Page(s)

TABLE OF AUTHORITIES........................................................................ ii

INTRODUCTION...................................................................................... 1

ARGUMENT............................................................................................. 2

CONCLUSION.......................................................................................... 33

CERTIFICATE OF COMPLIANCE.......................................................... 34

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

CASES Page(s)

Alvarado v. Texas Rangers,

492 F.3d 605 (5th Cir. 2007)............................................................... 23

Bennett v. Total Minatome Corp.,

138 F.3d 1053 (5th Cir. 1998)............................................................. 6

Berquist v. Washington Mutual Bank,

500 F.3d 344 (5th Cir. 2007)............................................................... 6

Brown v. CSC Logic,

82 F.3d 651 (5th Cir. 1996)...................................................... 2, 5-6, 25

Castenada v. Partida,

430 U.S. 482 (1977)............................................................................ 26

Chaplin v. NationsCredit Corp.,

307 F.3d 368 (5th Cir. 2002)............................................................... 32

Coghlan v. American Seafoods Co.,

413 F.3d 1090 (9th Cir. 2005)............................................................. 25

Den Hartog v. Wasatch Academy,

129 F.3d 1076 (10th Cir. 1997)..................................................... 29, 30

EEOC v. Brookhaven Bank & Trust Co.,

614 F.2d 1022 (5th Cir. 1980)............................................................. 27

EEOC v. Texas Instruments,

100 F.3d 1173 (5th Cir. 1996)............................................................. 6

Faragher v. City of Boca Raton,

524 U.S. 775 (1998)............................................................................ 11

Fellows v. Universal Restaurants,

701 F.2d 447 (5th Cir. 1983)............................................................... 27

Gorence v. Eagle Food Centers,

242 F.3d 579 (7th Cir. 2001)............................................................... 25

Hamar v. Ashland,

211 Fed. App=x 309 (5th Cir. Dec. 27, 2006) (unpublished)............... 28

Hardin v. Caterpillar,

227 F.3d 268 (5th Cir. 2000)............................................................... 32

Hazen Paper Co. v. Biggins,

507 U.S. 604 (1993)............................................................................ 32

Hooks v. Lockheed Martin Skunk Works,

14 Fed. App=x 769 (9th Cir. June 20, 2001) (unpublished)................. 25

Huff v. UARCO,

122 F.3d 374 (7th Cir. 1997)............................................................... 4

Kass v. Albemarle Corp.,

220 F.3d 584 [Table] (5th Cir. June 7, 2000) (unpublished)................ 17

Krystek v. University of Southern Mississippi,

164 F.3d 251 (5th Cir. 1999)............................................................... 5

Laxton v. The GAP,

333 F.3d 572 (5th Cir. 2003)............................................................. 5, 6

Larimer v. IBM Corp.,

370 F.3d 698 (7th Cir. 2004)............................................................... 28

McCorstin v. U.S. Steel Corp.,

621 F.2d 749 (5th Cir. 1980)............................................................... 31

McDonnell Douglas Corp. v. Green,

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

Meritor Savings Bank v. Vinson,

477 U.S. 57 (1986).............................................................................. 11

Palasota v. Haggar Clothing Co.,

342 F.3d 569 (5th Cir. 2003).......................................................... 3-4, 6

Pegram v. Honeywell,

361 F.3d 272 (5th Cir. 2004)............................................................... 4

Reeves v. Sanderson Plumbing Products,

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

Rutherford v. Harris County,

197 F.3d 173 (5th Cir. 1999)............................................................... 24

Simmons v. Sykes,

647 F.3d 943 (10th Cir. 2011)............................................................. 8

Smith v. Hinkle Manfacturing,

36 Fed. App=x 825 (6th Cir. June 4, 2002) (unpublished)................... 29

Smith v. Xerox,

602 F.3d 320 (5th Cir. 2010)............................................................... 24

Staub v. Proctor Hospital,

131 S. Ct. 1186 (2011)...................................................................... 8, 9

Texas Department of Community Affairs v. Burdine,

450 U.S. 248 (1981)............................................................................ 31

Vance v. Union Planter=s Corp.,

209 F.3d 438 (5th Cir. 2000)............................................................... 24

Wallace v. Methodist Hospital System,

271 F.3d 212 (5th Cir. 2001)............................................................... 5

STATUTES, REGULATIONS, and RULES

The Age Discrimination in Employment Act,

29 U.S.C. '' 621 et seq................................................................ passim

29 U.S.C. ' 630(b)............................................................................... 11

The Americans with Disabilities Act,

42 U.S.C. ''12101 et seq............................................................. passim

42 U.S.C. ' 12102(1)(C) (2008).......................................................... 30

42 U.S.C. ' 12111(5)(A)..................................................................... 11

42 U.S.C. ' 12112(b)(4)...................................................................... 28

29 C.F.R. Pt.1630 App. ' 1630.829............................................................ 30

Federal Rule of Evidence 801(d)(2)(D)........................................................ 23

Federal Rule of Evidence 802...................................................................... 23

OTHER AUTHORITY

emedicinehealth, Prognosis for Liver Cancer,

available at www.emedicinehealth.com/liver_cancer/page10_em.htm.. 29

Questions & Answers about the Association Provision of the ADA,

available at http://www.eeoc.gov/facts/association_ada.html........ 16, 28

Restatement(Third) of Agency..................................................................... 11

FOR THE FIFTH CIRCUIT

_______________________

No. 12-40424

_______________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellant,

DYNMcDERMOTT PETROLEUM OPERATIONS CO.,

Defendant-Appellee.

