IN THE UNITED STATES COURT OF APPEALS

TABLE OF CONTENTS

Page(s)

TABLE OF AUTHORITIES........................................................................... iii

STATEMENT OF INTEREST....................................................................... 1

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

STATEMENT OF THE CASE

1. Nature of the Case and Course of Proceedings....................................... 3

2. Statement of Facts.................................................................................. 5

3. This Court’s Decision and Mandate....................................................... 6

4. District Court’s Decision on Remand..................................................... 9

STANDARD OF REVIEW........................................................................... 12

ARGUMENT................................................................................................ 13

THE DISTRICT COURT FAILED TO FOLLOW THIS COURT’S MANDATE AND MISAPPLIED TITLE VII IN REFUSING TO ALLOW THIS RACE DISCRIMINATION CASE TO PROCEED TO TRIAL.

A. It Was Law of the Case that Plaintiff

Established A Prima Facie Case With Direct Evidence........................... 13

B. Plaintiff Was Not Required to Prove that

She Was “Qualified” in the McDonnell Douglas Sense

to Withstand Summary Judgment on

Her Race Discrimination Claim............................................................... 16

C. The District Court Erred in Holding that

Maestri-Murrell Could Defeat Johnson’s Title VII Claim of Race Discrimination with After-Acquired Evidence Questioning Johnson’s Honesty Since “Honesty” Both is Subjective and Played No Part in the Company’s Refusal to Consider Johnson for the Position......................................................................... 21

(a) Subjective qualification criteria................................................... 22

(b) After-acquired evidence............................................................. 26

CONCLUSION............................................................................................. 31

CERTIFICATE OF COMPLIANCE............................................................. 32

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

CASES Page(s)

Burrus v. United Telephone Co.,

683 F.2d 339 (10th Cir. 1982)............................................................ 22-23

Crowe v. Smith,

261 F.3d 558 (5th Cir. 2001).................................................................. 14

Dediol v. Best Chevrolet,

655 F.3d 435 (5th Cir 2011)................................................................... 12

Demahy v. Schwartz Pharma,

702 F.3d 177 (5th Cir. 2012).............................................................. 13-14

EEOC v. Chevron Phillips Chem. Co.,

570 F.3d 606 (5th Cir. 2009).............................................................. 24-25

EEOC [Serrano] v. Cintas Corp.,

2010 WL 3547970 (E.D. Mich. Sept. 3, 2010)................................... 25-26

EEOC [Serrano] v. Cintas Corp.,

2010 WL 3582656 (E.D. Mich. Sept. 10, 2010)................................. 25-26

EEOC v. WC&M Enterprises,

496 F.3d 393 (5th Cir. 2007).................................................................. 12

Fishel v. Farley,

1994 WL 43793 (E.D. La. Feb. 8, 1994)................................................. 29

Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978)............................................................................... 20

Gene & Gene, LLC v. Biopay, LLC,

624 F.3d 698 (5th Cir. 2010).................................................................. 14

Jones v. Robinson Property Group,

427 F.3d 987 (5th Cir. 2005).................................................................. 10

Lindsey v. Prive Corp.,

987 F.2d 324 (5th Cir. 1993).............................................................. 22-24

LULAC v. City of Boerne,

675 F.3d 433 (5th Cir. 2012)............................................................. 12, 13

Lynn v. Regents of University of California,

656 F.2d 133 (9th Cir. 1981).................................................................. 23

Martin v. Martin,

1993 WL 32343 (D.C. Cir. Jan. 29, 1993)............................................. 29

McDonnell Douglas Corp. v. Green,

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

McKennon v. Nashville Banner Publishing Co.,

513 U.S. 352 (1995)........................................................................... 26-30

Medina v. Ramsey Steel Co.,

238 F.3d 674 (5th Cir. 2001).............................................................. 22-24

O’Neal v. City of New Albany,

293 F.3d 998 (7th Cir. 2002)................................................... 17-18, 27-28

Patrick v. Ridge,

394 F.3d 311 (5th Cir. 2004).................................................................. 20

Ramirez v. Sloss,

615 F.2d 163 (5th Cir. 1980).................................................................. 21

Reeves v. Sanderson Plumbing Products,

530 U.S. 133 (2000)............................................................................... 20

Serrano/EEOC v. Cintas Corp.,

699 F.3d 884 (6th Cir. 2012)........................................................ 22, 26-30

Shattuck v. Kinetic Concepts,

49 F.3d 1106 (5th Cir. 1995).............................................................. 26-28

St. Mary’s Honor Center v. Hicks,

509 U.S. 502 (1993)).............................................................................. 17

Teamsters v. United States,

431 U.S. 324 (1977)............................................................................... 17

Texas Department of Community Affairs v. Burdine,

450 U.S. 248 (1981)........................................................................... 19-20

Thomas v. Denny’s,

111 F.3d 1506 (10th Cir. 1997).............................................................. 23

Thurman v. Yellow Freight System,

90 F.3d 1160 (6th Cir. 1996).................................................................. 28

TWA v. Thurston,

469 U.S. 111 (1985)........................................................................... 19-21

Wexler v. White’s Fine Furniture,

317 F.3d 564 (6th Cir. 2003).................................................................. 22

Wilks v. Fedex Ground Package System,

359 F. Supp.2d 539 (S.D. Miss. 2005).............................................. 11, 28

STATUTES and RULES

Title VII of the Civil Rights Act of 1964,

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

42 U.S.C. § 2000e-2............................................................................... 17

Federal Rule of Civil Procedure 56(c).......................................................... 12

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 12-31175

_______________________

KIMBERLY M. JOHNSON,

Plaintiff-Appellant,

MAESTRI-MURRELL PROPERTY MANAGEMENT,

Defendant-Appellee.

