CERTIFICATE OF INTERESTED PERSONS in Appeal No. 12-14341

Brusoski, Donna J., attorney for EEOC

Carroll’s, LLC, d/b/a Carroll Tire Co.

Cerwinski, James, attorney for EEOC

Davis, Chandra Cain, attorney for EEOC

Dawkins, Robert K., attorney for EEOC

Equal Employment Opportunity Commission, plaintiff–appellant

Hall, Judge J. Randal

Lanier, Troy A, attorney for Carroll’s Tire

Lee, James L., attorney for EEOC

Lopez, P. David, EEOC General Counsel

Reams, Gwendolyn Young, attorney for EEOC

TBC Corporation, parent company of Carroll’s, LLC, d/b/a Carroll Tire Co.

Tucker, Everitt, Long, Brewton & Lanier, PC, law firm for Carroll’s LLC, d/b/a Carroll Tire

Wheeler, Carolyn L., attorney for EEOC

I hereby certify that this list names each person and entity that, as far as the EEOC knows, has an interest in this case and appeal.

/s/ Donna J. Brusoski

Donna J. Brusoski

November 23, 2012

STATEMENT REGARDING ORAL ARGUMENT

The EEOC believes that further exploration of the issues at oral argument would assist this Court in properly resolving this appeal. See Fed. R. App. P. 34(a); 11 Cir. R. 28-1(c); 11 Cir. R. 34-3(c).

table of contents

STATEMENT OF INTERESTED PERSONS …………….………………….…..i

STATEMENT REGARDING ORAL ARGUMENT…………………………..…ii

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

table of authorities…….…………………………………………..…….iv

RECORD REFERENCES IN BRIEF…….………………………………..…….viii

JURISDICTIONAL STATEMENT…..…………………………………………...1

statement of issues……………..…………………………………………2

statement of the case……….…..………………………………………..2

A. Course of Proceedings ……..……..………………………………………2

B. Statement of Facts……………………...………………………............…3

C. District Court Decision……………………...………………………...…16

SUMMARY OF ARGUMENT…………………………..……………………….18

argument.................................................................................................. 21

THE DISTRICT COURT erred in refusing to EVALUATE the Commission’s evidence OF INTENTIONAL DISCRIMINATION under a mixed motive FRAMEWORK. ..................................................... 21

conclusion............................................................................................... 38

certificate of compliance

certificate of servicE

table of authorities

CASES

Aaron v. Mahl, 550 F.3d 659 (7^th Cir. 2008) ................................................. 27

Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253 (11^th Cir. 2010) ........ 21

Ashcroft v. Iqbal, 556 U.S. 662 (2009)........................................................... 27

Bailey-Pittman v. Unisia of Ga. Corp., 2006 U.S. Dist. LEXIS 15671

..... (M.D. Ga. Mar. 30, 2006) ........................................................................ 25

Basten v. United States, 848 F. Supp. 962 (M.D. Ala. 1994) ........................ 23

Beck v. Lazard Freres & Co., 175 F.3d 913 (11^th Cir. 1999) ......................... 24

Bell Atlantic v. Twombly, 550 U.S. 554 (2007) ............................................ 27

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .............................................. 22

Chapman v. AI Transp., 229 F.3d 1012 (11^th Cir. 2000) (en banc) ............... 21

Costa v. Desert Palace, Inc., 299 F.3d 838 (9^th Cir. 2002) (en banc) .............. 26

Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) ................................. 27,31,37

Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310 (4^th Cir. 2005) 27

EEOC and Serrano et al. v. Cintas Corp., et al., 2012 WL 5458182 (6^th Cir. November 9, 2012 ..................................................................................................... 26

Fogg v. Gonzales, 492 F.3d 447 (D.C. Cir. 2007) .......................................... 25

Gilmour v. Gates, McDonald & Co., 382 F.3d 1312 (11^th Cir. 2004) ............ 22

Harris v. Shelby Co. Bd. of Ed., 99 F.3d 1078 (11^th Cir. 1996) ........... 22,30,32

Hashem–Younes v. Danou Enters. Inc., 311 Fed. Appx. 777 (6^th Cir. 2009) 29

Hatmaker v. Memorial Medical Center, 619 F.3d 741 (7^th Cir. 2010) ....... 27,29

Keaton v. Cobb Cty., 2009 WL 212097 (No. 08-11220,

...... 11^th Cir. Jan. 30, 2009) ........................................................................ 27,28

McDonnell Douglas Corp. v Green, 411 U.S. 792 (1973) ................... 16,19,24

McShane v. U.S. Attorney General, 144 Fed. Appx. 779 (11^th Cir. 2005) ..... 22

Martin v. Singletary, 965 F.2d 944 (11^th Cir. 1992) ....................................... 28

O'Grady v. Village of Libertyville, 304 F.3d 719 (7^th Cir. 2002) .................... 27

Ondricko v. MGM Grand Detroit, LLC, 2012 WL 3194225

(6^th Cir. August 8, 2012) ........................................................................... 28

Ostrowski v. Atlantic Mut. Ins. Companies, 968 F.2d 171 (2d Cir. 1992) .... 25

Phillips v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008) ...................... 27

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ............................ 24,26,37

Rowland v. American General Finance, Inc., 340 F.3d 187 (4^th Cir. 2003) .... 32

Sams v. United Food & Commercial Workers Int’l Union,

...... 866 F.3d 1380 (11^th Cir. 1989) ................................................................. 26

Skinner v. Switzer, 131 S. Ct. 1289 (2011) ................................................... 26

Simpson v. City of Tuscaloosa, 186 F.3d 1328 (11^th Cir. 1999) .................... 35

Spees v. James Marine, Inc., 617 F.3d 380 (6^th Cir. 2010) ............................. 29

Staub v. Proctor Hosp., 131 S. Ct. 1186 (2011) ............................................ 35

Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) ...................................... 23

Watson v. Se. Pa. Transp. Auth., 207 F.3d 207 (3d Cir. 2000) ..................... 25

Wright v. Murray Guard, Inc., 455 F.3d 702 (6^th Cir. 2006) .......................... 22

STATUTES & REGULATIONS

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

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

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

Civil Rights Act of 1991, Pub.L. No. 102-166,

..... § 107(a), 105 Stat. 1071, 1075 ................................................................ 24

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. .............. 2

..... 42 U.S.C. § 2000e-2(m) ....................................................... 19,20,24,30,31

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

..... 42 U.S.C. § 2000e-5(f)(3) .......................................................................... 1

..... 42 U.S.C. § 2000e-5(g)(2)(B) ......................................................... 24,32,37

RULES

Fed. R. App. P. 4(a)(1)(B) ............................................................................... 1

Fed. R. Civ. P. 8 ............................................................................................. 23

Fed. R. Civ. P. 8(a)(2) .................................................................................... 25

Fed. R. Civ. P. 15(b)(1)………………………………………………………..23,30

Fed. R. Civ. P. 15(b)(2)…………………………………………………………...30

Fed. R. App. P. 34(a)……………………………………………………………….ii

Fed. R. App. P. 36, I.O.P 6 ............................................................................ 28

Fed. R. Civ. P. 56(c) ....................................................................................... 21

11 Cir. R. 28-1(c) ............................................................................................. ii

11 Cir. R. 34-3(c) ............................................................................................. ii

OTHER AUTHORITY

5 C. Wright & A. Miller, Federal Practice & Procedure § 1219

...... (3d ed. 2004 and Supp. 2010)) ................................................................ 26

RECORD REFERENCES IN THE BRIEF

DOCKET ENTRY BRIEF PAGE

DN1, EEOC Complaint 2

DN4, Case transferred in from District of Georgia Northern:

