Case No. S115154
Court of Appeal No. A095474
San Francisco Superior Court No. CGC-99-304908
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
___________________________________________
ELYSA J. YANOWITZ,
Plaintiff and Appellant,
v.
L'OREAL USA, INC., formerly known as COSMAIR, INC.,
Defendant and Respondent.
___________________________________________
After a Decision by the Court of Appeal, First Appellate District
On Appeal from a Judgment of the Superior Court,
County of San Francisco
Honorable Ronald Evans Quidachay, Judge
___________________________________________
BRIEF OF U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION AS AMICUS CURIAE
IN SUPPORT OF PLAINTIFF-APPELLANT
___________________________________________
ERIC S. DREIBAND
General Counsel
LORRAINE C. DAVIS
Acting Associate General Counsel
WILLIAM R. TAMAYO VINCENT BLACKWOOD
California Bar No. 084965 Assistant General Counsel
Regional Attorney
EEOC San Francisco District Office ELIZABETH E. THERAN, Attorney
350 The Embarcadero U.S. Equal Employment
Suite 500 Opportunity Commission
San Francisco, CA 94105 1801 L Street, N.W.
Telephone: (415) 625-5645 Washington, D.C. 20507
Facsimile: (415) 625-5609 Telephone: (202) 663-4720
CALIFORNIA COUNSEL OF RECORD Facsimile: (202) 663-7090
TABLE OF CONTENTS
TABLE OF AUTHORITIES ii
INTRODUCTION 1
STATEMENT OF THE CASE 1
ARGUMENT 12
CONSTRUING FEHA'S PROHIBITION ON RETALIATION
TO ENCOMPASS ANY EMPLOYER ACTION THAT
FORESEEABLY WOULD DETER A REASONABLE
PERSON FROM ENGAGING IN PROTECTED ACTIVITY
WILL MAINTAIN A MEANINGFUL THRESHOLD
FOR RETALIATION CLAIMS WHILE ENSURING
EFFECTIVE PROTECTION AGAINST RETALIATION. 12
CONCLUSION 25
CERTIFICATION OF NUMBER OF WORDS 27
TABLE OF AUTHORITIESCASES
Aguilar v. Avis Rent A Car System, Inc., 21 Cal. 4th 121 (1999) 12
Akers v. County of San Diego, 95 Cal. App. 4th 1441 (2002) passim
Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000) passim
Coszalter v. City of Salem, 320 F.3d 968 (9th Cir. 2003) 18
County of Washington v. Gunther, 452 U.S. 161 (1981) 12
Davis v. Goord, 320 F.3d 346 (2d Cir. 2003) 18
Despanie v. Henderson, 32 Fed. Appx. 390, 392 (9th Cir. Mar. 20, 2002)
(unpublished decision) 23
Dilenno v. Goodwill Industrial, 162 F.3d 235 (3d Cir. 1998) 21
Faragher v. City of Boca Raton, 524 U.S. 775 (1998) 17
Franks v. Bowman Transport Co., Inc., 424 U.S. 747 (1976) 12
Glover v. South Carolina Law Enforcement Div., 170 F.3d 411
(4th Cir. 1999) 13
Griffin v. Potter, 356 F.3d 824 (7th Cir. 2004) 18-19
Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) 17
Knox v. Indiana, 93 F.3d 1327 (7th Cir. 1996) 21
Lyons v. England, 307 F.3d 1092 (9th Cir. 2001) 16
Mattern v. Eastman Kodak Co., 104 F.3d 702 (5th Cir. 1997) 23
Mitchell v. Horn, 318 F.3d 523 (3d Cir. 2003) 18
Montandon v. Farmland Industrial, Inc., 116 F.3d 355 (8th Cir. 1997) 19
Mukaida v. Hawaii, 159 F. Supp. 2d 1211 (D. Haw. 2001) 23-24
Power v. Summers, 226 F.3d 815 (7th Cir. 2000) 18
Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000) passim
Richards v. CH2M Hill, Inc., 26 Cal. 4th 798 (2001) 24
Robinson v. Shell Oil Co., 519 U.S. 337 (1997) 13, 21-22
Romano v. Rockwell, 14 Cal. 4th 479 (1996) 24
Rutan v. Republican Party, 497 U.S. 62 (1990) 18
Sada v. Robert F. Kennedy Medical Ctr., 56 Cal. App. 4th 138 (1997) 1
Strouss v. Michigan Dep't of Corr., 250 F.3d 336 (6th Cir. 2001) 19, 20
Sweeney v. West, 149 F.3d 550 (7th Cir. 1998) 19-20
Tao v. Freeh, 27 F.3d 635 (D.C. Cir. 1994) 18
Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999) 18
Thomas v. Dep't of Corr., 77 Cal App. 4th 507 (2000) 10, 15
Tran v. Trustees of the State Colleges, 355 F.3d 1263 (10th Cir. 2004) 17
Vasquez v. County of Los Angeles, 307 F.3d 884 (9th Cir. 2002) 10
Vasquez v. County of Los Angeles, 341 F.3d 869 (9th Cir. 2003) 10
Vasquez v. County of Los Angeles, 349 F.3d 634 (9th Cir. 2003) 10, 15, 16
Yanowitz v. L'Oreal USA, Inc., 106 Cal. App. 4th 1036,
131 Cal. Rptr. 2d 575 (2003) passimSTATUTES California Fair
Employment & Housing Act ("FEHA"),
Cal. Gov. Code §§ 12900 et seq. passim
Cal. Gov. Code § 12940(a) 8
Cal. Gov. Code § 12940(h) 8, 11
29 U.S.C. § 626 12
42 U.S.C. § 2000e-2(a) 8-9
42 U.S.C. § 2000e-3(a) 9
42 U.S.C. § 2000e-4 12
42 U.S.C. § 2000e-5 12
42 U.S.C. § 12116 12
42 U.S.C. § 12117 12
OTHER AUTHORITIES
Section 8, Retaliation, 2 EEOC Compliance Manual (BNA) (2003)
(available at http://www.eeoc.gov/policy/compliance.html ) 7-8, 14
2 Wayne R. LaFave, Substantive Criminal Law § 10.4 (2d ed.) 17-18
INTRODUCTION
In this FEHA retaliation case, the Court of Appeal expressly
adopted the legal standard for "adverse action" articulated by the
Equal Employment Opportunity Commission ("Commission" or "EEOC") in
its Compliance Manual, stating that this standard appropriately balances
the competing interests in defining the parameters of unlawful retaliation.
In its brief to this Court, the respondent takes issue with the appellate
court's assessment of the relevant policy considerations and strongly
criticizes the Commission's standard for determining whether employer
retaliation is actionable. Because we believe that the respondent's
characterization of the policy issues at stake is inaccurate, we offer
our views on these issues to this Court.
STATEMENT OF THE CASE
Because the trial court granted summary adjudication in this case,
we summarize the facts in the light most favorable to the plaintiff, the
non-moving party, granting her the benefit of all reasonable inferences.
See Sada v. Robert F. Kennedy Medical Ctr., 56 Cal. App. 4th 138, 148 (1997).
Elysa J. Yanowitz originally went to work for L'Oreal USA, formerly
known as Cosmair, Inc., in 1981. 5 Appen. 1139. In 1986, she became a
regional sales manager for L'Oreal's European Designer Fragrance Division.
Id. In this position, she was responsible for managing L'Oreal's sales force
and dealing with accounts throughout Northern California and the Pacific Northwest.
Id. at 1139-40. In written performance evaluations dating from 1987 through 1996,
Yanowitz's superiors consistently rated her performance as "above expectation" and,
in some cases, just short of "outstanding," the highest possible rating. Id. at
1150-86. In February 1997, Yanowitz was selected Regional Sales Manager of the Year
based on her performance during 1996. Id. at 1140.
In the summer of 1997, Yanowitz's supervisor, Richard Roderick, wrote two
memoranda in which he expressed some concerns about her management and conversational
styles, and described his intention to meet with Yanowitz on his next West Coast
trip to discuss these concerns. 1 Appen. 194, 196. Later that year, in November
1997, L'Oreal merged the European Designer Fragrance Division with the Ralph Lauren
Division to create a new Designer Fragrance Division. 5 Appen. 1140. L'Oreal laid
off some of its regional sales managers at this time, but Yanowitz was retained and
made a regional manager of the new Designer Fragrance Division, a position with
significantly greater job responsibilities. 1 Appen. 185.
Shortly after the restructuring, Yanowitz and John Wiswall, the general
manager for the new Designer Fragrance Division, toured the Ralph Lauren installation
at the Macy's Valley Fair in Santa Clara, California. 5 Appen. 1140-41. After the
tour, Wiswall directed Yanowitz to fire Soraya Djadali, a dark-skinned Ralph Lauren
sales associate, because she was "not good looking enough." Id. Wiswall ordered
Yanowitz to "[g]et me somebody hot," or words to that effect. Id. On a subsequent
return trip to the store, when Wiswall discovered that Djadali had not been fired,
he again directed Yanowitz to fire her. Id. at 1141. When Wiswall and Yanowitz
passed by a young blonde woman on the way out of the store, Wiswall turned to
Yanowitz and said, "God damn it, get me one that looks like that." Id. Yanowitz
never fired Djadali, despite Wiswall's repeated insistence; instead, she repeatedly
asked Wiswall to provide adequate justification for dismissing her. Id. In March
1998, Yanowitz learned that Djadali was among the top sellers of men's fragrances in
the Macy's West chain. Id. Yanowitz never complained to L'Oreal's human resources
department about Wiswall's order, nor did she tell Wiswall directly that his order was
discriminatory. Id. at 1141-42.
Around the same time, in March 1998, one of Yanowitz's subordinates was told
that Wiswall had issues with Yanowitz and wanted to get rid of her. 4 Appen. 1128.
At this point, Roderick, who reported directly to Wiswall, began soliciting negative
information about Yanowitz from her subordinates. Id. at 1125-26. When one subordinate,
Chrissy DeGracia, indicated that she had some "frustrations" in dealing with Yanowitz,
Roderick insisted that DeGracia discuss them with Jane Sears, then the manager of Human
Resources. Id. Roderick also asked DeGracia for names of others, including subordinates
and other business contacts, who were having problems with Yanowitz. Id. DeGracia
originally did not provide any names; Roderick then called her back two weeks later
and told her that it was urgent that she help him get people to come forward with
complaints about Yanowitz. Id. at 1126-27. Roderick repeated his request to DeGracia
in June 1998. Id. at 1127.
Meanwhile, on May 13, 1998, Roderick met with Yanowitz in New York. 5 Appen. 1142.
He opened the meeting by asking Yanowitz, "Do you think I brought you here to fire you?"
Id. Roderick then criticized Yanowitz's "dictatorial" management style and ended the meeting
by saying, "It would be a shame to end an eighteen-year career this way." Id. Between May
and June 1998, Wiswall and Roderick also obtained and audited Yanowitz's travel and expense
accounts. 4 Appen. 1008-1011. In meetings that occurred in June and July, Wiswall screamed
at Yanowitz in front of other regional sales managers and account representatives, told her
that he was "sick and tired of all the fuckups," and said that Yanowitz could not "get it
right." Id. at 1127.
On June 22, 1998, Yanowitz wrote Roderick a memo stating that the Macy's West
team was upset about the lack of television promotion for one of L'Oreal's brands. 4
Appen. 961. The next day, Wiswall wrote a note to Roderick at the bottom of Yanowitz's
memo: "Dick She is writing everything! Are you!!!???" Id. The next week, on June 30,
Roderick wrote three memos documenting separate interactions with or about Yanowitz that
had occurred in May and June 1998. 2 Appen. 298-99, 333; 4 Appen. 918. All three were
addressed to human resources, and all were highly critical of Yanowitz. Id.
On July 16, 1998, Roderick drafted and sent a three-page memo addressed to
Yanowitz. 5 Appen. 1188-90. In the memo, Roderick expressed his "tremendous
disappointment" with the events of the last few weeks and listed five areas
that caused him to express his concern with Yanowitz's overall performance,
including her handling of Polo Sport and Picasso promotions, the state of the
Sacramento market, and the length of a business trip Yanowitz took to Hawaii
in March 1998, as well as her "dictatorial style of conducting business" and
her failure to make "necessary style modifications." Id. Roderick concluded
by telling Yanowitz that her changes must start "immediately" (emphasis in original)
and that he expected a reply to the memo within one week of receipt. Id. In a
memorandum of the same date, Yanowitz responded to Wiswall, asking whether he
wanted to discuss a severance package and stating that he was obviously "making
every effort to find grounds for terminating me." Id. at 1198. Carol Giustino
from Human Resources then set up a San Francisco meeting with Yanowitz and Roderick
for July 22, 1998, rejecting Yanowitz's request that the meeting be postponed in
order to allow her to prepare a written response to Roderick's memo of July 16.
Id. at 1143-44. L'Oreal also declined Yanowitz's request that her attorney-husband
be present at the meeting. Id.
At the meeting Roderick and Giustino questioned Yanowitz, apparently without
reading her ten-page written response to Roderick's July 16 memo. 5 Appen. 1144.
Yanowitz broke down in tears at the meeting. Id. In a memo dated two days later,
Giustino summarized Roderick's criticisms of Yanowitz at the meeting, and recounted
a new, more intensive travel schedule imposed by Roderick. 4 Appen. 951-52. The
new schedule required Yanowitz to visit the San Francisco, Portland, and Seattle
markets once a month, Salt Lake City, Fresno, and Sacramento every other month, and
Hawaii biannually. Id. On July 24, 1998, Yanowitz went out on disability leave
due to stress, and never returned to work at L'Oreal. 5 Appen. 1145-46. Yanowitz's
replacement, Colleen Sanger, did not follow the more intensive travel schedule
established for Yanowitz at the July 22 meeting. Id. at 1145.
Yanowitz filed a charge with the Department of Fair Employment and Housing
("DFEH") on June 25, 1999, alleging that L'Oreal discriminated against her on the
basis of sex, age, and religion, and in retaliation for her refusal to fire the
female employee Wiswall deemed insufficiently attractive. 2 Appen. 421. After
receiving a right-to-sue letter from the DFEH, Yanowitz sued L'Oreal in San Francisco
Superior Court on September 13, 1999, alleging, inter alia, discrimination and
retaliation in violation of FEHA. 1 Appen. 1-11. The trial court granted L'Oreal's
motion for summary adjudication on Yanowitz's FEHA claims in October 2000, 7 Appen.