______________________________________________

On Appeal from the United State District Court

for the Middle District of Louisiana

The Honorable James T. Trimble, Jr.

______________________________________________

BRIEF OF THE EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION AS AMICUS CURIAE

_______________________________________________

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission is charged with administering and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e set seq., and other federal employment discrimination statutes. This is the second appeal in this Title VII race discrimination case. The Commission filed an amicus brief in the first appeal, arguing that the district court had misapplied key legal standards in granting the defendant’s summary judgment motion. This Court agreed and reversed, holding that the plaintiff has presented sufficient “direct” and other evidence to raise a triable issue of fact as to whether she was not considered for an assistant property manager position because the company did not want an African-American in the job.

Despite this clear holding, however, on remand, the district court disregarded the appellate mandate, as well as the plaintiff’s “direct evidence,” and again granted summary judgment. This appeal thus raises the proper application of the law-of-the-case doctrine in a Title VII action where the lower court refuses to credit compelling evidence of discrimination that this Court has deemed sufficient to warrant a trial. In addition, the appeal implicates the district court’s flawed application of the after-acquired evidence doctrine. Because these errors, if uncorrected, could undermine respect for Title VII and negatively impact its enforcement, we again offer our views to the Court.

STATEMENT OF THE ISSUES

1. Did the district court disregard the law of the case by again granting summary judgment to the defendant on the ground that the plaintiff failed to establish a prima facie case?

2. Did the court err in insisting that the plaintiff prove that she is “qualified” under the McDonnell Douglas circumstantial evidence framework where “direct evidence,” if believed by the jury, would show that the defendant refused to consider her for a job because of her race?

3. Even if the McDonnell Douglas proof scheme were applicable,

(a) Did the district court err in requiring that plaintiffs prove, as part of the prima facie case, that they meet any subjective qualifications that, according to the employer, were required for the position?

(b) Did the district court err in allowing the employer here to use information about alleged misconduct to defeat the plaintiff’s prima facie case and, so, to avoid liability for violating Title VII, even though that misconduct could not have played a role in the challenged decisionmaking because the employer did not know about the conduct when it refused to consider the plaintiff’s application?

STATEMENT OF THE CASE

1. Nature of the Case and Course of Proceedings

This is an appeal from an order of the United States District Court for the Middle District of Louisiana granting summary judgment and dismissing this Title VII action. In August 2009, Plaintiff Kimberly Johnson brought suit against Defendant Maestri-Murrell Property Management alleging that the company violated Title VII by refusing to consider her for an assistant manager position at the Azalea Point apartment complex because of her race. (II)USCA5-28 (appellate decision).[1] On August 29, 2011, the district court granted summary judgment to the defendant. The court held that the plaintiff failed to establish a prima facie case under the circumstantial evidence proof scheme from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and to prove that alleged race-based comments by the property manager were relevant to the case. (I)USCA5-1098-1110.

On appeal, this Court reversed. (II)USCA5-28-35. The Court held that “summary judgment was wrongfully granted” (id. at 33) because the plaintiff “established a prima facie case of racial discrimination” with evidence — including “direct evidence” — that the property manager did not consider the plaintiff because she is African-American. Id. at 32. The Court then remanded the case with instructions that it should “proceed towards trial.” Id. at 35.

On remand, the district court again granted summary judgment to the defendant. (II)USCA5-103 (11/14/2012 Memorandum Ruling). Refusing to consider the “direct evidence,” the court insisted that the plaintiff proceed under the McDonnell Douglas proof scheme and again held that plaintiff could not make out a prima facie case under that scheme. Judgment was entered the same day. (II)USCA5-104. On February 1, 2013, the court denied plaintiff’s motion for reconsideration. (II)USCA5-1026. Plaintiff’s notice of appeal, which had been filed on November 23, 2012, while her reconsideration motion was pending ((II)USCA5-108), then became effective. See Fed. R. App. P. 4(a)(4)(B)(i).

2. Statement of Facts

Azalea Point is an apartment complex in Baton Rouge, Louisiana. Most of the residents are students at nearby Louisiana State University. See (II)USCA5-28. On December 19, 2006, Kimberly Johnson submitted her resume for an assistant manager opening at the complex. According to the outgoing assistant manager, Stacy Curtis, when the manager, Connie Kimball, saw Johnson’s resume, she asked if Johnson was black. When Curtis said she thought so, Kimball commented that she did not think the company would want to hire a black person for the position. (II)USCA5-30. Unlike other resumes supplied to the EEOC during its investigation, Johnson’s resume had no comments written on it by Kimball indicating her views. Id. at 32. Shortly thereafter, the company hired Jamie Cedatol, the Caucasian daughter of Kimball’s supervisor. Id. at 29. Johnson then filed suit alleging that Maestri-Murrell refused to consider her for the position because of her race. See id. at 30.