Number 1:10-cv-02370 2

DN7, Amended EEOC Complaint 2

DN11, Answer to Amended Complaint 30

DN23, Carroll’s Motion for Summary Judgment 2

DN26, Depostion of Robert Steven Alleva 7,8,11

DN26-1, Depostion of Robert Steven Alleva 7,8,11

DN28, Depostion of Terilyn Holliday 3,4,8,11,12,13,15

DN28-1, Depostion of Terilyn Holliday 7,8,11,13,36

DN28-2, Depostion of Terilyn Holliday 3,4,10,13,15

DN28-3, Depostion of Terilyn Holliday 3,4,8,11,15

DN29, Deposition of James Lawrence McCullough 10,13,34

DN29-1, Deposition of James Lawrence McCullough 6,8,9,10,12,33

DN29-2, Deposition of James Lawrence McCullough 6,8,11,12,13,15

DN29-3, Deposition of James Lawrence McCullough 3,4,13,14,15,16,34

DN30, Deposition of Richard Joseph Ramirez 11

DN30-1, Deposition of Richard Joseph Ramirez 12,13

DN30-2, Deposition of Richard Joseph Ramirez 3,10,11,12,13,14,16,35,36

DN31, Deposition of James Robert Spivey 3,6,7,8,10,13

DN31-1, Deposition of James Robert Spivey 3

DN32, Deposition of Clifford Watts 3,4,13,14,33

DN32-1, Deposition of Clifford Watts 3,4,5,15,33

DN33, Deposition of Steven Martin Wommack 3,4,6,9,10,34

DN33-1, Deposition of Steven Martin Wommack 6,9,10,14,34

DN33-3, Deposition of Steven Martin Wommack 4,10,15,16,36

DN37, EEOC’s Response to Motion for Summary Judgment 2,22

DN37A, Affidavit of Elease Taylor 3,15

DN37B, Affidavit of Terilyn Holliday 4,8,9

DN38, EEOC’s Response to Carroll’s Statement of Uncontested 4,6,7,8

Facts and Conclusions of Law 9,10,11

DN39-1, Biegler’s Deposition Transcript 13

DN43, Carroll’s Affidavit in Support (2d Wommack Affidavit) 3,4

DN53, District Court Order and Opinion Granting Summary 3,6,16,17,18,22,

Judgment to Carroll and Denying Motion to Strike 27,28,29,31,34

DN54, Judgment 1,3

DN56, EEOC’s Notice of Appeal 2

DN58, EEOC’s Amended Notice of Appeal 2

No. 12-14341

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff/Appellant,

CARROLL’S, LLC, d/b/a CARROLL TIRE CO.,

Defendant/Appellee.

On Appeal from the United States District Court

for the Southern District of Georgia

Augusta Division, No. 10-00115

OPENING BRIEF OF THE EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION AS APPELLANT

_______________________________________________________

JURISDICTIONAL STATEMENT

The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1345, and 42 U.S.C. § 2000e-5(f)(1), (3). The court issued final judgment on March 30, 2012. DN54.[1] The Commission filed a timely notice of appeal on May 29, 2012. DN56, 58 (May 30, 2012, amended notice of appeal). Fed. R. App. P. 4(a)(1)(B). This Court has jurisdiction pursuant to 28 U.S.C. § 1291.

statement of issues

Whether the district court erred in refusing to evaluate the Commission’s evidence of intentional discrimination under a mixed motive framework.

statement of the case

A. Course of Proceedings

The Commission filed this suit against Carroll’s, LLC, d/b/a Carroll Tire Company under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., alleging that defendant terminated the employment of Terilyn Holliday because of her sex (female) in violation of Title VII. DN1;[2] DN7. Carroll filed a motion for summary judgment, arguing that the Commission had no direct evidence to support its disparate treatment claim, had not established a prima facie case, and had not raised a triable question of pretext. DN23. The Commission filed its response to the motion for summary judgment and argued, inter alia, that the evidence of intentional discrimination on the basis of sex should be evaluated under a mixed motive framework. DN37. The district court granted Carroll’s motion for summary judgment, DN53, and entered judgment in favor of Carroll. DN54.

B. Statement of Facts

Terilyn Holliday worked for Carroll in its Grovetown, Georgia store for eight years (from January 1999 to November 2007). DN28, Holliday Dep. at 52; DN28-2, Holliday Dep. at 225; DN28-3 at 1, Pl’s Ex. 1; DN29-3 at 83-84, Ex. 9. In her last three years, she served as assistant branch manager, until she was fired at the end of November 2007. DN28-2, Holliday Dep. at 226-27; DN28-3 at 3, Pl’s Ex. 3; DN29-3 at 83-84, Ex. 9. Although Carroll had a progressive discipline policy (DN29-3 at 51-53, Ex. 2), Holliday was fired without ever receiving any written warnings under that policy. During Holliday’s tenure as assistant manager, she worked for four different branch managers: Elease Taylor, Clifford Watts, James Spivey, and Richard Ramirez. DN37, Ex. A, Taylor Aff.; DN32, Watts Dep. at 19; DN43, Wommack 2d Aff. at ¶¶ 5 & 6; DN31, Spivey Dep. at 18; DN33, Wommack Dep. at 58; DN30-2 at 96, Ramirez Dep., Ex. 2. James McCullough became the Regional Manager in January 2006, for Carroll Tire facilities in the area covering Grovetown, and the record reflects that he expressed bias against women in management. DN32, Watts Dep. at 22, 87; DN32-1 at 45, Pl’s Ex. 1 at ¶19; see also DN32-1, Watts Dep. at 87. Marty Wommack became Vice President of Human Resources during the same time period, and he had to approve all hiring and firing decisions. DN33, Wommack Dep. at 17, 20.

Holliday began her employment with Carroll in 1999 as an operations clerk and was promoted after a few years to a customer service position. DN28, Holliday Dep. at 52; DN28-2, Holliday Dep. at 225; DN28-3 at 1, Pl’s Ex. 1. In February 2005, branch manager Elease Taylor promoted Holliday to the position of assistant branch manager. DN28-2, Holliday Dep. at 226-27; DN28-3 at 3, Pl’s Ex. 3. In late June 2005, Taylor transferred from Grovetown to Florence, South Carolina (DN29-3 at 72, Ex. 7; DN33-3 at 2), and Carroll transferred Clifford Watts from Savannah, Georgia to take over as Grovetown’s branch manager. DN32, Watts Dep. at 19; DN43, Wommack 2d Aff. at ¶¶ 5 & 6. Holliday served as assistant manager for Watts throughout his tenure until he left in 2007. DN38, at 2, ¶4. Holliday’s day to day responsibilities as assistant branch manager included: customer service, supervising employees, deposits, daily invoices, receiving, reports, human resources functions, orders, sales, answering telephones, accounts receivable, accounts payable coding, SAP training, UPS, and other duties. DN37, Ex. B, Holliday Aff. at ¶19.

Watts testified that Holliday “did a good job” and that her job performance was “[e]xcellent.” DN32-1 at 44, Ex. P1 at ¶5. He said, “I had no problems with her. I did more sales on the road. I could rely on [Holliday] to take care of business.” Id. Watts described Holliday’s strengths as handling customers and paperwork, and said she really did the branch manager’s job because he (Watts) was out making sales calls a lot and she was there in the warehouse. DN32-1, Watts Dep. at 95; see also DN32-1 at 45, Ex. P1 at ¶8 (Watts stated that Holliday, as assistant manager, had the same job duties as he did, as branch manager).

