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

January 30, 2013

table of contents

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

TABLE OF CONTENTS ...……………………………………………………….ii

table of authorities…….…………………………………………..……iii

RECORD REFERENCES IN BRIEF…….………………………………..…..….vi

argument.................................................................................................... 5

THE DISTRICT COURT erred in refusing to EVALUATE the Commission’s evidence OF INTENTIONAL DISCRIMINATION under a mixed motive FRAMEWORK. ....................................................... 5

A. Mixed motive is a theory of proof, not a new claim; there is no requirement that a plaintiff plead theories in its complaint; and the Commission properly asserted its mixed motive theory, and gave notice to Carroll, in response to Carroll’s motion for summary judgment. …...5

B. The district court’s failure to analyze the evidence under a mixed motive theory is not cured by its McDonnell Douglas pretext analysis. ……..11

C. The Commission offered sufficient evidence of discriminatory intent to survive summary judgment when the evidence is properly analyzed under a mixed motive theory…………………………………………..22

conclusion............................................................................................... 26

certificate of compliance

certificate of servicE

table of authorities

CASES

Burstein v. Emtel, Inc., 137 Fed. Appx. 205 (11^th Cir. 2005) ........................ 18

Camreta v. Greene, 131 S. Ct. 2020 (2011) ................................................... 21

Cooley v. Great So. Wood Preserving, 138 Fed. Appx. 149 (11^th Cir. 2005) .. 6

Cooper v. Southern Co., 390 F.3d 695 (11^th Cir. 2004) ................................. 17

Crawford v. City of Fairburn, GA, 482 F.3d 1305 (11^th Cir. 2007) .......... 19,20

Cuevas v. American Express Travel Related Services Co., Ind.,

..... 256 Fed. Appx. 241 (11^th Cir. 2007) ........................................................ 20

Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) ......................... 4,12,14,16,17

EEOC and Serrano et al. v. Cintas Corp., et al., 699 F.3d 884 (6^th Cir. 2012) 8,9

EEOC v. Total System Services, Inc., 221 F.3d 1171 (11^th Cir. 2000) ............ 7

Ekokotu v. Boyle, 294 Fed. Appx. 523 (11^th Cir. 2008) ................................ 20

Gilmour v. Gates, McDonald & Co., 382 F.3d 1312 (11^th Cir. 2004) .............. 6

Harris v. Shelby Co. Bd. of Ed., 99 F.3d 1078 (11^th Cir. 1996) ................ 13,14

International Brotherhood of Teamsters v. United States ,

..... 431 U.S. 324 (1977) ................................................................................... 8

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

...... 11^th Cir. Jan. 30, 2009) .......................................................................... 9,10

Lewis v. Metropolitan Atlanta Rapid Transit Authority,

...... 343 Fed. Appx. 450 (11^th Cir. 2009) ........................................................ 21

McDonnell Douglas Corp. v Green, 411 U.S. 792 (1973) ...................... passim

McShane v. U.S. Attorney General, 144 Fed. Appx. 779 (11^th Cir. 2005) .. 6,20

Martin v. Singletary, 965 F.2d 944 (11^th Cir. 1992) ....................................... 10

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

...... (6^th Cir. August 8, 2012) .......................................................................... 10

Pennington v. City of Huntsville, 261 F.3d 1262 (11^th Cir. 2001) ................. 19

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ................................. 15,20

St.Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993) .................................... 12

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

...... 866 F.3d 1380 (11^th Cir. 1989) ................................................................... 8

Schecter v. Ga. State Univ., 341 Fed. Appx. 560 (11^th Cir. 2009) ................. 20

Skinner v. Switzer, 131 S. Ct. 1289 (2011) .................................................. 7,8

Spees v. James Marine, Inc., 617 F.3d 380 (6^th Cir. 2010) ............................. 10

Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) ........................................ 8

Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981) ....... 15,16

Tyson v. Ash Foods, Inc., 546 U.S. 454 (2006) ............................................ 17

White v. Baxter Healthcare Corp., 533 F.3d 381 (6^th Cir. 2008) .. 4,15,17,18,21

STATUTES & REGULATIONS

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

42 U.S.C. § 2000e-5(g)(2)(B) ......................................................................... 12

RULES

Fed. R. Civ. P. 8................................................................................................ 5

Fed. R. Civ. P. 8(a)(2) ...................................................................................... 7

Fed. R. Civ. P. 15 ........................................................................................... 11

Fed. R. App. P. 29(d) ..................................................................................... 27

Fed. R. App. P. 32(a)(5) ................................................................................ 27

Fed. R. App. P. 32(a)(6) ................................................................................ 27

Fed. R. App. P. 32(a)(7)(B) ........................................................................... 27