1762-63, and, after denying Yanowitz's motion for reconsideration, the court entered
judgment on all claims in April 2001. 8 Appen. 2188-92.
Yanowitz appealed to the Court of Appeal, First Division, challenging
the dismissal of only one of her FEHA claims: her retaliation claim. In a decision
dated March 7, 2003, the Court of Appeal reversed the trial court's grant of
summary judgment to L'Oreal on Yanowitz's FEHA retaliation claim. Yanowitz v.
L'Oreal USA, Inc., 106 Cal. App. 4th 1036, 131 Cal. Rptr. 2d 575 (2003). The
court adopted the EEOC's and the Ninth Circuit's Title VII standard for what
constitutes an adverse action, holding that, "under the FEHA, an adverse action
is one that is reasonably likely to deter employees from engaging in the
protected activity." Id. at 596 (citing, inter alia, Ray v. Henderson, 217
F.3d 1234 (9th Cir. 2000); Section 8, Retaliation, 2 EEOC Compliance Manual
(BNA) (2003) (available at http://www.eeoc.gov/policy/compliance.html) [hereinafter
"2 EEOC Compliance Manual § 8"]. The court concluded that the EEOC's "deterrence
test" was the most appropriate standard in light of the statutory purposes of
both the FEHA and Title VII because it was "directly tied to the purpose behind
the FEHA's and Title VII's anti-retaliation provisions: that which is reasonably
likely to chill protected activity is prohibited." Id. at 595. The court observed
that a wide range of retaliatory actions can exert a powerful influence on the quality
of one's work experience, and that such actions may well deter employee opposition in
the workplace even without altering the express terms or parameters of the employee's
job description. Id. The court also observed that both the FEHA and Title VII prohibit
retaliation more broadly than they do discrimination. Id. at 596 (comparing Cal.
Gov. Code § 12940(a) (prohibiting discrimination "against the person in compensation
or in terms, conditions, or privileges of employment") with § 12940(h) (prohibiting
employer "discrimination" against an employee who opposes discrimination)). Accord
42 U.S.C. §§ 2000e-2(a) ("It shall be an unlawful employment practice for an employer
. . . to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms, conditions,
or privileges of employment" on the basis of protected characteristics); 2000e-3(a)
("It shall be an unlawful employment practice for an employer to discriminate against
any of his employees or applicants for employment . . . because he has opposed any
practice made an unlawful employment practice by this subchapter, or because he has
made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.").
The court explained that the deterrence test preserves an effective and
important threshold on the kind of adverse action sufficient to support a retaliation
claim. 131 Cal. Rptr. 2d at 596. The court acknowledged that the FEHA was not
intended to remedy "adverse actions that cause displeasure or dissatisfaction, but
would be insufficient to deter employees from engaging in protected activity," id.,
and observed that, in applying the deterrence test, "only non-trivial employment
actions that would deter reasonable employees from complaining about discrimination
will constitute actionable retaliation." Id. (citing Brooks v. City of San Mateo,
229 F.3d 917, 928 (9th Cir. 2000)) (internal quotation marks omitted). The court
also observed that the deterrence test "is not necessarily an easier or more difficult
test to satisfy than other tests. It refocuses the inquiry on the concerns underlying
anti-retaliation laws, whereas 'the severity of an action's ultimate impact (such as
loss of pay or status) goes to the issue of damages, not liability.'" Id. (citing Ray,
217 F.3d at 1243 (internal quotation marks omitted)). In addition, the court noted,
as the Ninth Circuit held in Vasquez v. County of Los Angeles, 307 F.3d 884, 891 (9th
Cir. 2002), that the deterrence test is ultimately an objective one: "whether a
reasonable employee would be deterred from engaging in protected activity by the
employer's conduct." 131 Cal. Rptr. 2d at 596. The court concluded that, viewing
the evidence in the light most favorable to Yanowitz, the campaign Roderick and
Wiswall waged against her was sufficient to support a jury finding of adverse action.
Id.
The court acknowledged that the majority of the federal circuits, as well
as two decisions of the California Court of Appeal, apply some form of "materiality"
standard rather than the deterrence test. Yanowitz, 131 Cal. Rptr. 2d at 592-96
(citing, inter alia, Akers v. County of San Diego, 95 Cal. App. 4th 1441, 1454-55
(2002), and Thomas v. Dep't of Corr., 77 Cal. App. 4th 507, 510-12 (2000)). The
court rejected this approach, however, noting two major problems with the application
of the materiality test: "For one, no clear benchmarks exist for measuring what is
'substantial' or 'material.' For another, this limitation establishes an arbitrary
threshold untethered to what Akers recognizes as the core concern underlying the
FEHA and Title VII antiretaliation provisions: the need to prevent employers from
chilling protected activity." Id.
L'Oreal filed a petition for review with this Court in April 2003, listing
four issues for review. This brief addresses only the first of those issues: "Does
the Court of Appeal's 'deterrence test' set the appropriate standard for determining
whether an employee has been subjected to an adverse employment action in a claim
alleging violation of the anti-retaliation provisions of California Government Code
section 12940(h)?" Petition for Review at 1. This Court granted L'Oreal's petition
in June 2003.
ARGUMENT
CONSTRUING FEHA'S PROHIBITION ON RETALIATION TO ENCOMPASS ANY EMPLOYER ACTION
THAT FORESEEABLY WOULD DETER A REASONABLE PERSON FROM ENGAGING IN PROTECTED ACTIVITY
WILL MAINTAIN A MEANINGFUL THRESHOLD FOR RETALIATION CLAIMS WHILE ENSURING EFFECTIVE
PROTECTION AGAINST RETALIATION.
As this Court has observed, "[t]he express purpose of the FEHA is 'to provide
effective remedies which will eliminate [] discriminatory practices.' In addition,
the Legislature has directed that the FEHA is to be construed 'liberally' so as to
accomplish its purposes." Aguilar v. Avis Rent A Car Sys., Inc., 21 Cal. 4th 121,
129 (1999) (internal citations omitted) (citing Cal. Gov. Code §§ 12920, 12993). Title
VII of the Civil Rights Act of 1964 has a similar purpose. See, e.g., County of Washington
v. Gunther, 452 U.S. 161, 170 (1981) (observing that "Title VII's prohibition of
discriminatory employment practices was intended to be broadly inclusive"); Franks v.
Bowman Transp. Co., Inc., 424 U.S. 747, 763-64 (1976) (noting broad remedial purpose
of Title VII and concomitant broad judicial discretion to fashion relief). Both the
California courts and the federal courts have repeatedly noted the critical importance
of an effective prohibition on employer retaliation against persons who engage in
protected activity under statutes like Title VII and the FEHA, which rely on victim
complaints to initiate enforcement. See, e.g., Akers, 95 Cal. App. 4th at 1455 (noting
that "the Legislature was understandably concerned with the chilling effect of employer
retaliatory actions and mandated that FEHA provisions be interpreted broadly to prevent
unlawful discrimination"); Glover v. South Carolina Law Enforcement Div., 170 F.3d 411,
414 (4th Cir. 1999) ("Section 704(a)'s protections ensure not only that employers cannot
intimidate their employees into foregoing the Title VII grievance process, but also that
investigators will have access to the unchilled testimony of witnesses.").
The United States Supreme Court has rejected an interpretation of Title VII's
retaliation provision that would have undermined its effectiveness in providing
"unfettered access to statutory remedial mechanisms." Robinson v. Shell Oil Co.,
519 U.S. 337, 345-46 (1997) (rejecting interpretation of § 704 of Title VII to prohibit
only retaliation against current employees because, inter alia, it "would be destructive
of [the] purpose of the antiretaliation provision for an employer to be able to retaliate
with impunity against an entire class of acts under Title VII for example, complaints
regarding discriminatory termination").
Thus, the primary policy consideration in interpreting a provision prohibiting
employer retaliation against an individual for complaining about or opposing employment
discrimination should be to ensure that the provision is construed in a way that
encompasses all effective forms of retaliation. That is not to say that either
Title VII or the FEHA should be construed to provide a remedy for every trivial
slight or minor inconvenience suffered by an individual who engaged in protected
activity. 2 EEOC Compliance Manual § 8, at 27 ("petty slights and trivial annoyances
are not actionable" retaliation). As the Ninth Circuit and the California Court of
Appeal have noted, employers have a real and significant interest in their ability
to engage in valid criticism of employees, and an employee's discrimination complaint
should not serve as a "get out of jail free card" for job misconduct. Akers, 95 Cal.
App. 4th at 1455 (citing Brooks, 229 F.3d at 928). Our disagreement with L'Oreal's
position in this case is not about whether there should be a threshold for "adverse
action," but, rather, about how to articulate that threshold.
L'Oreal argues that retaliation should be actionable only if it takes the
form of a "materially adverse employment action." Under L'Oreal's approach, retaliatory
actions that do not take this form would be lawful regardless of whether they were
effective deterrents to employees' willingness to complain about or oppose employment
discrimination. The Court of Appeal, on the other hand, adopting the Commission's
standard, held that retaliation is unlawful if it is "reasonably likely to deter
employees from engaging in protected activity," regardless of the specific form it
takes. 131 Cal. Rptr. 2d at 596. As the court noted, this standard "refocuses the
inquiry on the concerns underlying antiretaliation laws, whereas the severity of an
action's ultimate impact (such as loss of pay or status) 'goes to the issue of damages,
not liability.'" Id. (citing Ray, 217 F.3d at 1243) (internal quotation marks omitted).
The deterrence test adopted by the Court of Appeal in this case provides an
effective means of screening out trivial complaints. Under the deterrence test, a
plaintiff complaining of "immaterial" or "non-adverse" actions will be unable to
succeed in court because she will be unable to establish that such actions would be
likely to deter a reasonable person from complaining. Contrary to the assertions
of the respondent and of amicus curiae California Employment Law Council ("CELC"),
the deterrence test is not purely subjective it includes both objective and subjective
components in considering what would be reasonably likely to deter an employee from
engaging in protected activity. See Yanowitz, 131 Cal. Rptr. 3d at 597 (deterrence
test involves "a case-by-case determination based upon objective evidence") (citing
Thomas, 77 Cal. App. 4th at 510-11); see also Vasquez v. County of Los Angeles, 349
F.3d 634, 646 (9th Cir. 2003) (as amended Jan. 2, 2004) (observing that standard
includes both the subjective behavior of the charging party and the objective component
of reasonable likelihood to deter).
Thus, it is not true that, as CELC maintains in its brief, the deterrence-based
standard for an adverse action amounts to "[whatever] the employee believes . . . is
unfair." CELC Amicus Brief at 8 n.4. The "reasonable likelihood" component of the
standard precludes success by plaintiffs who are chronically malcontent or raise trivial
claims, and its focus on the likely effect of the employer's conduct on the employee,
rather than on the form of that conduct, serves the purpose of the anti-retaliation
provisions more effectively than the materiality standard.
L'Oreal argues that the "reasonableness" component requires a reviewing court
to engage in a "host of assumptions" that make it prohibitively difficult to predict
what a "reasonable" employee would do. Respondent's Brief at 18. However, federal
and state courts at every level in this country routinely apply similar standards in
other areas of the law most notably sexual harassment, constructive discharge, and the
self-defense doctrine in the criminal law. See, e.g., Faragher v. City of Boca Raton,
524 U.S. 775, 787 (1998) (in order to be actionable, "a sexually objectionable environment
must be both objectively and subjectively offensive, one that a reasonable person would
find hostile or abusive, and one that the victim in fact did perceive to be so") (citing
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993)); Tran v. Trustees of the State
Colleges, 355 F.3d 1263, 1270-71 (10th Cir. 2004) ("A constructive discharge occurs when
a reasonable person in the employee's position would view her working conditions as
intolerable and would feel that she had no other choice but to quit. . . . The question
is not whether the employee's resignation resulted from the employer's actions, but
whether the employee had any other reasonable choice but to resign in light of those
actions.") (internal citations omitted); 2 Wayne R. LaFave, Substantive Criminal Law
§ 10.4 (2d ed.) ("One who is not the aggressor in an encounter is justified in using
a reasonable amount of force against his adversary when he reasonably believes (a)
that he is in immediate danger of unlawful bodily harm from his adversary and (b) that
the use of such force is necessary to avoid this danger."). Furthermore, in the
closely related area of First Amendment retaliation, many of the federal circuits
regularly assess the meaning of "adverse employment action" in terms of whether such
action would likely deter an employee of ordinary firmness from engaging in protected
conduct. See, e.g., Coszalter v. City of Salem, 320 F.3d 968, 975 (9th Cir. 2003)
(citing Rutan v. Republican Party, 497 U.S. 62, 73 (1990)); Davis v. Goord, 320 F.3d 3
46, 353 (2d Cir. 2003); Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003); Power v.
Summers, 226 F.3d 815, 820-21 (7th Cir. 2000); Thaddeus-X v. Blatter, 175 F.3d 378,
394 (6th Cir. 1999); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).
The standard advocated by L'Oreal, on the other hand, which would limit
the prohibition on retaliation to "materially adverse employment actions," is both
arbitrary and underinclusive. It excludes categorically a broad range of adverse
actions that can have a significant impact on an employee and thus can be highly
effective deterrents. Courts applying this test have used it to dismiss claims of
retaliation based on employer actions which reasonably and foreseeably would deter
an employee from complaining. See, e.g., Griffin v. Potter, 356 F.3d 824, 829
(7th Cir. 2004) (citing Seventh Circuit cases rejecting the following, both
standing alone and in combination, as insufficiently material: harder work
assignments, lateral transfers, additional job responsibilities, altered work
hours, negative performance evaluations, unfair reprimands, and increased travel
time); Strouss v. Michigan Dep't of Corr., 250 F.3d 336, 343 n.2 (6th Cir. 2001)
(characterizing as "highly questionable" the district court's holding that the
plaintiff's lateral transfer, which would have made it impossible for the plaintiff
to attend the school of her choice, was an adverse employment action); Montandon v.
Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997) (holding that job transfer
requiring employee to move to another town, "however unpalatable the prospect may have
been to him," was not an adverse action because it did not involve change in pay,
benefits, or job title).