In late November 2005, Holliday received a written evaluation of her performance. DN32-1 at 41, Ex. D4. Watts rated her performance as “Meets Some but not all Performance Measures (75% to 99% of Performance),” with the comment that overall she was a “good employee” and identifying four “success factors” for Holliday’s development. Id. Watts stated that he “was told that you could not give a total of all 5’s [sic] because an employee will need room to grow in some areas,” and noted that “[i]t is a satisfactory rating.” DN32-1 at 45, Ex. P1 at ¶12. Watts did not rate Holliday’s performance after 2005 (DN32-1 at 45, Ex. P1 at ¶13), but he stated that “[i]f [he] could have rated [in 2006], [he] would have gave [sic] her all 5’s [sic].” DN32-1 at 45, Ex. P1 at ¶13 & ¶14. Watts further testified that between 2005 and 2007, Holliday’s performance improved in all areas. DN32-1, Watts Dep. 91-92. The record contains no additional performance evaluations for Holliday as assistant manager with Carroll.

In February 2007, Watts resigned after a dispute with management regarding his response to employee theft. DN32-1 at 43, Ex. D6 (Watts’s Febuary 2007 resignation letter).[3] At Carroll’s request, Holliday served as interim branch manager of Grovetown for approximately six weeks. DN53, op. at 3. Carroll asserted that she made no changes to branch operations during this time (DN38 at 5, ¶¶14, 15), but Holliday testified that she “did spot checking on the inventory” to address the theft issue. DN38 at 5, EEOC response to ¶15. Further, as Wommack’s testified, she was not in the position long enough to make significant changes. DN38 at 5, EEOC response to ¶14. Neither McCullough nor Wommack raised any complaints regarding Holliday’s performance as interim manager. DN33 & DN33-1, Wommack Dep. at 49, 53, 55-57, 111-12, 161; see also DN29-1 & DN29-2, McCullough Dep. at 187-204. And Wommack testified that Holliday worked very hard and did exactly what she was asked to do as interim branch manager. DN33 & DN33-1, Wommack Dep. at 53, 55-57, 161-63.

In late March or early April 2007, at McCullough’s recommendation (to Wommack), Carroll transferred James Spivey into the position of branch manager of the Grovetown facility. DN31, Spivey Dep. at 18; DN33, Wommack Dep. at 58. Wommack testified that he decided Grovetown needed a manager with more structure and discipline than it had under Watts (DN33, Wommack Dep. at 59-60, 80-81), and Spivey was known for being “very detailed,” “very structured,” and “a stickler for Defendant’s company rules.” DN28-1, Holliday Dep. at 154; DN26, Alleva Dep. at 44; DN33, Wommack Dep. at 80-81.

Spivey attempted to change the culture and certain aspects of branch operations at Grovetown. DN28-1, Holliday Dep. at 147; DN26-1, Alleva Dep. at 99; DN31, Spivey Dep. at 20-23. Spivey testified that he and Holliday “got along pretty good” (DN31, Spivey Dep. at 24), and that Holliday had strong customer skills and was good at telephone sales. DN31, Spivey Dep. at 59. However, Spivey also testified that Holliday was a little resistant to some of the changes he was making, and he felt that she had not been given direction before. DN31, Spivey Dep. at 20-23. Spivey testified that he spoke with, or counseled, Holliday on numerous occasions about operational issues and time management. DN38 at 8, EEOC response to ¶27; DN38 at 8, EEOC response to ¶28; DN38 at 9, EEOC response to ¶29; DN38 at 9, EEOC response to ¶30; DN31, Spivey Dep. at 33-47, 94-97. He testified that there was “no set way” to give verbal warnings; he just talked to the employee. DN31, Spivey Dep. at 49. He also testified that Holliday’s performance in these areas improved (“got slightly better”), but it was still not satisfactory. DN31, Spivey Dep. at 47. Spivey further testified that when he brought Holliday’s performance issues to McCullough’s attention, McCullough consistently instructed Spivey to keep working with Holliday on these issues, to let her know what he expected and what needed to be done. DN31, Spivey Dep. at 64-68; DN29-1 & DN29-2, McCullough Dep. at 180-81, 216-17. However, Holliday testified that Spivey verbally counseled her only one time, for being five minutes late. DN28, Holliday Dep. at 48.

In mid-August 2007, Spivey left the Grovetown facility suddenly, due to a family emergency. DN31, Spivey Dep. at 84-85. Holliday asked McCullough for a promotion to the branch manager position. DN28-1, Holliday Dep. at 109, 115-17; DN26 & DN26-1, Alleva Dep. at 49-50, 73. McCullough immediately declined Holliday’s request, stating that “someone with more knowledge of the [sales] programs should be in this position,” and “[Holliday] did not know enough to present [the sales programs] to customers and get them to sign on the programs.” DN37, Ex. B, Holliday Aff. at ¶15; see also DN28-1, Holliday Dep. at 116-117; DN28-3 at 16-17, Ex. 8; DN29-1, McCullough Dep. at 109-114; DN26-1, Alleva Dep. at 73-74 (McCullough told Holliday and Alleva that Carroll needed to get the right people in the right position, the best qualified).

Holliday again served as interim branch manager of Grovetown from mid-August 2007 until September 2007. DN38 at 10, ¶33. Carroll asserted that, as interim branch manager, Holiday again made no effort to bring the branch into compliance with company policies and practices, continued to sell to end-users,[4] and made no attempt to address employee theft problems. Id. The Commission disputed this assertion, in part (DN38 at 10, EEOC response to ¶33), relying on Holliday’s testimony that she only sold to customers with approved company accounts (DN37, Ex. B, Holliday Aff. at ¶¶27-29), and testimony from McCullough and Wommack that neither of them raised any complaints regarding Holliday’s performance as interim manager. DN33 & DN33-1, Wommack Dep. at 49, 55-57, 111-12; DN29-1, McCullough Dep. at 188. The Commission also relied on Wommack’s testimony that Holliday worked very hard and did exactly what she was asked to do as interim branch manager (DN33 & DN33-1, Wommack Dep. at 53, 55-57, 161-63), and Wommack’s further testimony that Holliday was not in the manager position long enough to enact any significant changes. DN33, Wommack Dep. at 57 (testifying that it takes time to effect change at the warehouse, or branch, level).

When Wommack and McCullough discussed filling the branch manager position with a permanent replacement for Spivey, McCullough testified that he told Wommack that Holliday would like to be considered for the position but McCullough added that “she wasn’t ready.” DN29-1, McCullough Dep. at 112. Wommack testified that he considered Holliday as a candidate for branch manager and decided she was still not ready to assume the role. DN33-1, Wommack Dep. at 119-20. But both Wommack and Holliday testified that Wommack did not speak directly to Holliday about her candidacy. DN33 & DN33-1, Wommack Dep. at 61-65, 117-122; DN28-2, Holliday Dep. at 230-31. Wommack also testified that Spivey did not believe Holliday was ready to run the branch. DN33-1, Wommack Dep. at 120-21. However, Spivey testified he was never asked about Holliday’s performance and gave no recommendation regarding her promotion. DN31, Spivey Dep. at 92. Thus, the Commission’s evidence showed that Wommack based his opinion that Holliday was not ready for promotion solely on information he got from McCullough. DN38 at 10, EEOC response to ¶34, citing DN29 & DN29-1, McCullough Dep. at 61-65, 120, and DN28-2, Holliday Dep. at 230-31; see also DN33 & DN33-1, Wommack Dep. 61-65, 120 (stating that he had no personal knowledge of Holliday’s day to day duties or her performance of them), and DN33-3 at 42, Wommack’s EEOC Aff. at ¶6 (stating that he did not work with Holliday first-hand).

On September 4, 2007, Richard Ramirez was promoted to branch manager of the Grovetown facility and became Holliday’s immediate supervisor. DN30-2 at 96, Ramirez Dep., Ex. 2. Wommack selected Ramirez because he was the most qualified person to address the needs of the Grovetown branch. DN33-1, Wommack Dep. at 118-19; see also DN38 at 11, ¶36. Ramirez was very detailed, structured, organized, and by-the-book. DN38 at 11, ¶36. However, Holliday believed that she should have gotten the branch manager job instead of Ramirez. DN38 at 12, ¶40; see also DN26 & DN26-1, Alleva Dep. at 65-66, 93.

