companies. Id. at *3; RE, Ex.I, p8. Prior to his discharge, Wyvill had received positive performance evaluations from his supervisors. Id. Wyvill presented evidence that following his termination, CEO Brown, Sr. discovered that his son had induced Wyvill to make the calls, and paid Wyvill $5,000 to "leave quietly." Wyvill, at *3; RE, Ex.I, p8. Although United Companies asserted that Wyvill's position was eliminated shortly after he was fired, Wyvill's evidence showed that his former assistant, twenty years his junior, effectively replaced him. Id. With respect to Waldrop, who was purportedly fired for abusive conduct, United Companies presented the testimony of employees and customers who described Waldrop's foul language and temperamental personality. Four employees who worked under Waldrop's supervision (Stafford, Pam McMilllan, Cheryl Welch, and Pat Little) testified that he "used foul language in the office and could be temperamental," and Welch and McMillan cited his behavior in post-resignation letters. RE, Ex.I, p8. Three former customers testified that Waldrop "used foul language in discussing their accounts." Id. There was also evidence that Waldrop had a long-running contentious relationship with his immediate supervisor, D.C. Brantley, and that Brantley had complained to management of Waldrop's insubordination. See Wyvill, at *1-*2. Although such conduct and complaints certainly could have furnished ample justification to fire Waldrop, other evidence indicated that Waldrop's foul language and difficult personality were not the true reasons for his discharge. See RE, Ex.I, pp8-9. Under Waldrop's management, his "office had an exemplary record of performance and low employee turnover." Id., p8. In fact, Waldrop was often called upon to train new employees, and "several of his assistant branch managers became successful managers of their own branches." Wyvill, at *2. Waldrop and "his branch were consistently among the top ten performers in the Lending Company, in terms of quantity and profitability of the loans produced." Id. D.C. Brantley, Waldrop's immediate supervisor, testified that none of Waldrop's staff had ever complained to him about Waldrop's verbal abuse or inappropriate language, and "he had no idea that Waldrop was being fired for such conduct." RE, Ex.I, p8. Furthermore, two of the employees who complained of Waldrop's mistreatment at trial (Stafford and McMillan) visited him at home after his discharge, "Stafford to ask for his blessing in succeeding him as branch manager, and McMillan to show him her grandchild." Wyvill, at *2. According to Waldrop, "these visits were not the actions of employees afraid of or antagonized by an abusive and rude boss." Id. Waldrop also provided evidence that United Companies did not fire Dwayne Burks, a branch manager in his thirties, who was "abusive and rude" to his subordinates and had "significant employee turnover" in the offices he supervised. Id. at *7. Conflicting evidence about a six-week paid leave of absence Waldrop took in 1991 cast further doubt on the veracity of United Companies' proffered explanation for his discharge. Waldrop maintained that he required medical leave to treat health problems associated with diabetes. Id. at *1. Waldrop's personnel file corroborates that he took leave for health reasons. RE, Ex.I, p9. Both the two supervisors who approved the leave (Brantley and Joe Phillips), and the employees Waldrop supervised (Stafford and McMillan), likewise recalled that the six-week paid leave was health-related and not a disciplinary action. See id. Only Bill Spann, United Companies' Human Resources ("HR") Representative, testified in support of the company's contention that "the leave was necessitated by Waldrop's problems in the office and with his supervisor." Wyvill, at *1; see RE, Ex.I, p9. In addition to the evidence tending to discredit United Companies' proffered explanations for firing Wyvill and Waldrop, three former managers (Joe Phillips, Gerald Cooke, and Jim Davis) provided "damning testimony" that CEO Terrell Brown "instituted a policy of ridding United Companies of its older employees." Id. Davis testified that Brown, Sr "`felt that . . . the world had passed [some of the older employees] by, that [the older employees] were just too old to get the job done, and that we should either find another position for them or terminate them.'" Wyvill, at *7. Phillips testified that in the early 1990s, Brown, Sr. "`told me that he wanted the company to be mean and lean, and he wanted to go to a young, aggressive group of people,'" and that Brown, Sr. "generally wanted to 'get rid of the people that were [currently employed at United Companies] so that we can make more money, be more aggressive, more productive.'" Id. According to Cooke, Brown, Sr. "wished [the older men in corporate headquarters] would go away so that [Brown, Sr.] could get some new blood in the company." Id. Phillips further testified that "he and [HR Representative] Bill Spann discussed a plan to carry out Terrell Brown's policy." RE, Ex.I, p9. Both Spann and Phillips were directly involved in the decisions to fire Wyvill and Waldrop, as well as the terminations of other former employees who presented anecdotal evidence of age discrimination. See Wyvill, at *2 (Spann and Phillips "decided to terminate Waldrop"); id. at *3 (Phillips and Spann participated in firing Wyvill at February 1, 1993 meeting); id. at *5-*6 (noting Spann's and Phillips' involvement in terminations of other older managers). Evidence that "a number of middle management employees over the age of forty had been terminated during the relevant time period" supported plaintiffs' theory that "Wyvill and Waldrop were terminated as a result of an age-based policy emanating from top management." RE, Ex.I, pp9-10. At the close of evidence, the district court denied United Companies' motion for judgment as a matter of law and submitted the case to the jury. See id., p7. The court instructed the jury that in order to prevail, each plaintiff was required to prove that "age was a determinative factor in [United Companies'] decision to terminate him." See id., p6 and n.3. The jury found that United Companies had willfully discriminated against Waldrop and Wyvill because of age, and awarded backpay. Wyvill, at *3. The district court denied United Companies' renewed motion for judgment as a matter of law. Upon review of the "key evidence that the jury evaluated reaching its verdict," see RE, Ex.I, pp7-10, the court concluded that "there was a sound evidentiary basis supporting each plaintiff's claim for willful discrimination." Id., p10. Viewing the evidence most favorably to Waldrop and Wyvill, as required under Fed. R. Civ. P. 50, see id., pp5-6, the court stated: A reasonable jury could have concluded that Terrell Brown desired to rid United Companies of its older employees based on the testimony of a number of older, former employees. A reasonable jury could have concluded that Wyvill's transgressions were too minor to form the basis of a termination, especially in light of his positive reviews. A reasonable jury could have concluded that Waldrop's difficult personality was not the genuine reason for his termination, when considered in view of the other evidence relating to his job performance and his leave of absence. In sum, the jury could have believed that Defendants concocted reasons for terminating these two individuals in order to disguise an age-based discriminatory motive. Id. The court entered judgment on the verdict, and awarded liquidated damages, front pay (to Wyvill), interest, and attorneys' fees. See Wyvill, at *3. PANEL OPINION A panel of this Court reversed the jury's verdict and held that United Companies was entitled to judgment as a matter of law. Wyvill, at *9. In deciding the "critical issue" of "whether Waldrop and Wyvill produced sufficient evidence that United Companies' explanation for their discharges was merely a pretext for age discrimination," the panel acknowledged that "plaintiffs' evidence may have cast doubt on the proffered explanations for their firing or on the soundness of the company's business decision," but held such evidence "insufficient to show that the real reason was age discrimination." Id. at *4. The panel rejected plaintiffs' other evidence as irrelevant, insufficiently probative, or unduly prejudicial, and concluded that "[s]horn of this . . . irrelevant evidence, the judgment cannot stand." Id. at *1. In the panel's view, the district court had abused its discretion in admitting "anecdotal testimony from and about other employees" who were terminated by United Companies under circumstances suggesting a pattern of age discrimination because these individuals "held different jobs than [Waldrop or Wyvill], executed different duties, and were accountable to different supervisors," and their "unrelated contention[s] of age discrimination . . . substantially prejudiced United Companies. Id. at *5-*6. The panel held that United Companies' more favorable treatment of Dwayne Burks, the younger supervisor whose abusive treatment of his employees was comparable to the conduct for which Waldrop was supposedly fired, was not evidence of age discrimination because the circumstances surrounding Burks and Waldrop were not "nearly identical." Id. at *7. In the panel's view, evidence that "United Companies supervisors violated their own standard employee disciplinary procedures" in an effort to "`build a file' on older workers," which was then "used as a fig-leaf to cover any illegal employment actions," was irrelevant absent "any nexus between plaintiffs' allegation of file-building and their ages." Id. The panel also discounted the probative value of testimony by three former managers (Phillips, Davis, and Cooke) that CEO Terrell Brown, Sr. had indicated on several occasions that he favored replacing older employees with a younger workforce. Despite evidence that Brown, Sr., as well as Phillips, had participated in the decisions to terminate Waldrop and Wyvill, the panel characterized his comments as "stray remarks" that were "insufficient to create an inference of age discrimination." Id. at *7. "In order for an age-based comment to be probative of an employer's discriminatory intent," the panel ruled, "it must be direct and unambiguous, allowing a reasonable jury to conclude without any inferences or presumptions that age was a determinative factor in the decision to terminate the employee." Id. Finally, the panel concluded, "[t]he remaining evidence introduced by plaintiffs might have been sufficient to cast doubt on