In its original decision, the district court held that Kimball’s comments were not relevant because, according to the defendant, Kimball’s superior, rather than Kimball herself, was the decisionmaker. Thus, the court found, there was no “causal connection” between the comments and the decision to hire Cedatol. The court also found that the plaintiff could not make out a prima facie case under the McDonnell Douglas proof scheme. The court acknowledged that it was “unable to find that plaintiff was unqualified ... on the face of her resume.” (I)USCA5-1105. Under the district court’s formulation of that prima facie case, however, the plaintiff was required to prove that the employer continued to seek applicants after her rejection. Because the defendant did not know exactly when the replacement was hired, the plaintiff failed to prove that the selection occurred after she was rejected. See generally (II)USCA5-32, 34-35.

3. This Court’s Decision and Mandate

This Court reversed. (II)USCA5-29. The Court noted that the issue in Title VII disparate treatment cases is whether the employer intentionally discriminated against the plaintiff because of her race. “Whether the evidence [the plaintiff proffered here] is deemed direct or circumstantial or both,” the Court reasoned, “it is clear that Johnson has established a prima facie case of racial discrimination, and the district court should have denied [the defendant’s] summary judgment motion.” Id. at 32.

In the Court’s view, the case “presents direct evidence of racial discrimination — sworn deposition testimony by Curtis that Kimball stated to her that she did not think that Maestri-Murrell wanted an African-American as assistant manager at Azalea Point.” (II)USCA5-32. Because these “comments provide, at a minimum, evidence sufficient to defeat summary judgment,” the “district court erred in disregarding [them].” Id. Rejecting the district court’s reasoning, the Court stressed that the “relevant inquiry is whether or not there was discrimination that resulted in Johnson not being considered for the job. The remarks, if true, provide evidence of discrimination. Hence the timing of the remarks is much less important than [their content].” Id.

The Court concluded that plaintiff met her burden of presenting sufficient evidence to raise a triable issue of fact. Id. at 33. And, the Court held, given the evidence — particularly, Curtis’s testimony regarding what Kimball said about Johnson’s race, the fact that Johnson’s resume had no markings on it, and the fact that Maestri-Murrell hired a Caucasian — viewed in the light most favorable to the plaintiff, “a jury could reasonably find that Kimball screened Johnson out based on race prior to hiring Cedatol.” Id. The Court added that it made “no determination as to the merits of Johnson’s claims, only that summary judgment was wrongfully granted because there are genuine issues of material fact.” Id.

Having held that Johnson had proffered sufficient “direct” and other evidence to establish a prima facie case of racial discrimination directly ((II)USCA5-31-33), the Court then turned to the district court’s ruling under the McDonnell Douglas circumstantial evidence proof scheme. Id. at 33-35. The Court acknowledged that intentional discrimination claims are “normally analyzed” under that framework. Id. at 34 (but noting that Johnson bases her claim largely on Curtis’s testimony concerning Kimball’s comments).

This Court then held that the district court erroneously rejected plaintiff's claim based on an overly rigid formulation of the McDonnell Douglas prima facie case. (II)USCA5-34-35. The Court reasoned that Johnson could satisfy her burden with evidence that “she did not get the position that she was seeking and the position was filled by someone from outside her protected class.” Id. In light of this evidence, the Court concluded, the “district court should have concluded that Johnson satisfied her prima facie burden [under the McDonnell Douglas framework] by showing that Maestri-Murrell did not hire her, an African-American, for a position for which she applied and appeared to be qualified, but instead hired Cedatol, a Caucasian, under circumstances which give rise to a reasonable inference of unlawful discrimination.” Id. at 35 (also noting unmarked resume and comments).

In short, this Court reiterated, “[t]here are genuine issues of material fact[] sufficient to defeat a motion for summary judgment. Accordingly,” the Court concluded, “the district court should have denied Maestri-Murrell’s summary judgment motion and allowed this case to proceed towards trial.” Id. The judgment was therefore reversed and the case “remanded for further proceedings consistent with [the] opinion.” Id.

4. District Court’s Decision on Remand

On remand, the district court failed to follow this Court’s mandate that the case should “proceed towards trial.” The court also disregarded the rulings that the court had erred in refusing to credit Kimball’s remarks and that, in light of the “direct evidence,” Johnson had established a prima facie case of racial discrimination wholly apart from McDonnell Douglas. Instead, the court invited motions to reconsider any arguments not ruled on in its original order. (II)USCA5-40-41.

Accordingly, defendant again argued that Johnson could not make out a prima facie case under the McDonnell Douglas framework. In particular, defendant asserted that, during discovery, it had learned that plaintiff lied on her resume — inflating her college G.P.A., overstating her progress towards a Master’s degree, and misrepresenting her work experience. Because, defendant asserted, it would never hire dishonest people, plaintiff could not show that she was “qualified” for purposes of the McDonnell Douglas prima facie case. See (II)USCA5-50-63, 81-85 (defending use of after-acquired evidence).