________________________________________

On Appeal from the United States District Court

For the Eastern District of Texas

________________________________________

INTRODUCTION

The Commission has appealed the summary judgment granted to DynMcDermott in this suit alleging that DM violated the ADEA and/or the ADA by refusing to hire Mike Swafford for a planner/scheduler position. Our opening brief argued that the district court erroneously refused to consider statements by Tim Lewis, the site director, that, because of DM=s Aaging workforce,@ Swafford should not be hired because he was too old and he might miss too much work caring for his cancer-stricken wife. We noted evidence suggesting that Ray Wood, Lewis=s subordinate and the formal decisionmaker, was influenced by Lewis and, whether because he came to accept Lewis=s viewpoint or simply wanted to avoid exacerbating their already acrimonious relationship, changed from Swafford-supporter to Swafford-detractor. While Wood in litigation denied such influence, we argued, his contemporaneous actions spoke louder than his words. A reasonable jury could find Wood=s post-hoc explanations for choosing the young Mark Thomas over Swafford unworthy of credence.

DM=s opposition brief mainly repeats the district court=s errors, distorting or ignoring our arguments about them. Contrary to the brief, for example, comments like Lewis=s need not satisfy DM=s so-called ABrown test@ to constitute relevant evidence of pretext or impermissible bias. Nor did the Commission have to prove that Swafford was Aclearly better qualified@ than Thomas (although a reasonable jury could find he was) since there was substantial other evidence of discrimination. Finally, DM=s factual narrative, like the district court=s, misstates or overlooks evidence favorable to the Commission. Considering that evidence and applying proper legal standards, summary judgment should be reversed.

ARGUMENT

1. In our opening brief (AEEOC@), we argued that the district court erred in refusing to consider age-based and disability-related comments, directives, threats, and other statements by Lewis as well as other high-level managers. We pointed out that, despite Swafford=s qualifications, Lewis repeatedly stated, orally and in writing, that Swafford should not be hired for the planner/scheduler position because he was too old, his wife had cancer, and if she was still alive, he would miss too much work caring for her. Lewis also ordered his subordinate, Wood, not to hire Swafford for those same reasons, and threatened to discipline Wood for insubordination when he resisted. Lewis explained that this discrimination was justified because DM had an Aaging workforce,@ a term echoed in statements by managers such as HR Director Dione Heusel. We noted that since Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000), this Court has recognized that statements evincing bias may be admissible as evidence of pretext or affirmative evidence of discrimination if they were made by a high-level manager Ain a position to influence the decision,@ such as Lewis was here. We argued that Lewis=s remarks as well as the other Aaging workforce@ statements were plainly probative under this standard. See EEOC:38-40, 46-47 (citing, e.g., Palasota v. Haggar Clothing Co., 342 F.3d 569, 578 (5th Cir. 2003)).

DM=s opposition brief (AOp.Br.@) attempts to minimize these discriminatory comments, directives, threats, and other statements, repeatedly referring to them as Aalleged.@ See Op.Br.5-6. There is, however, no real dispute that they occurred. They were memorialized in emails, overheard by numerous individuals, including DOE employee, Bernadette Nelson, and admitted by Lewis. See, e.g., v6:USCA5-2011-12, 2232-36, 2065.[1]

DM also asserts that each such statement, viewed in isolation, is A[in]sufficient to survive summary judgment.@ See Op.Br.20, 36. However, where, as here, a plaintiff uses the proof scheme from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Ano one piece of evidence need support a finding of age [or disability] discrimination.@ Huff v. UARCO, 122 F.3d 374, 385 (7th Cir. 1997); see also Pegram v. Honeywell, 361 F.3d 272, 285 (5th Cir. 2004) (denying summary judgment based on Athe cumulative weight@ of the evidence). DM=s divide-and-conquer approach to the evidence is, therefore, legally infirm.

DM then argues that the district court properly rejected this evidence as mere Astray remarks.@ Op.Br.14. In making this argument, the company does not acknowledge any change in this Court=s jurisprudence after Reeves. See, e.g., Palasota, 342 F.3d at 578. Rather, DM argues that discriminatory comments like those in this case must satisfy what the company calls the ABrown test.@ Brown v. CSC Logic, which pre-dates Reeves, held that comments, to be admissible, must be age-related, Aproximate in time@ to the challenged employment decision, made by an individual with Aauthority@ over the decision, and related to that decision. 82 F.3d 651, 655 (5th Cir. 1996). DM rewrites the third element (Aauthority@) to include someone Ain a position to influence the decision,@ and then labels this new test the ABrown test.@ Op.Br.23-24 (citing Brown, 82 F.3d at 655; Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 222 (5th Cir. 2001); Krystek v. Univ. of So. Miss., 164 F.3d 251, 256 (5th Cir. 1999)). Comments failing to meet those four criteria, DM argues, are Amerely >stray remarks.=@ Op.Br.24; see also Op.Br.38-39 (arguing that Aaging workforce@ statements are inadmissible because EEOC did not show they were Aproximate in time@ or Amade by someone with authority over the decision@).

DM both misstates and misapplies the law. The real ABrown test@ applies to direct evidence. Thus, the third element requires an individual with Aauthority@ over the decision, not simply one with Ainfluence@ over the decisionmaker. Laxton v. GAP, 333 F.3d 572, 583 n.4 (5th Cir. 2003) (test still relevant for direct evidence).[2] In this appeal, we did not argue that Lewis had the authority alone to refuse to hire Swafford, or that Lewis=s comments or the other managers= statements were direct evidence. Rather, we argued that they constitute affirmative circumstantial evidence of bias and/or a preoccupation with age which, together with the other evidence and viewed in the light most favorable to the Commission, raises material issues of fact for trial. Thus, neither the real Brown test from CSC Logic nor DM=s own rendition of the test applies here. Rather, the question is simply whether these statements are age- and/or disability-related and made by one with influence or leverage over the formal decisionmaker. See, e.g., Laxton, 333 F.3d at 583; Palasota, 342 F.3d at 578. Plainly they are, and the district court erred in ruling otherwise.