United Companies' proffered explanations for plaintiffs' discharges, but it did nothing to raise an inference that the real reasons for the discharges were related to age. . . . [E]ven assuming the truth of [plaintiffs'] allegations, they allow at best an inference that United Companies' proffered explanations for the discharges were false." Id. at *9. The panel further reasoned that "[t]his evidence notably fails to connect the plaintiffs' discharges to their ages, and it therefore does not permit an inference that age was a motivating factor in the terminations." Id. ARGUMENT THE PLAINTIFFS' PRIMA FACIE CASE, COUPLED WITH EVIDENCE DISCREDITING UNITED COMPANIES' PROFFERED EXPLANATIONS FOR FIRING THEM, IS SUFFICIENT TO SUSTAIN THE JURY'S VERDICT OF AGE DISCRIMINATION. Less than two weeks after the panel issued its opinion in this case, the Supreme Court, in a unanimous decision, clarified the nature of proof required to sustain a jury's finding of age discrimination, and the standard of review under Fed. R. Civ. P. 50 for granting judgment as a matter of law. Reeves v. Sanderson Plumbing Products, Inc., 2000 WL 743663 (June 12, 2000). The Supreme Court in Reeves held that "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification" for a challenged employment action "is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Id. at *9. A panel of this Court, the Supreme Court ruled, had incorrectly "proceeded from the assumption that a prima facie case of discrimination, combined with sufficient evidence for the trier of fact to disbelieve the defendant's legitimate, nondiscriminatory reason for its decision, is insufficient as a matter of law to sustain a jury's finding of intentional discrimination," and thus "misconceived the evidentiary burden borne by plaintiffs who attempt to prove intentional discrimination through indirect evidence." Id. at *8. Contrary to this Court's reasoning, the Supreme Court recognized that "[p]roof that the defendant's explanation" for a challenged employment action "is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive." Id. at *9. Consistent with general principles of evidence law, the trier of fact in "appropriate circumstances . . . can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose." Id. "[O]nce the employer's justification has been eliminated," the Court explained, "discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision." Id. "[B]ecause a prima facie case and sufficient evidence to reject the employer's explanation may permit a finding of liability," the Supreme Court reasoned, "the Court of Appeals erred in proceeding from the premise that a plaintiff must always introduce additional, independent evidence of discrimination." Id. at *10. The Supreme Court further held that in reversing the jury's verdict, this Court had "misapplied the standard of review" for judgment as a matter of law under Fed. R. Civ. P. 50; "disregarded critical evidence favorable to [Reeves] - namely, the evidence supporting [his] prima facie case and undermining [his employer's] nondiscriminatory explanation"; improperly "failed to draw all reasonable inferences in favor of [Reeves]"; and "impermissibly substituted its judgment concerning the weight of the evidence for the jury's." Id. at *12. The Supreme Court concluded that because Reeves had "established a prima facie case of discrimination, introduced enough evidence for the jury to reject [Sanderson's] explanation, and produced additional evidence of age-based animus, there was sufficient evidence for the jury to find that [Sanderson] had intentionally discriminated."<3> Id. at *13. The case was therefore properly submitted to the jury, and this Court had "erred in overturning its verdict." Id. The Supreme Court in Reeves thus unanimously reaffirmed the probative value of circumstantial evidence in proving intentional discrimination, the critical role of the jury in deciding whether such evidence demonstrates unlawful discrimination, and the limited nature of judicial review under Rule 50 in assessing evidentiary sufficiency. The panel's decision in this case is premised on the same erroneous legal analysis and improper standard of review that led a unanimous Supreme Court to reverse in Reeves. In this case, as in Reeves, a panel of this Court held that evidence casting doubt on the veracity of an employer's explanation for a challenged discharge, together with evidence supporting a prima facie case, was insufficient to support a reasonable inference that the firing was impermissibly motivated by age.