In response, Johnson inter alia disputed that she had, at least knowingly, exaggerated her G.P.A. She also pointed out that her resume reflects that she attended Burk Baker Real Estate School, which, as defendant knew, provides training in property-related issues. She further proffered evidence suggesting that Kimball misstated her own education on her employment application. (II)USCA5-67-70; see also (II)USCA-105-114 (motion for reconsideration).

The district court again granted summary judgment on the ground that plaintiff could not make out a prima facie case under the McDonnell Douglas proof scheme. Disregarding Kimball’s race-based comments,[2] the court concluded that, because the plaintiff was alleging a Title VII disparate treatment claim, she must proceed under the McDonnell Douglas framework. (II)USCA5-94-95. The court continued, “[T]o overcome a motion for summary judgment on a Title VII discrimination claim, the plaintiff must first establish, by a preponderance of the evidence, a prima facie case of discrimination” – and this would include proof that the plaintiff was “qualified for the position.” (II)USCA5-95-96.

The district court noted that defendant argued that it seeks applicants who are honest, have property management experience, and have “longevity of employment.” (II)USCA5-96. Yet, the court stated, it was undisputed that plaintiff lacked these qualifications. Focusing mainly on “honesty,” the court stated that defendant’s evidence “proves” that plaintiff made “numerous false representations in her resume” and that, had Kimball known of these misrepresentations, she would have rejected plaintiff on that ground. See id. at 97-99. Accordingly, the court found, “the undisputed summary judgment evidence establishes that plaintiff’s employment history and character [do] not meet the qualifications for the position being sought after.” Id. at 101. And, the court added, a “plaintiff claiming a discriminatory hiring claim must prove that she is qualified for the job as part of her case.” Id.

The court rejected as “without merit” plaintiff’s argument challenging defendant’s reliance on “after-acquired” evidence. (II)USCA5-102. In the court’s view, “helpful” jurisprudence supports its view that it “should consider whether defendant would have hired the plaintiff had it known that the plaintiff was unqualified.” Id. (citing, e.g., Wilks v. Fedex Ground Pkg. Sys., 359 F. Supp.2d 539 (S.D. Miss. 2005)). Although defendant was not previously aware of plaintiff’s lack of qualifications, the court reasoned, “to allow [her] to maintain her action would allow her to be placed in a better position than she would have been absent the discrimination.” Id. “Due to her dishonesty,” the court concluded, plaintiff “would not have qualified for the assistant manager position.” She therefore “has failed to create a genuine issue of fact” on that issue and “cannot establish a prima facie case of discrimination.” Id. at 102-03.

STANDARD OF REVIEW

This Court reviews de novo whether the district court “faithfully and accurately applied [the Court’s] instructions on remand.” LULAC v. City of Boerne, 675 F.3d 433, 437 (5th Cir. 2012). The Court also reviews a grant of summary judgment de novo, applying the same standard as the district court. See, e.g., EEOC v. WC&M Enters., 496 F.3d 393, 397-98 (5th Cir. 2007). Summary judgment is appropriate only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Id. (citing Fed. R. Civ. P. 56(c)). A genuine issue of material fact exists when the evidence is such that, viewing the record as a whole, a reasonable jury could return a verdict for the non-moving party. See Dediol v. Best Chevrolet, 655 F.3d 435, 439 (5th Cir. 2011). In reviewing a summary judgment motion, the court must “refrain from making credibility determinations or weighing the evidence,” and must view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party’s favor. See WC&M, 496 F.3d at 398; see also (II)USCA5-31 (first appellate decision).

ARGUMENT

THE DISTRICT COURT FAILED TO FOLLOW THIS COURT’S MANDATE AND MISAPPLIED TITLE VII IN REFUSING TO ALLOW THIS RACE DISCRIMINATION CASE TO PROCEED TO TRIAL.

A. It Was Law of the Case that Plaintiff Established A Prima Facie Case With Direct Evidence.

In reversing the original summary judgment, this Court held that (1) Johnson’s “direct” and other evidence sufficed to support a finding that Maestri-Murrell refused to consider her application because of her race; (2) Johnson established a prima facie case directly, without the McDonnell Douglas framework; and (3) summary judgment was “wrongfully granted,” and the case should “proceed towards trial.” On remand, however, the district court refused to follow this mandate. Its decision again granting summary judgment should therefore be reversed as contrary to the law of the case.

The law-of-the-case doctrine provides that “an issue of law or fact decided on appeal may not be reexamined either by the district court on remand or by the appellate court on a subsequent appeal.” Demahy v. Schwartz Pharma, 702 F.3d 177, 184 (5th Cir. 2012) (citation omitted). The “mandate rule,” a “specific application of the general doctrine of law of case,” provides that “a lower court on remand must implement both the letter and the spirit of the appellate court’s mandate and may not disregard the explicit directives of that court.” Id. (citation omitted); see also LULAC v. City of Boerne, 675 F.3d 433, 438 (5th Cir. 2012) (noting that district court has “no power or authority to deviate from the mandate issued by an appellate court”); Crowe v. Smith, 261 F.3d 558, 562 (5th Cir. 2001) (stating that district court is barred from “revisiting an issue of law or fact decided on appeal”).

