SUMMARY OF THE CASE AND REQUEST FOR ORAL ARGUMENT

The Commission is appealing the summary judgment granted to the defendant community hospital in this EEOC enforcement action. The Commission alleges that the defendant violated Title VII by openly refusing to consider the charging party, a male nurse — or any other prospective male applicant — for a vacant posted position as circulating nurse in the operating room because of his gender. Evidence shows that when the charging party asked the OR director whether she would consider him for the OR position, she flatly told him (and everyone else within earshot) that she intended to fill the position with a woman; there were too many men in the OR. Following this conversation with the director, the charging party decided not to submit a formal application. The defendant admits that female gender is not a BFOQ for the position.

In granting summary judgment, the district court found that the director’s statement was not direct evidence because it was not causally linked to the decision to hire someone other than the charging party for the vacant position. Moreover, the charging party was not actually denied the job because he never formally applied for it, so there was no adverse action. Similarly, although the Commission argued that the proof scheme set forth in McDonnell Douglas v. Green, 411 U.S. 792 (1973), was inapplicable in light of the evidence of Audrain’s overt discriminatory practice, the district court nevertheless analyzed the case under that proof scheme. The court then concluded that the Commission could not establish a McDonnell Douglas prima facie case because the charging party never applied; he had no OR experience; and, having just transferred into a new position, he was ineligible for another transfer under the hospital’s Transfer Policy.

The Commission believes that oral argument would be helpful to the Court in untangling the various arguments and theories in this case. We request 20 minutes per side.

TABLE OF CONTENTS

Page(s)

SUMMARY OF THE CASE AND REQUEST FOR ORAL ARGUMENT... i

TABLE OF CONTENTS................................................................................ iii

TABLE OF AUTHORITIES........................................................................... v

STATEMENT OF JURISDICTION.............................................................. 1

STATEMENT OF THE ISSUES................................................................... 2

STATEMENT OF THE CASE

1. Nature of the Case and Course of Proceedings.................................... 4

2. Statement of Facts............................................................................... 4

The Transfer Policy.............................................................................. 5

The March 2010 Job Postings.............................................................. 6

Brooks’s Announcement of Her Intention

to Select a Female and its Aftermath.......................................... 8

Doing the “Right” Thing...................................................................... 12

EEO Training...................................................................................... 16

The Lawsuit........................................................................................ 17

3. District Court’s Decision.................................................................... 18

SUMMARY OF ARGUMENT..................................................................... 20

STANDARD OF REVIEW........................................................................... 24

ARGUMENT

I. Summary Judgment Was Inappropriate Because

Direct Evidence Shows that Brooks Intended to Fill

the Nursing Vacancy with a Female Nurse, and

Audrain Admitted that Being a Woman Was Not a BFOQ

for the Position........................................................................................ 25

II. Because Audrain Engaged In Overt Sex Discrimination,

the McDonnell Douglas Framework Was Inapplicable............................ 38

CONCLUSION............................................................................................. 45

CERTIFICATE OF COMPLIANCE............................................................. 46

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

CASES Page(s)

Adams v. Nolan,

962 F.2d 792 (8th Cir. 1992)............................................................. 41, 42

Banks v. Heun-Norwood,

566 F.2d 1073 (8th Cir. 1977)................................................................ 31

Bashara v. Black Hills Corp.,

26 F.3d 820 (8th Cir. 1994)......................................................... 24, 40-41

Chambers v. Wynne School District,

909 F.2d 1214 (8th Cir. 1990)................................................................ 33

Culpepper v. Vilsak,

664 F.3d 252 (8th Cir. 2011).................................................................. 19

Diaz v. Pam Am World Airways,

442 F.2d 385 (5th Cir. 1971).................................................................. 37

Dothard v. Rawlinson,

433 U.S. 321 (1977)............................................................................... 28

Easley v. Empire, Inc.,

757 F.2d 923 (8th Cir. 1985)......................................................... 2, 31, 43

EEOC v. Wal-Mart Stores,

477 F.3d 561 (8th Cir. 2007).............................................................. 43-44

Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978)............................................................................... 39

Green v. City of St. Louis,

507 F.3d 662 (8th Cir.2007)................................................................... 33

Griffith v. City of Des Moines,

387 F.3d 733 (8th Cir. 2004)................................................................ 26-27

Gunther v. Iowa State Men’s Reformatory,

612 F.2d 1079 (8th Cir. 1980),

overruled on other grounds,

Kremer v. Chem. Constr. Corp., 456 U.S. 461 (1982)........................ 3, 28

Harrison v. United Auto Group,

492 F.3d 972 (8th Cir. 2007).................................................................. 19

International Union v. Johnson Controls,

499 U.S. 187 (1991)...................................................................... 3, 28, 36

Jackson v. UPS,

643 F.3d 1081 (8th Cir. 2011)........................................................... 19, 33

Kratzer v. Rockwell Collins,

398 F.3d 1040 (8th Cir. 2005)................................................................ 26

Krenik v. County of Le Sueur,

47 F.3d 953 (8th Cir. 1995).................................................................... 24

McCullough v. University of Arkansas for Medical Sciences,

559 F.3d 855 (8th Cir. 2009)............................................................. 18, 26

McDonnell Douglas v. Green,

411 U.S. 792 (1973).............................................................................. passim

O’Neal v. City of New Albany,

293 F.3d 998 (7th Cir. 2002).................................................................. 35

Perry v. Kunz,

878 F.2d 1056 (8th Cir. 1989)......................................... 2, 3, 26-27, 40-42

Price Waterhouse v. Hopkins,

490 U.S. 228 (1989)............................................................................... 43

Reeves v. Sanderson Plumbing Products,

530 U.S. 133 (2000)............................................................................... 25

Shannon v. Ford Motor Co.,

72 F.3d 678 (8th Cir. 1996).................................................... 32, 35, 40-41

Smith v. City of Des Moines,

99 F.3d 1466 (8th Cir. 1997).................................................................. 25

St. Martin v. City of St.Paul,

680 F.3d 1027 (8th Cir. 2012)................................................................ 42

Teamsters v. United States,

431 U.S. 324 (1977)............................................................ 2, 3, 31, 32, 43

Texas Dep’t of Community Affairs v. Burdine,

450 U.S. 248 (1981)................................................................. 3, 39-40, 44

TWA v. Thurston,

469 U.S. 111, 121 (1985)......................................................... 3, 28, 39-40

Young v. Warner-Jenkinson Co.,

152 F.3d 1018 (8th Cir. 1998)................................................................ 24

STATUTES, REGULATIONS, AND RULES

28 U.S.C. § 1291.......................................................................................... 2

28 U.S.C. § 1331.......................................................................................... 1

28 U.S.C. § 1345.......................................................................................... 1

29 U.S.C. § 623(f)(1)).................................................................................. 28

Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. § 2000e et seq................................................................... passim

42 U.S.C. § 2000e-2(a)..................................................................... passim

42 U.S.C. § 2000e-2(e)........................................................................ 3, 28

42 U.S.C. § 2000e-5(f)............................................................................. 1

29 C.F.R § 1604.2(a)(1)(iii)......................................................................... 37

Federal Rule of Appellate Procedure 4(a)(1)(B)............................................ 2

Federal Rule of Civil Procedure 56(c).......................................................... 24

OTHER AUTHORITY

Audrain Medical Center Begins New Partnership With SSM, available at http://www.audrainmedicalcenter.com, last visited on 6/12/2013............... 44

IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

______________________

No. 13-1720

______________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellant,

AUDRAIN HEALTH CARE, INC.,

Defendant-Appellee.

____________________________________________________

On Appeal from the United States District Court

for the Eastern District of Missouri

____________________________________________________

BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

AS APPELLANT

____________________________________________________

STATEMENT OF JURISDICTION

The Commission brought this enforcement action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1345 and 42 U.S.C. § 2000e-5(f). The district court granted defendant’s motion for summary judgment (Appendix-196 (“Apx-196”)), and entered judgment for the defendant on January 28, 2013. Apx-208. The notice of appeal was filed on March 28, 2013 (Apx-209), and was timely. Fed. R. App. P. 4(a)(1)(B). This Court has jurisdiction under 28 U.S.C. § 1291.