<4> In each case, moreover, the panel, based on its own view of the evidence, reversed a jury verdict of willful age discrimination and ruled that the employer was entitled to judgment as a matter of law. Given the similarity in the legal analysis, standard of evidentiary review, and result reached by this Court in both Reeves and Wyvill, the Supreme Court's unanimous reversal in Reeves requires this Court to vacate the panel opinion and reinstate the judgment sustaining the jury's verdict. Wyvill and Waldrop each presented a prima facie case of age discrimination: Both men were in the statutorily protected age group (Wyvill was 53; Waldrop was 47) when they were fired; both presented "extensive evidence that they were well-qualified for their respective jobs and that they had achieved considerable success," Wyvill, at *9; and each presented evidence that he was replaced by a significantly younger employee. See Reeves, at *5 (summarizing prima facie evidence); see also O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 313 (1996) (evidence that "replacement is substantially younger than the plaintiff" is a "reliable indicator of age discrimination"). As the panel (and the trial court) recognized, Wyvill and Waldrop also presented evidence "sufficient to cast doubt on United Companies' proffered explanations for [their] discharges" and to "allow . . . an inference that United Companies' proffered explanations for the discharges were false." Wyvill, at *9; see also RE, Ex.I, pp7-8 (summarizing evidence from which reasonable jury could have concluded that "explanation for [Wyvill's] termination was pretextual and manufactured by United Companies to conceal that it terminated [him] because of his age"); id., pp9-10 (evidence of Waldrop's performance and conflicting accounts concerning leave of absence would permit reasonable jury to conclude "that Waldrop's difficult personality was not the genuine reason for his termination"). Yet the panel held that this evidence "did nothing to raise an inference that the real reasons for the discharges were related to age." Wyvill, at *9. The decision in Reeves establishes that the panel's holding is manifestly incorrect. Under the Supreme Court's ruling, "[p]roof that [United Companies'] explanation [for firing Waldrop and Wyvill] is unworthy of credence . . . is probative of intentional discrimination, and it may be quite persuasive." Reeves, at *9. As the Supreme Court recognized, "once [United Companies'] justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since [United Companies] is in the best position to put forth the actual reason for its decision[s]." Id. The jury was properly instructed that in order to prevail, Wyvill and Waldrop were required to show that age was a determinative factor in their terminations, see Hazen Paper v. Biggins, 507 U.S. 604, 610 (1993), and reached a verdict of willful age discrimination on both claims. The verdicts of willful age discrimination thus suggests that the jury found the pretext evidence "quite persuasive," and elected to draw an inference that the law plainly allows. In evaluating the sufficiency of the evidence to support these verdicts, the panel was required to "draw all reasonable inferences in favor of [Waldrop and Wyvill]," and was not entitled to "make credibility determinations or weigh the evidence." Reeves, at *11. As in Reeves, the panel in this case "disregarded critical evidence favorable to [Waldrop and Wyvill] -- namely, the evidence supporting [their] prima facie case and undermining [United Companies'] nondiscriminatory explanation," improperly "failed to draw all reasonable inferences in favor of [Wyvill and Waldrop]," and thus "misapplied the standard of review dictated by Rule 50." Id. at *12. In rejecting each category of evidence Waldrop and Wyvill offered to demonstrate age discrimination, moreover, the panel impermissibly weighed the evidence and effectively denied them any opportunity to prove discrimination circumstantially. The Supreme Court has consistently made clear that a plaintiff seeking to demonstrate unlawful discrimination "is not limited to presenting evidence of a certain type," because proof of pretext "may take a variety of forms." Patterson v. McLean Credit Union, 491 U.S. 164, 187 (1989). "Especially relevant to such a showing" is evidence that the rule or criterion cited by the employer to explain its decision was applied in a discriminatory manner. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973). "Other evidence that may be relevant to any showing of pretext includes facts as to the [employer's] treatment of [the plaintiff] during his . . . term of employment," id., including discriminatory remarks or instances of harassment or abuse by individuals responsible for the challenged employment decision. See Patterson, 491 U.S. at 188; see also U.S. Postal Service Bd. of Govs. v. Aikens, 460 U.S. 711, 713-14 n.2 (1983) (citing "numerous derogatory comments about blacks in general and Aikens in particular" as evidence that would support finding of race discrimination). Proof of the employer's "general policy and practice" with respect to employment of older individuals (in an ADEA case), including statistical evidence, "may be helpful" in demonstrating pretext, but statistics "may not be in and of themselves controlling as to an individualized [employment] decision." McDonnell Douglas, 411 U.S. at 804-05 & n.19; see also Furnco Construction Corp. v. Waters, 438 U.S. 567, 579-80 (1978) (statistical proof of racially balanced work force "is not wholly irrelevant on the issue of intent," but cannot "conclusively demonstrate" absence of discriminatory motive). Evidence challenging the factual accuracy of the proffered explanation, such as proof that the employer "misjudged the qualifications" of competing candidates or was otherwise mistaken in its decision, also "may be probative of whether the employer's reasons are pretexts for discrimination." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981). The evidence rejected by the panel as "irrelevant" or not "probative" of age discrimination falls squarely into the categories approved by the Supreme Court. The "anecdotal evidence" of discrimination offered by other older managers, and the testimony recounting CEO Brown's remarks regarding older employees, is probative of United Companies' "general policy and practice" with respect to older workers. See McDonnell Douglas, 411 U.S. at 804-05. Brown's comments are also probative of discriminatory bias on the part of an individual with ultimate authority to establish company personnel policy, and who participated in the termination decisions. See Aikens, 460 U.S. at 713-14 n.2. Waldrop's evidence that a younger branch manager who was similarly abusive to employees was disciplined less harshly demonstrates discriminatory application of the very criterion cited to explain his discharge, and is thus "[e]specially relevant" to show pretext. See McDonnell Douglas, 411 U.S. at 804. Finally, while "there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory," Reeves, at *9, the Supreme Court's illustrative examples clearly indicate such cases will be rare: "For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred." Id. Neither the district court nor the panel identified any "other, nondiscriminatory reason" for firing Waldrop or Wyvill that was even suggested, let alone "conclusively revealed," by the trial record. Nor did the record contain "uncontroverted independent evidence that no discrimination had occurred." Id. To the contrary, the anecdotal evidence that other older managers were subjected to discriminatory treatment, and the remarks made by CEO Terrell Brown, Sr., strongly suggest, as the jury found, that discrimination had occurred. CONCLUSION Because the evidence was clearly sufficient to support the jury's finding that United Companies willfully discriminated against Wyvill and Waldrop because of age, the EEOC urges the full Court to vacate the panel opinion and reinstate the judgment entered on the jury verdict. Respectfully submitted, C. GREGORY STEWART DORI K. BERNSTEIN General Counsel Attorney PHILIP B. SKLOVER EQUAL EMPLOYMENT Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L Street, N.W. - Room 7046 Assistant General Counsel Washington, D.C. 20507 (202)663-4734 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(B). This brief contains 4,828 words. See Fed. R. App. P. 29(d). The brief was prepared using the WordPerfect 8 word-processing system, in 14-point proportionally spaced type for text and 12-point type for footnotes. See Fed. R. App. P. 32(a)(5); Fifth Cir. Rule 32.1. __________________________ DORI K. BERNSTEIN June 28, 2000 CERTIFICATE OF SERVICE I, Dori K. Bernstein, certify that two copies of this Brief and a copy of the brief on a computer diskette were mailed, first class, postage prepaid, on this 28th day of June, to the following counsel of record: Mr. Donald W. Stewart 1131 Leighton Avenue Anniston, Alabama 36207 Mr. Ralph J. Zatzkis Mr. Timothy H. Scott Fisher & Phillips 201 St. Charles Avenue - Suite 3710 New Orleans, Louisiana 70170 ___________________________ DORI K. BERNSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7046 1 Defendants United Companies Financial Corporation, and its subsidiaries United Companies Life Insurance Company and United Companies Lending Corporation, will be collectively referred to as "United Companies." 2 The EEOC has not had an opportunity to review the full trial record. This factual statement is based primarily on the panel opinion and the district court's decision denying United Companies' post-trial motion for judgment as a matter of law. See Record Excerpts of Appellants ("RE"), Exhibit ("Ex.") I. 3 To support his claim of age discrimination, Reeves presented evidence that Sanderson's asserted reason for firing him - alleged inaccuracies in timekeeping records of employees under Reeves' supervision - were pretextual, see Reeves, at *6-*7, and that a manager who recommended Reeves' termination (and who was married to the company president) had treated Reeves worse than a younger supervisor, subjected him to increased scrutiny and harsher discipline, and directed age-related insults at him two months before his discharge. Id. at *12. 4 Compare Wyvill, at *4 ("while plaintiffs' evidence may have cast doubt on the proffered explanations for their firing or on the soundness of the company's business decision, it was insufficient to show that the real reason was age discrimination"); id. at *9 (evidence "might have been sufficient to cast doubt on United Companies' proffered explanations for plaintiffs' discharges, but it did nothing to raise an inference that the real reasons for the discharges were related to age"; evidence "allow[s] at best an inference that United Companies' proffered explanations for the discharges were false" but "notably fails to connect the plaintiffs' discharges to their ages and it therefore does not permit an inference that age was a motivating factor in the terminations"), with Reeves, at *4 (Court of Appeals "acknowledged that [Reeves] 'very well may' have offered sufficient evidence for 'a reasonable jury [to] have found that [Sanderson's] explanation for its employment decision was pretextual," but nonetheless held evidence insufficient to sustain finding of age discrimination).