11^th Cir. R. 36-2, I.O.P 2, 6, 7 ........................................................................ 10

OTHER AUTHORITY

18 J. Moore et al., Moore's Federal Practice § 134.02[1] [d]

...... (3d ed. 2011) ............................................................................................ 21

RECORD REFERENCES IN THE BRIEF

DOCKET ENTRY BRIEF PAGE

DN53, District Court Order and Opinion Granting Summary

Judgment to Carroll and Denying Motion to Strike .................................. 13,23

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

REPLY BRIEF OF THE EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION AS APPELLANT

_____________________________________________________

In its opening brief, the Commission argued that the district court erred by refusing to evaluate at summary judgment the Commission’s evidence of intentional discrimination under a mixed motive framework in this gender-based disparate treatment claim. Specifically, the Commission argued, a mixed motive theory is not a new claim for relief, and the court improperly held the Commission to a requirement that it plead a theory of proof in its complaint. Because the complaint satisfied federal pleading requirements by stating facts supporting the Commission’s discriminatory termination claim, the Commission should have been permitted to pursue this claim under any theories of disparate treatment supported by evidence after discovery, including a mixed motive theory. EEOC br. at 22-27.

In addition, the district court improperly premised its ruling on a lack of notice to defendant. The Commission argued that 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. EEOC br. at 27-30.

The Commission also emphasized that because the district court failed to consider a mixed motive analysis in this case, it 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). 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 pretext analysis, the statements of bias were sufficient, standing alone, to rebut the non-discriminatory reasons Carroll articulated for its decision to terminate Holliday’s employment. However, the success of a mixed motive theory does not require rebuttal of the employer’s legitimate reasons; rather, it 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 gender animus; and the evidence of McCullough’s bias along with his role in the termination decision was sufficient to meet that burden even if the Commission did not rebut the nondiscriminatory reasons. By refusing to consider the evidence under a mixed motive framework, the district court rejected the Commission’s evidence raising a genuine issue of material fact as to whether Carroll’s decision to fire Holiday for legitimate reasons was also based on an illegitimate reason – McCullough’s gender bias. EEOC br. at 30-37.

In response, Carroll argues that the district court’s judgment should be affirmed but it does not directly challenge many of the Commission’s central arguments and misstates some of the district court’s findings. Carroll does not even address the Commission’s argument that a mixed motive theory is not a new claim. Instead, it relies only on the unremarkable argument that a new claim cannot be raised in response to a motion for summary judgment (br. at 16-20), which is beside the point here because the Commission did not raise a new claim. Carroll also does not address the Commission’s related argument that at summary judgment the Commission simply offered alternative theories of disparate treatment, including a mixed motive theory, which the district court improperly failed to address.

Carroll argues (br. at 21-25) that because the framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), includes consideration of whether a defendant has provided legitimate non-discriminatory reasons for a challenged employment action as well as evidence of pretext, that framework is “broad enough to encompass [a] mixed-motive” analysis.” This argument fails to account for important distinctions between the two theories –the shifting burdens of proof under a mixed motive theory (EEOC br. at 24 & n.8, 37 n.11), this Court’s standard for proving pretext (EEOC br. at 21 n.6), and this Court’s jurisprudence holding that motivating-factor liability under Title VII’s mixed motive provision does not apply to retaliation claims. Moreover, the issue of whether the McDonnell Douglas analysis applies to mixed motive cases at summary judgment after Desert Palace v. Costa, 539 U.S. 90 (2003), appears to be a question of first impression in this Court. This Court should clarify the proper analysis of evidence and burdens in mixed motive cases and hold that the McDonnell Douglas burden-shifting framework does not apply to summary judgment analysis of mixed motive cases, as the Sixth Circuit did in White v. Baxter Healthcare Corp., 533 F.3d 381 (6^th Cir. 2008).

Finally, Carroll argues (br. at 25-30) that even if the evidence is analyzed under a mixed motive theory, there is no genuine issue for trial because the Commission has not shown an unlawful consideration was a motivating factor in its decision to fire Holliday. But Carroll’s argument improperly characterizes the evidence in a light most favorable to itself and misstates some of the district court’s findings. Moreover, the Commission presented sufficient evidence to submit the question of the motivation for Holliday’s termination to a jury, and Carroll ignores most of the evidence showing that, or at least raising a jury question about whether, McCullough’s gender animus was a motivating factor in the decision to fire Holliday and attributable to Carroll. EEOC br. at 14-15, 32-37.

ARGUMENT

The district court erred in refusing to EVALUATE the

Commission’s evidence OF INTENTIONAL DISCRIMINATION under a mixed motive FRAMEWORK.