STATEMENT OF ISSUES

(1) The charging party in this case worked for the defendant hospital as a nurse. It is essentially undisputed that when the charging party asked the director of the Operating Room (“OR”) whether she would consider him for a nursing vacancy in the OR, she responded that she wanted to fill the position with a woman. A jury could thus find that the director’s response confirms that she would not consider men for the OR position and, moreover, deterred the charging party (and would have deterred any other prospective male applicant) from applying for the position. Given the director’s statement, did the district court err in finding no direct evidence of gender discrimination?

Teamsters v. U.S., 431 U.S. 324 (1977)

Perry v. Kunz, 878 F.2d 1056 (8th Cir. 1989)

Easley v. Empire Inc., 757 F.2d 923 (8th Cir. 1985)

(2) The statutory defense to a claim that an employer openly engaged in gender discrimination is that gender is a “bona fide occupational qualification reasonably necessary to the normal operation of [the employer’s] business” (“BFOQ”). Here, the evidence would support a finding that the defendant openly engaged in discrimination against male prospective applicants for the OR nursing position and conceded that being a woman was not a BFOQ for the position. Did the district court err in granting summary judgment to the defendant?

42 U.S.C. §§ 2000e-2(a) & 2000e-2(e)

International Union v. Johnson Controls, 499 U.S. 187 (1991)

Gunther v. Iowa State Men’s Reformatory, 612 F.2d 1079 (8th Cir. 1980), overruled on other grounds, Kremer v. Chem. Constr. Corp., 456 U.S. 461 (1982)

(3) The three-step burden-shifting proof scheme set forth in McDonnell Douglas v. Green, 411 U.S. 792 (1973), was designed to allow a plaintiff to prove a claim of intentional discrimination inferentially, without direct evidence of discrimination. In light of strong affirmative evidence that the defendant had decided not to consider men for the OR position and, so, deterred male applicants including the charging party from applying for the position, did the district court err in analyzing the Commission’s gender discrimination claim under the McDonnell Douglas framework and rejecting the claim on the ground that the Commission could not establish the elements of a McDonnell Douglas prima facie case?

TWA v. Thurston, 469 U.S. 111 (1985).

Teamsters v. U.S., 431 U.S. 324 (1977)

Tex. Dep’t of Community Affairs v. Burdine, 450 U.S. 248 (1981)

Perry v. Kunz, 878 F.2d 1056 (8th Cir. 1989)

STATEMENT OF THE CASE

1. Nature of the Case and Course of Proceedings

This is an appeal from a final judgment of the district court dismissing this Title VII enforcement action. On August 9, 2011, the Commission brought suit alleging that the defendant refused to consider the charging party for a vacant nursing position in the OR because he is a man. Apx-1. On January 28, 2013, the district court granted defendant’s motion for summary judgment (Apx-17) and denied the Commission’s motion for partial summary judgment (Apx-178). Apx-196 (Memorandum and Order). In pertinent part, the court held that there was no adverse action because, after being told by the OR director that she intended to fill a particular position with a woman, the charging party did not formally apply for the job.

2. Statement of Facts

David Lunceford has worked as a nurse at Audrain Medical Center since 2004. Apx-30 (Lunceford:30).[1] Like most nurses there, he has transferred into and out of several departments including the Post-Anesthesia Care Unit (PACU) and the Critical Care Unit (CCU). Id. (Lunceford:29-30), Apx-44 (Lunceford:87) (discussing transfers). These are part-time positions, with optional benefits. See, e.g., Apx-52-53 (Lunceford:48-49). While Lunceford had, in the past, received only satisfactory performance appraisals (Apx-33 (Lunceford:46-47 (noting criticisms)), in February 2010, his then-supervisor, Linda Brooks, gave him the highest possible overall rating, “Exceeds Expectations.” See Apx-188-95 (2010 Evaluation); Apx-116 (Brooks:71-72); see also Apx-116-17 (Brooks:73-74 (agreeing that he seemed to have resolved attendance issues)); Apx-125 (Brooks:106-07) (same for issues regarding “team-centered approach”).

The Transfer Policy

Audrain has a Transfer Policy that governs voluntary employee transfers. See Apx-143-44 (policy). According to the policy, employees seeking to transfer into a vacant posted position must submit a completed transfer request form to the HR department for each vacancy for which they wish to be considered. Id. While the policy itself is silent on this point, Audrain’s HR Director, Christy Smiley, attested that a “transfer is deemed effective” upon “administrative approval,” and the employee is ineligible to transfer to another position “except as provided in the Transfer Policy.” Apx-167-68 (Smiley Aff. ¶¶ 24-25). Purportedly to minimize disruptions and start-up time in the affected units as well as to avoid having continually to re-post the same vacancy (Apx-165, 168 (Aff. ¶¶ 7, 25)), the policy specifies that employees ordinarily must remain in one position for at least six months before applying for another transfer. Apx-143.

There is an exception to the six-month no-transfer rule when the “affected department directors mutually agree that a transfer should occur earlier.” Apx-143. It is unclear how the directors’ agreement is requested and obtained. The Policy specifies that employees are not to speak directly to the head of the transferee department. However, Vice-President/Chief Nursing Officer Kari Wilson suggested that an employee desiring a waiver could talk to his/her current supervisor, who would initiate the process. Apx-69 (K.Wilson:31-32).

There is evidence that in the fourteen months after January 2009, the hospital made exceptions to the six-month rule for at least five employees. Apx-157 (Q/A#4); Apx-177 (list of employees); but cf. Apx-45-46 (Lunceford:92-95) (suggesting several others). None of the five transferred into the OR. Apx-177. Two nurses transferred to the OB/GYN-Pediatrics Unit, which required special training, but evidence suggests that one of those nurses had occasionally “floated” to the unit while the other had previous experience as an OB nurse. See id.

The March 2010 Job Postings

In March 2010, Audrain posted vacancy announcements for two nursing positions. One announcement was for a part-time (24 hr/wk) weekends-only job in the CCU. Apx-174 (job requisition). At that time, Lunceford was working in the PACU, under the supervision of Brooks, who was also the director of the OR. Apx-100 (Brooks:5). Since he had experience in the CCU and the position looked like it might guarantee more hours than his current job, Lunceford completed a transfer request form and received a transfer to the CCU. Apx-36-37 (Lunceford:56-57, 59); Apx-175 (transfer request). His scheduled start date in the CCU was April 22, 2010. Apx-176 (personnel action form).

The other announcement was for a full-time job as circulating nurse in the OR. Apx-173 (job requisition); Apx-188 (job announcement). A circulating nurse does not actually assist in surgeries, but is responsible, for example, for preparing a patient for surgery and acting as the patient’s “advocate” during the procedure. Apx-30-31 (Lunceford:32-33); Apx-120 (Brooks:85). As in other units of the hospital, there was substantial employee turnover in the OR. However, unlike nursing positions in the CCU, for example, nursing jobs in the OR require several months of special training, so few people requested a transfer to that position. See, e.g., Apx-31 (Lunceford:33) (90 days training or more); Apx-89 (K.Wilson:112) (4-6 months training); see also Apx-111 (Brooks:50) (recalling only one applicant for the OR position before Lunceford expressed interest in it).

To address this problem, in mid-April, Audrain announced that it would guarantee 40 hours/week of pay for circulating nurses in the OR. Apx-117-18 (Brooks:76-78); Apx-90 (K.Wilson:113). Although Lunceford had not attempted to transfer to the OR position when the vacancy was first posted, the pay guarantee made the position more attractive to him. He had never worked in the OR, but he considered himself a “quick learner” (Apx-70 (Lunceford:34)), and the posted job announcement did not specify that OR experience was required. See generally Apx-188 (announcement). As Brooks admitted, he met all the requirements listed in the announcement, including a nursing degree, “experience in [an] acute or sub-acute health care setting,” and the “[a]bility to demonstrate emotional perseverance in working with others.” Id. (also encouraging anyone meeting the requirements to submit an application); Apx-110 (Brooks:46-48) (agreeing that Lunceford met those requirements).