DM cites three other cases to support its stray-remarks arguments. Op.Br.37-38 (citing EEOC v. Texas Instruments, 100 F.3d 1173 (5th Cir. 1996); Bennett v. Total Minatome Corp., 138 F.3d 1053 (5th Cir. 1998); Berquist v. Washington Mut. Bank, 500 F.3d 344 (5th Cir. 2007)). None is persuasive. While Texas Instruments and Bennett analyze the evidence under a Brown-like standard, they pre-date Reeves, which, as noted, modified the law. Berquist post-dates Reeves but is factually inapposite. There, a broad policy statement that the company wanted to Aattract young talent@ did not show age bias in a suit challenging a demotion, and the plaintiff did not counter the proffered non-discriminatory interpretation of the other cited comments. Id. at 351-52. Here, in contrast, a jury could find the Aaging workforce@ statements, like DM=s calculation of the average age of its employees (v1:USCA5-91), reflect a corporate preoccupation with age that is echoed and exemplified in Lewis=s explanation for why Swafford should not be hired. The statements are, therefore, relevant to whether Swafford would have been hired but for his age.

2. We devoted a substantial portion of our opening brief to showing that Wood was influenced by Lewis=s comments, orders, and threats, and, as a result, decided not to hire Swafford. We noted that Lewis, as Wood=s boss, was in a position to control conditions of Wood=s employment. In addition, Wood testified that, due to the men=s ongoing feud, Lewis often made Wood=s work-life difficult in small but significant ways. Moreover, after Wood initially resisted Lewis=s directives, Lewis accused Wood of insubordination and may even have given him a CAM. In light of their history, we argued, Wood had every reason to assume that his conditions at work would only worsen if he hired Swafford in spite of Lewis=s contrary commands. See EEOC:39-40, 44-45.

Remarkably, DM=s initial response is that it is Aundisputed@ that ALewis[=s] previous statements did not influence Wood=s decision.@ Op.Br.23. On the contrary, this is very much disputed. Based on the evidence, the Commission contends that Lewis=s statements and actions influenced Wood=s decisionmaking.

Then, without citing our brief, DM asserts that the Commission Aseems to suggest that merely being Wood=s supervisor provided Lewis with sufficient >leverage= or >authority=@ to render his remarks and threats probative. Op.Br.24. DM also cites a string of Acat=s paw@ cases to support its proposition that Aa mere supervisory relationship@ is not enough. Op.Br.24-29 (citing, e.g., Staub v. Proctor Hosp., 131 S. Ct. 1186 (2011); Simmons v. Sykes, 647 F.3d 943 (10th Cir. 2011)). However, those cases, which address when a supervisor=s bias can be imputed to an unbiased decisionmaker, are inapposite. There, the supervisor was the plaintiff=s supervisor, and that individual had no direct control over the decisionmaker. Here, in contrast, the supervisor (Lewis) was the decisionmaker=s (Wood=s) supervisor. As such, Lewis oversaw Wood=s day-to-day activities and controlled conditions of Wood=s employment.

In any event, we did not base our argument on the Amere@ fact that Lewis was Wood=s boss. While that power dynamic is clearly relevant, we also pointed, for example, to the long-standing feud between Wood and Lewis. Wood testified that, even before the Swafford incident, Lewis had become uncommunicative, removed minor but desirable duties, and, Wood heard, even tried to get him fired. We argued that particularly after Lewis charged him with insubordination and even attempted to (and perhaps did) give him a CAM, Wood could reasonably decide to take the path of least resistance by rejecting Swafford. See EEOC:44-45.

DM argues that there is no evidence Lewis failed to give Wood needed information or tried to get him fired. Op.Br.33. In fact, however, Wood testified to both points. v6:USCA5-1999-2000, 2005-10. DM also continues to dispute whether Lewis gave Wood a CAM. Op.Br.33-34. However, the company does not acknowledge, let alone explain, the February 11 emails from Lewis stating that he was about to and then did give Wood a CAM for insubordination. v6:USCA5-2244-46. Viewed in the light most favorable to EEOC, these emails raise an issue of fact as to whether the CAM was issued.

DM then argues that A[i]n addition to proving discriminatory animus by one allegedly influencing Y a [challenged employment] decision,@ EEOC must show Aa causal link between the animus and the decision.@ Op.Br.24 (citing Staub, 131 S.Ct. 1186). The Aadditional@ causal link DM contends is needed makes no sense in this case. Rather, evidence that the decision was influenced by Lewis=s biased statements would also show that the decision was Acausally linked@ to the animus.

DM=s main affirmative argument seems to be that Lewis could not have influenced the decisionmaking because Hojem, after learning of Lewis=s remarks, removed him from the hiring board and barred him from participating in the interviews and selection process. Op.Br.13-14, 45-46, 57.

That confuses Ainfluence@ with Aauthority@ C a distinction, as noted above, this Court has drawn in its post-Reeves caselaw. Lewis=s initial conduct clearly could affect the decisionmaking whether or not he later personally participated in and controlled the process. Moreover, a jury could find that Hojem=s response was both too little and too late. The damage was done well before the actual interviews and selection occurred. Hojem testified that she would be present at the interviews and monitor any attempts to discipline or discharge Wood for insubordination. But Lewis was to remain Wood=s supervisor even after his removal from the hiring committee, and, accordingly, could make Wood=s day-to-day work-life difficult if Wood were to make the wrong hiring decision. Cf. v3:USCA5-841 (Hojem: noting that Lewis was Astill annoyed@ with Wood). A jury could reasonably find that Wood might well have believed that Hojem would not protect him from that sort of subtle but substantial supervisory retribution.

Furthermore, despite receiving Lewis=s emails, neither Hojem nor Heusel nor other high-level managers distanced the company from Lewis=s assertions that DM=s Aaging workforce@ justified discriminating against Swafford because of his age. See, e.g., v6:USCA5-2130 (Hojem: conceding she never did Aanything specifically to deal with [the fact] that [] Lewis seems to believe there was an aging workforce problem that needed to be addressed@). Faced with this silence, Wood could reasonably have assumed that he should consider this Aproblem@ in his decisionmaking.