Ramirez attempted to change many aspects of the Grovetown facility’s operations. DN38 at 12, ¶41. Carroll claimed that Holliday refused to follow many of Ramirez’s directives (DN38 at 12, ¶42), but Holliday said his rules were inconsistent and that she did try to catch up on inventory receiving. DN38 at 12-13, EEOC response to ¶42. Ramirez had limited experience managing employees and knew very little about the operations side of the branch when he first started working as branch manager, which required Holliday and other employees to “teach him how to enter a[n] order for a customer, or enter a transfer [of product] to another branch of the company.” DN30 & DN30-2, Ramirez Dep. at 35-36, 42, 253, 256-57; DN29-2, McCullough Dep. at 250-52; DN28-3 at 16-17, Holliday Dep. at Ex. 8; DN26, Alleva Dep. at 30, 49-50. Customers and employees continued to turn to Holliday because she had been at the Grovetown facility for several years and was more knowledgeable. DN28-3 at 16, Holliday Dep., Ex. 8.

According to Holliday, Ramirez did not treat her with the same respect as he did male employees, did not recognize her as an assistant manager, and avoided communicating with her by relaying instructions to her through other employees. DN28 & DN28-1, Holliday Dep. at 91-94, 172. She also testified that Ramirez walked away from her as she was speaking to him, and even shut the door to his office to avoid talking to her; she called McCullough to complain about Ramirez’s rudeness but McCullough never returned her call. DN28, Holliday Dep. at 90-91. Ramirez stated he verbally counseled Holliday regarding her performance. DN30-2 at 104, Ramirez Dep., Ex. 5 at ¶8a. He said that he complained to McCullough that Holliday was not able to keep up with her work. DN30-2 at 105, Ramirez Dep., Ex. 5 at ¶12. Ramirez also said that Holliday could not manage people, was not able to keep up with the work and undermined pricing, and did not like being verbally counseled. DN30-2 at 103-11, Ramirez Dep., Ex. 5 at ¶¶8a, 12, 13, 19a, 29.

Ramirez testified that he “painted a picture” to McCullough of Holliday’s job performance problems. DN30-1 & DN30-2, Ramirez Dep. at 193, 219-21. He stated that he complained to McCullough about Holliday’s performance at least ten times. DN30-2, Ramirez Dep. at 262. Ramirez also testified that when he raised issues with McCullough about Holliday’s performance, McCullough advised him to keep working with her. DN30-1, Ramirez Dep. at 193. McCullough testified that Ramirez complained to him almost every day about a litany of problems with Holliday, including her smoke breaks, her time management, her combative and argumentative manner, and her handling of packing slips and bank deposits. DN29-1 & DN29-2, McCullough Dep. at 181-82, 235-38, 240-41, 243-44, 258, 265. Despite all the complaints Ramirez made to McCullough, there is evidence that Ramirez never complained to Holliday about her performance. DN28-1, Holliday Dep. at 122.

Carroll had a progressive disciplinary policy throughout the time of Holliday’s employment. DN29, McCullough Dep. at 87-88; DN29-3 at 51-53, Ex. 2 (policy). McCullough stated that he verbally counseled Holliday one time regarding inventory. DN29-3 at 65, McCullough Dep., Ex. 6 at ¶16. Ramirez stated he verbally counseled Holliday an unspecified number of times about a variety of issues. DN30-2 at 104, Ramirez Dep., Ex. 5 at ¶8a. Similarly, Spivey testified that he talked with Holliday about many of the same performance issues. DN31, Spivey Dep. at 33-47, 94-97. However, Holliday testified that Ramirez never complained about her performance to her (DN28-1, Holliday Dep. at 122), and that Spivey counseled her only once, about being five minutes late. DN28, Holliday Dep. at 48. It is undisputed that Carroll never issued a written warning to Holliday prior to her termination. DN29-2, McCullough Dep. at 291; DN29-3 at 65, Ex. 6 at ¶16; DN28-2, Holliday Dep. at 242-44; DN33-3 at 44 ¶14.[5]

McCullough testified that the decision to terminate Holliday was developed jointly by Ramirez, Wommack, and himself. DN29-3, McCullough Dep. at 304, 306, 335-36, 339. However, Ramirez testified that it was McCullough who raised the idea of terminating Holliday’s employment. DN30-2, Ramirez Dep. at 220. McCullough testified that he talked with Wommack on several occasions about terminating Holliday’s employment due to her failure to cooperate with Ramirez. DN29-3, McCullough Dep. at 325-28, 335-42. However, Wommack testified that it was McCullough’s suggestion to fire Holliday (DN33-1, Wommack Dep. at 174), and he concurred in Holliday’s termination based solely on information he received from McCullough. DN33-1, Wommack Dep. at 176-77, 183; see also DN33-1, Wommack Dep. at 130, 139-40, 143, 149-50, 158 (Wommack made no independent inquiry about Holliday).

McCullough’s role in the decision to fire Holliday is critical, because there is evidence of his bias against women and against Holliday in particular. Watts testified that McCullough made a negative comment in 2006 regarding women holding management positions at Carroll. Specifically, Watts testified that McCullough stated “women wasn’t [sic] the right place in management in the workplace.” DN32, Watts Dep. at 22. In addition, Watts stated in an affidavit to the EEOC that, in late 2006 or early 2007, McCullough told him that “[Holliday] did not need to be an Assistant Manager … [and t]o get rid of her because she was a woman and did not need to be a manager.” DN32-1 at 45, Pl’s Ex. 1 at ¶19; see also DN32-1, Watts Dep. at 87. McCullough denied making either statement attributed to him by Watts (DN29-2, McCullough Dep. at 274), but the record also shows that McCullough did not promote any women into management while he was Regional Manager with Carroll. DN29-2, McCullough Dep. at 296. In addition to his comments about women in management and about Holliday’s unsuitability to be a manager, McCullough exhibited general animosity towards the women he supervised. DN37, Ex. A, Taylor Aff. at ¶14; DN28, Holliday Dep. at 100. Holliday testified that McCullough would come into the Grovetown branch and have conversations with all of the men at the warehouse but ignore her. DN28-3, Holliday Dep. at 235.

On November 27, 2007, McCullough went to the Grovetown branch, met with Holliday, and offered her an opportunity to resign with a severance payment of $7500. DN28-3 at 16-17, Ex. 8 (Holliday letter to EEOC); DN33-3 at 45-46, Aff. at ¶¶15, 18 & 18a. Specifically, McCullough told Holliday during her exit interview that she had done a good job keeping the doors open, but they needed to part ways because the branch needed a new management team and she “butted heads” with Ramirez. DN28-2, Holliday Dep. at 149; DN28-3 at 16-17, Ex. 8 (Holliday’s letter to EEOC); DN29-3, McCullough Dep. at 308-10, 312-13, 324, 441-42. Holliday refused to resign. DN33-3 at 45-46, at ¶¶15, 18 & 18a. Carroll terminated her employment. DN29-3 at 83-84, Ex. 9. Holliday’s personnel action form indicates the reason for her termination was “performance.” DN33-3, Ex. 8. However, Ramirez told Carroll’s human resources department that Holliday’s termination was a layoff. DN30-2 at 114-15, Ramirez Dep., Ex. 7.

C. District Court Decision

The district court stated that Title VII disparate treatment claims may be established by direct evidence of discrimination or circumstantial evidence that creates an inference of discrimination. DN53, op. 10-11. The court acknowledged that the Commission asserted both direct and circumstantial evidence supported its discriminatory discharge claim. Id. at 11. The court said that claims based on circumstantial evidence are analyzed under the burden-shifting framework of McDonnell Douglas Corp. v Green, 411 U.S. 792 (1973), but where there is direct evidence, it is unnecessary to rely on the McDonnell Douglas framework. Op. at 11. The court recognized that “[i]f the plaintiff presents direct evidence of discrimination that, if believed by the jury, would be sufficient to win at trial, summary judgment is not appropriate, even where the employer presents conflicting evidence.” Id. at 11 (citations omitted).