Lunceford was aware of the Transfer Policy, as well as the exception, and he had not yet started his new assignment. Apx-37-38 (Lunceford:60-61). As director of the OR, Brooks would have been one of the two department heads who would have had to agree to any waiver of the 6-month transfer rule. She had just given him an excellent performance appraisal for his work in the PACU. Apx-116 (Brooks:71-72). Accordingly, Lunceford decided to ask her whether she would consider him for the OR position.

Brooks’s Announcement of Her Intention to Select a Female

and its Aftermath

On about April 16, Lunceford approached Brooks and asked whether the circulating nursing position was still available. When she told him that it was, he asked whether she would consider training him for the position. Apx-39 (Lunceford:65); cf. Apx-117 (Brooks:75) (acknowledging that she had sometimes hired inexperienced circulating nurses and then trained them). Brooks’s initial response was to ask whether he was “really serious” about the job. Apx-39 (Lunceford:65, 67-68). He answered that he was. She then informed him that she wanted to fill the position with a woman. See id. This announcement was heard not only by Lunceford but also by the department secretary, Lori Martien, and by Garrett Wilson, the only male nurse in the OR. Apx-40 (Lunceford:72).

Although there are some minor variations in exactly what these individuals remember Brooks saying, their recollections are generally consistent. Lunceford remembers that Brooks said, “I hate to discriminate against you because you’re a man but the doctors want more female nurses in the OR.” Moreover, “if you had an all-male staff and you had an anesthetized patient that complained, ... that would be bad.” Apx-39 (Lunceford:66). Garrett Wilson remembers that Brooks said something like, “I’m sorry, I can’t hire you back there. You’re a man, and we’ve got too many men back there. . . . [T]he doctors [don’t] want any more men back there, and it was [] hard to staff with men back there . . . .” Apx-182 (G. Wilson:9-10). Finally, Martien stated that she recalled Brooks telling Lunceford that “she really could not take on another ... male RN looking out for the patients.” See Apx-170 (Martien:7-8).

Brooks herself recalled saying that she “wanted to fill the position with a woman” because she had concerns about having the right staffing “mix.” Apx-110 (Brooks:45). According to Brooks, she also attempted to explain that she needed female nurses for anesthetized female surgical patients to alleviate their anxiety, particularly for female-type procedures. Apx-123 (Brooks:98-99) (adding that she had assumed that Lunceford, as a “caring nurse,” would have “seen the reasoning” behind that).

During their conversation, Brooks did not suggest that Lunceford was ineligible for the position due to his imminent transfer to the CCU or his lack of OR experience. She identified only gender as the factor that would disqualify him from consideration.

Lunceford reacted to Brooks’s announcement with “shock” and anger. See, e.g., Apx-39 (Lunceford:66). In his view, the idea that only a female nurse should care for anesthetized female patients in the OR did not make sense since he and other male nurses routinely cared for sedated female patients in the CCU. He further explained that because such patients were sometimes incontinent or required other special procedures, for example, their private parts might also be exposed in the CCU. Apx-47-48 (Lunceford:100-04). Nevertheless, concluding that he “wouldn’t be considered if he did apply,” he never completed a transfer request form for the OR position. Apx-133 (Smiley 9-10) (describing conversation with Lunceford); Apx-77 (K.Wilson:63-64) (agreeing that Lunceford had changed his mind about wanting the position after talking to Brooks); cf. Apx-59 (Lunceford:147-48) (saw no reason to complete an internal discrimination complaint since HR “pretty much affirmed that [he] was not qualified because [he] was male”).

Some days later, Lunceford did complain about Brooks’s announcement, first to HR Director Christy Smiley, and then to Brooks’s supervisor, Chief Nursing Officer Kari Wilson. Lunceford testified that neither Smiley nor Wilson suggested that his lack of OR experience or his imminent transfer to the CCU rendered him unqualified for the OR position or ineligible under the Transfer Policy. Apx-59 (Lunceford:147); but see Apx-88 (K.Wilson:108) (Wilson specifically recalls mentioning the transfer policy).

According to Lunceford, Smiley told him that she, Kari Wilson, and Brooks had already discussed the situation. In Smiley’s view, it was just “the way [Wilson and, presumably, Brooks were] trained, that you always have to have a female in the room with an anesthetized [] female patient.” Apx-217 (Lunceford:98) (adding that Smiley “acted like she didn’t want to talk about it”). Smiley then sent him off to see Wilson. Id. According to Lunceford, Wilson “laughed” and told him not to “take it personally,” adding that she had been trained that a female should always be in the room with a female patient. Apx-48 (Lunceford:101). Wilson testified that Lunceford told her that he no longer wanted to work for [Brooks] “period” because “he no longer respected her leadership skills.” Apx-48 (K.Wilson:64-65).

Lunceford also discussed Brooks’s announcement with Garrett Wilson and several other Audrain employees and doctors. See Apx-41-42 (Lunceford:74-75, 77); see also Apx-41 (Lunceford:73) (called Garrett Wilson because he “couldn’t believe what had just happened” and “needed to talk to somebody about it”). Garrett Wilson also discussed the announcement with other employees. Apx-182 (G.Wilson:11-12). And, Lunceford stated, “once word got out, it was like people were coming up asking me what happened.” Apx-42 (Lunceford:77). Everyone seemed surprised, even “shocked,” at Brooks’s announcement. Apx-41-42 (Lunceford:73, 75, 78); see also Apx-43 (Lunceford:83) (noting that people said, “that ain’t right. They can’t do that”).

Doing the “Right” Thing

For her part, Brooks stressed that her concern was “always” attending to patient needs. Apx-105 (Brooks:27); Apx-65 (K.Wilson:14) (doing the “right thing for the patient”). She stated that her real concern was not that there were “too many males” in the OR department but rather that there be “enough” women “to make it work.” Apx-108 (Brooks:38).[2] She explained that she tried to have a female nurse in the OR anytime the patient was a female but especially when female patients were having “any female-type surgeries” — that is, surgery requiring exposure of the woman’s breasts or genital area. See, e.g., Apx-103 (Brooks:18-19), Apx-120 (Brooks:85-86). Her priority, she said, was “patient comfort,” and her “experience” was that female nurses could better empathize with female patients, and that female patients relate better to female nurses. See, e.g., Apx-105, 119, 124 (Brooks:27, 84-85, 103); see also Apx-92 (K.Wilson:121-22) (assuming that having a same-sex nurse would alleviate anxiety). The comfort of male patients was not a focus of the discussion.

Under Audrain’s Patient Rights and Responsibilities Policy, a patient has the right to request “a person of one’s own sex present during certain parts of a . . . procedure performed by health professionals.” Apx-150 (policy § I(c)(4)); Apx-86 (K.Wilson:99) (noting “right to request” specific gender provider); cf. Apx-160-62 (Rodgers Aff. ¶¶5-13) (noting that policy accords with federal guidelines regarding proper care and respect for patients, including patients’ right to “personal privacy,” as well as regarding adequate staffing). Such requests are infrequent. Brooks guessed that over the course of her career, “[m]aybe 20, 25 times,” a patient had expressed a desire to have a female in the room during surgery. Apx-128 (Brooks:118-19). Kari Wilson explained, however, that the hospital did not wait for a female patient to request a female nurse but simply assigned one to the surgical team, if possible. Apx-92 (K.Wilson:121-22). In addition, Brooks told Wilson that at least two of the surgeons had requested female nurses, and she tried to accommodate those requests as well. Apx-73 (K.Wilson:47-48) (describing conversation with Brooks); cf. Apx-182 (G.Wilson:11-12) (heard surgeons say they did not want any more men in the OR). According to Brooks, the key to achieving these objectives was to get an “appropriate” “mix” of male and female employees in the OR.