Carroll argues that the district court properly declined to address the Commission’s mixed motive “claim” because it was asserted only in response to the motion for summary judgment rather in the complaint. Carroll br. at 16-20. However, as the Commission explained in its opening brief, mixed motive is a not a new “claim.” Rather, mixed motive is simply another framework, or theory, for proving discriminatory intent, in addition to the pretext framework first established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). There is no requirement that theories be pled in a complaint, see Fed. R. Civ. P. 8, and the Commission properly asserted both theories in response to Carroll’s motion for summary judgment. Moreover, there is no dispute that Carroll had notice that the Commission was invoking a mixed motive theory. EEOC br. at 22-30. Carroll does not address this argument in any way.

Lacking any authority to dispute the Commission’s central point that legal theories need not be articulated in a complaint, Carroll argues that the district court properly disregarded the Commission’s mixed motive theory of proof because a new “claim” cannot be raised in response to a motion for summary judgment. Carroll br. at 16-20. The cases so holding are numerous, unremarkable, and completely unavailing, because a theory of proof is not a claim. The rule against new claims makes sense when a plaintiff tries to raise a contract claim in a tort action, Gilmour v. Gates, McDonald & Co., 382 F.3d 1312 (11^th Cir. 2004) (Carroll br. at 17; EEOC br. at 22-23 & n.7); or a hostile environment claim in a suit challenging retaliation and disparate treatment based on race in pay, promotions, work assignments, general terms and conditions of employment, and termination, Cooley v. Great So. Wood Preserving, 138 Fed. Appx. 149 (11^th Cir. 2005) (Carroll br. at 18); or a new claim of retaliation based on participation in Title VII proceedings where the facts in the complaint only allege protected opposition conduct, McShane v. U.S. Attorney General, 144 Fed. Appx. 779 (11^th 2005) (Carroll br. at 19).[1] None of these cases provide support for the view that a complaint must allege all possible proof theories for a single claim.

None of these decisions undermine, or even address, the Commission’s contention – that the district court improperly failed to analyze the evidence under a mixed theory of proof – because the rule set out in those cases is inapplicable here. EEOC br. at 22-28. In this case, the Commission did not raise a new “claim.” Instead, the Commission simply offered alternative “theories” of proving discriminatory intent – mixed motive and McDonnell Douglas. Thus, like the district court, Carroll’s argument confuses “claims,” which generally must be pled in a complaint, with “theories” of proof, which need not.

Carroll offers no case law supporting the principle that “theories” must be pled in the complaint – because that is not the law. Contrary to Carroll’s assertion (br. at 17-18), the Supreme Court’s decision in Skinner v. Switzer, 131 S. Ct. 1289, 1296 (2011), is directly on point here. In Skinner, the Court explained that “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) … 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) (internal quotation marks and citation omitted) (emphasis added). See also EEOC br. at 25-27, citing 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.”) (citations omitted); and EEOC and Serrano et al. v. Cintas Corp., et al., 699 F.3d 884, 897-98 (6^th Cir. 2012) (“Swierkiewicz compels the conclusion that a plaintiff is not required to plead whether she intends to employ the McDonnell Douglas or the [International Brotherhood of] Teamsters [v. United States , 431 U.S. 324 (1977)] burden-shifting evidentiary framework.”).

In Cintas, the Sixth Circuit thoroughly examined this issue and offered the following detailed explanation for holding that the Commission was not required to plead a Teamsters pattern-or-practice framework, or “theory,” in its complaint:

Although a plaintiff must “offer[ ] evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act,” Swierkiewicz explained that plaintiffs are not required to commit to one methodology of evidentiary proof to substantiate that inference in their complaint. Because Swierkiewicz provides that, at the pleading stage, a plaintiff need not indicate whether she seeks to prove intentional discrimination through direct or circumstantial evidence, it necessarily follows that a plaintiff need not indicate at the pleading stage which circumstantial evidentiary framework—McDonnell Douglas or Teamsters—she intends to employ. A contrary holding would impose an even more rigid pleading requirement than that which the Supreme Court rejected in Swierkiewicz. In fact, it would be akin to requiring a plaintiff to plead the theory of the case in the complaint, a requirement which has been rejected unequivocally even outside of the Title VII context.

…. Teamsters provides an evidentiary framework pursuant to which the EEOC may seek to prove its allegations of intentional discrimination, not an independent cause of action. The EEOC, therefore[,] was under no obligation to plead its intent to utilize the Teamsters framework; the EEOC was required only to set forth sufficient facts in its complaint upon which its claim for relief under Title VII was plausible.

699 F.3d at 897-98 (internal citations omitted) (emphasis added). Likewise, because the mixed motive framework is not an independent cause of action, or claim, but is an evidentiary framework under which the Commission seeks to establish its claim of intentional discrimination, there is no requirement that the Commission plead a mixed motive or McDonnell Douglas theory in its complaint. And the district court erred in imposing such a requirement in this case.