In this case, the court concluded, the Commission did not identify direct evidence of discrimination. Id. at 11-13. The court noted that the Commission relied on two discriminatory statements attributed to McCullough regarding Holliday and women in management in general, as well as a cat’s paw theory to connect these statements to Wommack. Id. at 12-13 & n.4. Because any alleged discriminatory statements by McCullough were made almost a year before Holliday’s termination, the court concluded they were too remote to constitute direct evidence. Id. at 12-13.

The court found the Commission had established a prima facie case of gender discrimination under the McDonnell Douglas framework. Id. at 14-15. However, it concluded that the Commission could not rebut the reasons Carroll’s proffered for its decision – namely that Holliday was seeking work elsewhere and refused to perform her work under Ramirez’s direction in that she constantly “butted heads” with him. The pretext evidence was insufficient because: (1) there were no shifting or inconsistent reasons for firing Holliday (id. at 17-19); (2) the progressive discipline policy was not mandatory, and the failure to follow it was not evidence of pretext (id. at 19-20); (3) the poor performance reasons could not be rebutted by showing satisfactory performance; rather the Commission’s burden was to show the employer did not honestly believe her performance was lacking, which the Commission did not show (id. at 20-23); and (4) McCullough’s discriminatory animus was insufficient standing alone to prove pretext so there was no question of fact as to whether his animus motivated the decision in this case (id. at 23-24 n.7), because the Eleventh Circuit holds that a discriminatory comment alone is not sufficient to present a question of material fact on the issue of discriminatory intent (id. at 25 (citations omitted)).

The court also rejected the Commission’s argument that the evidence in this case should be analyzed under a mixed motive theory. Id. at 26 (“No Mixed Motive Claim”). Specifically, the court stated: “Plaintiff did not raise the ‘mixed motive’ issue in its complaint, and the section in its response brief is sufficient neither to provide Defendant with adequate notice of the new claim nor to amend the original complaint.” Id. (citations omitted).

SUMMARY OF ARGUMENT

The district court erred in refusing to evaluate the Commission’s evidence of intentional discrimination under a mixed motive framework. The court’s rationale for refusing to address this theory of liability was that the Commission did not allege a mixed motive issue in its complaint, and that, according to the court, the Commission’s mixed motive argument in its response to summary judgment was insufficient to provide Carroll “adequate notice of the new claim []or to amend the original complaint.” The court’s ruling was premised on two fundamental errors.

First, the Commission’s mixed motive theory is not a new claim. The claim in this suit is gender-based disparate treatment under Title VII. A Title VII plaintiff may establish a claim for unlawful discriminatory treatment under either the well-known pretext theory set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), or the mixed motive theory codified in 42 U.S.C. § 2000e-2(m). These are alternative theories of liability for intentional discrimination, and the mixed motive theory is that the employer was motivated by both legitimate and discriminatory motives in making the challenged employment decision. The district court’s ruling, in effect, treated the mixed motive theory as if it were a claim for relief and improperly held the Commission to a requirement that it plead a theory of proof in its complaint. This is not the law.

As the Supreme Court recently explained in Skinner v. Switzer, the Federal Rules of Civil Procedure require only a plausible statement of the plaintiff’s claim; they do not require “an exposition of [plaintiff’s] legal argument.” Likewise, as this Court recognized in Sams v. United Food & Commercial Workers Int’l Union, a complaint is not required to specify in detail the precise theory; all that is required is that the defendant be on notice as to the claim being asserted and the grounds on which it rests. The Commission’s complaint satisfied federal pleading requirements by stating facts supporting its discriminatory termination claim. And the Commission should have been permitted to pursue its claim under any theories of disparate treatment supported by evidence after discovery, including a mixed motive theory.

Second, although the district court premised its ruling on a lack of notice to defendant, Carroll was on notice of the Commission’s mixed motive theory in this case because the Commission raised its mixed motive argument in response to Carroll’s motion for summary judgment. And the court did not find that Carroll was prejudiced in any way, nor could it do so under these circumstances. Further, even if it were necessary to plead theories in a complaint (which it is not), a mixed motive theory would fall within the scope of Fed. R. Civ. P. 15, under which a court may permits a complaint to be amended up to and even after trial.

Moreover, because it failed to consider a mixed motive analysis in this case, the district court did not acknowledge that evidence demonstrating that gender was a motivating factor in an employment decision can establish Title VII liability under section 703(m), 42 U.S.C. § 2000e-2(m). The court only considered the Commission’s evidence of animus on the issue of whether the statements of bias constituted “direct evidence” of discrimination and whether, under a McDonnell Douglas pretext analysis, the statements of bias were sufficient, standing alone, to rebut the nondiscriminatory reasons Carroll articulated for its decision to terminate Holliday’s employment. The success of a mixed motive theory does not require rebuttal of the employer’s legitimate reasons, but rather is premised on a view that both legitimate and illegitimate reasons motivated the decision. Thus, the Commission’s burden is only to show that Carroll’s decision to fire Holliday was partially motivated by McCullough’s gender animus; the evidence of his bias was sufficient to meet that burden even if the Commission did not rebut the nondiscriminatory reasons. Courts have found evidence similar to that the Commission presented here sufficient to defeat a motion for summary judgment on the issue of the employer’s intent.

ARGUMENT

The district court erred in refusing to EVALUATE the Commission’s evidence OF INTENTIONAL DISCRIMINATION under a mixed motive FRAMEWORK. [6]

This Court reviews a district court’s grant of summary judgment de novo. Chapman v. AI Transp., 229 F.3d 1012, 1023 (11^th Cir. 2000) (en banc). On appeal, the Court affirms a district court’s grant of summary judgment only when, viewing the evidence in the light most favorable to the nonmoving party, the record shows that there is no genuine dispute as to any material fact and that the moving party – Carroll Tire here – is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1263–64 (11^th Cir. 2010). “Where the nonmoving party has failed ‘to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial,’ no genuine issue of material fact exists.” McShane v. U.S. Attorney General, 144 Fed. Appx. 779, 787 (11^th Cir. 2005), quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The ultimate question at summary judgment in a case raising a mixed motive theory is “‘whether the plaintiff has presented evidence, direct or circumstantial, from which a reasonable jury could logically infer that [a protected characteristic] was a motivating factor in [the defendant’s adverse employment action against the plaintiff].’” Wright v. Murray Guard, Inc., 455 F.3d 702, 713 (6^th Cir. 2006), quoting Harris v. Giant Eagle, Inc., 133 Fed. Appx. 288, 297 (6^th Cir. 2005).

Although the district court accepted the Commission’s cat’s paw argument (DN37 at 12-13) and properly concluded that McCullough’s gender bias could be imputed to Carroll (DN53, op. at 23-24 & n.7), the district court refused to consider the Commission’s mixed motive argument because the Commission did not allege “the ‘mixed motive’ issue” in its complaint and the Commission’s argument in response to summary judgment was insufficient to provide Carroll “adequate notice of the new claim []or to amend the original complaint.” Id. at 26. In support of this pleading requirement, the district court relied on Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314-15 (11^th Cir. 2004), which held Gilmour’s attempt to raise a new claim in response to the employer’s summary judgment motion was insufficient and that the proper procedure to assert a new claim would have been to seek to amend the complaint. But that rule is inapplicable here because the theory the Commission seeks to assert is not a separate claim as in Gilmour.