Finally, DM takes issue with our Anotion@ that Aanti-discrimination laws should be interpreted based on [agency] principles.@ Op.Br.31 (citing EEOC:[41-42] n.4). This is not our Anotion@ but rather the decision of Congress and the Supreme Court. See, e.g., 42 U.S.C. ' 12111(5)(A)(ADA) (defining Aemployer@ to include Aany agent@ of the employer; 29 U.S.C. ' 630(b) (ADEA) (same); Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64 (1986) (noting that anti-discrimination laws should be interpreted based on agency principles). DM also takes the position that under agency principles, DM could not be liable for Lewis=s conduct because he was Aexplicitly instructed@ to, and did, Atake no part in the hiring decision.@ Op.Br.31-32 (citing Restatement(Third) of Agency ' 306[sic]). To the contrary, Lewis was the site director at Big Hill. As such, he was DM=s agent even if the company did not approve of his actions. See, e.g., Faragher v. City of Boca Raton, 524 U.S. 775, 808 (1998) (employer is strictly liable for supervisor=s Atangible employment actions@ despite contrary company policy).

3. We also argued that Lewis=s influence could be inferred from the about-face Wood made from the February 7 managers= meeting, through the interviews, to Wood=s subsequent deposition attempting to explain his decision. We noted that a jury could consider evidence that, before Lewis Aput the nix@ on his decision, Wood wanted to hire Swafford. Wood described Swafford as the Abest@ candidate, who Aknew the job,@ and initially resisted Lewis=s contrary orders. It was only after Lewis accused Wood of insubordination that Wood began changing from Swafford-supporter to Swafford-detractor. We argued that a jury could find, based on this 180E turn-around, along with other inconsistencies in Wood=s testimony, that Wood was influenced by Lewis=s age- and disability-related orders and threats and, as a result, invented reasons to justify not hiring Swafford.

Wood=s about-face is a central focus of our brief. Because DM seldom cites our brief, it is often difficult to tell which of our arguments, if any, DM is addressing. A careful review of DM=s arguments, however, shows that the brief neither acknowledges the change in Wood=s attitude about Swafford nor provides any coherent theory to explain this transformation.

Instead, perhaps hoping this omission will go unnoticed, the company criticizes the Commission for offering arguments based on Aspeculation, conjecture, and far-reaching hypotheses about what inferences a jury might reach.@ Op.Br.23. In making this assertion, however, DM identifies no specific factual contention that lacks a basis in the record. And, viewing the evidence as well as drawing all reasonable inferences in the Commission=s favor (rather than DM=s), the inferences we contend a jury could draw are reasonable.[3]

For example, DM challenges our conclusion that Wood had decided to hire Swafford before the February 7 meeting, noting that Swafford=s resume was forwarded to Wood around February 6 and other resumes including Thomas=s arrived later. In DM=s opinion, the Anotion that Wood=s decision was set in stone before he had received the other resumes simply defies logic and requires an unreasonable inference.@ Op.Br.34-35.[4]

But there is nothing Alogic-defying@ or Aunreasonable@ about it. In light of Lewis=s pre-meeting emails stating that although Wood wanted to hire Swafford, Lewis had Astopped@ or Aput the nix@ on that decision, a jury could find that as of early February, Wood had decided to hire Swafford. v6:USCA5-2232-35. DM also ignores the evidence that Wood said Swafford was the Abest@ candidate. v6:USCA5-2246. Further, as we noted, Nelson, Lewis, and Dubois all indicated that, before the February 7 meeting, Wood wanted Swafford for the position. EEOC:42 (citing v9:USCA5-3197 (Nelson); v6:USCA5-2245 (Lewis); v6:USCA5-1934-35 (Dubois)). DM argues that Nelson=s testimony is unreliable (Op.Br.34), but does not respond to our brief, which notes that Lewis and Dubois corroborate that testimony (EEOC:43).

DM also argues that Wood=s actions on February 7 and 12 C Astand[ing] up@ to Lewis at and after the meeting C were Anot the actions of a man living in fear of Lewis.@ Op.Br.32, 34; see also id. at 22-23 (noting Wood=s statements (v3:USCA5-809, 821) that Lewis=s remarks did not influence Wood=s decisionmaking; after learning Hojem would attend the interviews, Wood was not concerned about being disciplined or fired Aat that time@).

We agree that Wood=s actions on February 7 and even February 12, standing alone, do not suggest that he would have been willing simply to acquiesce to Lewis=s demands. However, we also suggested that a jury could find that once Lewis threatened Wood and Wood had time to reflect on the potential consequences of defying Lewis, his conduct changed. An inference that this otherwise unexplained change was traceable to Lewis=s threats is reasonable.

On another point, DM challenges our focus on Athe lapse of time between the forwarding of Thomas=s resume,@ with a note calling it to Wood=s attention, on February 8, and Wood=s sudden interest in Thomas, just before the interviews. DM notes that Wood speculated he might have been out of town when the resume arrived, and Hughes speculated that they could have discussed Thomas over the phone. Op.Br.51-52. But that does not account for the emails between Wood and Hughes in the weeks before the interviews, identifying only three qualified applicants including Swafford. See v6:USCA5-2250-60. Had Wood and Hughes discussed Thomas by phone, he should have been listed as a candidate on the February 25 email, if not before. Instead, that email confirms Stephen Sajewicz as Athe only other candidate@ besides Swafford. v6:USCA5-2260. Furthermore, that email was sent at 10:06 AM. If, as DM now contends (Op.Br.8-9), the interviews were on February 26, then Thomas=s name resurfaced, he was contacted, and his interview arranged in the space of about 24 hours.

DM minimizes the evidence that Wood was channeling Lewis when he specifically asked Swafford about whether his attendance would suffer due to his disabled wife. EEOC:39, 60. DM opines that testimony Ashows that the discussion had no impact@ on Wood=s decision not to hire Swafford since Swafford discussed his support network and Awitnesses agreed that the discussion was based more out of concern than anything else.@ Op.Br.46. DM cites nothing to support this opinion. But cf. v6:USCA5-1937 (Dubois: thought questioning was Ahighly inappropriate and possibly illegal@). Particularly after Lewis=s repeated references to Swafford=s presumed need to miss work to care for his dying spouse, a jury could reasonably infer from Wood=s question that concerns about the potential effect that Swafford=s wife would have on his performance were front and center on Wood=s mind both during the interview and thereafter. See Qs&As about the Association Provision of the ADA, Question/Answer 3 (Ex.B), available at http://www.eeoc.gov/facts/association_ada.html (AADA Qs&As@).