L'Oreal does not dispute that the test it advocates would exclude some
forms of effective employer retaliation. Indeed, L'Oreal appears to argue that
the deterrence test should be rejected precisely because it will make all forms
of effective retaliation unlawful. L'Oreal states that a standard that encompasses
all retaliatory actions that might deter a reasonable person from complaining would
be unduly burdensome on employers because "[i]t could take very little indeed to
reasonably deter an employee from [complaining about discrimination or participating
in other protected activity.] 'A dirty look or the silent treatment might be as
effective at discouraging complaints as demoting an employee.'" Respondent's Brief
at 19 (citing Sweeney v. West, 149 F.3d 550, 556 (7th Cir. 1998)). On the contrary,
the fact that the "materially adverse" standard does not encompass all forms of
effective retaliation is, by itself, reason enough to reject it.
According to L'Oreal, the deterrence standard is also objectionable because
it requires a case-by-case determination, since the deterrent effect of a particular
action will depend on the circumstances in which that action is taken. L'Oreal
argues that its test should be adopted because it would provide employers with
certainty by considering "only the personnel action and its effect on the terms and
conditions of the plaintiff's employment" without regard for other circumstances that
may amplify the deterrent effect of the challenged action on the plaintiff. See
Respondent's Brief at 17-18. To begin with, the premise of L'Oreal's argument is
incorrect. Most federal courts applying the materially adverse standard do not apply
it in the categorical manner advocated by the respondent. For example, courts
considering whether a lateral transfer constitutes actionable retaliation routinely
consider individual circumstances in determining whether the transfer was "materially
adverse." See, e.g., Strouss, 250 F.3d at 342 ("An employee's rejection of a lateral
transfer is always actionable as an 'adverse employment action' if the conditions of
the transfer would have been objectively intolerable to a reasonable person, thereby
amounting to a constructive discharge.") (internal quotation marks omitted); Dilenno
v. Goodwill Indus., 162 F.3d 235, 236 (3d Cir. 1998) (holding that "a transfer to a
job that an employer knows an employee cannot do may constitute adverse employment
action," even where pay, benefits, and employer's assessment of job equivalency were
the same). See also Knox v. Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996) ("No one
would question the retaliatory effect of . . . actions like moving the [complainant]
from a spacious, brightly lit office to a dingy closet, depriving the person of
previously available support services (like secretarial help or a desktop computer),
or cutting off challenging assignments. Nothing indicates why a different form of
retaliation namely, retaliating against a complainant by permitting her fellow employees
to punish her for invoking her rights under Title VII does not fall within the statute.")
Furthermore, to the extent that a few courts have taken a more rigid, categorical
approach to the question, that only exacerbates the problem condemned by the Supreme Court
in Robinson v. Shell Oil. Insofar as the prohibition on retaliation is construed in a way
that excludes an entire "class of acts" that may constitute effective deterrents to protected
activity, the fundamental purpose of the retaliation provision is undermined. For example, if
employers know in advance that a lateral transfer without loss of pay can never constitute
actionable retaliation, an employer can retaliate against an employee "with impunity" by
subjecting her to an undesirable lateral transfer. Cf. Robinson, 519 U.S. at 346 (rejecting
limitation of Title VII's anti-retaliation provision to retaliation against current employees
because it would permit employers to "retaliate with impunity" against former employees
challenging their termination).
Thus, if this Court were to adopt the materiality standard, it is highly
unlikely that this standard would bring with it the "clarifying" effect on the law
that L'Oreal and CELC envision. Rather, the materiality standard muddies the waters
of anti-retaliation law by taking the focus away from the relationship between the
employer's actions and the employee's protected conduct and instead requiring courts
to engage in seemingly endless attempts to classify one action or another, devoid of
context, as somehow "material" or not.
L'Oreal and CELC argue that adopting the deterrence test would open the
proverbial floodgates and overwhelm the California courts with specious retaliation
claims. However, they provide no empirical support for this assertion and we are
aware of none. They point to no evidence suggesting, for example, that the federal
courts of the Ninth Circuit, which has adhered to the deterrence standard at least
since Ray was decided in 2000, are more "flooded" with retaliation cases than those
of the other federal circuits. L'Oreal and CELC likewise provide no evidence that
federal courts across the country handled more retaliation claims during the first
three decades of Title VII, before courts first began imposing the material-adversity
limitation on retaliation claims. See Mattern v. Eastman Kodak Co., 104 F.3d 702
(5th Cir. 1997) (first decision applying "materially adverse" standard to private-sector
Title VII retaliation action). Nor does L'Oreal or CELC offer any evidence suggesting
that retaliation claims are more likely to prevail in the Ninth Circuit than in courts
applying a different standard. Because, as discussed above, the EEOC's standard contains
an objective reasonableness component, courts are able to use it effectively to winnow
out trivial retaliation claims. See, e.g., Despanie v. Henderson, 32 Fed. Appx. 390, 392
(9th Cir. Mar. 20, 2002) (unpublished decision) (mere evidence that employee was "upset"
by letter of warning issued by supervisor insufficient to constitute adverse action under
deterrence standard); Brooks, 229 F.3d at 929 (under deterrence test, scheduling plaintiff
on the same shift as an openly hostile coworker did not constitute an adverse action under
the circumstances of that case); Mukaida v. Hawaii, 159 F. Supp. 2d 1211, 1236 (D. Haw. 2001)
(lateral transfer was not adverse action under deterrence test because the plaintiff failed
to introduce "any evidence indicating that the transfer involved anything unfavorable or
that it was not voluntary").
CELC advances another form of the same argument, asserting that this Court's
adoption of the deterrence test will somehow "discourage informal conciliation of
workplace disputes." CELC Amicus Brief at 18. This version of the "floodgates"
argument is equally incoherent and lacking in empirical support. To begin with,
the case cited by CELC, Richards v. CH2M Hill, Inc., 26 Cal. 4th 798 (2001), is
discussing a case, Romano v. Rockwell, 14 Cal. 4th 479 (1996), dealing with the
statute of limitations on FEHA claims, not the standard for what constitutes a
claim. The distinction reveals just how inapposite the Richards case is in this
context: whereas the statute of limitations bears directly on how soon an employee
must file a legal claim, and thereby may spur that employee to file suit at an
earlier date than would otherwise be desirable, the standard at issue here merely
defines what claims are viable. CELC offers no analysis to suggest why the deterrence
test would discourage informal conciliation, and indeed we can think of none.
Insofar as CELC may be suggesting that the mere availability of a viable cause
of action, without regard to timing, precludes conciliation, this suggestion is
patently incorrect: the EEOC conciliates hundreds of cases a year as to which the
employee has a viable claim. In fact, the existence of a viable claim is often
precisely what motivates the parties to engage in effective and successful conciliation.
CONCLUSION
The deterrence test adopted by the Court of Appeal in this case effectively
balances the interests of employees in being free from retaliation and those of
employers in being free to run their businesses and engage in valid criticism
of their employees' performance. It sets a meaningful threshold for "adverse
action" that is familiar from many other areas in the law and comports with the
statutory purpose of FEHA's anti-retaliation provision. Based on the experience
of this agency and the federal courts, there is no reason to think that the parade
of horribles painted by the respondent and by CELC will come to pass should this
Court affirm the decision of the Court of Appeal in this case. On the contrary,
the deterrence test is particularly well suited to effectuating FEHA's goal of
ensuring that employees can challenge discrimination and cooperate with state
and federal agencies in the investigation of their claims, rather than being
silenced out of a reasonable fear of retaliation.
Respectfully submitted,
ERIC S. DREIBAND
General Counsel
LORRAINE C. DAVIS
Acting Associate General Counsel
VINCENT BLACKWOOD
Assistant General Counsel
__________________________
ELIZABETH E. THERAN
Attorney
U.S. Equal Employment
Opportunity Commission
1801 L Street, N.W.
Washington, D.C. 20507
Tel: (202) 663-4720
Fax: (202) 663-7090
WILLIAM R. TAMAYO
California Bar No. 084965
Regional Attorney
EEOC San Francisco District Office
350 The Embarcadero, Suite 500
San Francisco, CA 94105
Telephone: (415) 625-5645
Facsimile: (415) 625-5609
CALIFORNIA COUNSEL OF RECORD
CERTIFICATION OF NUMBER OF WORDS
I, ELIZABETH ELLEN THERAN, declare:
I am an attorney with the U.S. Equal Employment Opportunity Commission,
Office of General Counsel, in Washington, DC. I have applied for admission to
the State Bar of California pro hac vice.
Relying on the word count of the computer program used to prepare this
brief, the brief of the U.S. Equal Employment Opportunity Commission as amicus
curiae contains 5784 words.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on March 3, 2004, at Washington, DC.
___________________________
ELIZABETH E. THERAN
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Brief of U.S.
Equal Employment Opportunity Commission as Amicus Curiae in Support of Plaintiff-Appellant
was furnished by first-class U.S. mail on March 3, 2004, to the following counsel of
record: Herbert W. Yanowitz, Attorney at Law, 225 Bush Street, 6th Floor, San Francisco,
CA 94104-4207; William J. Carroll, Morgenstein & Jubelirer LLP, 1 Market, Spear Street
Tower, Thirty-Second Floor, San Francisco, CA 94105. Courtesy copies have been furnished
to the following amici curiae: Lawrence A. Michaels, Mitchell Silberberg & Knupp, 11377
West Olympic Blvd., Los Angeles, CA 90064-1683; Charlotte Fishman, Equal Rights Advocates,
1663 Mission Street, Suite 250, San Francisco, CA 94109.
DATE:________________ ___________________________
Elizabeth E. Theran
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
1801 L Street, N.W.
Washington, D.C. 20507
(202) 663-4720
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Saturday, June 7, 2008
Los Angeles Employment Lawyers Resource: Yanowitz
Los Angeles Employment Lawyers Resource: EEOC v. Trans State Airlines, Inc. (8th Cir.)
EEOC v. Trans State Airlines, Inc. (8th Cir.)
Brief as appellant
June 20, 2005
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
______________________________
Nos. 05-2009, 05-2010, 05-2046
______________________________
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff–Appellant/Cross–Appellee,
and
MOHAMMED SHANIF HUSSEIN,
Plaintiff–Intervenor–Appellant/Cross–Appellee,
v.
TRANS STATES AIRLINES, INC.,
Defendant–Appellee/Cross–Appellant.
____________________________________________________
On Appeal from the United States District Court
for the Eastern District of Missouri
__________________________________________________
BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION AS APPELLANT
___________________________________________________
ERIC S. DREIBAND EQUAL EMPLOYMENT OPPORTUNITY
General Counsel COMMISSION
Office of General Counsel
VINCENT BLACKWOOD 1801 L Street, N.W., Room 7032
Acting Associate General Counsel Washington, D.C. 20507
(202) 663-4718
JULIE L. GANTZ
Attorney
SUMMARY OF CASE AND REQUEST FOR ORAL ARGUMENT
The EEOC alleges in this action that Trans States Airlines ("TSA") violated
Title VII of the Civil Rights Act of 1964 when it fired Mohammed Hussein, a
Muslim probationary pilot who appears to be of Middle Eastern descent, a week
after the September 11 terrorist attacks because of his religion, national origin and
race. The defendant asserts that it fired Hussein because it received an anonymous
phone call reporting that Hussein was in a bar in uniform in violation of a
company rule. In granting summary judgment, the district court stated that the
only evidence supporting the allegation of discrimination was Hussein's name and
the fact that he was terminated shortly after September 11. The court noted
repeatedly that there was no evidence of statements or actions by persons involved
in the defendant's decision-making process reflecting hostility toward Muslims or
persons of Middle Eastern descent. We argue in this appeal that a reasonable jury
could infer from the evidence that, if Hussein were not Muslim and perceived to
be Middle Eastern, the defendant would not have terminated him based on an
anonymous phone call without taking reasonable steps to verify the truth of the
accusation against him. This appeal presents factual issues that turn on a careful
review and explication of the record. The EEOC submits that oral argument of
twenty minutes per side would assist this Court in resolving these issues.
TABLE OF CONTENTS
SUMMARY OF THE CASE AND REQUEST FOR ORAL ARGUMENT. . . . . . . .i
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . .1
STATEMENT OF THE ISSUES AND APPOSITE CASES . . . . . . . . . . .1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .2
A. PROCEEDINGS BELOW. . . . . . . . . . . . . . . . . . .2
B. STATEMENT OF THE FACTS . . . . . . . . . . . . . . . .3
C. THE DISTRICT COURT DECISION. . . . . . . . . . . . . 24
STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . 29
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 30
ARGUMENT
THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT
THE DEFENDANT'S ASSERTION THAT IT FIRED HUSSEIN
BECAUSE IT RECEIVED AN ANONYMOUS REPORT THAT HE WAS
IN A BAR IN UNIFORM IS A PRETEXT FOR DISCRIMINATION . . . 35
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 58
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
ADDENDUM
EEOC v. Trans States Airlines, Inc., February 9, 2005, Order Awarding
Summary Judgment to TSA and Denying TSA's Request for Attorney's
Fees
TABLE OF AUTHORITIES
CASES
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . . . . 29
Bassett v. City of Minneapolis, 211 F.3d 1097 (8th Cir. 2000). 30
Buettner v. Arch Coal Sales Co., Inc., 216 F.3d 707
(8th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . 57
Cherry v. Ritenour Sch. District, 361 F.3d 474
(8th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . 46, 53
Crawford v. Runyon, 37 F.3d 1338 (8th Cir. 1994) . . . . . . . 30
Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) . . . . . . . 53
Dominguez v. Cruz v. Suttle Caribe, Inc., 202 F.3d 424
(1st Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . 39
EEOC v. Ethan Allen, Inc., 44 F.3d 116 (2d Cir. 1994). . . . . 38
EEOC v. Sears Roebuck & Co., 243 F.3d 846 (4th Cir. 2001). . . 42
Griffith v. City of Des Moines, 387 F.3d 733 (8th Cir. 2004) . 53
Hernandez v. State of Texas, 347 U.S. 475 (1954) . . . . . . . 56
Keathley v. Ameritech Corp., 187 F.3d 915 (8th Cir. 1999). . . 29
Kempcke v. Monsanto Co., 132 F.3d 442 (8th Cir. 1998). . . . . 41
Matsushita Electric Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574 (1986) . . . . . . . . . . . . . . . . . . . . . 29
Morgan v. Hilti, Inc., 108 F.3d 1319 (10th Cir. 1997). . . . . 35
Reeves v. Sanderson Plumbing, 530 U.S. 133
(2000).. . . . . . . . . . . . . . . . . . . . . 39, 47, 48, 52
Rosen v. Thornburgh, 928 F.2d 528 (2d Cir. 1991) . . . . . . . 56
Russell v. TG Missouri Corp., 340 F.3d 735 (8th Cir. 2003) . . 43
Sarmiento v. Queens Coll. CUNY, No. 01-CV-5266, 2005 WL
396385 (E.D.N.Y. Feb. 11, 2005) . . . . . . . . . . . . . . . 55
Smith v. Chrysler Corp., 155 F.3d 799 (6th Cir. 1998). . . . . 42
Stern v. Trs. of Columbia Univ., 131 F.3d 305 (2d Cir. 1997) . 49
U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711 (1983). . . . . . . . . . . . . . . . . . . . . . 53
Webb v. Garelick Mfg. Co., 94 F.3d 484 (8th Cir. 1996). . . . 29
Yates v. Rexton, 267 F.3d 793 (8th Cir. 2001). . . . . . . . . 47
Young v. Warner-Jenkinson Co., 152 F.3d 1018
(8th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . 37, 48
STATUTES
28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . .1
28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . .1
28 U.S.C. § 1337 . . . . . . . . . . . . . . . . . . . . . . . .1
28 U.S.C. § 1343 . . . . . . . . . . . . . . . . . . . . . . . .1
28 U.S.C. § 1345 . . . . . . . . . . . . . . . . . . . . . . . .1
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq . . . . . . . . . . . . . . . . . . . . . . 1, 2
Missouri Human Rights Act, Mo. Rev. Stat. § 213.010 et seq.. . .2
STATEMENT OF JURISDICTION
This is an enforcement action brought by the Equal Employment
Opportunity Commission pursuant to Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. The district court had jurisdiction under 28 U.S.C.