In Gilmour, the plaintiff sued an insurance company asserting various tort claims and then, in response to the defendant’s summary judgment motion, withdrew her tort claims and asserted a new claim based on “breach of duty” under contract law. 382 F.3d at 1312-14. This Court held that the liberal pleading standard of Rule 8 and Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002), does not afford plaintiffs the opportunity to raise new claims at the summary judgment stage. Id. at 1314-15. Rather, the proper procedure at the summary judgment stage for asserting a new claim is to amend the complaint in accordance with Fed. R. Civ. P. 15(a). Id. at 1315.

The district court erred in relying on Gilmour because the Commission’s mixed motive theory is not a new claim. The elements and the facts in support of a tort claim are separate and distinct from those of a breach of duty claim under contract law.[7] However, in this case, unlike the distinctly different claims asserted in Gilmour, a mixed motive theory is simply another method of proving the Commission’s disparate treatment claim under Title VII.

A Title VII plaintiff may establish a claim for unlawful discriminatory treatment under either the pretext theory set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), or the mixed motive theory codified in 42 U.S.C. § 2000e-2(m).[8] Under either of these theories, the same set of facts is presented to the fact finder in support of the discriminatory treatment claim. It is only after a full presentation of the evidence that a determination can be made on the ultimate question of whether plaintiff established a material question of fact regarding defendant’s liability for discrimination, whether directly, or through the existence of pretext or a mixed motive. See Ostrowski v. Atlantic Mut. Ins. Companies, 968 F.2d 171, 181 (2d Cir. 1992) (“mixed motive issue does not arise for the trier of fact until the plaintiff has carried the burden of persuading the trier of fact that the forbidden reason was a motivating factor in the employment decision”).

The mixed motive theory of liability is that the employer was motivated by both legitimate and discriminatory motives in making the challenged decision. See generally Fogg v. Gonzales, 492 F.3d 447, 451, 453-54 (D.C. Cir. 2007) (explaining that “there are alternative ways of establishing liability under Title VII,” including mixed motive and traditional single motive theories); Watson v. Se. Pa. Transp. Auth., 207 F.3d 207, 216 (3d Cir. 2000) (recognizing that the point of the mixed motive theory is that a plaintiff may suffer discrimination even though there may also be a legitimate reason for the adverse employment action); Bailey-Pittman v. Unisia of Ga. Corp., 2006 U.S. Dist. LEXIS 15671 (M.D. Ga. Mar. 30, 2006) (“Because Bailey has also analyzed her claims under the Price Waterhouse ‘mixed motives’ test, the Court will analyze her claims under both frameworks.”).

Accordingly, as the Supreme Court recently explained, “under the Federal Rules of Civil Procedure, a complaint need not pin plaintiff’s claim for relief to a precise legal theory. Rule 8(a)(2) of the Federal Rules of Civil Procedure generally requires only a plausible ‘short and plain’ statement of the plaintiff’s claim, not an exposition of his legal argument.” Skinner v. Switzer, 131 S. Ct. 1289, 1296 (2011), citing 5 C. Wright & A. Miller, Federal Practice & Procedure § 1219, pp. 277–278 (3d ed. 2004 and Supp. 2010)); see also see also Sams v. United Food & Commercial Workers Int’l Union, 866 F.3d 1380, 1384 (11^th Cir. 1989) (“A complaint need not specify in detail the precise theory giving rise to recovery. All that is required is that the defendant be on notice as to the claim being asserted against him and the grounds on which it rests.”) (citations omitted); EEOC and Serrano et al. v. Cintas Corp., et al., 2012 WL 5458182, at *9-*11 (6^th Cir. November 9, 2012) (“Swierkiewicz compels the conclusion that a plaintiff is not required to plead whether she intends to employ the McDonnell Douglas or the Teamsters burden-shifting evidentiary framework.”).

As the Fourth Circuit stated in Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310 (4^th Cir. 2005), whether a Title VII plaintiff pleads a mixed motive theory is irrelevant because:

[a] case need not be characterized or labeled at the outset. Rather, the shape will often emerge after discovery or even at trial. Similarly, the complaint itself need not contain more than the allegation that the adverse employment action was taken because of a protected characteristic.

Diamond, 416 F.3d at 318 n.3, quoting Costa v. Desert Palace, Inc., 299 F.3d 838, 856 n.7 (9^th Cir. 2002) (en banc) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 247 n.12 (1989) (plurality opinion)), aff’d, Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). Likewise, in Hatmaker v. Memorial Medical Center, 619 F.3d 741 (7^th Cir. 2010), the Seventh Circuit emphasized the general rule that plaintiffs in federal court are not required to plead legal theories:

Although Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), require that a complaint in federal court allege facts sufficient to show that the case is plausible, see, e.g., Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008), they do not undermine the principle that plaintiffs in federal courts are not required to plead legal theories. See Aaron v. Mahl, 550 F.3d 659, 665-66 (7^th Cir. 2008); O'Grady v. Village of Libertyville, 304 F.3d 719, 723 (7^th Cir. 2002).

Hatmaker, 619 F.3d at 743 (emphasis added). Thus, the Commission’s complaint satisfied federal pleading requirements by stating facts supporting its discriminatory termination claim. And the Commission should have been permitted to pursue its claim under any theories of disparate treatment supported by evidence after discovery, including a mixed motive theory.

The district court also erred in relying on Keaton v. Cobb Cty., 2009 WL 212097, at *10 (No. 08-11220, 11^th Cir. Jan. 30, 2009). DN53, op. at 26. In Keaton, the Court held that plaintiff had waived her argument regarding whether the district court erred by refusing to address her mixed motive argument because she effectively raised it for the first time on appeal. Keaton, 2009 WL 212097 at *10 (“Our case law regarding waiver suggests that Keaton’s single, passing reference to a ‘mixed motive’ theory in a footnote contained in her response to appellees’ objections to the magistrate’s R & R was not sufficient to preserve the issue for appeal.”).[9] The circumstances in Keaton are distinguishable from those presented in this case. Because Keaton did not raise the mixed motive argument in response to defendant’s motion for summary judgment, but presented it only obliquely in her objections to the magistrate’s ruling against her, the Court in Keaton refused to consider on appeal a mixed motive theory of plaintiff’s failure to promote claim. Id.

In this case, by contrast, the Commission raised its mixed motive argument in response to defendant’s motion for summary judgment, with citations to the statute, case law, and the record. DN37 at 23-24. Thus, Carroll was on notice of the Commission’s mixed motive theory of the case. See Ondricko v. MGM Grand Detroit, LLC, 2012 WL 3194225, at *4-*5 (6^th Cir. August 8, 2012) (“A plaintiff triggers mixed-motive analysis by giving notice of bringing such claims. … Ondricko gave adequate notice of mixed-motive claims in her response to MGM's motion for summary judgment.”); and Spees v. James Marine, Inc., 617 F.3d 380, 390 (6^th Cir. 2010) (plaintiff gave adequate notice by alleging in her complaint that pregnancy was a motivating factor and stating that she was invoking a mixed motive analysis in a footnote to her motion for summary judgment); cf. Hashem–Younes v. Danou Enters. Inc., 311 Fed. Appx. 777, 779 (6^th Cir. 2009) (affirming district court’s application of the McDonnell Douglas framework where plaintiff failed to raise a mixed motive theory in her complaint or in her response to defendants’ summary judgment motion, and the record was “utterly silent as to mixed motives”). Thus, unlike the plaintiff in Keaton, the Commission provided sufficient notice of its mixed motive theory in its response to the motion for summary judgment.