4. Our opening brief further argued that, contrary to the district court=s decision, evidence such as the discrepancies between the comments and ratings on the Candidate Evaluation Form and Wood=s subsequent deposition testimony amply supports a finding that DM=s proffered reasons for rejecting Swafford were unworthy of credence. See EEOC:47-59.

DM=s response begins with an error of law. According to the company, to demonstrate a Agenuine question of material fact regarding pretext, the plaintiff must not only present evidence on which a jury could infer that the proffered reason was false, but, also must present evidence that age was the real reason.@ Op.Br.19. Reeves, however, rejects this Apretext-plus@ standard. The Supreme Court specified that a factfinder=s finding that the proffered reason is false or otherwise unworthy of credence, coupled with the prima facie case, is normally sufficient to support a finding of discrimination. 530 U.S. at 146-47. No additional evidence is required. DM=s cited authority, Kass v. Albemarle Corp., 220 F.3d 584 (5th Cir. June 7, 2000) (unpublished), pre-dates Reeves and, so, like DM=s argument, does not reflect the clarification in the law that Reeves provided.

Reeves also recognizes that on a motion for judgment as a matter of law (or summary judgment), all reasonable inferences must be drawn and all evidence viewed in favor of the non-movant C here, the Commission. See 530 U.S. at 150. DM (like the district court) did not adhere to that standard.

For example, DM repeats Wood=s testimony that although he thought Thomas was, for example, more experienced than Swafford, he rated them both the same because Athe score keepers could not go higher than >2=.@ Op.Br.47. But DM does not respond to our point that this makes no sense, since Wood provided comments distinguishing the two men on other criteria, and thus could have commented on their relative experience as well. Similarly, DM states that Wood Adecided@ that Swafford Ahad been out of the work[sic] a lot longer than Thomas.@ Op.Br.47. But that does not account for the evidence C that DM never mentions C that Wood previously thought Swafford was the Abest@ candidate and Aknew the job.@

DM further asserts, inaccurately, that Swafford Aadmitted he had not worked with SAP for 5-8 years and [it] could take him a while to get caught up.@ Op.Br.47. In fact, Swafford stated that he had used SAP C DM=s specialized version of SAP C until his layoff in 2003, just 5 years before. v3:USCA5-854. Swafford also stated that he could be fully up to speed in 3-4 months (v3:USCA5-855), half as long as Thomas required (v10:USCA5-3455). And although Thomas said he used SAP in the military (Op.Br.47), in scoring the Candidate Evaluation Form, Wood himself recorded that Thomas=s experience was with A[an]other system.@ v6:USCA5-2023.

Further, DM notes that Wood stated that Aif two candidates are equally qualified, he takes the veteran@ since Ahe was partial to veterans.@ Thomas, DM stresses, was a veteran. Op.Br.11, 49. However, Wood denied that Thomas=s veteran status Afigure[d] at all into [his] decision to hire him.@ v3:USCA5-816. Moreover, Swafford was also a veteran. v6:USCA5-1989.

Finally, DM states that, contrary to our Aassertion,@ Wood Adid not >misrepresent= how and when the [Candidate Evaluation Form] was completed.@ Op.Br.49. Rather, Hojem and Hughes both confirmed that it was used. Id. But we never disputed that DM used the form. Instead, we noted that Dubois flatly denied that, as Wood testified, she participated in completing the form or agreed with the ratings. To the contrary, she testified that she did not discuss ratings with Wood and disagreed with his choices because, in her view, Swafford was clearly the better candidate and hiring Thomas was a Amistake.@ v6:USCA5-1938-39. DM does not address those points.[5]

DM then proceeds to defend Wood=s post-hoc explanations for rejecting Swafford. Beginning with education, we noted that a college degree (which Thomas did not have anyway) was not even a Apreferred@ qualification for the job. We also noted evidence that Wood did not probe Thomas about his education and, so, may not have really cared about this criterion. See v10:USCA5-3352. DM argues that, to the contrary, Thomas recalled mentioning that he had some training in SAP. Op.Br.49. However, particularly because Swafford also had training in SAP C the exact form of SAP used at DM C the mere fact that Wood asked Thomas about his Afamiliarity@ with SAP (v10:USCA5-3352) does not suggest that Wood placed much importance on Aeducation.@

DM asserts that we Aoverplayed@ the differences between the versions of SAP used in the military and at DM, stating that Wood Abelieved@ the relevant Amodulars@ were Abasically all the same.@ Op.Br.50. A jury could question whether Wood really believed the versions were so similar, given his comment on the Candidate Evaluation Form that Thomas=s scheduling experience was with A[an]other system.@ In any event, we simply quoted Thomas=s testimony on this issue. He explained, for example, that DM uses SAP Ato initiate, produce, track work projects.@ See v10:USCA5-3347. In contrast, AThe military=s program was laid out a lot different. The codes, the nomenclature, the abbreviations were different. We used different functions of it.@ v10:USCA5-3348 (produce parts requests and receipts, track costs). As a similarity, Thomas listed the Aappearance@ of the Amain menu.@ v10:USCA5-3354.

DM also defends Wood=s statement that Thomas had Abeen doing this job for like eight straight years now.@ DM notes that Thomas=s cover letter states that he had A11 years of experience in commodity and petroleum forecasting.@ Op.Br.49. DM also notes that Thomas=s resume goes back to 1994 when he worked as a driver in the reserves. Id. However, Thomas=s experience between 1994 and 2004, including parking cars at Disney World (v10:USCA5-3412-15), cannot be considered Athis job.@ Thus, we stated, a reasonable jury could find that Thomas had at most four years of relevant experience (2004-2008). See v3:USCA5-829-30.

DM also defends Wood=s statement that Thomas was up to speed in about ten days, noting that Thomas was moved to another building after six weeks. This suggests, at most, that he had gained some competence in 40, not 10, days. Op.Br.51. In any event, DM does not dispute that Thomas testified it took him 6-9 months to Aget the gist@ of the job. v10:USCA5-3455.