§§ 1331, 1337, 1343, and 1345. Final judgment was entered on February 9, 2005.
Volume I Plaintiffs' Appendix ("P.A.") 19. Hussein filed a timely notice of appeal
on April 6, 2005. R.117.<1> The EEOC filed a timely notice of appeal on April 7,
2005. R.118. TSA filed a cross–appeal on April 12, 2005. R.121. This Court has
jurisdiction under 28 U.S.C. § 1291.
STATEMENT OF THE ISSUE AND APPOSITE CASES
Whether there is sufficient evidence to support a finding that the
defendant's assertion that it fired Mohammed Hussein because of an anonymous
report that he was in a bar in uniform is a pretext for race, religion, and national
origin discrimination.
Reeves v. Sanderson Plumbing, 530 U.S. 133 (2000)
Young v. Warner-Jenkinson Co., 152 F.3d 1018 (8th Cir. 1998)
Kempcke v. Monsanto Co., 132 F.3d 442 (8th Cir. 1998)
STATEMENT OF THE CASE
A. Proceedings Below
These are appeals from a final order of the United States District Court for
the Eastern District of Missouri dismissing this enforcement action under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and denying the
defendant's request for attorney's fees. The complaint alleges that the defendant
violated Title VII by terminating the employment of pilot Mohammed Hussein
because of his race, religion, and national origin. I-P.A.20. Hussein intervened as
a plaintiff on August 5, 2003. R.5. Hussein's complaint seeks relief under the
Missouri Human Rights Act, Mo. Rev. Stat. § 213.010 et seq., as well as under
Title VII. I-P.A.29.
On February 9, 2005, the district court granted the defendant's motion for
summary judgment. Addendum at 29; R.111. In the same order, the district court
denied the defendant's request for attorney's fees. Addendum at 30. The court
entered judgment the same day. I-P.A.19. Hussein filed a notice of appeal on
April 6, 2005 (R.117); the EEOC filed a notice of appeal on April 7, 2005 (R.118);
and the defendant filed a cross–appeal on April 12, 2005, appealing the district
court's denial of its request for attorney's fees. R.121.
B. Statement of Facts
Mohammed Shanif Hussein is a Muslim who was born and raised in Fiji.
II-P.A.227, 236 (Hussein Dep. 8, 43). Although he is of Indian descent, he stated
that he appears Arabic and many people mistakenly think he is of Arabic descent.
II-P.A.309 (Hussein Decl. ¶ 2). On February 26, 2001, Hussein was hired as a
pilot by Trans State Airlines ("TSA"), which operates commercial flights for
American Airlines, United Airlines, and U.S. Airways. II-P.A.230 (Hussein Dep.
19). Newly hired TSA pilots serve a one-year probationary period. I-P.A.37B
(Collective Bargaining Agreement § 22F). At the time of his discharge on
September 18, 2001, Hussein had been with TSA nearly seven months and had
successfully completed his training. II-P.A.23-35 (Hussein Dep. 36-38); I-P.A.97
(June 15, 2001 Statement of Training Completed). He had no performance or
disciplinary problems prior to the events leading to his termination. II-P.A.310
(Hussein Decl. ¶ 6).
On September 13, 2001, Hussein returned a TSA plane to St. Louis
following the September 11 terrorist attacks and the grounding of commercial
aircraft. II-P.A.241 (Hussein Dep. 62-63). That evening, he ate dinner at
Skooner's, a restaurant and bar at the Howard Johnson's hotel near the airport
where he was staying. Hussein sat at the bar portion of the restaurant. II-P.A.247-
48, 250-51, 253 (Hussein Dep. 88-89, 97-101, 109). Hussein testified that he wore
nothing that signified he was a pilot. II-P.A.248, 253; see also FBI Report at 2-3.<2>
He stated that he did not want to be seen in his pilot's uniform following the
September 11 attacks because he looked Arabic and "the media had made a big
deal about uniforms being stolen." II-P.A.248. Angelina Lodatto, a former
bartender at Skooner's, testified that she never saw a pilot in uniform seated at the
bar at Skooner's, and that the presence of a pilot in uniform would be so unusual
she would remember it. II-P.A.320; see also II-P.A.336 (Lodatto Decl. ¶¶ 7, 9).
Because pilots and other airline employees were frequent visitors at Skooner's,
Skooner's employees were aware of the rules prohibiting a pilot from drinking
within 12 hours of flight duty or being in a bar in uniform. II-P.A.336 (Lodatto
Decl. ¶ 6). Lodatto testified that she was told that pilots in uniform were not to be
seated at or served at the bar. II-P.A.319. On the night of September 13, Lodatto
was working at the Kung Jeon Lounge, which is located upstairs from Skooner's.
She stated that Hussein came into the lounge that night wearing a white button
down shirt and dark pants; he was not wearing any part of his pilot's uniform. II-
P.A.337.
TSA's General Operations Manual ("GOM") sets forth standards for pilot
conduct. II-P.A.477 (Swoboda Dep. 71). The GOM's alcohol and drug policy
prohibits pilots from drinking alcohol within twelve hours of reporting for duty
and forbids pilots from drinking in public while in uniform at any time. I-P.A.92
(GOM Part 10 ¶ B(1), (3), (4)). The GOM also provides: "To eliminate the
possibility of any Trans States Airlines crewmember employee in uniform being
associated with the use of alcoholic beverages, crewmembers in complete or
partial uniform . . . are prohibited from visiting any establishment or portion
thereof the primary purpose of which is to serve alcoholic beverages." I-P.A.92
(GOM Part 10 ¶ B (5)). According to one of TSA's flight managers, a pilot is
considered to be at least in partial uniform if he is wearing any of the following
items: his epaulets, tie, jacket, hat, or identification badge. II-P.A.473 (Swoboda
Dep. 57). Two TSA supervisors testified that a pilot dressed in a pilot's dark pants
and white shirt without the epaulet shoulder boards attached would not be in
uniform. II-P.A.464 (Swoboda Dep. 19); II-P.A.493 (White Dep. 30-31). Two
other supervisors disagreed—one testified that, because the pilot shirt has flaps for
epaulets, wearing it would be considered being in uniform. I-P.A.142 (Aman Dep.
38). Another stated, "I would not show up in a bar with black pants and my white
uniform shirt on with or without epaulets or with or without a tie." II-P.A.453
(Scott Dep. 30).
Emmet Conrecode, a pilot for TWA and a major in the Marine Corps
Reserve, was grounded in St. Louis between September 11 and September 16 and
staying at the Howard Johnson's. I-P.A.174 (Conrecode Dep. 11). On the night of
September 13, he went to Skooner's and sat at the bar eating dinner and drinking a
beer. I-P.A.174 (Conrecode Dep. 12-13). He testified that a man he subsequently
learned was Hussein was acting in an "unusual" manner. I-P.A.175. According to
Conrecode's deposition testimony, this man was wearing a pilot's shirt, dark
pants, and epaulets and drinking a beer, which Conrecode knew pilots were not
permitted to do. I-P.A.175-76. Moreover, according to Conrecode, Hussein was
"happily raising his beer watching the coverage of the airplanes hitting the towers
and bouncing around the bar attempting to engage people in conversation,
debate." I-P.A.181. Conrecode asserted that Hussein watched the television
coverage of the 9/11 attacks, smiling, and when the aircraft hit one of the towers,
"he raised his beer as in a salute and took a swig." I-P.A.177. Conrecode
described Hussein's demeanor as "celebratory." I-P.A.178.
According to Conrecode, Hussein left Skooner's after another pilot asked
him to leave, but returned after a brief time without his epaulets and continued
watching the television coverage and trying to engage other patrons in
conversation. I-P.A.178. Conrecode testified that he asked the bartender why
Hussein was acting strangely and she told him that he was in favor of the terrorist
attacks and had been engaged in debates with patrons. I-P.A.180. Conrecode did
not personally hear Hussein say anything in support of the 9/11 attacks.
I-P.A.180; see also I-P.A.187. Conrecode testified that he heard Hussein say, "I
get to fly tomorrow," and interpreted this to mean that Hussein was about to
"betray" the United States. I-P.A.184, 194. Conrecode testified that the notion
that Hussein was going to fly a plane into a building "was my greatest fear."
I-P.A.204.
Conrecode testified that after he left Skooner's he learned Hussein's name
and the fact that he was a pilot for TSA from the hotel's desk clerk and then went
to his room but was unable to sleep. I-P.A.182, 185. He testified that he thinks he
called the FBI and left a message giving "a general description of a pilot drinking
in uniform ecstatic about 9/11" and naming Hussein. I-P.A.185. He stated that he
subsequently called the St. Louis Airport police at approximately 3 a.m.
I-P.A.185, 186. Conrecode recalled telling the police that "I observed a pilot that I
had identified as being a Trans States pilot in a bar in uniform drinking,
celebrating the 9/11 attacks, and proclaiming that he was going to be flying
tomorrow—or this morning." I-P.A.186. He recalled that he gave Hussein's name
but did not recall if he said Hussein was Middle Eastern although, "based on his
name," he believed he was of Middle Eastern descent. I-P.A.186, 191. Conrecode
testified that FBI agents came to his room at about 9 a.m. on the morning of
September 14 and he gave them a statement. I-P.A.189. Conrecode could not
name anyone else who witnessed Hussein's behavior at Skooner's. He testified
that he recognized several pilots who were present that night but did not give their
names to the FBI or the police. I-P.A.190.
The FBI report concerning the incident gives no indication that Conrecode
ever spoke with the FBI, either by phone or in person. Rather, the report indicates
that Conrecode's story was communicated to the FBI by the St. Louis Airport
Police Department at 6:45 a.m. on the morning of September 14. See Information
Control Form.<3> According to the FBI report, Conrecode told the airport police that
"[w]hile sitting at the hotel bar[, he] heard an individual of Mid-East decent [sic]
saying that he supported the attacks." Id. The FBI report states that Conrecode
reported that the individual was in "civilian clothes," but wearing a "pilot's t-shirt
and may have shown a pilot's ID for Trans-States Airlines." Id.
An FBI agent awoke Hussein in his hotel room the morning of September
14 and forced his way into the room. II-P.A.252 (Hussein Dep. 107). Detective
James Moore of the St. Louis Airport Police Department accompanied the agent.
FBI Report at 1. The FBI agent asked for Hussein's identification and flight
credentials, and questioned him about his background and his behavior on the
night of September 13. II-P.A.252-53 (Hussein Dep. 108-09). Hussein was asked
if he had any weapons and who the pilot uniform on the chair in his room
belonged to. II-P.A.252 (Hussein Dep. 108). Hussein denied that he was acting in
any way that could be reported as supportive of the terrorist attacks. FBI Report at
2. When the FBI agent told Hussein he had been reported smiling in Skooner's
while watching the coverage of the 9/11 attacks, Hussein replied that he had
learned that his wife was pregnant that day. II-P.A.253 (Hussein Dep. 112); FBI
Report at 2. According to the FBI report, Hussein stated that he was not wearing
any insignia that would indicate he was a pilot, but "acknowledged his epauletted
white shirt and dark pants were indicative of a member of a flight crew." FBI
Report at 2-3. The FBI took no further action. Later on September 14, Hussein
told flight manager Rodney Aman about the FBI interview that had occurred that
morning. II-P.A.257 (Hussein Dep. 126). Aman testified that, "as a guess," the
incident had something to do with 9/11. I-P.A.162. Hussein stated, "As soon as I
told Rodney, it seemed like everyone else knew." II-P.A.257.
Conrecode testified that after calling the FBI and airport police on the
morning of September 14, he went back to sleep and later that day or the next day
he called TSA's Vice President of Flight Operations, Daniel Reed.<4> I-P.A.195.
Conrecode testified that, when he called the FBI, he was acting as a military
officer defending the country, but when he called TSA, he "was acting as an
airline captain trying to save the career of a misguided young man," and he was
"hoping to defend the profession from bad press coverage." I-P.A.196, 204. He
testified that he identified himself to Reed as a pilot, but he was not sure whether
he gave his name and, if he gave it, whether Reed caught his name, as he had
disturbed him in the middle of a meeting. I-P.A.196, 197-98. He stated that he
gave Reed "a watered down version of what I told the FBI"— that Hussein had
been drinking in uniform and seemed to be intimidating stranded passengers.
I-P.A.195. He stated in a declaration that he told Reed that he witnessed Hussein
in Skooner's in his pilot's uniform, drinking alcohol, and had "received reports
that he was speaking out in favor of the terrorist attacks." I-P.A.208-09
(Conrecode Decl. ¶ 11). Conrecode testified that he "may have" told Reed that
Hussein was making comments in support of the 9/11 attacks and that the FBI
would likely be contacting TSA because he had reported Hussein's behavior to the
FBI. I-P.A.196.