This doctrine is “based on sound policy that when an issue is once litigated and decided, that should be the end of the matter.” Gene & Gene, LLC v. Biopay, LLC, 624 F.3d 698, 702 (5th Cir. 2010) (citation omitted). Absent exceptional circumstances, the mandate rule compels compliance on remand with the dictates of a superior court and forecloses relitigation of issues expressly or impliedly decided by the appellate court. Id. Exceptions allow reexamination of issues only if, on remand, the evidence adduced at a later trial is substantially different; there has been an intervening change of law by a controlling authority; or the earlier decision was clearly erroneous and would work a manifest injustice. Demahy, 702 F.3d at 185.

On remand in this case, the district court failed to follow this Court’s mandate both when it invited Maestri-Murrell to revisit arguments regarding the prima facie case under the McDonnell Douglas framework and when it granted summary judgment again on the ground that Johnson could not make out a prima facie case under that framework. These proceedings bore little resemblance to the proceedings that this Court clearly envisioned on remand.

As this Court stressed in its decision on the first appeal, Johnson “has established a prima facie case of racial discrimination, and the district court should have denied Maestri-Murrell’s summary judgment motion.” (II)USCA5-32; accord id. at 33 (stating that “summary judgment was wrongfully granted because there are genuine issues of material fact”). Thus, the Court expressly concluded, the district court “should have allowed the case to proceed towards trial.” Id. at 35 (remanding for “further proceedings consistent with this opinion”). This is because the evidence, including, in particular, Curtis’s testimony regarding what Kimball said about Johnson’s race, would allow a jury to find that Maestri-Murrell refused to consider Johnson because of her race. Id. at 33; accord id. (noting that jury “could reasonably find” a Title VII violation). And, by plainly delineating this first holding — that Johnson established a prima facie case with “direct” and other evidence — from its later discussion of McDonnell Douglas, the Court made clear that Johnson need not rely on the McDonnell Douglas framework.

Finally, and importantly, the district court did not identify any exceptional circumstances that would have allowed the court to revisit any of these issues on remand. Consistent with the mandate, therefore, the district court’s only option on remand was to set the case for trial.

Instead, however, the district court again refused to consider Kimball’s comments, again insisted that Johnson proceed under the McDonnell Douglas framework, and again granted summary judgment under that framework. In so doing, the court violated both the “letter and spirit” of the appellate decision and, so, exceeded its authority. This Court should therefore, again, reverse and remand the case with explicit instructions to set the case for trial and to permit the plaintiff to proceed without regard to whether she can satisfy the elements of a McDonnell Douglas prima facie case.

B. Plaintiff Was Not Required to Prove that She was “Qualified” in the McDonnell Douglas Sense to Withstand Summary Judgment on Her Race Discrimination Claim.

Aside from disregarding the law of the case, the district court also erred in granting summary judgment to the defendant on the ground that Johnson failed to show that she was “qualified” for the assistant manager position for purposes of establishing a McDonnell Douglas prima facie case.

Initially, we note that, while correctly reciting the standard for summary judgment ((II)USCA5-93-94), the court in fact misapplied the standard. The court held that Johnson must “prove” by “a preponderance of the evidence” that she was qualified for the assistant manager position in order to establish a prima facie case. (II)USCA5-101; see also id. at 94-95 (requiring proof “by a preponderance of the evidence”). As this Court pointed out in its first decision, however, summary judgment is inappropriate when, viewing the facts and drawing all reasonable inferences in the light most favorable to the plaintiff, there is sufficient record evidence to support a jury finding for the plaintiff. See (II)USCA5-31, 33 (citing cases). That is, at summary judgment, the plaintiff need not prove her case per se, but only create a genuine issue of material fact for trial. And, as this Court further held, here, analyzed appropriately, the record evidence was sufficient to withstand summary judgment.

More fundamentally, the district court erred in assuming that Johnson could establish a prima facie case that Maestri-Murrell violated Title VII only if she could also show that she was qualified for the assistant manager position. On the contrary, Title VII’s basic protections against race discrimination extend to all employees and applicants, not merely to those who are “qualified” for a particular position. See 42 U.S.C. §2000e-2; Teamsters v. United States, 431 U.S. 324, 349 (1977) (noting that “it is abundantly clear that Title VII tolerates no racial discrimination, subtle or otherwise”) (citation omitted). Thus, the “ultimate factual question” in a case alleging disparate treatment is simply “whether the defendant discriminated against the plaintiff.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). In appropriate cases, a plaintiff may make this showing and prove a Title VII violation whether or not she meets the required job qualifications. See O’Neal v. City of New Albany, 293 F.3d 998, 1003 (7th Cir. 2002) (“An employer may still be liable for race discrimination under Title VII even though it later discovers information that would have otherwise disqualified the plaintiff from employment.”).

Thus, for example, if an employer bluntly told a black applicant that the company would never hire a black person, the applicant would have a claim whether or not she actually was qualified for the position for which she was applying. Of course, if the jury were then to find that the plaintiff in fact were not qualified, that would affect the relief to which she would be entitled (the court in its equitable discretion might well, e.g., decline to place the individual into the job). But it would not prevent the jury from finding that the employer violated Title VII by screening the plaintiff out because of her race.