Brooks also stated that, while she had trained circulating nurses in the past (Apx-117 (Brooks:75-76)), the unit had recently lost at least one female circulating nurse, and she was really too busy to train a novice. Accordingly, she stressed, she was seeking a “qualified” female candidate — preferably one with OR experience. Apx-126 (Brooks:108); see Apx-122 (Brooks:94-95) (noting that she had rejected a female “psych” nurse without OR experience). Indeed, she ultimately filled the position with Nancy Garrett, the previous incumbent, who decided to return to full-time nursing in July 2010. Apx-122 (Brooks:96).

But gender mattered. Brooks agreed that she would not have hired Lunceford, a man, regardless of his qualifications. Apx-126 (Brooks:109). She noted that she sometimes had trouble getting the right “mix” even with just the one male circulating nurse — Garrett Wilson — she already had. She explained, “[I]t would make it easier for me [to get the appropriate gender mix in the OR if there were more female anesthetists or doctors], but again, a female in the circulating role is much easier on those female patients because ... it just makes those people more comfortable and less apprehensive to see a female there for female procedures.” Apx-109 (Brooks:41). In her view, hiring another male nurse would have made it “hard” to place a female nurse with every female patient having any kind of surgery. Apx-126 (Brooks:112). She admitted, however, that she did not “look at” whether she could more easily have placed a female nurse only with a female patient having surgery involving exposure of the patient’s private parts. Apx-126-27 (Brooks:112-13).

Brooks “guesstimate[d]” that as many as 50% of the patients were female. Apx-106 (Brooks:30) (25%-50%). According to Kari Wilson, a “relatively high percent” of those surgeries were “gyn/breast cases” — approximately 25% of the overall total. Apx-91-92 (K.Wilson:120-21). The record contains no comparable data about males and surgery related to their private parts.

Evidence indicates that all of the surgeons and all but one of the anesthetists were male. Apx-120 (Brooks:14, 16). On the other hand, only one — Herb Bruce — of the several surgical techs and one — Garrett Wilson — of the four or five circulating nurses were male. Cf. Apx-156 (Q/A#2). In August 2011, Wilson himself left the hospital (Apx-181 (G.Wilson:6-7)), leaving no male nurses in the OR.

EEO Training

Audrain has an Equal Employment and Care policy that, among other things, states that the company would not “fail to hire, discharge, or discriminate” among employees because of sex and would not “limit, segregate, or classify” employees so as to tend to deprive an employee of employment opportunity. Apx-189-90 (policy). Brooks, who was responsible for hiring in three departments, did not recall receiving training on employment discrimination matters. Apx-113 (Brooks:57-58). She stressed, however, that even though she would not fill the OR position with a man, it was not her “intent” to “discriminate” against Lunceford; her only “concern” was her patients. Id. (Brooks:59); cf. Apx-40 (Lunceford:71) (agreeing that Brooks did not intend to be “mean or harmful”).

HR Director Smiley asserted that the company had done some “leadership training” on employment discrimination “a couple of different times” during her tenure. She did not recall, however, whether any training had been done before the Lunceford incident. Apx-134 (Smiley:14-15).

The Lawsuit

After finding cause on Lunceford’s charge, the Commission filed suit, alleging that Audrain violated Title VII by refusing to consider Lunceford for the OR position because of his gender. Audrain moved for summary judgment (Apx-17), and the EEOC on moved for partial summary judgment on liability. Apx-178.

In its pleadings, Audrain stated that female gender was not a BFOQ for the OR nursing position. Defendant’s Opposition to Partial Summary Judgment (“D-PSJOp.”) at 12-13. The company also argued that Brooks’s statement did not reflect “illegal bias” because she only wanted what was best for her patients. Defendant’s Memorandum Supporting Summary Judgment (D-MSJ”) at 12. Further, the company argued that Brooks was not the decisionmaker because Lunceford never submitted a transfer request. Moreover, if he had, the HR department would have rejected his request under the 6-month no-transfer rule, so the request would never have reached Brooks. See, e.g., D-PSJOp. at 5-12. Finally, Audrain argued that even if Brooks’s remark could be considered direct evidence, the Commission was still required to — but could not — satisfy the elements of a prima facie case under the McDonnell Douglas proof scheme. This is because, Audrain explained, direct evidence supplies evidence only of causation; “a plaintiff must first produce evidence of a prima facie case before causation is analyzed.” D-MSJ at 5-10.

(3) District Court’s Decision

The district court granted defendant’s motion for summary judgment and denied EEOC’s motion for partial summary judgment on liability.

Initially, the court held that there was no direct evidence in this case. The court acknowledged that “Brooks’s remark that she wanted to hire a woman for the position indicates a discriminatory bias to hire a woman [instead of a man] for the OR nurse position.” Apx-204 (slip op. at 9). The court also noted that the “remark involved a decisionmaker discussing the vacant job at issue.” Id. The court explained, however, that direct evidence is “‘evidence showing a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable factfinder tha[t] an illegitimate criterion actually motivated the adverse employment action.’” Apx-203-04 (slip op. at 8-9) (citing McCullough v. Univ. of Ark. for Med. Sciences, 559 F.3d 855, 860 (8th Cir. 2009)). The court reasoned that EEOC’s proof did not establish a direct link between the “decision to hire someone else and Brooks’s remark.” Apx-204 (slip op. at 9). Furthermore, the court reasoned, Lunceford never completed a transfer request. Accordingly, the court concluded, there is “no adverse employment decision as Audrain never made a decision to deny [him] the OR nurse vacancy.” Id.

The court then held that the Commission could not withstand summary judgment under the McDonnell Douglas proof scheme. To establish a prima facie case in a refusal-to-hire case, the court stated, the EEOC must show that Lunceford, a male, applied and was qualified for a vacant position, he was rejected, and after his rejection, the company continued seeking applicants with Lunceford’s qualifications. Apx-205 (slip op. at 10) (citing Harrison v. United Auto Grp., 492 F.3d 972, 974 (8th Cir. 2007)).

In the court’s view, the EEOC could not make out a prima facie case for several reasons. First, Lunceford never applied for the OR job. Id. The court observed that Audrain could not hire him for a job for which he never applied. The court rejected EEOC’s argument that Lunceford should be excused from the application requirement because he could reasonably conclude it would be futile, and he made “every reasonable effort to convey his interest in the job to his employer.” Id. (citing Culpepper v. Vilsak, 664 F.3d 252, 256-57 (8th Cir. 2011) (futility); Jackson v. UPS, 643 F.3d 1081, 1086 (8th Cir. 2011) (every reasonable effort)). The court concluded that Lunceford did not make “every reasonable effort to convey his interest in the job, let alone [take] extraordinary measures to do so,” since he had only a “single conversation with Brooks,” and then complained about her comments to Smiley and Wilson. He also told Wilson that he no longer wanted to work for Brooks. Apx-205-06 (slip op. at 10-11).

The court further concluded that in light of Audrain’s Transfer Policy, Lunceford was not eligible (or qualified) for the OR position since he had just been awarded a position in the CCU. Apx-206 (slip op. at 11). The court rejected EEOC’s argument that, because Lunceford had not yet started working in the CCU, the six-month rule would not apply. On the contrary, the court stated, “EEOC does not dispute” that a transfer becomes effective upon approval. Nor, the court reasoned, could the Commission show that Lunceford would have been granted a waiver from the six-month rule. Apx-206-07 (slip op. at 11-12). Lunceford had no OR experience and, the court stated, “evidence shows that all of the employees who received transfer waivers to the OR had prior experience working in the OR.” Apx-207 (slip op. at 12).