According to Reed, he received the call about Hussein on his cell phone
while he was in a staff meeting in TSA's maintenance hangar. II-P.A.401 (Reed
Dep. 22-23). Reed testified that four supervisors were present: Mike White,
Rodney Aman, Stuart Scott, and Mike Swoboda. II-P.A.400. Reed stepped out of
the conference room to take the call. II-P.A.401. Reed testified that the caller,
who did not identify himself, reported that a pilot in a TSA uniform "was in a
lower bar at the Howard Johnson's" and "was making comments about 9/11," and
that "the bartender had asked him to leave." II-P.A.401. According to Reed, the
caller "did not say [the pilot] was drinking. They said he was in the bar, in a
uniform, making comments and that the bartender told him to leave the bar. . . . He
took some of his uniform pieces off and went into the bar upstairs." II-P.A.402.
The caller did not describe what Hussein was wearing, but stated only that he was
in a pilot's uniform. II-P.A.410-11. According to Reed, the caller told him that he
obtained Hussein's name and airline "because he had read his ID." II-P.A.401,
411.
Reed testified that he stepped back into the conference room and told the
flight managers "[t]hat I just received a report . . . what they told me on the phone.
Asked them to verify that the pilot was indeed in town for that day or not out on a
trip. . . . And they told me he was not on a trip for the company and that he was a
probationary pilot." II-P.A.402. According to Reed, "after that answer came back
I said with this phone call and this thing, I believe it's happened and we should
terminate him and I made that call." II-P.A.411. Reed testified that the decision
to terminate Hussein was made approximately an hour after he received the
anonymous phone call. II-P.A.410; see also II-P.A.428. Reed testified that he
directed one of his manager pilots to terminate Hussein. II-P.A.411.
Reed testified that he did not obtain the identity of the person who reported
Hussein in a drinking establishment because "[t]he individual said that I would be
getting a follow-up phone call explaining everything to me." II-P.A.400, 401.
Although he considered the allegations "serious," Reed made no record or notes of
the call. II-P.A.399, 400. Reed acknowledged that he had no idea who the caller
was or what motivated him to call. II-P.A.407. In Reed's mind, "it was a reliable
call because I verified that the pilot was in town and that very possibly could have
happened. And I think it's a reliable call when he comes up with the pilot's
name." II-P.A.406. Reed stated that if Hussein "had not been in St. Louis I was
going to dismiss the call." II-P.A.404. He stated that at the time he decided to
discharge Hussein, he did not know his national origin or race or that he was a
Muslim. II-P.A.443 (Reed Decl. ¶ 31); see also II-P.A.413 (Reed Dep. 70-72).
Mike Swoboda testified that Reed left the meeting room when the call came
in about Hussein, and his conversation could not be heard. II-P.A.465. According
to Swoboda, Reed was gone for 3 to 5 minutes. Id.; see also I-P.A.197
(Conrecode Dep. 103) (stating his conversation with Reed was three minutes
long). He returned after the call had ended and asked those present who
Mohammed Hussein was. II-P.A.465. Swoboda told Reed that he knew Hussein,
and that he was a first officer based in St. Louis and was probably probationary.
Id. According to Swoboda, "It was then that Mr. Reed instructed me to terminate
Mr. Hussein's employment." II-P.A.465.
Flight manager Rodney Aman testified that Reed was still on the phone
when he came back to the meeting. He said he heard Reed say: "It doesn't matter,
he was in a bar in uniform." I-P.A.147. According to Aman, the call lasted "less
than a minute" and Reed said nothing to those in the meeting after he finished the
call. I-P.A.148. Neither Stuart Scott nor Mike White remembered the call about
Hussein. II-P.A.452 (Scott Dep. 26); II-P.A.488 (White Dep. 12-13).
TSA has an Employee Handbook which sets forth the company's policies
regarding the fair treatment of employees. The Handbook does not distinguish
between probationary and non-probationary employees and Reed testified that the
handbook is applicable to every employee of TSA. II-P.A.397, 430. The
handbook states that TSA "commit[s] to our employees that we will discuss any
problem, answer any questions, and address any issue that you will bring to our
attention." I-P.A.50. The handbook's "Open Door Policy" provides:
The management of the Company has been committed to a policy of
open and direct communications between employees and managers
and supervisors. We endeavor to keep employees informed on
current Company business and enable them to discuss issues of
concern with their supervisors. The Company will always give
utmost consideration to the well being of its employees. We intend
that every employee shall be treated justly and considerately at all
times.
I-P.A.51. After examining the "open door policy" during his deposition, Reed
testified that it affords employees accused of misconduct notice of the charges
against them and an opportunity to respond to the allegations. II-P.A.430 (Reed
Dep. 141).
The handbook also sets out a system of progressive discipline as follows:
It is the policy of Trans States Airlines, Inc., to treat all employees as
fairly as possible, given the exact circumstances of each individual
situation. A system of progressive discipline will be utilized with
employees who fail to observe/follow company procedures, rules, or
meet work performance requirements. Except for serious violations,
an employee is to be first given a supervisor's verbal warning for an
infraction. Subsequent steps will include a supervisor's written
warning, time off without pay, and discharge. Certain serious
infractions may necessitate a consolidation of one or more of the
progressive steps. The basic Rules of Conduct . . . summarize those
rules that may warrant immediate grounds for dismissal.
I-P.A.56. Notwithstanding his testimony that the Handbook applied to all
employees, Reed stated that a probationary employee would not be protected by
the open-door policy or the progressive discipline policy in the Handbook. II-
P.A.435 (Reed Dep. 159).
TSA pilot and union leader Dario Miranda stated that being in a bar in
uniform is subject to TSA's progressive discipline policy and is not grounds for
discharge for a first offense. II-P.A.347-48 (Miranda Decl. ¶ 19). Chief pilot
James White testified that a 30-day suspension would be an appropriate
punishment for a first offense for a nonprobationary pilot. II-P.A.498 (White Dep.
51-52). There is no evidence that any pilot, either probationary or not, other than
Hussein, has been fired by TSA for violating this rule. See, e.g., II-P.A.410 (Reed
Dep. 60-61); II-P.A.498 (White Dep. 51); II-P.A.348 (Miranda Decl. ¶ 20).
TSA also has a collective bargaining agreement ("CBA") with the Air Line
Pilots Association ("ALPA"), the pilots' union. The CBA sets out a grievance
process applicable to disciplinary actions including discharge; the process includes
notification to the pilot of any charges, an opportunity to defend himself, and the
right to appeal disciplinary action. I-P.A.35-36 (CBA at 52-53, § B).
Probationary pilots are expressly denied access to the grievance process. I-P.A.36
(CBA at 53, § B(5)). According to Reed, under the CBA, "TSA is not required to
have 'just cause' to terminate a probationary pilot and is not required to conduct
an investigation, provide notice of discipline, the reasons therefore or provide a
probation [sic] pilot accused of a rules violation an opportunity to present
information on his/her behalf." II-P.A.440 (Reed Decl. ¶ 11). Reed also asserted
that it is TSA's "consistent practice" not to take these steps. II-P.A.440 (Reed
Decl. ¶¶ 11-13).
Miranda, the head of the pilots' union, testified that provisions in the
Employee Handbook apply to pilots unless they conflict with the CBA. II-
P.A.345 (Miranda Decl. ¶¶ 8, 10). According to Miranda, nothing in the CBA
conflicts with the Employee Handbook's policies of fair treatment and open
communication with employees. II-P.A.346 (Miranda Decl. ¶¶ 13-15).
TSA did not ascertain whether Conrecode's allegations were true. No one
who was at the meeting testified that he checked to see if Hussein was in St. Louis
on September 13th. See, e.g., II-P.A.488 (White Dep. 12). Reed stated he did not
investigate the allegations because "I had what I considered a credible report and
he's a probationary pilot, I do not go any further." II-P.A.405. Reed also stated
"[For] [t]he probationary pilot I did no investigation." II-P.A.409. According to
Swoboda, if a probationary employee was accused of violating a rule of conduct,
TSA would not care if the probationary person actually violated the rule. II-
P.A.474. Swoboda agreed with the statement that it would make no difference if a
probationary employee was falsely accused. II-P.A.474. However, when
Swoboda was asked during his deposition what he would do to investigate to
determine whether or not a rule of conduct violation has occurred, he replied, "If a
rule of conduct was broken by a probationary employee . . . . I would have to
know something about the accuser." II-P.A.482. Swoboda testified that he would
want to know whether the accuser is a pilot and his motivation for making the
accusation. II-P.A.482; see also II-P.A.482 ("I've got to know why somebody is
accusing somebody").
Aman testified that he assumed an investigation had been done because the
company did not take lightly decisions to terminate pilots. I-P.A.153. Aman
agreed that, if Hussein was not in uniform or in a bar, his discharge was not
justifiable. I-P.A.153. He testified, "I would say yes, they should investigate that,
but it was from every indication that I had, that it had been." I-P.A.153. Aman
stated, "I would trust that they would" fully investigate allegations before
terminating an employee. I-P.A.153. When asked what he would do if someone
called and identified a pilot as being in a bar in uniform, Aman agreed that he
would want to know the identity of the caller, the name of the bar where the pilot
was seen, when the pilot had been seen, and agreed that he would make a record of
the phone call. I-P.A.153-54. He also stated, "If Mr. Hussein had witnesses or
whatever, that would have peaked [sic] my curiosity, but he made no claim." I-
P.A.155. Aman explained, "I didn't do the investigation . . . I don't know what-
all, who-all was interviewed; I don't know where the interviews took place. I
don't know if they had a picture of the man in uniform . . . ." I-P.A.155. Aman
stated that he "would have trusted [TSA] to conduct the investigation as they saw
appropriate." I-P.A.155. He stated it would not have surprised him if TSA asked
Hussein if he had any witnesses and agreed it was something they should have
done. I-P.A.155. In answering the question of whether it would make a difference
how he conducted the investigation if the pilot was probationary or non-
probationary, he answered that "for probationary pilots, they serve at the
discretion of the company, they're not entitled to an investigation." I-P.A.155.
James White, TSA's chief pilot who supervised the flight managers,
testified that "[a] person is innocent until proven guilty. So you gather your facts,
conduct your investigation." II-P.A.494. When asked if this was true for
probationary pilots, White stated that, because probationary pilots are not afforded
rights under the collective bargaining agreement, the company would not need to
verify if a probationary pilot was actually guilty of a rule violation and White
would not care if he was guilty or not. II-P.A.494. White said he would want to
know the identity of the person reporting the incident "in most cases." II-P.A.495.
He said if he got a call from the Federal Aviation Administration or from a current
employee, "that's good enough for me." II-P.A.494-95. And he stated it would be
important to assess the credibility of the allegation "for me." II-P.A.495.
Reed testified that he has fired other pilots based on an anonymous phone
call. He stated that in 1999, he received an anonymous call that a group of 6-8
pilots was in a bar drinking in South Bend, Indiana, during a training exercise. II-
P.A.407. Because they violated TSA's policy prohibiting pilots from drinking
alcohol within twelve hours of reporting for duty, "I terminated all the
probationary pilots on the spot and the ones that weren't terminated on the spot
were not probationary and they went through the bargaining agreement grievance
process but they were all terminated." II-P.A.407. Reed asserted that he did not
investigate the accuracy of the allegation for the probationary pilots. Id. He stated
that the report "matched a number of [a] group I had up there in training; the pilots
I knew were there." Id. To verify the accuracy of the report for the non-
probationary pilots, Reed testified that he had someone obtain "statements from
the bartender and stuff like that that they were in there drinking." II-P.A.407-08.
Reed acknowledged that the bartender's statements addressed both whether
probationary pilots were present at the bar as well as non-probationary pilots. II-
P.A.407-08 (Reed Dep. 49-50).
A pilot who was present at the incident, Lionel Purnwasy, recounted that the
class of pilots sent to South Bend numbered 12-16. II-P.A.369. The night of the
training session, "a couple of guys there had a couple— had beers to drink, one or
more of them got drunk, and a few people were fired over the incident." II-
P.A.369. Purnwasy testified that "[a] good portion of the class, if not all of us"
was at a bar prior to the training waiting to begin the exercise. II-P.A.372, 375,
378. He testified that three of the group were fired, two of them probationary
pilots. II-P.A.373. All three drank alcohol prior to the training exercise, and one
was intoxicated during the exercise. II-P.A.373, 382-83. According to Purnwasy,
none of the others in the training group had had any alcohol. II-P.A.387.
Purnwasy testified that the three pilots were fired "[w]ithin a week" of TSA
finding out about the incident. II-P.A. 383-84.
On September 18, Swoboda handed Hussein his termination letter when he
saw Hussein at TSA's offices that morning. II-P.A.467 (Swoboda Dep. 31). The
letter stated: "As you are aware, probationary pilots serve at the discretion of the
company. After careful review, your employment with Trans States Airlines is
terminated effective immediately." I-P.A.98. Hussein recalled that he asked if the
termination letter was a joke and asked several times for the reason. II-P.A.256.
Neither Swoboda nor Aman gave Hussein a reason for his termination; they told
him he was not entitled to a reason. I-P.A.150 (Aman Dep. 71); II-P.A.257
(Hussein Dep. 128). Aman did not answer Hussein when Hussein asked if his
termination was connected to the FBI interview. II-P.A.257 (Hussein Dep. 128).
Hussein filed a charge with the EEOC on December 10, 2001, alleging that he was
fired because of his race, national origin, and religion. I-P.A.99.
Reed testified that the FBI contacted him about Hussein after he had
terminated him. II-P.A.413. According to Reed, the FBI agent asked if Hussein
was employed by TSA, Reed said he no longer was, and the conversation lasted 1-
2 minutes. Id. Reed stated this call did not affect his decision to terminate
Hussein because he had already terminated him. II-P.A.414. However, James
Gall, an EEOC investigator, stated in his August 1, 2002 report that Reed told him
that Reed instructed his flight managers to investigate Conrecode's allegation, but
before the investigation had been completed, a representative from the FBI called
to say the FBI wanted to talk to Hussein. I-P.A.112 (Gall Respondent Witness
Interview Summary at 1); I-P.A.212 (Gall Dep. 55-56); I-P.A.225 (Gall Decl.
¶ 15). Reed therefore terminated Hussein because he was already suspected of
being in a drinking establishment in uniform. Id.