As this Court found, this is just such a case. Specifically, there is testimony that, after confirming Johnson’s race, Kimball told Curtis that she doubted the company would want an African-American as assistant manager of Azalea Point. Viewing this “direct” evidence, along with the fact that Johnson’s resume was unmarked and that a white applicant was selected, and drawing all reasonable inferences in Johnson’s favor, “a jury could find that Kimball had screened Johnson out based on race.” (II)USCA5-33. That alone would constitute a Title VII violation; the matter of appropriate relief is a separate inquiry to be resolved later by the judge and/or a jury. At this stage in the proceedings, the district court should not have considered whether Johnson could prove that she was “qualified” within the meaning of the McDonnell Douglas prima facie case. Rather, to comply with the mandate, the court should have refused to entertain any further summary judgment motions and simply allowed the case to proceed towards trial.

The district court’s insistence that Johnson prove that she was “qualified” most likely flows from its mistaken assumption that any Title VII disparate-treatment case must be analyzed under the three-step burden-shifting McDonnell Douglas framework. See (II)USCA5-94-95. To the contrary, however, that framework is designed to permit a plaintiff to prove intentional discrimination inferentially, with circumstantial evidence. See TWA v. Thurston, 469 U.S. 111, 121 (1985) (stating that the “shifting burdens of proof set forth in McDonnell Douglas are designed to assure that the plaintiff has his day in court despite the unavailability of direct evidence”) (citation and alternation omitted). Under that scheme, the plaintiff in a hiring case may establish a prima facie case indirectly, with evidence, for example, that she applied and was qualified for a position, but was rejected and the position was filled by someone outside her protected class. See, e.g., Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54 (1981). This burden is “not onerous.” Id. at 253. Because there is no direct evidence, the prima facie case “serves an important function: it eliminates the most common nondiscriminatory reasons for the plaintiff’s rejection” — that is, she never applied, she was not qualified, and there was no vacancy. Id. at 254-55. By eliminating those common reasons, the plaintiff raises an inference that the true reason for her rejection was discrimination. See, e.g., Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576-77 (1978).

Once the plaintiff makes that showing, the employer must produce evidence that the challenged decision was made for a “legitimate, non-discriminatory reason.” See Patrick v. Ridge, 394 F.3d 311, 317-19 (5th Cir. 2004) (noting that the evidence must set forth the proffered reason with “specificity” and support a finding that the reason actually motivated the decision). At that point, the burden shifts back to the plaintiff to show that the proffered reason is false or otherwise “unworthy of credence” (450 U.S. at 256), thereby allowing the factfinder to find that the employer was actually motivated by the plaintiff’s race. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143, 147-48 (2000); see also Burdine, 450 U.S. at 256 n.8 (noting that the “allocation of burdens and the creation of a presumption by the establishment of a prima facie case is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination”).

But where, as here, the plaintiff presents evidence that, by itself, directly supports a finding of intentional discrimination, she need not rely on the McDonnell Douglas framework or present evidence of each element of that prima facie case — including the “qualified” element — to raise an inference of discrimination. See, e.g., Thurston, 469 U.S. at 121 (stating that “the McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination”); Ramirez v. Sloss, 615 F.2d 163, 168-69 (5th Cir. 1980) (noting that “real issue” is illegal discrimination and, where there is “direct” evidence, plaintiff does not need “mechanical” McDonnell Douglas formula). The district court was therefore simply wrong in granting summary judgment on the ground that Johnson failed to prove that she was “qualified.”

C. The District Court Erred in Holding that Maestri-Murrell Could Defeat Johnson’s Title VII Claim of Race Discrimination with After-Acquired Evidence Questioning Johnson’s Honesty Since “Honesty” both is Subjective and Played No Part in the Company’s Refusal to Consider Johnson for the Position.

The district court also erred in how it analyzed the evidence within the context of the McDonnell Douglas framework. This Court need not reach this issue because, as noted above, the Court has already held that summary judgment was inappropriate since Johnson established a prima facie case — that is, she provided sufficient evidence to support a jury finding — wholly apart from McDonnell Douglas. But if the Court addresses this question, it should find that even if the McDonnell Douglas framework were applicable, the district court erred in allowing the defendant to defeat the plaintiff’s prima facie case using after-acquired evidence of the plaintiff’s allegedly deficient subjective qualifications, including “honesty.”

a. Subjective qualification criteria

It is well settled that “[s]ubjective criteria should not be considered a part of the prima facie evaluation in a summary judgment proceeding.” Lindsey v. Prive Corp., 987 F.2d 324, 327-28 (5th Cir. 1993) (holding that, to establish a prima facie case under the McDonnell Douglas proof scheme, the plaintiff need not prove that she was “beautiful” enough for the job). Rather, “a prima facie case is established once the plaintiff demonstrates that objective employment qualifications have been met.” Medina v. Ramsey Steel Co., 238 F.3d 674, 681 (5th Cir. 2001); see also, e.g., Serrano v. Cintas Corp., 699 F.3d 884, 896 (6th Cir. 2012) (under McDonnell Douglas, plaintiff must show “objective qualifications for the job”); Wexler v. White’s Fine Furniture, 317 F.3d 564, 576 (6th Cir. 2003) (requiring only evidence that plaintiff’s qualifications are “at least equivalent to the minimum objective criteria required for employment”).