Carroll’s argument (br. at 19) that the Commission did not preserve a mixed motive theory, in reliance on Keaton v. Cobb Cty., 2009 WL 212097 (No. 08-11220, 11^th Cir. Jan. 30, 2009), is also misplaced, because Keaton is distinguishable. EEOC br. at 27-28. The Court held that Keaton waived her mixed motive argument “because she effectively raise[d] it for the first time on appeal.” Keaton, 2009 WL 212097 at *10. In that case, Keaton did not raise a mixed motive argument in response to defendants’ motion for summary judgment, and asserted it only belatedly in response to defendants’ objections to the magistrate’s order; therefore, the Court held she did not preserve the argument for appeal. Id. (“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.”). Keaton is inapplicable here because the Commission did raise a mixed motive argument at summary judgment and, therefore, did not waive this issue.[2]

Moreover, because the Commission raised the mixed motive theory in response to summary judgment, Carroll had adequate 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) (“Ondricko gave adequate notice of mixed-motive claims in her response to MGM's motion for summary judgment.”); 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). Therefore, unlike the plaintiff in Keaton, the Commission provided sufficient notice of its mixed motive theory in its response to Carroll’s motion for summary judgment.[3]

Accordingly, courts have held that it is proper for a plaintiff to raise alternative theories of proof at summary judgment. EEOC br. at 26, 28-29. For these reasons, the district court erred in refusing to address the Commission’s mixed motive theory in this case.

B. The district court’s failure to analyze the evidence under a mixed motive theory is not cured by its McDonnell Douglas pretext analysis.

Carroll asserts that because “the issue of pretext and whether a defendant has provided legitimate non-discriminatory reasons for a challenged employment action [are] included within the McDonnell Douglas framework, [that framework] is broad enough to encompass mixed-motive ‘claims.’” Carroll br. at 21, internal quotation marks added. This assertion fails to account for important distinctions between the two theories – this Court’s standard for proving pretext (discussed below), and the shifting burdens of proof under a mixed motive theory (EEOC br. at 24 & n.8, 37 n.11).[4]

Significantly, this Court requires a plaintiff to rebut each of the employer’s asserted non-discriminatory reasons to avoid summary judgment under a McDonnell Douglas pretext theory. Chapman v. AI Transp., 229 F.3d 1012, 1024-25, 1030, 1037 (11^th Cir. 2000) (en banc).[5] The Commission does not challenge on appeal the district court’s determination that it did not meet its burden of rebutting each of Carroll’s asserted reasons for firing Holliday under this pretext analysis. EEOC br. at 21 n.6. However, with respect to the mixed motive theory, as the Commission has explained, the district court’s pretext analysis considered the evidence of animus too narrowly. EEOC br. at 30-37. To reiterate, the court only considered the Commission’s evidence of animus with respect to the issues of whether the statements of bias constituted direct evidence of discrimination, [6] 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. But, unlike the pretext analysis under McDonnell Douglas, the success of a mixed motive theory does not require rebuttal of the employer’s asserted legitimate reasons. See supra at 11-12 & nn.4 & 5.

A mixed motive theory is premised on a view that both legitimate and illegitimate reasons motivated the employer’s decision. Harris v. Shelby Co. Bd. of Ed., 99 F.3d 1078, 1084 (11^th Cir. 1996) (recognizing that, under 42 U.S.C. § 2000e-2(m), “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”).[7] Therefore, under a mixed motive analysis, 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 and his role in the employment decision were sufficient to meet that burden even if the Commission did not rebut the nondiscriminatory reasons. EEOC br. at 30-31. By refusing to consider the evidence under a mixed motive framework, the district court rejected at summary judgment the Commission’s evidence raising a genuine issue of material fact as to whether Carroll’s decision to fire Holiday for legitimate reasons was also based on an illegitimate reason – McCullough’s gender bias.

The Commission does not argue, as Carroll suggests (br. at 21), that the Supreme Court’s decision in Desert Palace v. Costa, 539 U.S. 90 (2003), holding that “direct evidence” is not required to establish liability under Title VII’s mixed motive provision, undermined the continued usefulness of the McDonnell Douglas framework. To the contrary, the Commission has always argued that both the McDonnell Douglas and mixed motive frameworks are alternative theories for proving discriminatory intent. EEOC br. at 24-27 & n.8. See also Price Waterhouse v. Hopkins, 490 U.S. 228, 247 n.12 (1989) (plurality opinion) (“Nothing in this opinion should be taken to suggest that a case must be correctly labeled as either a ‘pretext’ case or a ‘mixed-motives’ case from the beginning in the District Court.”).