In deposition testimony and in statements offered in support of TSA's
motion for summary judgment, however, Reed maintained that he ordered
Hussein's termination within an hour of Conrecode's call and without engaging in
any investigation because Hussein was a probationary employee and, Reed
maintained, he never investigated allegations of misconduct by probationary
pilots. II-P.A.405, 409 (Reed Dep. 39, 57); II-P.A.503-04, 505-06 (TSA's
Memorandum in Support of Summary Judgment). Furthermore, contrary to
Reed's statement to the EEOC investigator that the decision to fire Hussein was
influenced by the fact that Hussein had been interviewed by the FBI, Reed
testified at his deposition that he decided to fire Hussein before he had been
contacted by the FBI and the only reason was the anonymous report that Hussein
was seen in a bar in uniform. II-P.A.411, 414 (Reed Dep. 64, 74-75).
On January 28, 2003, the EEOC found cause to believe discrimination had
occurred. I-P.A.114. The EEOC provided TSA with its determination letter and
invited TSA and Hussein to engage in conciliation. The EEOC and TSA
exchanged correspondence, including a proposed conciliation agreement drafted
by the EEOC, dated May 16, 2003. I-P.A.119. TSA representative David Hayes
submitted a counter-proposal on June 13, 2003, which lacked a calculation for
back pay. I-P.A.129. Among other things, Hayes stated that TSA's counteroffer
"would be our highest possible offer" but said, "if we are moving closer toward
settlement I will be glad to have that number calculated and then make you an
additional offer." Id. On June 16, 2003, Gall sent a letter asking Hayes to
calculate back pay and respond by June 20, 2003, or it would consider conciliation
a failure. I-P.A.130. When Gall informed Hussein of TSA's offer on June 17,
2003, Hussein rejected it. I-P.A.224 (Gall Decl. ¶ 12). The difference between
TSA's offer and Hussein's monetary demand for compensatory damages, punitive
damages, and back pay was over $150,000, and there was lack of agreement about
the terms of Hussein's proposed reinstatement. I-P.A.223-34 (Gall Decl. ¶ 12).
Because of the large gap between the parties' offers and demands, as well as
TSA's statement that its last offer "would be our highest possible offer," the
EEOC concluded that conciliation had failed. I-P.A.224 (Gall Decl. ¶ 13). On
June 18, 2003, the EEOC notified the parties that conciliation had failed. I-
P.A.131; I-P.A.224 (Gall Decl. ¶ 13). Neither party requested conciliation be re-
opened and neither party made a new offer or demand. I-P.A.224-25 (Gall Decl. ¶
14).
EEOC filed suit on July 17, 2003. R.1. On July 12, 2004, the EEOC,
Hussein, and TSA engaged in mediation in an attempt to settle the case, but the
mediation was unsuccessful. II-P.A.312 (Hussein Decl. ¶ 16).
The District Court Decision
The district court granted the defendant's motion for summary judgment but
denied its request for attorney's fees. The court assumed that the plaintiffs
established a prima facie case of discrimination based on race, religion, and
national origin. Addendum 24. However, the Court concluded that "the EEOC
and Hussein have failed to present sufficient evidence to raise a question of
material fact as to whether TSA's explanation that Hussein was fired because
Reed received a report that he, a probationary pilot, was in a bar in uniform was
pretextual and to create a reasonable inference of discrimination based on his race,
religion, or national origin." Id. at 29. According to the Court, the only evidence
the EEOC and Hussein presented was "Hussein's name, race, religion, and
national origin and the date he was fired–two days after the terrorist attacks on
September 11." Id. at 28. The court added, "[t]hey have introduced no statements
or actions by persons involved in TSA's decision-making process reflective of a
discriminatory attitude." Id.
The court stated that "neither the EEOC nor Hussein have introduced any
evidence that Reed was not told during a telephone call that Hussein had been in a
uniform in a bar on September 13." Id. at 25. The court pointed out that
Hussein's denial that he had been either in uniform or in a bar that evening "is not
evidence that TSA fabricated the telephone call." Id.
The court rejected the plaintiffs' contention that TSA's failure to follow its
progressive discipline policy constitutes evidence of pretext. Although the court
acknowledged that a company's failure to follow its policies may support an
inference of pretext, the court concluded that there is no dispute that TSA
followed its established policies in this case. Id. at 25. The court determined that,
because § B(5) of the CBA "specifically negates any progressive discipline
procedure for probationary pilots," "insofar as this provision conflicts with the
employee handbook's progressive discipline policy, the CBA clearly controls."
Id. at 26. The court concluded, "The evidence before the Court is that Hussein
was fired following a report to Reed that he had been in a bar in uniform and that
the progressive discipline policy did not apply to him because he was a
probationary pilot." Id. The court stated that the defendant "did follow its own
rules in firing Hussein without an investigation or notification of the reasons for
his discharge." Id. at 28.
In addition, the court determined that Hussein was treated the same as
similarly situated probationary pilots who had been fired in 1999 for drinking
alcohol 12 hours prior to reporting to work in violation of TSA's General
Operations Manual. The court stated, "Those that were probationary pilots were
discharged 'on the spot' without verification of the accuracy of the anonymous
report. The non-probationary pilots were discharged after a substantiating
statement was taken from the bartender." Id. at 26.
The district court rejected the contention that the timing of Hussein's
discharge so close to the 9/11 attacks could support an inference of discriminatory
animus. In the court's view, Reed decided to discharge Hussein "based on an
anonymous report and without an investigation that went further than learning that
Hussein was in St. Louis and was a probationary pilot." Id. at 27. The court
stated that, "assuming, without deciding, that Captain Conrecode also informed
Reed, as he had informed the FBI, that Hussein appeared to be of Middle Eastern
descent and spoke in favor of the terrorist attacks, there is no evidence that this
influenced Reed in his decision to terminate Hussein for a violation of TSA rules."
Id. The court pointed out that the only statement "credited to Reed" once he got
the call about Hussein was the comment, "[i]t doesn't matter, he was in a bar in
uniform." Id.
The court emphasized that "Hussein testified that at no time during his
employment with TSA did anyone in management or otherwise make any negative
comment about his race, religion, or national origin. Indeed, there is no evidence
that anyone in TSA's management or employ spoke against, or took any action,
after the September 11 attacks in relation to people of Middle Eastern descent."
Id. at 27. The court stated that there is evidence that Reed "was unaware of
Hussein's race, religion, or national origin" and that "[t]here is no evidence that
Reed presumed Hussein was of the Islamic faith because of his name." Id. at 27-
28. "To conclude that the EEOC and Hussein have presented a triable issue as to
pretext in response to the properly-supported pending motion, the Court would
have to find that the timing of his discharge gives rise to an inference that
someone of Hussein's name and appearance was discriminated against in reaction
to the tragic events of September 11. This the Court cannot do under the standards
set forth above." Id. at 28.
In a footnote, the court recognized that there is a dispute in the record about
what being "in uniform" means and whether Hussein was "in uniform" the night
of September 13. In the court's view, because "there is no dispute that Reed was
told [Hussein] was in uniform," reliance on an honest yet incorrect belief is not
evidence of pretext, and "any ambiguity about what being 'in uniform' requires
does not, in and of itself, support an inference of discrimination." Id. at 27 n.16
(case citations omitted).
The court rejected the defendant's request for attorney's fees. The court
stated, "[a]lthough the claims of discrimination are found to be without merit, they
are not frivolous or groundless," making an award of fees "inappropriate." Id. at
30. The court also rejected the defendant's argument that it was entitled to fees
because the EEOC failed in its duty to conciliate. The court stated, "The record
clearly shows that both the EEOC and TSA attempted to resolve this dispute
through conciliation rather than litigation." Id. at 31. The court noted that
Captain Hayes who was conducting negotiations for TSA stated "that he was
reluctant to take the time to provide further calculations because the parties were
so far apart in their respective positions." Id. Nonetheless, EEOC investigator
Gall requested that TSA perform the calculations. According to the court, the
EEOC filed suit prior to the time period specified by Gall for TSA to respond to
his request because he concluded that "Hussein and TSA were so far apart in their
respective positions." Id. The court noted, "Thus, the parties agree on this–that
they were far apart." Id. Furthermore, the court stated, "There is no indication
that the EEOC could have convinced Hussein to come down in his settlement
demand, or that TSA would have come up." Id.
STANDARD OF REVIEW
A district court's grant of summary judgment is reviewed de novo applying
the same standard as the district court. Keathley v. Ameritech Corp., 187 F.3d
915, 919 (8th Cir. 1999). In determining whether summary judgment was
appropriate, this Court assesses the facts in the light most favorable to the non-
moving party, drawing all reasonable inferences in its favor. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986); Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate only if
no reasonable fact finder could return a verdict for the Commission. Keathley,
187 F.3d at 919 ("'Summary judgment should not be granted unless the evidence
could not support any reasonable inference' of discrimination.") (quotation
omitted). This Court has emphasized that, "[b]ecause discrimination cases often
turn on inferences rather than on direct evidence, we are particularly deferential to
the non-moving party alleging discrimination." Webb v. Garelick Mfg. Co., 94
F.3d 484, 486 (8th Cir. 1996) (citation omitted). Therefore, "summary judgment
should seldom be used in employment discrimination cases." Crawford v.
Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994); Bassett v. City of Minneapolis, 211
F.3d 1097, 1099 (8th Cir. 2000) ("emphasiz[ing] the oft repeated phrase that
summary judgment should seldom be granted in discrimination cases").
SUMMARY OF ARGUMENT
Contrary to the district court's view, there is sufficient evidence to support a
finding that TSA's assertion that Mohammed Hussein was terminated because of
an anonymous report that he was in a bar in uniform is not the true explanation for
its action. A reasonable jury could infer from this finding that Hussein was
terminated for discriminatory reasons. Daniel Reed asserted that he decided to
terminate Hussein based on an anonymous tip that Hussein was in a bar in uniform
without knowing the identity or motivation of the caller or whether the allegations
were true. Reed insisted that he did no investigation because it is TSA's policy
and consistent practice not to investigate reports of misconduct for probationary
pilots such as Hussein. However, given the inconsistent statements made by Reed
and his managers regarding the company's policies and practices, a reasonable
jury could disbelieve TSA's stated reason for his termination and infer a
discriminatory motive was behind it.
First, because Reed gave inconsistent reasons for and about Hussein's
termination, a jury could infer that the explanation TSA offered in court was not
its true reason. Reed initially told the EEOC that he had instructed his flight
managers to investigate the report that Hussein was in a bar in uniform but called
off the investigation and fired Hussein when he received a call from the FBI
informing him that the FBI wanted to interview Hussein. In later statements,
however, Reed acknowledged that the FBI did not contact him until after he had
fired Hussein, and Reed asserted that he ordered Hussein's termination in response
to Conrecode's call without initiating an investigation into the identity of the
anonymous tipster or the veracity of his allegation.
Second, a jury could find that Reed's current version of events— that,
because Hussein was a probationary pilot, TSA fired him on the basis of an
anonymous phone call without even a cursory investigation to verify the
allegation—is inherently incredible, as well as inconsistent with statements of
TSA officials regarding the company's policies. The policy Hussein was accused
of violating is ambiguous, as evidenced by TSA managers' conflicting testimony
about what it means to be "in uniform." Yet Reed maintains that he decided to fire
Hussein based on the anonymous call stating that he was in a bar "in uniform"
without knowing what Hussein was wearing on the night in question or any
information at all as to the familiarity of the caller with TSA's rules regarding
uniforms. Moreover, although Reed testified that he checked on Hussein's
whereabouts on the night in question, there is contrary evidence in the record
including the testimony of TSA's flight manager that, when he told Reed shortly
after Conrecode's call that Hussein was based in St. Louis and probably
probationary, Reed immediately "instructed [him] to terminate Mr. Hussein's
employment" without any further inquiry into his whereabouts on September 13.
A reasonable jury could find it improbable that TSA would invest months of pilot
training in Hussein only to terminate him based on a brief, uncorroborated,
anonymous call reporting an act of misconduct that would not typically warrant
such a drastic penalty, and accordingly, infer from Reed's overreaction to the call
that discriminatory animus motivated him.
Additionally, there is evidence that Reed's failure to investigate the
allegation against Hussein or give him an opportunity to respond before he was
fired is inconsistent with the TSA Employee Handbook's written policies
providing for progressive discipline and fair treatment to employees. Although
the district court accepted TSA's assertion that these policies did not apply to
Hussein because he was probationary, there is evidence in the record, including
Reed's testimony, that the Handbook applied to all employees, including
probationary employees. Consequently, a reasonable jury could find, based on
TSA's departure from these policies when it fired Hussein without considering
less severe sanctions, without informing him of the reason for his termination, and
without giving him an opportunity to defend himself, that the company's
explanation constituted a pretext for discrimination.
There is also evidence that Reed's hasty termination of Hussein is
inconsistent with TSA's usual practices in addressing a report of employee
misconduct. Reed's insistence that he never conducts an investigation into reports
of misconduct by probationary pilots is inconsistent with his statement to an
EEOC investigator that he had initiated an investigation into the allegation against
Hussein, but called it off after he was contacted by the FBI. The record is also
replete with inconsistencies in TSA managers' testimony regarding the company's
practices upon receiving a complaint that a probationary pilot violated one of its
rules. While two of the managers said it would not matter if the probationary pilot
was guilty of the alleged misconduct or not, all of them testified that they would at
least want to know the identity of the caller reporting an act of misconduct. One
manager testified he assumed an investigation had been done and agreed that if
Hussein had not in fact been in a bar in uniform, his termination was unwarranted.
The district court found the plaintiffs' case wanting because there was no
evidence of statements or actions by persons involved in the defendant's decision-
making process reflecting open hostility toward Muslims or persons of Middle
Eastern descent. However, it is well-established that direct evidence is not
required to prevail in a discrimination action. The district court also erred by
uncritically accepting Reed's assertion that he did not infer from Hussein's name
that he was a Muslim or might be of Middle Eastern descent. A reasonable jury
could find that Reed knew or assumed that Hussein was Muslim and/or Middle
Eastern based on the fact that Reed knew that Hussein had a Middle Eastern
name— the same name (Mohammed) as the founder of the Muslim faith. Because
a reasonable jury could infer from the collective evidence that, if Hussein were not
Muslim and perceived to be Middle Eastern, the defendant would not have
terminated him based on an anonymous phone call without taking reasonable steps
to verify the truth of the accusation against him, summary judgment was
improperly granted.
ARGUMENT
THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT
THE DEFENDANT'S ASSERTION THAT IT FIRED HUSSEIN
BECAUSE IT RECEIVED AN ANONYMOUS REPORT THAT HE WAS
IN A BAR IN UNIFORM IS A PRETEXT FOR DISCRIMINATION.