There are several reasons for this rule. As this Court explained in Lindsey, “‘objective job qualifications are best treated at step one [of the McDonnell Douglas analysis], and subjective criteria, along with any supporting evidence, are best treated at the later stages of the process. To do otherwise would in many instances collapse the three-step analysis into a single initial step at which all issues would be resolved. That would defeat the purpose underlying the McDonnell Douglas process.’” Lindsey, 987 F.2d at 327 (quoting Burrus v. United Tel. Co., 683 F.2d 339, 342 (10th Cir. 1982) (citations omitted)); accord Lynn v. Regents of Univ. of Cal., 656 F.2d 1337, 1344 (9th Cir. 1981) (discussing “deficient scholarship”). Moreover, “distinguishing between legitimate employment decisions based entirely on subjective criteria and those in which subjective criteria serve as a pretext for discrimination can only be made by weighing the employer’s credibility.” Yet, that is inappropriate in the summary judgment context. See Medina, 238 F.3d at 681-82 (adding that what constitutes “substantial sales experience,” a subjective criterion, “is in the eye of the beholder” and it is for the jury to decide whether defendant “beheld a man it felt was unqualified” or simply one who was “too old for the job”); see also Thomas v. Denny’s, 111 F.3d 1506, 1510 (10th Cir. 1997) (noting that subjective criteria are “particularly easy for an employer to invent in an effort to sabotage a plaintiff’s prima facie case and mask discrimination”) (citation omitted).

Applying this rule here, even assuming the McDonnell Douglas framework were applicable, Johnson could make out a prima facie case with evidence that she satisfied whatever objective qualifications Maestri-Murrell could establish were required for the assistant manager position. The district court’s decision lists the company’s stated criteria. See (II)USCA5-101 (citing Kimball’s testimony). Of these, at most, “property management knowledge or experience” could be considered relatively “objective.” Johnson’s resume suggests that she could meet this quasi-objective requirement since it reflects that she attended Burk Baker Real Estate School, which the defendant knew specialized in real estate training. See (I)USCA5-973 (resume). Indeed, in its original decision, the district court conceded that it could not find, from the face of Johnson’s resume, that she was “unqualified.” Id.; see also (II)USCA5-35 (appellate decision) (noting that Johnson “appeared to be qualified” for the job). The court therefore should have found that Johnson could establish a prima facie case even under the McDonnell Douglas framework.

The court, however, erroneously insisted that Johnson also prove that she satisfied the company’s other stated qualification criteria — “honesty” and “longevity of employment.” Like “beauty” (Lindsey, 987 F.2d at 327-28) or “substantial sales experience” (Medina, 238 F.3d at 682), these latter criteria are subjective and, so, should properly be addressed (if at all) in the second and third stages of the McDonnell Douglas proof scheme. See Medina, 238 F.3d at 682.

In fact, employers often do offer evidence that they based a challenged employment decision on the plaintiff’s alleged dishonesty, untruthfulness, or resume fraud at stage two of the McDonnell Douglas framework. Plaintiffs then have the opportunity to rebut these subjective reasons in stage three and, accordingly, raise a genuine issue that the decision was actually motivated by discrimination. See, e.g., EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 623-25 (5th Cir. 2009) (noting that employer explained that the plaintiff was fired because she misrepresented her medical history during hiring process, but finding an issue of fact as to the credibility of this proffered reason given evidence that company actually began looking for an excuse to fire plaintiff as soon as she requested accommodation). That is how the McDonnell Douglas framework is supposed to work.

It is not what happened here. To the contrary, here, the defendant could not have cited Johnson’s alleged lack of “honesty” as the reason she was not considered for the job at issue, since it lacked knowledge of this alleged flaw at the time it screened Johnson out from consideration. Nevertheless, the district court permitted the company to introduce this evidence at the prima facie case stage. There is simply no place in the McDonnell Douglas proof scheme — and especially in the prima facie case — for such a post-hoc reason. Thus, when it required Johnson to disprove this after-the-fact rationale as part of her prima facie case, the court subverted the purpose of the three-step burden-shifting proof scheme by improperly allowing the company to interject evidence that played no actual role in the challenged decisionmaking. That was reversible error.[3]

b. After-acquired evidence

The district court then compounded its error by allowing the defendant to use this “after-acquired” evidence of alleged wrongdoing — that is, wrongdoing of which the employer was unaware at the time of the challenged decision — to avoid liability for the alleged discrimination. This ruling conflicts with McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 359-60 (1995), and later cases such as Shattuck v. Kinetic Concepts, 49 F.3d 1106 (5th Cir. 1995); and Serrano/EEOC v. Cintas Corp., 699 F.3d 884 (6th Cir. 2012).

McKennon addressed whether an employee fired in violation of the ADEA should be precluded from all relief for that violation if, after her discharge, the employer discovers evidence of wrongdoing that, if known before the discharge, would have led to her termination based solely on that ground. 513 U.S. at 354. The McKennon Court concluded that precluding all relief in such cases would undermine the key objectives of the ADEA and Title VII: deterrence of illegal discrimination and compensation to plaintiffs injured by such discrimination. Id. at 358 (adding that “objectives . . . are furthered when even a single employee establishes that an employer had discriminated against [her]”). The later-discovered wrongdoing had no bearing on the main issue in the case, which was whether the employer unlawfully discriminated against the plaintiff based on age.