Moreover, although the district court premised its ruling on a lack of notice to defendant (DN53, op. at 26), the court did not find that defendant was prejudiced. Nor could it do so here. See Hatmaker, 619 F.3d at 743 (noting that “[e]ven citing the wrong statute needn’t be a fatal mistake, provided the error is corrected in response to the defendant’s motion for summary judgment and the defendant is not harmed by the delay in correction”) (citation omitted). Defendant was not prejudiced in this case. Not only did the Commission give notice by asserting a mixed motive theory in response to defendant’s motion for summary judgment, but defendant’s answer to the Commission’s complaint appears to have anticipated a mixed motive theory of the case from the very beginning.[10]

Further, even if it were necessary to plead theories in a complaint (which it is not, for the reasons discussed above), a mixed motive theory would fall squarely within the parameters of Fed. R. Civ. P. 15(b)(1), which requires the court to “freely permit an amendment [to the pleadings] when doing so will aid in presenting the merits.” The rule also provides that after trial on the merits, “when an issue not raised in the pleadings is tried by the parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings.” Fed. R. Civ. P. 15(b)(2). In this case, there is little question that after presentation of all the evidence, a mixed motive argument would be ripe for consideration by a jury.

As a result of its failure to consider a mixed motive analysis in this case, the district court did not acknowledge that evidence demonstrating that gender was a motivating factor in an employment decision can establish Title VII liability under section 703(m), 42 U.S.C. § 2000e-2(m). See Harris v. Shelby Co. Bd. of Ed., 99 F.3d 1078, 1084 (11^th Cir. 1996) (recognizing that, under this section, “the plaintiff in a Title VII action prevails whenever he or she proves that one of the delineated characteristics was a ‘motivating factor’ behind a particular employment decision, even if there were other, even legitimate, factors motivating that decision as well.”). Although the district court considered the animus evidence, it did so only in concluding that McCullough’s statements did not constitute “direct evidence” of discrimination (DN53, op. at 11-13), and, under the McDonnell Douglas pretext analysis, that evidence was not sufficient, standing alone, to rebut the nondiscriminatory reasons Carroll had articulated for its termination of Holliday’s employment. DN53 at 23-26. The success of a mixed motive theory does not require rebuttal of the legitimate reasons, but rather is premised on a view that both legitimate and illegitimate reasons motivated the decision. Thus, the Commission’s burden is only to show that Carroll’s decision to fire Holliday was partially motivated by McCullough’s gender animus, and the evidence of his bias was sufficient to meet that burden even if the Commission did not rebut the nondiscriminatory reasons.

Further, in its discussion of the Commission’s animus evidence, the district court did not acknowledge that “direct evidence” is not required for a plaintiff to prove liability for discrimination. The Supreme Court specifically rejected that view in Desert Palace v. Costa, 539 U.S. 90, 98-102 (2003). In Desert Palace, the Court held that to establish liability under section 703(m) of Title VII (42 U.S.C. § 2000e-2(m)), a plaintiff need only present sufficient circumstantial evidence to allow a reasonable jury to conclude, by a preponderance of the evidence, that gender was a motivating factor in an employment decision. Id. at 98-102. The Court recognized that after such a showing, a defendant can limit monetary and certain other forms of relief – but not avoid liability – under section 706(g)(2)(B) of Title VII (42 U.S.C. § 2000e-5(g)(2)(B)), which shifts to the defendant the burden of demonstrating, also by a preponderance of the evidence, that it would have made the same decision in the absence of the impermissible motive. Id.

Courts have found evidence similar to that the Commission presented here sufficient to defeat a motion for summary judgment on the issue of the employer’s intent. See, e.g., Harris v. Shelby Co. Bd. of Ed., 99 F.3d 1078, 1084 (11^th Cir. 1996) (“The strongest evidence of … racial motivation [by an official whose recommendation the Board routinely followed] can be found in [the official’s] statement … to the effect that ‘under the circumstances we did not need to employ a black at Thompson High School.’”); Rowland v. American General Finance, Inc., 340 F.3d 187, 193 (4^th Cir. 2003) (supervisor’s statement that “I just don’t need another woman in this position” was sufficient to merit a mixed motive jury instruction under Desert Palace).

Here, McCullough’s treatment of women and his comments evincing gender-based animus, along with his September 2007 statement to Wommack that Holliday was not ready for promotion, constitute sufficient evidence of bias to raise a triable question about Carroll’s motivation for firing Holliday. Former manager Watts testified that McCullough made a statement to the effect that women were out of place in management positions. DN32, Watts Dep. at 22. Then, in expressing sex animus towards Holliday in particular in late 2006 or early 2007, McCullough told Watts that “[Holliday] did not need to be an Assistant Manager … [t]o get rid of her because she was a woman and did not need to be a manager.” DN32-1 at 46, Pl’s Ex. 1 at ¶19. The district court thought the ten or eleven months between these comments and the decision to fire Holliday made the remarks too remote to be probative of intent to discriminate. However, the court ignored evidence that McCullough was also involved in the September 2007 decision to replace Spivey with Ramirez, rather than Holliday; that is, McCullough admitted that he informed Wommack that Holliday was interested in but was not ready for the branch manager position. DN29-1, McCullough Dep. at 112. The September 2007 selection creates a chronological link between McCullough’s gender-biased comments in 2006 and early 2007 and the November 2007 termination decision. This evidence shows McCullough’s active involvement in Holliday’s employment status just a few months before the decision to terminate her employment.

Additional evidence should factor into a mixed motive analysis and preclude summary judgment, including Carroll’s efforts to cover up the fact that McCullough was the actual decision maker on Holliday’s termination. McCullough said it was a decision developed jointly by Ramirez, Wommack, and himself. DN29-3, McCullough Dep. at 304, 306, 335-36, 339. But Wommack said he had no independent basis for making such a decision and merely concurred in the decision based solely on information McCullough provided. DN33-1, Wommack Dep. at 130, 139-40, 143, 149-50, 176-77, 183.

Even if Wommack’s official responsibility for hiring and firing decisions renders him the decision maker in this case (DN33, Wommack Dep. at 20; DN29, McCullough Dep. at 22, 28, 31), his acquiescence in McCullough’s recommendation supports the district court’s conclusion that McCullough’s gender bias could be imputed to Carroll under a cat’s paw theory of liability. DN53, op. at 23-24 & n.7. Despite Wommack’s responsibility for hiring and firing decisions, in this case he simply did McCullough’s bidding. As this Court has recognized:

When the biased recommender and the actual decisionmaker are not the same person or persons, … the plaintiff must prove that the discriminatory animus behind the recommendation, and not the underlying employee misconduct identified in the recommendation, was an actual cause of the other party’s decision to terminate the employee. … One way of proving that the discriminatory animus behind the recommendation caused the discharge is under the ‘cat’s paw’ theory. This theory provides that causation may be established if the plaintiff shows that the decisionmaker followed the biased recommendation without independently investigating the complaint against the employee. In such a case, the recommender is using the decisionmaker as a mere conduit, or ‘cat’s paw[,]’ to give effect to the recommender’s discriminatory animus.

Simpson v. City of Tuscaloosa, 186 F.3d 1328, 1331-32 (11^th Cir. 1999) (citations omitted) (emphasis added); see also Staub v. Proctor Hosp., 131 S. Ct. 1186, 1193 (2011) (“The employer is at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision.”).

Under the circumstances here, if McCullough is not viewed as the actual decision maker, the district court properly concluded that there was adequate evidence that Wommack (the putative decision maker) followed a gender-biased recommendation from McCullough (a putative non-decision maker) to such an extent that discriminatory motivation for Holliday’s termination could be established. Such a finding of causation – that is, that gender animus was a causative or motivating factor in the decision to terminate Holliday’s employment – is sufficient to support a finding of liability under the mixed motive theory. See discussion of mixed motive theory, supra at 22-25, 30-32.