SUMMARY OF ARGUMENT

The district court erred in granting summary judgment to Audrain on the Commission’s claim that Audrain violated Title VII by refusing to consider David Lunceford — or any other male nurse — for the position of circulating nurse in the OR because of his gender. The facts of this case are essentially undisputed. When Lunceford asked Linda Brooks, who was then both his boss and the director of the OR, whether she would consider him for the OR vacancy, she told him that she wanted to fill the position with a female nurse; there were already too many male nurses (one). Her goal, she explained, was to ensure placement of a female nurse with at least every female patient having a “female-type” surgery, and it would be “hard” to do this if another male nurse were hired to work in the OR. This response sent a message loud and clear that “men need not apply” for the position. So Lunceford never submitted a formal transfer request.

In the Commission’s view, Brooks’s remarks, if believed, would constitute direct evidence of sex discrimination since they directly link her discriminatory bias to her refusal to consider men for the job and her related deterrence of male applicants, including Lunceford. Moreover, where, as here, an employer openly discriminates against men on the basis of gender but argues that the discrimination is justified, Title VII requires that, to avoid liability, the employer must prove a BFOQ defense. But Audrain conceded that being a woman was not a BFOQ for the circulating nurse position. Accordingly, summary judgment in Audrain’s favor was improper.

However, despite finding that Brooks had hiring authority for the OR position and that her remarks “indicate[] a discriminatory bias to hire a woman,” the district court concluded that there was no direct evidence. The court reasoned that there was no link between Brooks’s animus and the decision to hire someone other than Lunceford. And, the court reasoned, since Lunceford never formally applied, Audrain never actually rejected him, so there was no adverse employment action. This reasoning is flawed for several reasons.

First, a jury could find that Brooks’s “bias to hire a woman” was directly related to her decision not to consider Lunceford, a man, and instead to fill the position — as she ultimately did — with a female nurse. Moreover, by deciding to consider only female candidates, Brooks deprived Lunceford and any other male nurse of the opportunity even to compete for the OR position simply because they are men. This, a jury could find, was an adverse employment action. Furthermore, a jury could find, Lunceford’s failure to submit a formal transfer request is of no moment since Brooks made it clear that any such request would be futile. Both this Court and the Supreme Court have held that a failure to submit a formal application may be excused when a “known discriminatory policy” like that reflected in Brooks’s remarks discourages and dissuades potential jobseekers from even bothering to apply. The district court’s ruling was therefore infirm.

In its pleadings, Audrain alternatively argued that Brooks’s statement should not be considered direct evidence because if Lunceford had submitted a formal transfer request, it would have gone first to HR, rather than Brooks, where at least in theory it would have been rejected under the company’s Transfer Policy. And if that all had happened, Audrain argued, Brooks’s preference for female candidates would not have been linked to any action relating to Lunceford. The flaw in this argument is that it is in fact all hypothetical. Lunceford did not submit a transfer request, so HR never got involved. And, as noted above, a jury could find that Brooks’s bias was directly reflected in her deterrence of male applicants and, fundamentally, in her decision not to consider men, including Lunceford, for the OR position.

Audrain also argued that Brooks’s bias was not illegal because she was motivated simply by a desire to care for her female patients. But, as the Supreme Court has explained, the “beneficence” of an employer’s purpose does not undermine the conclusion that an explicit gender-based policy is sex discrimination under Title VII and, so, may be defended only as a BFOQ. Since Audrain has disavowed a BFOQ defense, Brooks’s benign motive cannot shield the company from liability. Summary judgment should therefore have been denied.

Having rejected the Commission’s direct evidence argument, the district court then went on to reject the Commission’s claim under the McDonnell Douglas proof scheme. The court reasoned that the Commission could not establish the elements of a traditional McDonnell Douglas prima facie case because Lunceford never applied, he was ineligible under the Transfer Policy, and, lacking OR experience, he would also have been considered unqualified. To the contrary, there is sufficient record evidence to support a finding for the Commission on these elements. More importantly, however, because, if believed, Brooks’s statements do constitute direct evidence, the court should never have considered the McDonnell Douglas proof scheme at all. It is well-settled that where, as here, direct evidence obviates the need to prove discrimination inferentially, the McDonnell Douglas framework, including the prima facie case, is simply “inapplicable.” As for Audrain’s argument that the Commission was required to prove the four elements of a McDonnell Douglas prima facie case even if Brooks’s remarks constitute direct evidence, this Court has categorically rejected any such argument, recognizing that the direct evidence alone suffices to prove a violation of the law.

We therefore urge this Court to reverse the summary judgment and remand the case for further proceedings in the court below.

STANDARD OF REVIEW

This Court reviews the grant of summary judgment de novo, applying the same standard the district court should have applied. Young v. Warner-Jenkinson Co., 152 F.3d 1018, 1021 (8th Cir. 1998). Summary judgment is appropriate only if the moving party proves that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Bashara v. Black Hills Corp., 26 F.3d 820, 823 (8th Cir. 1994). Summary judgment must be denied if on the record as a whole, there is “sufficient evidence for a jury to return a verdict in favor of the nonmoving party.” Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995). In evaluating the district court’s decision, this Court may not weigh the evidence or make credibility determinations and must view the evidence and draw all reasonable inferences from the evidence in the light most favorable to the nonmoving party. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150-51 (2000).

Where the moving party bears the burden of persuasion on a particular issue, that party must support its summary judgment motion “with evidence that would entitle it to a directed verdict if not controverted at trial.” Smith v. City of Des Moines, 99 F.3d 1466, 1471 (8th Cir. 1997) (citation omitted).

ARGUMENT

I. Summary Judgment Was Inappropriate Because Direct Evidence Shows that Brooks Intended to Fill the Nursing Vacancy with a Female Nurse, and Audrain Admitted that Being a Woman Was Not a BFOQ for the Position.

In this case, the Commission alleges that Audrain, through Brooks, expressly refused to consider Lunceford or any other man for vacant nursing position in the OR and, thus, deterred Lunceford (and any other man) from applying for the position since it was clear that any such application would be futile. The Commission bases this claim largely on Brooks’s own testimony that she intended to (and did) select a woman for the position. Where an employer expressly bases an employment decision on sex, the discrimination is lawful if the employer proves that female gender is a BFOQ. Audrain, however, conceded that being a woman was not a BFOQ for the OR position. Summary judgment for Audrain was therefore inappropriate.

Under Title VII, an employer may not “fail or refuse to hire” any individual, “discriminate against any individual in the terms and conditions of employment,” or “limit” his employees “in any way which would deprive or tend to deprive any individual of employment opportunities” because of such individual’s sex. 42 U.S.C. § 2000e-2(a). In cases such as this one where the allegation is that the employer intentionally discriminated against its employees based on their sex, discrimination may be established either directly, with evidence showing a “specific link between the alleged discriminatory animus and the challenged decision,” or indirectly, “under the [three-step] burden-shifting framework” established in McDonnell Douglas v. Green, 411 U.S. 792, 802-05 (1973). See, e.g., McCullough v. Univ. of Ark. for Med. Sciences, 559 F.3d 855, 860 (8th Cir. 2009); Perry v. Kunz, 878 F.2d 1056, 1058-60 (8th Cir. 1989).

In this Circuit, “direct evidence” is evidence that provides a “strong causal link” between the alleged discriminatory animus and the adverse employment action. See McCullough, 559 F.3d at 861. Most often, it consists of “remarks by decisionmakers that reflect, without inference, a discriminatory bias.” Id.; see also, e.g., Kratzer v. Rockwell Collins, 398 F.3d 1040, 1045-46 (8th Cir. 2005) (“conduct or statements” by “persons involved in the decisionmaking process” that support a finding that a “discriminatory attitude” motivated the challenged action). But cf. Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004) (explaining that direct evidence consists of any “strong” evidence that allows the plaintiff to show affirmatively that illegal discrimination motivated the challenged employment decision). Thus, for example, in Perry, this Court concluded that statements by a decisionmaker that the plaintiff would be selected for lay-off because of her age, if believed, constituted direct evidence of age discrimination. 878 F.2d at 1058-1060.