DM then, remarkably, attempts to defend Wood=s description of Swafford as an Aaverage@ employee who was Anot aggressive, basically.@ According to DM, A[a]t best, Swafford=s ratings were slightly above the middle of the scale.@ Op.Br.52. To the extent this refers to Swafford=s performance as a planner/scheduler C the relevant position here C that is like saying a glass is slightly above half-full after only two sips have been taken. As evidenced by the evaluations, Swafford received 4s on DM=s 5-point scale. v6:USCA5-2212-15 (performing Aabove expectations@).

DM also asserts: AIn his last evaluation, [Swafford] received the lowest score possible for Apotential for growth within the organization.@ Op.Br.52 (citing v7:USCA5-2574). It is unclear what that C unsigned C document is. Swafford=s last performance evaluation C for the I&C position C is dated and signed two weeks after the document DM describes; he received A3s@ (Ameets requirements@) except for a A4@ in Adependability.@ v7:USCA5-2575-76. In any event, there is no evidence Apotential for growth@ was considered in selecting the planner/scheduler.

DM then asserts that suggesting Swafford would have been able to Afill the job more quickly@ than Thomas requires the making of what DM describes as Aunwarranted inferences@ C including the assumption that Swafford would catch on more quickly at this juncture than he did when he was learning the job initially. Op.Br.53. Such an inference is entirely Awarranted.@ Dubois, who was familiar with Swafford=s work, estimated that he would be completely up to speed in 2-4 months (v6:USCA5-1937), and even Lewis and Wood conceded that Swafford knew the job. v6:USCA5-2232(Lewis); v6:USCA5-2251(Wood). And because he could have started immediately, Swafford could have been up to speed before Thomas even moved to the area.[6]

Finally, DM makes two legal arguments, neither meritorious. First, the company contends that the Commission was required to rebut the subjective as well as the objective reasons for Swafford=s non-selection. This proposition, DM argues, is supported by the authority we cited, Alvarado v. Texas Rangers, 492 F.3d 605, 616 (5th Cir. 2007). Op.Br.53-54.

That is incorrect. As we stated, Alvarado makes clear that a subjective reason would suffice to satisfy an employer=s burden of production C and so, be subject to rebuttal C only where Athe employer articulates a clear and reasonably specific basis for its subjective assessment.@ 492 F.3d at 616. As the district court here recognized (v10:USCA5-3549), several of DM=s proffered reasons C e.g., Thomas communicated Abetter@ and was Amore energetic@ C are too vague to require direct rebuttal. Nevertheless, we pointed out, for example, that Wood scored both men the same and commented that both interviewed Avery well@/Avery good,@ casting doubt on Wood=s post-hoc reliance on contrary subjective impressions. See EEOC:52-53. DM ignores that evidence.

Second, DM urges the same erroneous application of the Aclearly-better-qualified@ test adopted by the district court. As our opening brief points out, the Commission was not required to show that Swafford was Aclearly better qualified@ than Thomas (although a jury could find he was) because the Commission did not rely primarily or exclusively on relative qualifications to prove pretext. As authority, we cited Rutherford v. Harris County, 197 F.3d 173 (5th Cir. 1999), and Vance v. Union Planter=s Corp., 209 F.3d 438 (5th Cir. 2000). See EEOC:55-59.

Without supplying any contrary authority, DM attempts to distinguish Rutherford and Vance, arguing that both involved Adirect evidence@ and jury verdicts. Op.Br.55. But neither the type of evidence nor the procedural posture is significant. While Vance involved direct evidence, Rutherford, 197 F.3d at 180 n.4, did not. The Court simply determined that the evidence, viewed as a whole, was sufficient to support a jury finding for the plaintiff. Id. at 181-83; see Smith v. Xerox, 602 F.3d 320, 331 (5th Cir. 2010)(noting that Acircumstantial evidence may often be more persuasive@). And the standard for summary judgment mirrors the standard for judgment as a matter of law, or reversal of a jury verdict. See Reeves, 530 U.S. at 135. Thus, DM=s argument that, regardless of the other evidence, the Aclearly-better-qualified evidence,@ standing alone, must suffice to withstand summary judgment is simply another example of the company=s faulty Adivide-and-conquer@ approach to evidence.

5. DM makes several alternative arguments for affirmance. None was addressed by the district court, and none has merit.

First, DM argues that a Asame-actor@ inference should apply. Under that doctrine, if an employee is both hired and fired by the same individual within a short period of time, the factfinder should infer that the termination was not motivated by discrimination. See, e.g., Brown, 82 F.3d at 658. DM advocates extending this inference from hiring decisions to interview decisions, arguing that because Wood chose both to interview and to reject Swafford for the planner/scheduler position, the factfinder should infer that the rejection could not possibly be discriminatory. DM also argues that the Ainference is enhanced by the fact that Wood (57), Dubois(61), and Hojem(57) were all older than Swafford (56).@ Op.Br.35-36.

Even if superficially appealing, the argument cannot withstand scrutiny. DM cites no legal authority for extending the same-actor inference to interviews.[7] Moreover, on these facts, DM had at least to interview Swafford. There were very few other qualified applicants. v6:USCA5-2255, 2260. Moreover, as Lewis acknowledged to Hojem and others, a DOE employee had warned Lewis that failing to hire Swafford because of his age would be illegal, and Hojem removed Lewis from the hiring board over his biased remarks. See Op.Br.7. A reasonable jury could find that, given this situation, Wood surmised that the safest course would be to give Swafford an interview and then hire someone else, i.e., someone younger and/or without an ailing spouse.

Furthermore, the fact that Dubois, Houston, Wood, Hojem, and even Lewis were all retirement-eligible actually accords with Lewis=s stated rationale for urging Swafford=s rejection: the Aaging workforce@ problem. Thus, the fact that Swafford, though slightly younger, was of the same generation as these employees simply confirms that no inference of non-discrimination should be drawn. Cf. Castenada v. Partida, 430 U.S. 482, 499 (1977) (ABecause of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group.@).