Carroll suggests that the McDonnell Douglas framework applies to analysis of cases under a mixed motive theory. Br. at 21-25. However, the Commission has been unable to find any published opinions in which this Court has held that the McDonnell Douglas analysis applies to mixed motive cases at summary judgment after Desert Palace, and the cases Carroll cites for that proposition are either distinguishable or not persuasive. Yet Carroll does cite (br. at 21 n.13) one case that is extremely persuasive, albeit from another circuit, White v. Baxter Healthcare Corp., 533 F.3d 381 (6^th Cir. 2008). The White decision supports the Commission’s position fully. In White, the Sixth Circuit held that “the McDonnell Douglas/Burdine burden-shifting framework does not apply to the summary judgment analysis of Title VII mixed-motive claims.” 533 F.3d at 400. The Sixth Circuit explained its reasoning in detail:

Our refusal to extend the application of the McDonnell Douglas/Burdine framework to our summary judgment analysis of Title VII mixed-motive claims is based upon a careful consideration of the Supreme Court’s opinions in those cases. In [Texas Dept. of Community Affairs v.] Burdine[, 450 U.S. 248 (1981)], the Court explained that the purpose of the “McDonnell Douglas division of intermediate evidentiary burdens” is “to bring litigants and the court expeditiously and fairly to [the] ultimate question” of whether the defendant intentionally discriminated against the plaintiff. Burdine, 450 U.S. at 253. … In particular, the prima facie case requirement “eliminates the most common nondiscriminatory reasons for” the adverse employment action, and thus creates a presumption that the adverse employment action was not motivated by legitimate reasons, but rather by a discriminatory animus. Burdine, 450 U.S. at 254 …. Likewise, the pretext requirement is designed to test whether the defendant’s allegedly legitimate reason was the real motivation for its actions. Id. at 256 .... Such a narrowing of the actual reasons for the adverse employment action is necessary to determine whether there is sufficient evidence to proceed to trial in a single-motive discrimination case because the plaintiff in such a case must prove that the defendant’s discriminatory animus, and not some legitimate business concern, was the ultimate reason for the adverse employment action. See id.

However, this elimination of possible legitimate reasons for the defendant’s action is not needed when assessing whether trial is warranted in the mixed-motive context. In mixed-motive cases, a plaintiff can win simply by showing that the defendant’s consideration of a protected characteristic “was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m) (emphasis added). In order to reach a jury, the plaintiff is not required to eliminate or rebut all the possible legitimate motivations of the defendant as long as the plaintiff can demonstrate that an illegitimate discriminatory animus factored into the defendant’s decision to take the adverse employment action. As the shifting burdens of McDonnell Douglas and Burdine are unnecessary to assist a court in determining whether the plaintiff has produced sufficient evidence to convince a jury of the presence of at least one illegitimate motivation on the part of the defendant, we conclude that the McDonnell Douglas/Burdine framework does not apply to our summary judgment analysis of mixed-motive claims. The only question that a court need ask in determining whether the plaintiff is entitled to submit his claim to a jury in such cases is whether the plaintiff has presented “sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that ‘race, color, religion, sex, or national origin was a motivating factor for’ ” the defendant’s adverse employment decision. Desert Palace, 539 U.S. at 101 … (quoting 42 U.S.C. § 2000e-2(m)).

White, 533 F.3d at 400-01 (emphasis added). This Court should take this opportunity to clarify the proper analysis of the evidence and burdens in mixed motive cases as the Sixth Circuit did in White.

Carroll cited White (br. at 21 n.13) because the Sixth Circuit observed that the Eleventh Circuit “seems to have applied” the McDonnell Douglas burden-shifting framework to summary judgment analysis of mixed motive cases after Desert Palace. 533 F.3d at 398.[8] Although the Commission thinks the Sixth Circuit has correctly laid out the differences between the McDonnell Douglas and mixed motive frameworks, it has misunderstood this Court’s precedents, as does Carroll. For example, in Cooper v. Southern Co., 390 F.3d 695, 725 n.17 (11^th Cir. 2004), abrogated on other grounds by Tyson v. Ash Foods, Inc., 546 U.S. 454 (2006), which was cited in White (533 F.3d at 398), this Court simply rejected the argument that Desert Palace overruled McDonnell Douglas, and stated that “after Desert Palace was decided, this Court has continued to apply the McDonnell Douglas analysis in non-mixed-motive cases.” 390 F.3d at 725 n.17 (“the Desert Palace holding was expressly limited to the context of mixed-motive discrimination cases under 42 U.S.C. § 2000e-2(m)”) (emphasis added).[9] Accord White, 533 F.3d at 400 n.10 (“We decline to adopt the view, proposed by some courts and commentators, that the McDonnell Douglas/Burdine framework has ceased to exist entirely following Desert Palace.”). The observation that McDonnell Douglas still controls non-mixed motive cases in no way undermines the Commission’s argument that its mixed motive theory should have been considered by the district court. Nor does it undermine the Commission’s argument that the court’s refusal to apply a mixed motive analysis to the evidence made a difference because the two frameworks for viewing the evidence are quite distinct.