In this case, it is essentially undisputed that when Lunceford asked Brooks whether she would consider him for the vacant OR position, she announced to him — and to anyone else within earshot — that she intended to fill the vacancy with a female nurse. This explicit sex discrimination (although she did not call it that) was justified, she explained, to ensure that there were enough female nurses to place one with every female patient having surgery or at least with every female patient having any “female-type” procedure. See, e.g., Apx-111, 120 (Brooks:52, 85-86). As the district court recognized, this announcement “indicates a discriminatory bias to hire a woman [instead of a man] for the OR nurse position,” and “involved a decisionmaker discussing the vacant job at issue.” Apx-204 (slip op. at 9). If believed, therefore, Brooks’s announcement should be considered direct evidence of gender discrimination.

Furthermore, to the extent that Audrain admitted the discrimination but contended that it was lawful, the company should have been required to prove that being a woman was a BFOQ for the position. See 42 U.S.C. § 2000e-2(e)(1) (“bona fide occupational qualification reasonably necessary to the normal operation of the particular business”); see also, e.g., Gunther v. Iowa State Men’s Reformatory, 612 F.2d at 1982, 1985-87. In Gunther, the employer refused to consider the plaintiff, a female prison guard, for promotion to the next higher grade because of her sex, explaining that allowing her to do some of the duties of the position would infringe on the prisoners’ privacy rights. This Court concluded that since the defendant expressly discriminated against the plaintiff because she was a woman, the defendant was required to prove that being a man was a BFOQ for the higher position. 612 F.2d at 1985-87. See also Int’l Union v. Johnson Controls, 499 U.S. 187, 197 (1991) (BFOQ defense necessary where employer explicitly excluded fertile women from better-paying job working around lead); Dothard v. Rawlinson, 433 U.S. 321, 332-33 (1977) (BFOQ defense necessary where employer explicitly limited contact guard positions to men, based on sex); cf. TWA v. Thurston, 469 U.S. 111, 120-22 (1985) (where pilots over age 60 were barred from bumping down to flight engineer because of age, defendants must prove age was BFOQ under parallel Age Discrimination in Employment Act provision, 29 U.S.C. § 623(f)(1))).

Similarly, here, since a jury could find that Brooks admitted that she would not consider a man but only a woman for the circulating nurse vacancy and believed that this gender bias was justifiable, a jury could find that the conduct was defensible only if the company proved that female gender was a BFOQ for the position. And, as the party with the burden of persuasion on this defense, the company was required to support its summary judgment motion “with evidence that would entitle it to a directed verdict if not controverted by evidence sufficient to create a jury issue.” See Smith, 99 F.3d at 1471.

But Audrain did not do so. To the contrary, the company conceded that being a woman was not a BFOQ for the position. D-MPSJOp. at 12 (stating that “AMC is not asserting that being female is a bona fide occupational qualification for the OR position”). Accordingly, a jury could easily find that Audrain violated Title VII by refusing to consider Lunceford and any other man for the circulating nurse position. The company therefore was not entitled to summary judgment on this claim.

The district court never reached the BFOQ issue because it rejected the Commission’s claim on other grounds. The court reasoned that Brooks’s “remark” — that she intended to select a woman — was not directly linked to her decision to hire someone other than Lunceford (that is, a woman) for the position and thus did not constitute direct evidence. The court also reasoned that because Lunceford, after talking to Brooks, never completed a transfer request form, Audrain never formally rejected him, so there was no adverse employment action. Apx-203-04 (slip op. at 8-9).

This reasoning is flawed for several reasons. Initially, we note that, as written, the district court’s reasoning is internally inconsistent and, in fact, counterintuitive. The court recognized that Brooks’s remark revealed a discriminatory bias to hire a woman for the OR position, but then at the same time concluded that there was no link between Brooks’s biased statement and the “decision to hire someone else” besides Lunceford. But if, as the court rightly acknowledged, Brooks was biased against male candidates and would not have selected one, there clearly is a connection between that bias and Brooks’s decision to hire someone other than Lunceford. Indeed, since Lunceford is a man and Brooks would not hire a man, she necessarily would have had to hire someone else. And a jury could easily find that Brooks did exactly what she announced she was going to do — fill the position with a woman, rather than a man. She refused to consider Lunceford and, in July, she agreed to allow Nancy Garrett, the woman who had left the job in March, to return to the OR full-time. See, e.g., Apx-122 (Brooks:96).

Moreover, a jury could find that there was, in fact, an adverse employment action here. Specifically, Brooks refused to consider Lunceford or any other man for the OR job. Indeed, she acknowledged that this refusal was not based on qualifications but on gender. See Apx-126 (Brooks:109). Thus, Lunceford and other men were denied an employment opportunity — the opportunity even to compete for the job — simply because they are men. See 42 U.S.C. § 2000e-2(a).

It is true that Lunceford did not formally apply for the position. But a jury could find that this failure was excused because, by announcing her intent to hire a woman, Brooks deterred Lunceford and any other male prospective applicant from applying for the position. The clear import of her announcement was that it would have been a futile gesture for male nurses, including Lunceford, to apply because she would not consider them anyway. As the Supreme Court explained, “[w]hen a person’s desire for a job is not translated into a formal application solely because of his unwillingness to engage in a futile gesture, he is as much a victim of discrimination as is he who goes through the motions of submitting an application.” Teamsters v. U.S., 431 U.S. 324, 365-67 (1977) (also stating that a “consistently enforced discriminatory policy can surely deter job applications from those who are aware of it and are unwilling to subject themselves to the humiliation of explicit and certain rejection”); see also Banks v. Heun-Norwood, 566 F.2d 1073 (8th Cir. 1977) (same); cf. Easley v. Empire, Inc., 757 F.2d 923, 930 & n.7 (8th Cir. 1985) (noting that a failure to submit a formal application for a job will be excused “when a known discriminatory policy, such as reflected by the statements [of two managers that ‘men do not like to take orders from women’] deters potential jobseekers” such as the plaintiff there). And that makes sense. “It would be ironic — bizarre, in fact — if a victim of discrimination were unable to vindicate [his] rights because [he] had the peculiar misfortune of being discriminated against in a way that necessarily prevented [him] from making [his] case.” Shannon v. Ford Motor Co., 72 F.3d 678, 682 (8th Cir. 1996) (citing Teamsters, 431 U.S. at 367).

Here, the court never doubted that, before talking to Brooks, Lunceford was interested in the circulating nurse position. There is evidence that he expressly asked Brooks whether she would consider him for the position, and when she asked whether he was “really serious” about the position, he assured her that he was. Apx-39-40 (Lunceford:65, 67-69). There is also evidence that once Brooks let him know that she would not consider him because she intended to choose a woman, he changed his mind about submitting a formal application, concluding that it would be an exercise in futility. See, e.g., Apx-133 (Smiley 9-10) (after talking to Brooks, Lunceford knew he would not be considered); Apx-77 (K.Wilson:63-64) (agreeing that Lunceford had changed his mind about applying after talking to Brooks). This evidence would fully support a jury finding that Lunceford did not translate his interest in the job into a formal application because he had received Brooks’s message loudly and clearly and recognized that it would be a fruitless gesture.

Thus, a jury could find that Brooks’s announcement that she intended to select a woman was directly linked both to her refusal to consider Lunceford and to Lunceford’s decision not to apply.[3] Contrary to the district court’s ruling, the statements, if believed, were not only relevant but actually direct evidence of discrimination.

In its pleadings below, Audrain argued that Brooks’s statements were not direct evidence of discrimination because there was no causal nexus between the statements and an “employment action” by a “decisionmaker.” D-MSJ at 14-15. This argument, though similar to the court’s reasoning, is slightly different. According to Audrain, “for Brooks’s comments to have amounted to an employment action, Lunceford would have had to have applied for the position and been initially approved for it by Human Resources such that Brooks could have been in a position to decide whether to hire him.” Id. at 14. But that never happened, the argument goes, because Lunceford never formally requested a transfer to start the decisionmaking process. Moreover, if he had submitted a formal request, the application would never have reached Brooks because HR would have rejected it under the Transfer Policy in light of Lunceford’s recent agreement to transfer to the CCU. Thus, Brooks was not a decisionmaker and her statement could not constitute direct evidence.