Second, DM argues that the Commission Afailed to exhaust administrative remedies before asserting claims under the association provision of the ADA.@ Op.Br.41-42. According to the company, Swafford=s charge Astates that [he] was discriminated against based on his personal disability,@ rather than his relationship to his disabled wife. Id. (original emphasis). Thus, DM contends, referring to its APosition Statement, it lacked Anotice@ as to the nature of Swafford=s ADA allegations. Id. (citing v4:USCA5-1247-57 (1972 Public Law version of Title VII)).

This argument should be rejected. As this Court explained, to the extent an employer has notice of the charge and an opportunity to conciliate, Ait should not be allowed to avoid enforcement of the law because the original charge Y is slightly different from the complaint filed in court by the EEOC.@ EEOC v. Brookhaven Bank & Trust Co., 614 F.2d 1022, 1025 (5th Cir. 1980). Rather, the Commission may base a discrimination claim Anot only upon the specific complaints made by the employee=s initial EEOC charge, but also upon any kind of discrimination like or related to the charge=s allegations, limited only by the scope of the EEOC investigation that could reasonably be expected to grow out of the initial charge.@ Fellows v. Universal Restaurants, 701 F.2d 447, 451 (5th Cir. 1983); accord, e.g., Brookhaven, 614 F.2d at 1024-25.

Here, in investigating Swafford=s charge, EEOC uncovered evidence that Swafford=s relationship with his disabled wife contributed to DM=s refusal to hire him. At the conclusion of the investigation (if not before), DM was explicitly notified that the Commission had determined that Swafford Awas not hired for the Planner/Scheduler position Y because of his association with his wife, who had been diagnosed with cancer, in violation of the ADA.@ v4:USCA5-422-23 (Determination). DM was then invited to engage in conciliation regarding this claim. See id. DM does not contend that the Commission=s conciliation efforts were insufficient. Thus, the Commission has fully satisfied its statutory pre-suit obligations. DM=s cited authority, Hamar v. Ashland, 211 Fed. App=x 309, 310 (5th Cir. Dec. 27, 2006) (unpublished), involved a private plaintiff, not the Commission, and there, unlike here, EEOC=s investigation did not reasonably encompass the uncharged claim.

Third, although the decision below states that DM Aassume[d]@ the Commission had established a prima facie case under the ADA associational provision (v10:USCA5-3548), DM=s brief challenges the prima facie case on two grounds. Both are unavailing.

Initially, DM makes a statutory argument. The ADA prohibits employers from refusing to hire a qualified applicant Abecause of the known disability of an individual with whom the [applicant] is known to have a relationship or association.@ 42 U.S.C. ' 12112(b)(4). According to DM, this provision applies only to associates with actual disabilities. Op.Br.44. But see Larimer v. IBM Corp., 370 F.3d 698, 700 (7th Cir. 2004) (describing as Aalternative trigger@ for coverage if associate Ais mistakenly regarded by [the] employer as having a disability@); Smith v. Hinkle Mfg., 36 Fed. App=x 825, 831 (6th Cir. June 4, 2002) (unpublished) (suggesting coverage possible for Aregarded as@ disability). DM bases its interpretation not on caselaw or the statutory language but on a passage from the legislative history, which states that the section Awould not apply if the employer did not know Y of the disability of the other person.@ Id. (citing Den Hartog v. Wasatch Academy, 129 F.3d 1076 (10th Cir. 1997)). DM then argues that the Commission cannot establish a violation of this provision because cancer is not a Aper se disability,@ and the Commission has not proved that Mrs. Swafford was actually disabled. Op.Br.45-46.

In fact, Swafford=s wife had an advanced form of liver cancer (v3:USCA5-797) for which the long-term prognosis is poor. See, e.g., emedicinehealth, Prognosis for Liver Cancer (perhaps 6-24 mos.), available at www.emedicinehealth.com/liver_cancer/page10_em.htm. Despite aggressive treatment, the cancer was not under control. v3:USCA5-851. DM was well aware that her condition was grave. Indeed, Lewis reportedly asked Dubois if Mrs. Swafford was Adead yet@ (v6:USCA5-1934), and Wood understood him to say that Mrs. Swafford was probably going to die (v6:USCA5-2024). See also v6:USCA5-2233 (Swafford has a Avery ill spouse@).

In any event, there is no basis for limiting the provision to actual disabilities. The version of the ADA governing this case defined Adisability@ to include impairments perceived by the employer as substantially limiting. 42 U.S.C. ' 12102(1)(C)(2008). As our opening brief points out, a key purpose of the provision is to prevent employers from refusing to hire a qualified applicant based on speculation or assumptions that the applicant would have to miss work to care for a disabled spouse or other family member. 29 C.F.R. Pt.1630 App. ' 1630.829; see generally ADA Qs&As. That rationale is equally applicable whether the associate is actually or only perceived as actually disabled.

Finally, DM argues that the fourth element of the prima facie case under the McDonnell Douglas framework should require evidence that the employer hired an applicant from outside the protected class. DM also suggests that the Commission could not make that showing because Thomas was injured in the Irag war and Acould have a >disability.=@ Op.Br.43. DM acknowledges that courts in this Circuit have relied on the formulation from Den Hartog, which requires evidence that Athe adverse employment action occurred under circumstances raising a reasonable inference that the disability of the [disabled] relative Y was a determining factor in the employer=s decision.@ In DM=s view, however, that sets the bar lower than is Anormally@ required in other contexts. Op.Br.42-43.

This argument is meritless. There is no Anormal@ formulation of a McDonnell Douglas prima facie case under any statute. Cf. McCorstin v. U.S. Steel Corp., 621 F.2d 749, 753 (5th Cir. 1980) (noting that Court has Arecognized that the McDonnell test is not the alpha and omega of possible tests@ and describing rigid adherence to it as a AProcrustean limitation@). Rather, the requirements will Avary@ depending on the context. McDonnell Douglas, 411 U.S.at 802 n.13; Tex. Dept of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54 & n.6 (1981) (noting that Astandard is not inflexible@ or Aonerous@).