The record also demonstrates that McCullough made the decision to terminate Holliday’s employment without Ramirez’s knowledge or recommendation. DN30-2, Ramirez Dep. at 220-21. When asked if he recommended firing Holliday, Ramirez only stated “I agreed to it.” DN30-2, Ramirez Dep. at 219. When asked if Holliday was terminated because of her gender, Ramirez stated “I don’t know. I did not terminate her.” DN30-2 at 110, Ramirez Dep., EEOC Aff. at ¶30. Ramirez also testified that when he discussed Holliday’s performance with McCullough, it was not for the purpose of firing her, but merely to get advice from his boss. DN30-2, Ramirez Dep. at 220-22. However, McCullough raised the idea of terminating Holliday’s employment without informing Ramirez why. Id. at 220. And, importantly, Ramirez testified that he did not fill out the portion of Holliday’s change of status form indicating that the reason for her separation from employment was her job performance. Id. at 223-29 (Ramirez testified that although he filled out the remainder of the form, the handwriting indicating Holliday was discharged for performance was not his). All of these facts would allow a jury to infer that McCullough orchestrated Holliday’s termination in furtherance of his stated view that women do not belong in management positions, even if he also believed she had some performance issues.

Moreover, Holliday testified that Ramirez never complained to her about her performance. DN28-1, Holliday Dep. at 122. A jury could conclude that this evidence, when coupled with Wommack’s testimony that he understood that Holliday was “reasonable in her performance” and “not a bad employee” (DN33-3 at 42, Wommack Dep., EEOC Aff. at ¶6), casts doubt on the veracity of McCullough’s rendition of Holliday’s asserted performance problems. Furthermore, it also suggests that whatever Holliday’s level of performance, if it did not warrant written discipline under Carroll’s progressive discipline policy, it certainly did not warrant discharge. A jury could also conclude that McCullough’s general view that Holliday simply could not work effectively with Ramirez because she “butted heads” with him was itself the product of gender-based stereotypes. Cf. Price Waterhouse, 490 U.S. at 250 (objecting to aggressiveness in women reflects gender stereotype about the proper behavior for women). All of these facts, taken in their totality, could allow a fact finder to conclude that McCullough’s discriminatory sex animus was a motivating factor, under section 703(m), in Carroll’s decision to fire Holliday.[11]

For these reasons, the district court erred in refusing to consider the Commission’s evidence in this case under a mixed motive theory.

CONCLUSION

For the foregoing reasons, the Commission urges this Court to reverse the judgment of the district court and remand the case for evaluation of the Commission’s evidence under a mixed motive theory.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

CAROLYN L. WHEELER

Acting Associate General Counsel

/s/ Donna J. Brusoski

______________________________

DONNA J. BRUSOSKI

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

113 M Street, N.E.

Washington, D.C. 20507

(202) 663-7049

donna.brusoski@eeoc.gov

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/s/ Donna J. Brusoski

_________________________________

Donna J. Brusoski

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

113 M Street, N.E.

Washington, D.C. 20507

(202) 663-7049

donna.brusoski@eeoc.gov

[1] “DN*” refers to the docket number on the district court’s docket sheet. “DN* at [page]” refers to specific pages in the record using the district court’s system of pagination imprinted across the top of each document, unless otherwise noted. The district court docket sheet is included in the Record Excerpts filed with this brief under separate cover.

[2] The complaint initially was filed in the United States District Court for the Northern District of Georgia (Atlanta Division) and was transferred to the Southern District (Augusta Division) on August 25, 2011. DN3.

[3] Although Holliday knew of the employee theft issue, she was not implicated in it. DN53, op. at 2; DN38 at 4, EEOC response to ¶11 (Holliday “advised Watts of the theft situation” and “recommended … termination [of the employee involved]”).

[4] “End-users” refers to retail customers (such as vehicle owners), as opposed to independent retail dealers; Carroll asserted that it avoids this practice because it causes Carroll to compete with its retail dealers. DN38 at 1-2, ¶2. Holliday testified that Taylor, Watts, and Ramirez all sold to end-users (DN38 at 2, EEOC response to ¶2; and DN38 at 3, EEOC response to ¶8), and that she sold only to customers approved by Carroll Tire Company. DN38 at 3, EEOC response to ¶8.

[5] Unlike Holliday, Carroll did provide a final written warning to Ramirez when he violated one of defendant’s policies. DN30-1, Ramirez Dep. at 134-35; DN39-1, Biegler Dep. at 37. See DN30-2 at 100-02, Ramirez Dep., Ex. 5 (written warning issued to Ramirez in 2009 after a warehouse employee filed a complaint that Ramirez made a racist comment, saying he looked like Buckwheat and to take his Buckwheat comb out of his hair).

[6] The Commission does not contest the district court’s determination that it did not meet its burden of rebutting each of Carroll’s asserted reasons for terminating Holliday, as required by Chapman, 229 F.3d at 1024-25, 1030, 1037. The Commission did not rebut Carroll’s evidence that Holliday was looking for another job and thus could not avoid summary judgment on its McDonnell Douglas pretext theory.

[7] The elements of a tort claim are the traditional elements of negligence: (1) duty, (2) breach of duty, (3) proximate cause, and (4) injury. Basten v. United States, 848 F. Supp. 962, 967 (M.D. Ala. 1994). These are distinct from the elements of a breach of contract claim, which are: (1) a valid contract, (2) a material breach, and (3) damages. Beck v. Lazard Freres & Co., 175 F.3d 913, 914 (11^th Cir. 1999).

[8] The Supreme Court recognized the “mixed motive” theory of disparate treatment in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). A plurality of the Court decided that “when a plaintiff in a Title VII case proves that her gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff’s gender into account.” 490 U.S. at 258; see also id. at 259 (opinion of White, J.); id. at 261 (opinion of O’Connor, J.).

In response to the Supreme Court’s decision, Congress amended Title VII. See Civil Rights Act of 1991, Pub.L. No. 102-166, § 107(a), 105 Stat. 1071, 1075. Under section 703(m), 42 U.S.C. § 2000e-2(m), a plaintiff establishes liability for an unlawful employment practice when she “demonstrates that … gender … was a motivating factor for any employment practice, even though other factors also motivated the practice.” Emphasis added. Section 706(g)(2)(B) of Title VII, 42 U.S.C. § 2000e-5(g)(2)(B), shifts to the defendant the burden of demonstrating that it would have made the same decision in the absence of the impermissible motive, as a limit to monetary liability and certain other forms of relief, but not to absolve it of liability.

[9] The Keaton Court went on to say: “More importantly, Keaton did not raise the ‘mixed motive’ issue in her original complaint, and her footnote was sufficient neither to provide appellees with adequate notice of the new claim nor to amend the original complaint.” Id., citing Gilmour. However, as discussed above, there is no requirement that a mixed motive theory be pled in a complaint because theories do not need to be pled, and Gilmour rejected the plaintiff’s attempt to assert a new claim in response to summary judgment. But to the extent the terminology in Keaton, an unpublished decision, suggested such a requirement, the rule apparently articulated in dicta in Keaton should not be applied here. See Fed. R. App. P. 36, I.O.P 6 (unpublished opinions are not considered binding precedent); see also Martin v. Singletary, 965 F.2d 944, 945 n.1 (11^th Cir. 1992) (“Under the law of this circuit, published opinions are binding precedent.).

[10] See DN11, answer at 2 (“FIFTH DEFENSE: Defendant categorically denies that discrimination was a motivating factor in any employment decision relating to Terilyn Holiday. Therefore, plaintiff’s claims should be dismissed. Defendant further shows that the same employment decisions relating to Terilyn Holiday’s employment would have been made, regardless of whether any employee or representative of the defendant was motivated in whole or in part by consideration of her gender (or sex).”).

[11] Under 42 U.S.C. § 2000e-5(g)(2)(B), the statute would allow Carroll to limit the relief available by “demonstrating,” that is, carrying the burden of persuasion (Desert Palace, 539 U.S. at 100-01), that it would have made the same decision in the absence of McCullough’s discriminatory animus.