This reasoning rests on at least two faulty premises. First, as explained above, a jury could find that Brooks’s announcement was causally related to an employment action: her refusal to consider Lunceford (or any other man) because of his gender despite the fact that he had told her he was interested in the position. And a jury could find that Lunceford’s failure to formally apply should be excused since Brooks made no secret of the fact that whether or not he did apply, she was still going to hire a woman. This evidence amply supports a finding that she was the decisionmaker and she did make an adverse employment decision.

Second, Audrain’s argument that even if Lunceford had submitted a formal transfer request, he would have been rejected based on the Transfer Policy amounts to a post-hoc rationalization that cannot shield Audrain from liability. Lunceford did not submit a request, so HR was never involved in the process and never actually considered whether any such request should be denied under the policy or whether an exception should made for him. There is no evidence that the Transfer Policy was on Brooks’s mind during her conversation with Lunceford when she made it clear that she would never hire him for the OR job. Rather, she mentioned only gender.

The question for Title VII liability purposes is not whether what hypothetically could have happened would have been illegal. It is instead whether what actually did happen occurred because of the individual’s sex. See, e.g., Shannon, 72 F.3d at 682 (noting that the “real issue” in a discrimination case is whether the employer engaged in discriminatory conduct). Here, there is sufficient evidence to support a jury finding that Audrain, through Brooks, would not consider Lunceford or any other male nurse for the circulating nurse position because of his gender. Thus, the true facts, rather than the hypothetical ones Audrain spins out, would support a finding that the company is liable for violating Title VII.[4]

Audrain also argued below that Brooks’s refusal to consider a man for the OR position was defensible because she was not motivated by “illegal [gender] bias.” Rather, she was simply concerned with doing the right thing for her patients. She “was singularly focused on staffing female surgeries with female nurses out of concern for the patients.” D-MSJ at 12 (adding that “focus was on patient care, not David Lunceford”).

Our goal here is not to question Brooks’s good intentions. But even a benign motive, standing alone, would not relieve the company of liability for otherwise unlawful discrimination. The statutory defense to overt discrimination is BFOQ. As the Supreme Court explained, “The beneficence of an employer’s purpose does not undermine the conclusion that an explicit gender-based policy is sex discrimination under § 703(a) and thus may be defended only as a BFOQ.” Johnson Controls, 499 U.S. at 200 (discussing fetal protection policy, adding that “the absence of a malevolent motive does not convert a facially discriminatory policy to a neutral policy with a discriminatory effect”). As noted above, Audrain admitted that female gender was not a BFOQ for the circulating nurse position. D-PSJOp. at 12-13. Summary judgment on the Commission’s claim was therefore inappropriate regardless of why Brooks insisted on filling the OR vacancy with a woman, rather than a man. [5]

In any event, based on the record evidence, a reasonable jury could find that Brooks could have staffed the OR “appropriately” even with the addition of another male nurse. According to Kari Wilson, surgeries involving female patients having “female procedures” made up about 25% of the total number of surgeries. Apx-91-92 (K.Wilson:120-21). Brooks estimated that 25-50% of the patients were female. Apx-106 (Brooks:30). Yet, only one of the four or five circulating nurses — Garrett Wilson — was male. Apx-156 (Q/A#2). A reasonable jury could find that if a second male were hired, the two or three (50% or 60%) female nurses could still cover the “female procedures,” that is, the 25% of the surgeries. Indeed, Brooks admitted that she had never looked into whether she could achieve an appropriate staffing “mix” even with an additional male nurse if she focused only on placing female nurses with female patients having “female-type” procedures. Apx-126-17 (Brooks 112-13).

For those surgeries where the concern was simply that there be a woman in the OR to serve as a witness anytime a female patient was anesthetized, a jury could find that someone other than a female nurse could fill that bill. For example, virtually all of the surgical techs were women (id.), and there was also one female nurse anesthetist. Brooks did not explain why she could not ensure that at least one of those individuals was in the OR while an anesthetized female was undergoing surgery. Furthermore, filling the 2010 vacancy with a male nurse would not have meant that Audrain would permanently have had at least two male nurses assigned to the OR. To the contrary, evidence suggests that there was substantial turnover in the staff. In fact, Garrett Wilson himself left Audrain in 2011. Apx-181 (G.Wilson 6-7). At that point, there were no male circulating nurses to accommodate any male patients’ requests for a male circulating nurse.

In sum, based on the record evidence, a jury simply would not be compelled to find that Audrain’s explicit gender-based discrimination was legally justified. Summary judgment on this claim should therefore have been denied.

II. Because Audrain Engaged In Overt Discrimination, the McDonnell Douglas Framework Was Inapplicable.

The district court apparently felt constrained to analyze this case under the McDonnell Douglas proof scheme once it decided that there was no direct evidence of discrimination. As discussed above, however, there in fact was direct evidence that, if believed, would show that Brooks had decided to fill the OR nursing vacancy with a woman, not with a man; that she refused to consider Lunceford or any other man for the position because of his gender; and that by openly announcing this decision to Lunceford, she deterred him and any other male prospective applicant from applying for the position. McDonnell Douglas is inapplicable where, as here, there is direct evidence of discrimination. Thus, the district court’s ruling applying McDonnell Douglas reflects legal error.

The three-step, burden-shifting McDonnell Douglas proof scheme is designed to permit a plaintiff to prove intentional discrimination inferentially, with only circumstantial evidence. See, e.g., Thurston, 469 U.S. at 121 (stating that the “shifting burdens of proof set forth in McDonnell Douglas are designed to assure that the plaintiff has his day in court despite the unavailability of direct evidence”) (citation and alternation omitted). Under that scheme, a plaintiff alleging that the employer refused even to consider an individual for promotion or transfer may establish a prima facie case indirectly, with evidence, for example, that the individual applied and was qualified for a position, but was passed over and the position was filled by someone outside his protected class. See, e.g., Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54 (1981). This burden is “not onerous.” Id. at 253. Because there is no direct evidence, the prima facie case “serves an important function: it eliminates the most common nondiscriminatory reasons for the [applicant’s] rejection” — that is, he never applied, he was not qualified, and there was no vacancy in the first place. Id. at 254-55. By eliminating those common reasons, the plaintiff raises an inference that the true reason for the rejection was discrimination. See, e.g., Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576-77 (1978).

Once the plaintiff makes that prima facie showing, the employer must produce evidence that the challenged decision was made for a “legitimate, non-discriminatory reason.” See Burdine, 450 U.S. at 253-55 (adding that the evidence must support a finding that the reason actually motivated the decision). At that point, the burden shifts back to the plaintiff to show that the proffered reason is false or otherwise “unworthy of credence” (450 U.S. at 256), thereby allowing the factfinder to find that the employer was actually motivated by the plaintiff’s sex. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143, 147-48 (2000); see also Burdine, 450 U.S. at 256 n.8 (noting that the “allocation of burdens and the creation of a presumption by the establishment of a prima facie case is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination”).

However, where, as here, there is evidence that, by itself, directly supports a finding of intentional discrimination, the plaintiff need not rely on the McDonnell Douglas framework or present evidence of each element of that prima facie case to raise an inference of discrimination. Indeed, both the Supreme Court and this Court have stressed that “the McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination.” Thurston, 469 U.S. at 121; Bashara v. Black Hills Corp., 26 F.3d 820, 823 (8th Cir. 1994) (citation omitted); accord, e.g., Perry, 878 F.2d at 1061. “After all,” this Court explained, “the McDonnell Douglas framework exists to provide discrimination plaintiffs a way to prove their case when they do not have ‘explicit, inculpatory evidence of discriminatory intent. . . If a plaintiff does have such evidence, burden-shifting analysis is unnecessary.” Shannon, 72 F.3d at 682; see also Bashara, 26 F.3d at 823 (with direct evidence, “the plaintiff need not establish a [McDonnell Douglas] prima facie case because creating an inference of discrimination is unnecessary”) (citing, e.g., Adams v. Nolan, 962 F.2d 792, 795 n.6 (8th Cir. 1992); Perry, 878 F.2d at 1059). The court here therefore erred in granting summary judgment on the ground that the Commission could not establish the elements of a prima facie case under the McDonnell Douglas framework.