Moreover, Thomas, who has an injured back, is not in the same protected class as Swafford, who has a disabled wife. And, as noted above, Lewis and Wood were concerned that Swafford would miss a lot of work caring for his wife. v6:USCA5-2012(Lewis); v3:USCA5-853-54 (Wood). Assuming Thomas has a Adisability,@ there is no evidence his condition raised similar concerns.

6. Finally, DM argues that the district court correctly dismissed the claims for enhanced damages under the ADEA and ADA. Op.Br.56-57. Our opening brief addresses this ruling (EEOC:59-62), and DM makes no attempt to respond to our arguments. Rather, DM argues that punitive damages are inappropriate because Hojem removed Lewis from the hiring board, attended the interviews herself, and, with the consent of high-level management, privately orally reprimanded Lewis for his biased comments, directives, and threats. These actions, DM argues, Aclearly@ establish a Agood-faith@ defense to punitive damages under the ADA. Op.Br.56 (citing Hardin v. Caterpillar, 227 F.3d 268, 270 (5th Cir.2000) (no punitive damages liability where manager=s actions are contrary to employer=s good faith efforts to comply with the law)).[8]

While a jury might find this argument persuasive, it would not be compelled to do so. The jury could instead consider, for example, that despite knowing he was fearful, Hojem never questioned why Wood suddenly decided to hire Thomas after originally indicating that Swafford was the best candidate; despite knowing of Lewis=s overt discriminatory conduct, Heusel and other high-level managers took no steps to publicly disavow his behavior; and Hojem and others jointly concluded that, at most, Lewis=s conduct deserved a slap on the wrist. Accordingly, because DM bears the burden of proof on this affirmative defense, summary judgment even under the ADA was inappropriate. See, e.g., Chaplin v. NationsCredit Corp., 307 F.3d 368, 372 (5th Cir. 2002) (noting that summary judgment for movant on affirmative defense is inappropriate unless all essential elements of the defense are established Abeyond peradventure@)(citation omitted).

CONCLUSION

The judgment should be reversed.

Respectfully submitted,

P. DAVID LOPEZ /s/ Barbara L. Sloan____________

General Counsel Barbara L. Sloan

CAROLYN L. WHEELER EQUAL EMPLOYMENT OPPORTUNITY

Acting Associate General Counsel COMMISSION

Office of General Counsel

DANIEL T. VAIL 131 M Street, N.E., 5th Floor

Acting Assistant General Counsel Washington, DC 20507

(202) 663-4721

fax: (202) 663-7090

barbara.sloan@eeoc.gov

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6999 words, from the Introduction through the Conclusion, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportional typeface using Microsoft Word 2007 with Times New Roman 14-point font.

/s/ Barbara L. Sloan___________

Barbara L. Sloan

Attorney for Equal Employment

Opportunity Commission

Dated: November 2, 2012

CERTIFICATE OF SERVICE

[1] Contrary to DM=s brief (Op.Br.6), Hojem testified that she did not Arecall@ or Aremember@ receiving the February 4 and 6 emails from Lewis. v7:USCA5-2551-52. Nothing suggests they were not sent or delivered.

[2] In suits under McDonnell Douglas framework, remarks may be evaluated using the Brown test if they are the only evidence that a stated reason was pretextual (see Wallace, 271 F.3d at 222), but that is not the case here.

[3] DM also asserts that Asome@ of our arguments are premised on documents DM objected to and Asome@ objections Awere ruled on@ below. Op.Br.23. The only evidentiary Aruling@ we are aware of is the decision to strike part of Dubois=s affidavit. v10:USCA5-3555(n.5). Our brief did not rely on that evidence.

[4] A jury could find that Wood was less interested in the content of Swafford=s resume than in the simple fact that he had applied. For example, Wood did not know Swafford was a veteran (v3:USCA5-800) even though his resume clearly notes his military service (v3:USCA5-864), and Wood was Apartial@ to veterans (v3:USCA5-800).

[5] Further undermining Wood=s credibility was his testimony that DM interviewed four candidates, two in person (including Sajewicz) and two by phone. v3:USCA5-812. In fact, three candidates were interviewed; Sajewicz was by phone. See, e.g., v6:USCA5-2121 (Hojem). Given this demonstrably inaccurate story about a central event in this case, a jury could rightly question Wood=s credibility (and/or memory) on other assertions, including that Thomas was better qualified and that Lewis=s comments had no influence on his hiring decision.

[6] DM notes that Thomas said that Dubois said that Swafford was Aslow to complete projects.@ Op.Br.13 (citing v10:USCA5-3359). That is irrelevant. Even if Dubois made this remark to Thomas (it is uncorroborated), there is no evidence Wood was privy to the remark; if he were, the remark could not have motivated his decision since any discussions between Dubois and Thomas occurred much later. Furthermore, if DM is proffering the remark to show that Swafford was Aslow,@ it is inadmissible hearsay since Dubois is not a party or the Commission=s agent. See Fed.R. Evid. 801(d)(2)(D), 802.

[7] DM=s cited authority, Gorence v. Eagle Food Centers, 242 F.3d 579, 764 (7th Cir. 2001), does not involve the same-actor inference. Rather, the issue was whether a comment reportedly made by the hiring manager C that Ahe didn=t want to talk to any middle-aged menopausal women@ C constitutes a stray remark. Neither Coghlan v. American Seafoods Co., 413 F.3d 1090 (9th Cir. 2005), nor Hooks v. Lockheed Martin Skunk Works, 14 Fed. App=x 769 (9th Cir. June 20, 2001) (unpublished), involves interviews.

[8] The ADEA contains no comparable defense. Liquidated damages are improper where an employer proves it Aincorrectly but in good faith and nonrecklessly believe[d] the statute permit[ted] a particular age-based decision.@ Hazen Paper Co. v. Biggins, 507 U.S. 604, 616 (1993). DM, reasonably, does not argue that it believed in good faith that the ADEA permitted rejecting Swafford because of his age.