Carroll asserts that the Commission “suggests that mere evidence of discriminatory animus is sufficient to create an issue of fact, regardless of whether the EEOC successfully rebutted the legitimate non-discriminatory reasons of Carroll’s, or shown any of these reasons to be a pretext for discrimination.” Br. at 25. According to Carroll, this position was rejected in Crawford v. City of Fairburn, GA, 482 F.3d 1305, 1309 (11^th Cir. 2007). Carroll apparently is referring to a statement in Crawford rejecting the plaintiff’s evidence of pretext under a McDonnell Douglas standard. 482 F.3d at 1309 (“Crawford erroneously argues that evidence of a discriminatory animus allows a plaintiff to establish pretext without rebutting each of the proffered reasons of the employer. … By failing to rebut each of the legitimate, nondiscriminatory reasons of the City, Crawford has failed to raise a genuine issue of material fact about whether those reasons were pretext for discrimination.”). However, as discussed above, the Commission does not challenge the district court’s McDonnell Douglas pretext ruling in this case.

Moreover, Carroll fails to recognize that Crawford is distinguishable because it is a retaliation case, and this Court has held that motivating-factor liability under Title VII’s mixed motive provision (42 U.S.C. § 2000e-2(m)) does not apply to retaliation claims. See Pennington v. City of Huntsville, 261 F.3d 1262, 1269 (11^th Cir. 2001) (noting that section 703(m) of Title VII provides that an “unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice,” 42 U.S.C. § 2000e-2(m), but that section does not mention retaliation; holding that section 703(m) does not apply to retaliation claims); and Crawford, 482 F.3d at 1309 (applying Price Waterhouse, 490 U.S. at 244-45, to analyze mixed motive liability in retaliation case). Likewise, both McShane, 144 Fed. Appx. at 792 n.18, discussed in Carroll’s brief (at 22), and Ekokotu v. Boyle, 294 Fed. Appx. 523, 527 (11^th Cir. 2008), discussed in Carroll’s brief (at 24), are distinguishable because they also are retaliation cases, in which this Court does not apply the mixed motive framework enacted in 42 U.S.C. § 2000e-2(m). Without the benefit of the liability rule in section 703(m), mixed motive plaintiffs can only prevail if they rebut the employer’s proof that it would have taken the adverse action even without the retaliatory animus. The plaintiffs in Crawford, McShane, and Ekokotu were unable to meet that burden, but the fate of their claims says nothing about the proper analysis of the Commission’s claim of gender discrimination under a mixed motive theory.[10]

The Commission urges this Court to adopt the same analysis of mixed motive cases at summary judgment as did the Sixth Circuit in White. 533 F.3d at 400. Accordingly, this Court should hold that to survive a motion for summary judgment, a Title VII plaintiff asserting a mixed motive theory need only produce evidence sufficient to convince a jury that: “(1) the defendant took an adverse employment action against the plaintiff; and (2) ‘race, color, religion, sex, or national origin was a motivating factor’ for the defendant's adverse employment action.” Id., quoting 42 U.S.C. § 2000e-2(m) (emphasis in original). This analysis, rather than the McDonnell Douglas framework, should apply in Title VII mixed motive cases “regardless of the type of proof presented by the plaintiff.” Id.

C. The Commission offered sufficient evidence of discriminatory intent to survive summary judgment when the evidence is properly analyzed under a mixed motive theory.

Carroll argues that even if the evidence is analyzed under a mixed motive theory, there is no genuine issue for trial because the Commission has not shown that an improper consideration was a motivating factor in its decision to fire Holliday. Br. at 25-26. But, throughout this argument (br. at 25-30), Carroll characterizes the evidence in a light most favorable to itself, rather than to the Commission as required at summary judgment (EEOC br. at 21-22, 32-37), and it misstates some of the district court’s findings.

While it is true that the district court found McCullough’s statements of animus did not constitute “direct evidence” of discrimination (Carroll br. at 26-27), the Commission does not challenge that finding on appeal. As argued above, the absence of direct evidence does not justify refusing to analyze the circumstantial evidence under a mixed motive framework, and contrary to Carroll’s assertion (br. at 27), the Commission adduced sufficient evidence to submit the question of the motivation for Holliday’s termination to a jury. In the opening brief (at 14-15, 32-37), the Commission specifically discussed the following evidence showing that, or at least raising a jury question about whether, McCullough’s gender animus was a motivating factor in the decision to fire Holliday and was attributable to Carroll – most of which Carroll ignores in its response.