In its summary judgment pleadings, Audrain took the position that the Commission was required to establish the elements of a McDonnell Douglas prima facie case whether or not there was direct evidence of discrimination. See D-PMSJ at 3. The company reasoned that because direct evidence, by definition, supplies the “causal link” between the discriminatory bias and the adverse action, the direct evidence satisfies only the causation element of a claim. Thus, according to the company, the Commission was still required to prove the elements of the McDonnell Douglas prima facie case. D-MSJ at 5-7.

This Court has categorically rejected such an argument. The three steps of the McDonnell Douglas proof scheme are not independent but rather parts of a whole. Thus, as is true for the proof scheme as a whole, “if there is direct evidence of discrimination, the first stage of the McDonnell Douglas formula, the prima facie case, may be avoided because there is no need for the plaintiff to create an inference of discrimination.” Adams, 962 F.2d at 795 n.6. Because the direct evidence, if believed, would allow the jury to find a violation of the statute, it is “not necessary for [a plaintiff] to prove any of the elements required by the McDonnell Douglas test.” Perry, 878 F.2d at 1061. The defendant in Perry, for example, disputed whether the plaintiff could show that she was “qualified,” the second element of a typical McDonnell Douglas prima facie case. Dismissing this dispute as inconsequential, this Court stated, “it makes no difference whether [the plaintiff] was a good employee or a bad one, at least on the question of whether a prima facie case was or could be made.” Id. The direct evidence alone sufficed to prove that the law had been violated. Id.; see also St. Martin v. City of St.Paul, 680 F.3d 1027, 1033 (8th Cir. 2012) (noting that, with direct evidence, the “link between the alleged discriminatory animus and the challenged decision” is sufficient to support a finding “that an illegitimate criterion actually motivated the adverse employment action”). Similarly, here, a jury could find that the direct evidence — Brooks’s remarks — suffices to prove that the law had been violated without resort to any aspect of the McDonnell Douglas proof scheme.

In any event, even if the proof scheme were applicable, a jury could find for the Commission on each of the elements of a traditional McDonnell Douglas prima facie case. In reaching a contrary conclusion, the district court (and Audrain) focused on the fact that Lunceford never submitted a formal transfer request for the OR job. D-MSJ at 7-8. As discussed above, however, a jury could easily find that his failure to do so was excused because Brooks’s announcement that she intended to hire a woman sent a strong signal to Lunceford and any other male prospective applicant that they need not bother to apply because they would not be considered anyway. See Teamsters, 431 U.S. at 365-67 (discussing deterred applicants); Easley, 757 F.2d at 930 & n.7 (same). It is undisputed that the position was still available (see Apx-39), and even Brooks admitted that Lunceford met the minimum qualifications for the position, as stated in the job announcement. Apx-100 (Brooks:46-48).

Furthermore, the evidence of Brooks’s remarks could also serve to rebut any proffered non-discriminatory reason for Lunceford’s rejection. The question in a discrimination case is what motivated the employer “at the moment [the challenged employment decision] was made.” See Price Waterhouse v. Hopkins, 490 U.S. 228, 241 (1989); see also, e.g., EEOC v. Wal-Mart Stores, 477 F.3d 561, 571 (8th Cir. 2007) (stating that because “the employer’s motive and intent are at the heart of a discrimination case, the central inquiry is whether [sex] was a factor in the employment decision at the moment it was made,” adding that an “employer is prohibited from inventing a post hoc rationalization for its actions at the rebuttal stage of the case”) (citations omitted). Here, evidence suggests that at the moment Brooks responded to Lunceford’s inquiry, the only salient consideration was his gender since she had already decided to fill the position with a female nurse. Thus, regardless of the reason Audrain proffered at step two of the three-step framework, a jury could find at step three that “a discriminatory reason,” that is, gender, “more likely motivated the employer” and/or that the “proffered explanation was unworthy of credence.” Burdine, 450 U.S. at 256.

In short, there is ample evidence to support a finding that Audrain violated Title VII when Brooks openly announced that she would not consider male nurses for the OR vacancy because she intended to fill the position with a female candidate. This Court should therefore hold that summary judgment on the Commission’s claim of gender discrimination was improperly granted to Audrain.

CONCLUSION

For the foregoing reasons, the Commission respectfully requests that the judgment of the district court should be reversed and the case should be remanded for further proceedings.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

LORRIANE C. DAVIS

Acting Associate General Counsel

DANIEL T. VAIL

Acting Assistant General Counsel

BARBARA L. SLOAN

Attorney

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Office of General Counsel

131 M Street, N.E., 5th Floor

Washington, DC 20507

(202) 663-4721

fax: (202) 663-7090

barbara.sloan@eeoc.gov

[1] Until recently, Audrain was a community-based medical center in the City of Mexico, Missouri. Apx-159 (Rodgers Aff. ¶3). As of April 1, 2013, Audrain is owned and operated by SSM Health Care. Audrain Medical Center Begins New Partnership With SSM, available at http://www.audrainmedicalcenter.com, last visited on 6/12/2013.

[2] Brooks also stated that she needed the “right” person. Apx-111 (Brooks:52). During her deposition, she criticized Lunceford about several performance-related issues such as a lack of team work. When shown Lunceford’s last evaluation — which she had completed — she agreed that he seemed to have corrected these issues before he spoke to her about the OR position. See, e.g., Apx-125 (Brooks:107). She also admitted that regardless of his qualifications she would not have considered him because she was looking for a woman. Apx-126 (Brooks:109).

[3] The district court, relying on a second line of authority also cited by the Commission, concluded that Lunceford’s failure to apply could not be excused because he did not make all reasonable efforts to make his interest in the position known since Kari Wilson, Smiley, and even Brooks testified that they were not certain he was still interested in the position. See slip op. at 10 (citing, e.g., Jackson, 643 F.3d at 1086). Even assuming that is true, however, it is not dispositive. By its terms, the all-reasonable-efforts standard applies where, unlike here, the employer does not post vacancy announcements and the prospective applicant is unaware of specific vacancies. See, e.g., Chambers v. Wynne Sch. Dist., 909 F.2d 1214, 1217 (8th Cir. 1990), cited in Jackson, 643 F.3d at 1086; accord Green v. City of St. Louis, 507 F.3d 662, 666-67 (8th Cir. 2007).

[4] That is not to say that issues as to Lunceford’s eligibility under the Transfer Policy or even his lack of OR experience are entirely irrelevant. To the contrary, they might well affect the relief that the Commission could obtain on behalf of Lunceford at trial. They do not, however, affect the availability of equitable relief, nor would they support a grant of summary judgment for Audrain on the Commission’s claim. Cf. O’Neal v. City of New Albany, 293 F.3d 998, 1003 (7th Cir. 2002) (reasoning that an “employer may still be liable for race discrimination under Title VII even though it later discovers information that would have otherwise disqualified the plaintiff from employment,” adding that in such a case the plaintiff might be entitled to monetary damages even if not backpay or instatement).

[5] There was also evidence that Brooks’s plan to hire a female nurse was motivated at least in part by a desire to accommodate the requests of several of the surgeons she served. See, e.g., Apx-73 (K.Wilson:47-48) (stating that Brooks had told her that the doctors preferred female providers); Apx-39-40 (Lunceford:66, 69) (Brooks told him the “doctors don’t want any more men in the OR”); Apx-182 (G.Wilson:9-10) (recalled Brooks saying something like “the doctors didn’t want any more men back there”). However, “customer preference” is not a defense to otherwise unlawful discrimination. See 29 C.F.R § 1604.2(a)(1)(iii) (rejecting customer preference as BFOQ); Diaz v. Pam Am World Airways, 442 F.2d 385, 389 (5th Cir. 1971) (same).