The plaintiffs allege in this action that TSA violated Title VII by firing
Mohammed Hussein because of his religion, race, or national origin, or a
combination of those factors. The district court granted TSA's motion for
summary judgment because it concluded that there is insufficient evidence that
TSA's asserted, non-discriminatory explanation for its decision to fire Hussein is
pretextual. This was error. When the evidence is properly viewed in the light
most favorable to the plaintiffs and reasonable inferences are drawn in the
plaintiffs' favor, a reasonable jury could find that TSA's explanation is a pretext
for unlawful discrimination.
Pretext can be shown by "'such weaknesses, implausibilities,
inconsistencies, incoherence, or contradictions in the employer's proffered
legitimate reasons for its action that a reasonable factfinder could rationally find
them unworthy of credence and hence infer that the employer did not act for the
asserted non-discriminatory reasons.'" Morgan v. Hilti, Inc., 108 F.3d 1319, 1323
(10th Cir. 1997) (quoting Olson v. Gen'l Elec. Astrospace, 101 F.3d 947, 951-52
(3d Cir. 1994)). TSA is not entitled to summary judgment because there is
sufficient evidence to support a finding that TSA's assertion that Hussein was
terminated because of an anonymous report that he was in a bar in uniform is not
the true explanation for its action, and a reasonable jury could infer from this
finding that TSA terminated Hussein's employment for discriminatory reasons.
Daniel Reed testified that he received the call about Hussein on his cell
phone while he was in a morning staff meeting with several of his flight managers.
Reed stated that the caller, who did not identify himself, reported that a pilot in a
TSA uniform "was in a lower bar at the Howard Johnson's" and "was making
comments about 9/11," and that "the bartender had asked him to leave." II-
P.A.401. According to Reed, the caller told Reed Hussein's name, which the
caller said he had obtained "because he had read his ID." II-P.A.401.<5> The caller
did not tell Reed what Hussein was wearing; but stated only that he was in a
pilot's uniform. II-P.A.410-11.
Reed made no record or notes of the call, had no idea who the caller was,
nor the caller's motivation for reporting Hussein. II-P.A.399, 400, 407. Reed
testified that he did not obtain the identity of the anonymous caller because "[t]he
individual said that I would be getting a follow-up phone call explaining
everything to me." II-P.A.400, 401. Yet, within an hour of receiving the
anonymous call and after he learned that Hussein was based in St. Louis and a
probationary pilot, Reed decided to fire Hussein without knowing who had made
the call. Reed maintained that, because Hussein was probationary and he had what
he considered a credible report, he did not look into the matter further before
terminating Hussein. II-P.A.405. He stated that the company need not have just
cause to terminate a probationary pilot, and if a probationary pilot is accused of
misconduct, it is both TSA's policy and "consistent practice" to dispense with
investigating the report, informing the pilot of the reason for his termination, or
affording him an opportunity to give his side of the story.
A jury could discredit this version of events for several reasons. First, a jury
could infer that the explanation TSA offered in court for terminating Hussein was
not its true reason from the evidence that the defendant's explanation shifted over
time. See Young v. Warner-Jenkinson Co., 152 F.3d 1018, 1024 (8th Cir. 1998)
("When an employer has offered different explanations for an adverse employment
action and when evidence has been presented that would allow a reasonable trier
of fact to disbelieve each explanation, the trier of fact may reasonably infer that
the employer is hiding something–that is, that the true explanation is unlawful
discrimination").
In August 2002, Reed told the EEOC during its investigation that he had
instructed his flight managers to investigate the report that Hussein was in a bar in
uniform but called off the investigation and fired Hussein when he received a call
from the FBI informing him that the FBI wanted to interview Hussein about a
matter it would not divulge. I-P.A.112. In Reed's deposition testimony and
declaration offered in support of TSA's motion for summary judgment, however,
Reed insisted that he ordered Hussein's termination within an hour of Conrecode's
call and without engaging in any investigation because Hussein was a
probationary employee and, Reed maintained, he never investigated allegations of
misconduct by probationary pilots. II-P.A.405, 409; see also II-P.A.503-04.
Contrary to his statement to the EEOC investigator that the decision to fire
Hussein was influenced by the fact that Hussein had been interviewed by the FBI,
Reed testified at his deposition that he decided to fire Hussein before he had been
contacted by the FBI and the only reason was the anonymous report that Hussein
was seen in a bar in uniform. Such shifting justifications constitute evidence of
pretext. See EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994)
(discrepancies in justifications for termination permitted inference that
explanations were pretextual and developed over time to counter evidence
suggesting discrimination).
And Reed's statements that TSA's consistent practice is to conduct no
investigation of reports of misconduct by probationary pilots is flatly inconsistent
with Reed's earlier statement to Gall that he called off the investigation he had
asked his flight managers to perform. Because these two statements cannot be
reconciled, a jury could find that Reed, when approached by the EEOC
investigator, fabricated a story about ordering an investigation because he thought
the investigator would find it implausible that Reed fired Hussein without
verifying the accuracy of the anonymous phone call. A reasonable jury could
further conclude that TSA's present explanation for why it did not investigate the
veracity of the call–Hussein was probationary–is also false, and offered to mask
the true reason it did no investigation–bias stemming from Hussein's religion and
perceived national origin. A factfinder's disbelief of an employer's proffered
reason for an employment action, particularly where "disbelief is accompanied by
a suspicion of mendacity," allows an inference that the employer acted for a
discriminatory motive. See Reeves v. Sanderson Plumbing, 530 U.S. 133, 147
(2000) (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 501, 511 (1993)); see
also Dominguez v. Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 432 (1st Cir. 2000)
("[W]hen a company, at different times, gives different and arguably inconsistent
explanations, a jury may infer that the articulated reasons are pretextual").
In addition, a jury could reject TSA's assertion that, because Hussein was a
probationary pilot, it fired him on the basis of an anonymous phone call without
even a cursory investigation to verify the allegations because it is both inherently
implausible and inconsistent with statements of TSA officials regarding the
company's policies. The policy Hussein was allegedly terminated for violating is
ambiguous, as evidenced by the fact that even TSA's managers did not give
consistent testimony regarding what being "in uniform" means. Compare II-
P.A.464 (Swoboda Dep. 19) and II-P.A.493 (White Dep. 30-31) (pilot dressed in
pilot's dark pants and white shirt without the epaulet shoulder boards attached
would not be in uniform) with I-P.A.142 (Aman Dep. 38) and II-P.A.453 (Scott
Dep. 30) (wearing the white shirt with or without the epaulets would be
considered being in uniform). Nonetheless, Reed testified that he decided to fire
Hussein based on an anonymous phone call stating that he was in a bar "in
uniform" without any specific information as to what Hussein was wearing or any
information at all as to the familiarity of the tipster with TSA's rules regarding
uniforms. II-P.A.411.
Furthermore, Reed testified that he trusted the information relayed by the
call because he verified that Hussein was in St. Louis the night of September 13
and that if Hussein had not been in St. Louis he "was going to dismiss the call."
II-P.A.404. However, a jury could discredit Reed's testimony that he checked to
see if Hussein was in St. Louis. According to Swoboda, when he told Reed
shortly after Conrecode's call that Hussein was based in St. Louis and probably
probationary, Reed instructed him to terminate Hussein without any further
inquiry into his whereabouts on September 13. II-P.A.465. According to Aman,
Reed said nothing to those in the meeting after he finished the call. I-P.A.148.
None of the other TSA managers who were at the meeting testified that he checked
to see whether Hussein was in St. Louis before he was fired. While TSA may
argue that Reed could assume Hussein was in St. Louis on the night of September
13 because Swoboda told him Hussein was based there, a jury could find
otherwise–Hussein lived in California and commuted to his St. Louis base, and
because planes were grounded after September 11, Hussein could have been
stranded elsewhere.
Given that TSA had invested several months of pilot training in Hussein at
some expense, a jury could find it implausible that the company would be so hasty
in letting one of its pilots go and could infer from Reed's apparent overreaction to
an uncorroborated allegation against Hussein that he acted out of a discriminatory
motive. See Kempcke v. Monsanto Co., 132 F.3d 442, 447 (8th Cir. 1998) (in
reversing the district court's grant of summary judgment to the defendant in an age
discrimination case, the court held that a reasonable factfinder could conclude that
the employer's action in firing the plaintiff for giving innocently discovered
incriminating documents to his lawyer rather than returning them such an extreme
overreaction as to be "unworthy of credence"); see also EEOC v. Sears Roebuck &
Co., 243 F.3d 846, 854 (4th Cir. 2001) (in a Title VII action in which a store
manager rejected the plaintiff for a position allegedly because she thought,
mistakenly, that he had been accused of sexual harassment in the past and made no
effort to confirm that the plaintiff was indeed the suspected individual, the court
found sufficient evidence to support a finding that the defendant's asserted
justification for failing to hire the plaintiff was false, stating, "A juror could easily
find it implausible that [the decision-maker] would reject a qualified applicant,
such as Santana, without first substantiating that he was, in fact, the individual
accused of sexual harassment."); Smith v. Chrysler Corp., 155 F.3d 799, 807-08
(6th Cir. 1998) ("When the employee is able to produce sufficient evidence to
establish that the employer failed to make a reasonably informed and considered
decision before taking its adverse employment action, thereby making its
decisional process 'unworthy of credence,' then any reliance placed by the
employer in such a process cannot be said to be honestly held").
There is evidence that Reed's failure to investigate the allegation against
Hussein or give him an opportunity to respond before he was fired is inconsistent
with TSA's normal practices in dealing with a report of misconduct. An
employer's failure to follow its ususal policies may support an inference of
pretext. See, e.g., Russell v. TG Missouri Corp., 340 F.3d 735, 746 (8th Cir.
2003) ("[A]n employer's deviation from its own policies can, in some instances,
provide evidence of prextext"). Reed testified that TSA's Employee Handbook
applies to all employees, including probationary employees, and affords an
employee accused of misconduct notice of the charges against him and an
opportunity to respond. II-P.A.430. The handbook also sets out a system of
progressive discipline. I-P.A.56. TSA's failure to investigate the veracity of an
anonymous report of Hussein's misconduct and immediate termination of Hussein
without considering less severe sanctions constituted a significant departure from
these policies. TSA pilot and union leader Dario Miranda testified that being in a
bar in uniform was not a dischargeable offense and would be subject to the
progressive discipline policy. II-P.A.347-48. Chief pilot James White stated that
a month-long suspension would be an appropriate punishment for a first offense
for a nonprobationary pilot. II-P.A.498. And there is no evidence that any pilot
other than Hussein has been fired by TSA for violating this rule.
The district court concluded that Reed's explanation of his decision to fire
Hussein was corroborated by Reed's testimony about a 1999 incident in South
Bend, Indiana, in which Reed received an anonymous phone call that some TSA
pilots were drinking within 12 hours of a training exercise and fired the
probationary pilots "on the spot." Addendum at 26. Reed testified that based on
the call, he fired the entire group of 6-8 pilots at the exercise, and the probationary
pilots were fired immediately. Reed testified that for the nonprobationary pilots
involved, he obtained a statement from the bartender to verify who was drinking.
II-P.A.407-08.
However, Lionel Purnwasy, a TSA pilot who was one of the group in South
Bend for the training, gave a different version of events. According to Purnwasy,
there were 12-16 pilots at the exercise and all of them were in the bar. II-P.A.369,
372, 378. However, only three were drinking–two probationary pilots and one
nonprobationary pilot–and only those three were fired. II-P.A.369, 373.
Purnwasy recalled that the three pilots were fired "within a week" of TSA learning
they had been drinking prior to the training exercise. II-P.A.384. Because,
according to Purnwasy, not all the pilots at the training were fired, as Reed had
asserted, and the three rule-offenders were fired "within a week" rather than
immediately, a jury could infer that at least some investigation had been done to
identify which of the group had been drinking and which had not. Reed
acknowledged that the bartender's statement addressed both whether probationary
pilots were present at the bar as well as non-probationary pilots. II-P.A.407-08.
Because Reed did not fire everyone and had no way of knowing who had violated
the rule, a reasonable jury could find that the bartender's statement identifying
which of the group was drinking was obtained before the probationary pilots were
fired. If this were the case, a jury could conclude that TSA's failure to verify the
accuracy of Conrecode's call and its decision to terminate Hussein an hour after
receiving the call demonstrates that Hussein was not given the same treatment as
the probationary pilots in South Bend. Accordingly, a reasonable jury could find
that discriminatory animus motivated Hussein's termination.
Even if the evidence did establish that the probationary pilots accused of
drinking in South Bend were terminated without an investigation into the veracity
of the report, however, this would not compel a finding that Reed's explanation
for Hussein's termination is true. Because Reed had sent the group of pilots to
South Bend for training, he knew they were there when he received the call
reporting that TSA pilots were drinking within 12 hours of the training exercise.
II-P.A.407. Furthermore, the pilots in South Bend were accused of a more serious
violation–three pilots had been drinking prior to participating in the training
exercise, and at least one was intoxicated. II-P.A.373, 382-83. Moreover, the
policy they were accused of violating–drinking alcohol within 12 hours of
reporting for duty–is more straightforward than the policy prohibiting pilots from
being in a drinking establishment in uniform. Consequently, a jury could reject
TSA's assertion that other probationary pilots were treated in the same manner as
Hussein. Cf. Cherry v. Ritenour Sch. Dist., 361 F.3d 474, 479 (8th Cir. 2004) (test
to determine whether employees are "similarly situated" is a "rigorous one;"
individuals used for comparison must have engaged in the same conduct without
any mitigating or distinguishing circumstances). Thus Reed's testimony regarding
the South Bend incident does not conclusively establish that Reed would have
fired Hussein without an investigation into Conrecode's call simply because he
was probationary.
In addition, TSA's failure to give Hussein a reason for his termination or
give him a chance to defend himself is inconsistent with the handbook's open door
policy and general policies regarding the fair treatment of employees and
encouragement of open communication between management and employees, as
well as inconsistent with how the company typically acted, at least according to
flight manager Aman. Aman agreed that TSA should have asked Hussein if he
had witnesses to his behavior the night of the 13th, that it would not have
surprised him if TSA had done so, and that he assumed Hussein had been given an
opportunity to name witnesses in his defense. See I-P.A.155 ("If Mr. Hussein had
witnesses or whatever, that would have peaked [sic] my curiosity, but he made no
claim").