The evidence of McCullough’s bias included his unfavorable treatment of women (EEOC br. at 14-15),[11] his gender-biased comments to Watts, and his September 2007 statement to Wommack that Holliday was not ready for promotion. All of this evidence, taken together, creates a chronological link connecting McCullough’s gender-biased comments in 2006 and 2007 and the November 2007 termination decision, and shows McCullough’s active involvement in Holliday’s employment status months before she was fired. EEOC br. at 32-35.

In addition, contrary to Carroll’s assertion (br. at 28-29), there is evidence that Carroll attempted to cover up the fact that McCullough was the actual decision maker for Holliday’s termination. Wommack specifically testified that he had no independent basis for making such a decision, and concurred in McCullough’s recommendation based only on information from McCullough. EEOC br. at 14, 34-35. And this evidence 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.

There also is evidence that Holliday’s final immediate supervisor, Ramirez, had limited management experience, did not treat Holliday with the same respect as males employees, and avoided communicating with her (EEOC br. at 11); there was some friction between Holliday and Ramirez (id. at 11-12); and although Ramirez raised issues about Holliday’s performance and lack of cooperation with McCullough (EEOC br. at 12-13), but he did not do so with the intent of getting Holliday fired, and he never recommended such action be taken. Id. at 36. However, it was McCullough, not Ramirez, who described Holliday’s asserted performance problems in the greatest detail (id. at 12-13), and some of McCullough’s testimony was contradicted by Ramirez. Id. (Ramirez said he complained to McCullough approximately ten times over three months, while McCullough testified Ramirez complained to him almost every day.).

Further, there is evidence that McCullough decided to fire Holliday without Ramirez’s knowledge or recommendation, Ramirez never complained to Holliday about her performance and did not fill out the portion of Holliday’s termination form that states she was fired for performance reasons,[12] and Wommack thought Holliday’s performance was reasonable. EEOC br. at 35-36. All of the evidence, taken together, could allow a jury to doubt the integrity of McCullough’s version of Holliday’s asserted performance problems and conclude that McCullough fired Holliday in accordance with his own stated views that women do not belong in management, even if he also believed she had some performance issues. Accordingly, a reasonable jury could conclude that McCullough’s gender-based animus against Holliday was a motivating factor, under section 703(m), in Carroll’s decision to fire Holliday. If it concluded that gender was a motivating factor, it would be asked to decide whether Carroll would have fired Holliday if she were a man with these performance issues, but that question also cannot be decided on summary judgment.

CONCLUSION

For the reasons set out in the Commission’s opening brief and in this reply brief, the Commission urges this Court to reverse the judgment of the district court and remand the case for evaluation of the Commission’s evidence of gender discrimination 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

certificate of compliance

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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] Under this Court’s jurisprudence an opposition claim and a participation claim have different elements of proof and rest on different facts, see EEOC v. Total System Services, Inc., 221 F.3d 1171 (11^th Cir. 2000), and thus the rule against new claims applies.

[2] To the extent some language in Keaton might be read to suggest a requirement that theories be pled, such a rule, apparently articulated in dicta in an unpublished decision, should not be applied here as it is contrary to Supreme Court precedent, discussed above. See EEOC br. at 28 n.9, citing 11^th Cir. R. 36-2, I.O.P 2, 6, 7 (unpublished opinions are not considered binding precedent), and 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.”).

[3] Carroll does not argue – and there is no evidence that – it was prejudiced in this case (EEOC br. at 29-20 & n.10), so it has waived any contention that the Commission's notice that it thought the evidence in the case would support a mixed motive analysis caused it any prejudice. Although it objected to the assertion of this theory below (Carroll br. at 19), it did so only on the same erroneous basis it argues on appeal – that the EEOC should not be allowed to pursue an unpled claim. But that ignores the Commission's central argument – that the mixed motives framework of proof is not a new claim, but merely an alternative method of proof. Given the liberal standards governing amendment of pleadings under Rule 15, absent any suggestion of prejudice, if amendment were needed to invoke the proper analysis of the evidence by the district court, then the court should have permitted amendment of the complaint.

[4] While the “burden of production” shifts under the three-pronged framework of McDonnell Douglas, the plaintiff bears the ultimate “burden of persuasion.” St.Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993). However, under a mixed motive analysis, the plaintiff carries the “burden of persuasion” and, establishes liability, for an unlawful employment practice by “demonstrat[ing] that … gender … was a motivating factor for an[] employment practice, even though other factors also motivated the practice” (42 U.S.C. § 2000e-2(m) (emphasis added)); but the “burden of persuasion” shifts to the defendant to demonstrate that it would have made the same decision in the absence of the impermissible motive, in order to limit relief, but not to avoid liability (42 U.S.C. § 2000e-5(g)(2)(B)). Desert Palace v. Costa, 539 U.S. 90, 100-01 (2003) (“demonstrate” means carry the burden of persuasion).