The district court accepted TSA's assertion that the Employee Handbook's
policies regarding the fair treatment of employees, open door policy, and
progressive discipline policy afforded no protection or rights to Hussein because
he was a probationary pilot. See Addendum at 26. There is evidence casting
serious doubt upon the contention that the Handbook is inapplicable to
probationary pilots or that there is a conflict between the CBA and Employee
Handbook. The district court erred in accepting the defendant's assertion
uncritically, without considering contrary evidence. See Reeves, 530 U.S. at 151
("'Credibility determinations, the weighing of evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge'")
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)); Yates v. Rexton,
267 F.3d 793, 800 (8th Cir. 2001) (district court is prohibited from making a
credibility judgment or a factual finding from conflicting evidence). The
Handbook does not distinguish between probationary and non-probationary
employees nor indicate that probationary pilots are excluded from any of its
provisions. Reed himself testified that the Handbook is applicable to every
employee of TSA. II-P.A.397. See Young, 152 F.3d at 1024 (court rejected
defendant's contention that employee policy manual did not apply to temporary
employees because a former human resources manager testified that the policy
manual applies to all employees).
The district court erred in accepting TSA's assertion that the Handbook
policies conflict with the CBA's provision exempting probationary pilots from the
union's grievance process in the event of discipline and discharge. A reasonable
jury could find that the CBA and the Handbook can be read together without
conflict based on the plain language of the documents. The fact that Hussein did
not have access to the union's grievance process would not necessarily cancel out
the rights and benefits outlined in the Handbook. Miranda, who was familiar with
these documents as the head of the pilot's union, testified that nothing in the GOM
or CBA conflicts with the Employee Handbook's policies of fair treatment and
open communication with employees. II-P.A.346. Miranda's testimony directly
conflicts with Reed's, yet the district court accepted Reed's testimony. This was
improper. See Reeves, 530 U.S. at 151 ("[A]lthough the court should review the
record as a whole, it must disregard all evidence favorable to the moving party that
the jury is not required to believe"). Accordingly, a jury could find that the
manner in which TSA terminated Hussein deviated from its written policies and
infer that TSA stated reason for firing Hussein is pretextual. See, e.g., Stern v.
Trs. of Columbia Univ., 131 F.3d 305, 313 (2d Cir. 1997) (reasons for
employment decisions are subject to scrutiny under Title VII and "'[d]epartures
from procedural regularity . . . can raise a question as to the good faith of the
process where the departure may reasonably affect the decision'") (quoting
Zahorik v. Cornell Univ., 72 F.2d 85, 93 (2d Cir. 1984)).
There is conflicting evidence as to the truthfulness of TSA's assertion that
its "consistent practice" was not to "conduct an investigation, provide a reason for
discipline or discharge, or provide the probationary pilot an opportunity to present
information on his behalf." II-P.A.440. TSA's assertion that it undertakes no
investigation of accusations against probationary pilots is belied by Reed's
explanation to EEOC investigator James Gall in August 2002 that he had called
off the investigation regarding Hussein once he got a call from the FBI informing
him that the FBI wanted to interview Hussein. I-P.A.112. Moreover, there are
inconsistencies in TSA managers' testimony regarding the company's practices
upon receiving a complaint of a pilot violating one of its policies. For example,
although flight manager Swoboda testified that TSA would not care if the
probationary employee actually violated a rule or if he had been falsely accused,
when Swoboda was asked what he would do to investigate to determine whether
or not a rule of conduct had in fact been broken as reported, he replied, "If a rule
of conduct was broken by a probationary employee . . . . I would have to know
something about the accuser." II-P.A.482. He testified that he would want to
know whether the accuser was a pilot and his motivation for making the
accusation. Id. And while chief pilot White testified that, because probationary
pilots are not afforded rights under the collective bargaining agreement, the
company would not need to verify if Hussein was actually guilty of a rule
violation, he stated he would want to know the identity of the person reporting the
incident "in most cases." II-P.A.495. According to White, the identity and
position of the person reporting misconduct would be important, as would an
assessment of the caller's credibility. Id.
Flight manager Aman agreed that if Hussein was not in uniform or in a bar,
his discharge was unwarranted. I-P.A.153. Aman testified that he assumed an
investigation had been done because the company did not take lightly decisions to
terminate pilots. I-P.A.153. Aman stated the company "should investigate" and
that he assumed and trusted that they had investigated the report about Hussein.
I-P.A.153. Instead of stating that no investigation was warranted because of
Hussein's probationary status, Aman offered, "I didn't do the investigation . . . I
don't know what-all, who-all was interviewed; I don't know where the interviews
took place. I don't know if they had a picture of the man in uniform . . . ."
I-P.A.155. In answer to the question of what would Aman do if someone called in
and identified a pilot as being in a bar in uniform, he agreed that he would want to
know the identity of the caller, the name of the bar where the pilot was seen, when
the pilot had been seen, and agreed that he would want to make a record of the
phone call. I-P.A.153-54. He also stated that he would want to know if Hussein
had witnesses and agreed that TSA should have asked Hussein if he had any
witnesses. I-P.A.155. A jury could conclude from this testimony that such
measures were typically taken, and that TSA had departed from its usual practice
in its handling of the call about Hussein.
Based on this evidence, which is not mentioned in the district court's
decision, a reasonable jury could find that, although probationary pilots lack a
contractual right to an investigation, TSA's normal practice would be to at least
make some effort to verify the truth of an anonymous report of misconduct.
Although Reed admitted that he did not determine the identity of the caller before
ordering Hussein's termination and stated that he would never do so where a
probationary pilot was accused of misconduct, every other manager who testified
agreed that he would want to know the identity of the caller in such a case. A jury
could view these inconsistencies as further evidence that the company's stated
reason for terminating Hussein was not the real reason. See Reeves, 530 U.S. at
148 ("[O]nce the employer's justification has been eliminated, 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").
The district court found the plaintiffs' case lacking because the record
contains "no statements or actions by persons involved in TSA's decision-making
process reflective of a discriminatory attitude." Addendum at 28; see also id. at 27
(noting that there is no evidence anyone at TSA took action against or spoke out
against people of Middle Eastern descent). According to the court, the only
evidence presented was "Hussein's name, race, religion, and national origin and
the date he was fired–two days after the terrorist attacks on September 11." Id.
The district court is mistaken. This case should go to a jury because there is
sufficient evidence to support a finding that TSA's articulated nondiscriminatory
reason for firing Hussein is false, as detailed above. See Reeves, 530 U.S. at 147
("Proof that the defendant's explanation is unworthy of credence is simply one
form of circumstantial evidence that is probative of intentional discrimination, and
it may be quite persuasive"). Were this not the case, the mere fact that an
individual with a Muslim or Arab-sounding name was fired shortly after
September 11 would not be enough to support a Title VII claim.
The court also thought it was important that the only person who testified
that he heard Reed say anything in relation to the call reporting Hussein testified
that Reed said only "it doesn't matter, he was in a bar in uniform." This, in the
court's view, shows that Reed did not voice any hostility towards Muslims or
Arabs. See id. However, it is well established that direct evidence is not
necessary to prove a discrimination claim under Title VII. See, e.g., Desert Palace,
Inc. v. Costa, 539 U.S. 90, 100 (2003) ("We have often acknowledged the utility
of circumstantial evidence in discrimination cases"); Griffith v. City of Des
Moines, 387 F.3d 733, 744 (8th Cir. 2004) (Magnuson, J., concurring) ("The
language and legislative history of the Civil Rights Act of 1991 do not support a
distinction between direct and indirect evidence"). A Title VII plaintiff may
establish that the defendant acted for a discriminatory motive by means of either
direct or circumstantial evidence, Cherry, 361 F.3d at 478, and circumstantial
evidence should not be seen as inferior. See U.S. Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 716 (1983) (recognizing that direct evidence is not required
because "[t]here will seldom be 'eyewitness' testimony as to the employer's
mental processes," thus the "sensitive and difficult" issue of intentional
discrimination will frequently be proven by circumstantial evidence of pretext).
In its decision, the district court stated that there is evidence–in the form of
Reed's own testimony–that Reed "was unaware of Hussein's race, religion, or
national origin," and there is no evidence that Reed "presumed that Hussein was of
the Islamic faith because of his name." Addendum at 27-28. However, a jury
could find that Reed at least suspected that Hussein was Muslim or Arab or both.
That a person would not connect the name Mohammed Hussein with being
Muslim and Arab defies belief. It is widely known that Mohammed is a common
Muslim first name. Because Mohammed was the founder of Islam, many Muslims
are named after him, including the famous boxer Mohammed Ali. Moreover, the
pilot who flew the first plane into the World Trade Center was named Mohammed
Atta. "Hussein" is a well-known Middle-Eastern name given that, at the time of
the events in question here, the ousted Iraqi dictator Saddam Hussein was an
infamous Arab leader.
The district court ignored these realities, instead focusing on the fact that
the only thing anyone remembers Reed saying when he got the call about Hussein
was "it doesn't matter, he was in a bar in uniform." See Addendum at 27. TSA is
free to argue to a jury that this demonstrates a lack of discriminatory animus on
Reed's part, but it is not conclusive. Swoboda did not recall Reed saying anything
to the caller. See II-P.A.465 (testifying that Reed's conversation could not be
heard and Reed returned to the room after the call had ended). Moreover, Reed
knew Hussein's name and was told, days after the 9/11 terrorist attacks, that
Hussein was making comments supportive of the attacks by a person who believed
he was of Middle Eastern descent "based on his name" and who told the police he
was Middle Eastern when he reported Hussein's activities the night of September
13. Conrecode testified that he "may have" told Reed that Hussein was making
comments in support of the 9/11 attacks and that the FBI would be contacting TSA
because he had reported his behavior to the FBI. I-P.A.196. Based on this
evidence and the fact that Mohammed Hussein's name is plainly Muslim and
Arab-sounding, a jury could find implausible Reed's testimony that he had no idea
what Hussein's religious faith was and did not consider that he was Middle
Eastern, particularly days after the 9/11 attacks when hostility towards Muslims
and Arabs was widespread. See Sarmiento v. Queens Coll. CUNY, No. 01-CV-
5266, 2005 WL 396385, at *11 (E.D.N.Y. Feb. 11, 2005) (in Title VII action,
court noted "[i]t is likely that [one of the decision-makers] knew that Plaintiff was
Hispanic given his identifiably Hispanic name."); cf. Hernandez v. State of Texas,
347 U.S. 475, 480 n.12 (1954) (in case challenging exclusion of Hispanics from
jury service, the Court rejected the defendant's argument that the plaintiff should
not have relied on names as showing the descent of persons in the Texas county at
issue, and stated that "just as persons of a different race are distinguished by color,
these Spanish names provide ready identification of the members of this class").
In Rosen v. Thornburgh, 928 F.2d 528, 534 (2d Cir. 1991), a Title VII
action, the court of appeals found "unavailing" the defendants' contention that the
plaintiff could not survive summary judgment because the person who
recommended he be terminated during a training program, during which the
plaintiff had been subject to harassing comments, did not know he was Jewish.
The court stated: "We believe that a trier of fact might reasonably conclude that
Rosen's religion was apparent from his surname as well as from the vocal anti-
semitism engendered by his presence at the [training center]." Id. A reasonable
jury could make a similar connection in this case–that Hussein's religion and
national origin were apparent from his name, and the fact that the report which
precipitated his termination was linked to the 9/11 attacks.
A jury weighing the conflicting evidence could conclude that Reed credited
the call from Conrecode and failed to give Hussein the same treatment he would
have had his name been Joe Smith. The district court maintained that, even
assuming that Conrecode informed Reed that Hussein appeared to be of Middle
Eastern descent and spoke in favor of the terrorist attacks, there was no evidence
that this influenced Reed's decision to terminate Hussein. On a motion for
summary judgment, the court was required to assume Conrecode told Reed
Hussein was of Middle Eastern descent because it is a reasonable inference, and
whether it influenced Reed is a question for the jury. "To survive summary
judgment, [the plaintiff] must adduce enough admissible evidence to raise genuine
doubt as to the legitimacy of a defendant's motive, even if that evidence does not
directly contradict or disprove a defendant's articulated reasons for its actions."
Buettner v. Arch Coal Sales Co., Inc., 216 F.3d 707, 717 (8th Cir. 2000).
CONCLUSION
For the foregoing reasons, the judgment of the district court should be
reversed and the case remanded for further proceedings.
Respectfully submitted,
ERIC S. DREIBAND
General Counsel
VINCENT J. BLACKWOOD
Acting Associate General Counsel
___________________________________
JULIE L. GANTZ
Attorney
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
1801 L Street, N.W.
Washington, D.C. 20507
(202) 663-4718
June 20, 2005
CERTIFICATE OF COMPLIANCE
Pursuant to FRAP 32(a)(7)(C), I certify that this brief has been prepared in
proportionally spaced typeface using Corel Word Perfect 9, Times New Roman
14-point font, and the textual portion contains 13,026 words.
_________________________
Julie L. Gantz
CERTIFICATE OF SERVICE
I hereby certify that two copies of the foregoing brief have been overnight
mailed to:
William B. Jones
MCMAHON, BERGER, HANNA, LINIHAN,
CODY & MCCARTHY
2730 North Ballas Road, Suite 200
St. Louis, MO 63131
Jerome J. Dobson
Michelle D. Neumann
WEINHAUS, DOBSON,
GOLDBERG & MORELAND
906 Olive Street, Suite 900
St. Louis, MO 63101
____________________________
Julie L. Gantz
Attorney
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
1801 L Street, N.W.
Washington, D.C. 20507
June 20, 2005
ADDENDUM
**************************
<NOTES>
<1> Citations to the record are abbreviated "R." and refer to the district court
docket number.
<2> The FBI Report was filed separately with the Clerk because it was filed under
seal in the district court and was subject to a protective order issued by the
district court.
<3> This intake form documenting Conrecode's call to the St. Louis Airport Police
is attached to the FBI Report that was filed under seal in the district court.
<4> There is a conflict in the evidence as to when this call occurred. Flight
manager Mike Swoboda testified that he prepared Hussein's termination letter on the
same day that Conrecode called TSA, and gave the letter to Hussein the following day.
II-P.A.466. It is undisputed that Swoboda gave Hussein his termination letter on
September 18.
<5> Conrecode testified that he learned Hussein's name and employer from the hotel's
desk clerk. I-P.A.182. Conrecode could not recall if Hussein showed his ID at any
time in Skooner's. I-P.A.181 (Conrecode Dep. 41).
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