[5] Carroll asserts that evidence showing that an impermissible factor was a factor, even if not the reason, for an employment decision is “the functional equivalent of a showing of pretext.” Carroll br. at 23 & n.14. However, under this Court’s pretext analysis, they are not “functional equivalent[s]” because, under Chapman, pretext requires rebuttal of all asserted non-discriminatory reasons, while mixed motive analysis does not.

[6] The Commission does not argue on appeal that the district court erred in finding McCullough’s statements of gender animus did not constitute “direct evidence” under this Court’s precedent. DN53, op. at 11-13.

[7] Carroll attempts to distinguish Harris by asserting that McCullough’s biased statements were not temporally connected with and had no direct relationship to the decision to fire Holliday. Br. at 26 n.16. However, as in Harris (99 F.3d at 1081-82), there is evidence that McCullough was the decision maker for Holliday’s termination, and there is a chronological link connecting his statements of gender bias with the termination decision. See infra at 22-25; see also EEOC br. at 32-37.

[8] In White, the Sixth Circuit surveyed the rulings of the other circuits, and observed that “[s]ince Desert Palace, the federal courts of appeals have, without much, if any, consideration of the issue, developed widely differing approaches to the question of how to analyze summary judgment challenges in Title VII mixed-motive cases.” 533 F.3d at 398-400.

[9] And this Court repeated the same point in Burstein v. Emtel, Inc., 137 Fed. Appx. 205, 209 n.8 (11^th Cir. 2005) (unpublished), which also was cited in White, 533 F.3d at 398. While Burstein does state that McDonnell Douglas applies to claims relying on circumstantial evidence (which is not always true in light of Desert Palace), the misstatement was immaterial to the outcome because the Court reviewed all the evidence and concluded there was sufficient evidence to support “a mixed motive retaliation claim.” Id. at 209. Here, however, Carroll’s argument that the district court’s McDonnell Douglas analysis necessarily encompassed a rejection of the Commission’s mixed motive theory is incorrect, because the court’s refusal to consider the theory meant that, unlike the Burstein Court, it did not review the evidence in light of the standard that permits a finding of liability where both legitimate and illegitimate reasons motivate a decision.

[10] The remaining unpublished decisions on which Carroll relies are either distinguishable or unpersuasive. In Schechter, which Carroll cites (br. at 21 n.13), the plaintiff urged this Court to abandon the McDonnell Douglas framework, but the Court declined to do so because she did not allege that her case was a mixed motive case. Schecter v. Ga. State Univ., 341 Fed. Appx. 560, 564 (11^th Cir. 2009). Carroll also argues that in Cuevas v. American Express Travel Related Services Co., Ind., 256 Fed. Appx. 241 (11^th Cir. 2007), the Court applied a McDonnell Douglas framework in affirming the lower court’s grant of summary judgment to defendant. Carroll br. at 22-23. However, Cuevas does not support Carroll’s argument because, although the plaintiff argued on appeal that “the district court erred in failing to find the existence of a genuine issue of material fact under a mixed-motive analysis” (256 Fed. Appx. at 243), the Court affirmed the district court’s summary judgment ruling on the basis that plaintiff did not establish a prima facie case of disparate discipline or an issue of fact on pretext, without any discussion of plaintiff’s mixed motive argument. Id. at 244. And in Lewis v. Metropolitan Atlanta Rapid Transit Authority, 343 Fed. Appx. 450, 454-55 (11^th Cir. 2009), on which Carroll relies (br. at 22-23), the Court held that plaintiff could not survive summary judgment under either the McDonnell Douglas or mixed-motive framework; and, specifically with respect to the mixed motive theory, the Court found plaintiff did not present enough evidence to make a prima facie case that his race was a motivating factor in defendants’ decision to fire him.

Carroll also cites (br. at 21-25) several district court decisions for a variety of points. The Commission does not address these decisions because they have no precedential value in this Court. See Camreta v. Greene, 131 S. Ct. 2020, 2033 n.7 (2011) (“A decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.”), quoting 18 J. Moore et al., Moore's Federal Practice § 134.02[1] [d], at 134–26 (3d ed. 2011).

[11] The Commission’s evidence (EEOC br. at 15) that McCullough did not promote women into management positions is simply background circumstantial evidence consistent with McCullough’s stated bias; it is not evidence offered to demonstrate a statistically significant failure to promote claim as Carroll suggests (br. at 28).

[12] Ramirez thought Holliday was “laid off” (EEOC br. at 16), and did not know if she was fired because of her gender. Id. at 35.