The McKennon Court also concluded, however, that, consistent with the statutory objectives, once liability was established, this after-acquired evidence could be considered in determining the appropriate remedies. Id.; see also Shattuck, 49 F.3d at 1108 (stating that after-acquired evidence of employee wrongdoing “does not immunize an employer from liability under Title VII” but it “may affect the remedy available to the employee”). Specifically, front pay and reinstatement (or instatement) would normally be inappropriate, and backpay might also be curtailed, although attorneys fees would still be available. See McKennon, 513 U.S. at 362-63 (cutting off backpay at date when wrongdoing is discovered if employer proves it would have fired the employee based on that reason alone).

McKennon was a termination case, but the same general principles govern cases such as this one involving a refusal to hire. See Serrano, 699 F.3d at 903-04 (applying McKennon in Title VII hiring case involving misrepresentations in job applications); cf. O’Neal, 293 F.3d at 1002 (applying McKennon to hiring case under Title VII & ADA where employer discovered after the fact that would-be police officer exceeded statutory age limit for new hires). To account for the hiring context, the test for allowing the evidence to be used to limit monetary relief is only slightly altered. See Shattuck, 49 F.3d at 1108 (noting that “pertinent inquiry, except in refusal-to-hire cases, is whether the employee would have been fired upon discovery of the wrongdoing not whether he would have been hired in the first place”). Rather than proving that the later-discovered wrongdoing would have caused the plaintiff to be fired, the employer should have to prove that the plaintiff would not have been hired based solely on that wrongdoing. See Thurman v. Yellow Freight Sys., 90 F.3d 1160, 1168 (6th Cir. 1996) (refusal to hire full-time). Consistent with McKennon, however, even assuming the employer satisfies this test, such evidence may be considered in determining the amount of damages — not to absolve the employer of all liability for a Title VII violation. See Serrano, 699 F.3d at 903; O’Neal, 293 F.3d at 1003-04.

Without explanation, the district court stated that it should “consider whether the defendant would have hired the plaintiff ‘had it known she was unqualified.’” Slip op. at 12 (citing Wilks v. Fedex Ground Pkg. Sys., 359 F. Supp. 2d 539 (S.D. Miss. 2005)). This misstates and misuses the correct test. It presumes that the later-discovered information by definition renders the plaintiff “unqualified”; it also transforms the test from one determining the appropriate amount of backpay (if any) into one precluding the plaintiff from challenging alleged discrimination altogether. The district court’s approach is thus an impermissible end-run around McKennon.[4]

Significantly, the district court’s conclusion that any misrepresentations on Johnson’s resume operate as a complete bar to her discrimination claim, even though Maestri-Murrell did not know about the dishonesty at the time it screened her from consideration, would undermine the enforcement objectives of Title VII. See Serrano, 699 F.3d at 903. McKennon stresses that the purpose of Title VII and the ADEA is to eliminate discrimination in the workplace. 513 U.S. at 358. “Congress designed the remedial measures in these statutes to serve as a ‘spur or catalyst’ to cause employers ‘to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, as far as possible, the last vestiges’ of discrimination.” Id. The district court’s ruling would have the opposite effect. Rather than spur employers to reform their hiring practices, this ruling could encourage employers who would rather hire Caucasians, for example, simply to reject an African-American applicant and hope that if she sues, they will be able later to uncover something that would justify the decision. See McKennon, 513 U.S. at 363 (stating that “concern that employers might as a routine matter undertake extensive discovery to resist claims under the Act is not an insubstantial one”).

The district court reasoned that “to allow the plaintiff to maintain her action would allow her to be placed in a better position than she would have been absent the discrimination.” (II)USCA5-102. We agree, of course, that resume fraud is reprehensible. But the Supreme Court has already rejected the notion that plaintiffs should lose their entire cause of action as a punishment where, as here, the employer only learned of the alleged wrongdoing after the fact and after the employer itself allegedly violated the law. See McKennon, 513 U.S. at 361 (stating that goal is “not to punish the employee”). Thus, the Supreme Court struck the appropriate balance — retaining a cause of action for the injured individual and thereby holding the employer liable for any unlawful conduct, while also accounting for “the corresponding equities” arising from the employee’s wrongdoing by limiting the remedies available to the individual in appropriate cases. 513 U.S. at 361.

Accordingly, should it choose to address this issue, we urge the Court to reject the district court’s lopsided ruling, which reflects a diametrically opposite policy choice. Instead, like the Sixth Circuit in Serrano, this Court should hold that “after-the-fact evidence of dishonesty should be considered only in determining the amount of damages due to an individual and not in the initial liability stage” of an employment discrimination case. Serrano, 699 F.3d at 903 (citing cases).

CONCLUSION

For the foregoing reasons, the district court’s decision granting summary judgment should once again be reversed and the case should be remanded with explicit instructions that the case be set for trial without further delay.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

LORRAINE C. DAVIS

Acting Associate General Counsel

DANIEL T. VAIL

Acting Assistant General Counsel

/s/ Barbara L. Sloan

BARBARA L. SLOAN

Attorney

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Office of General Counsel

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

Washington, D.C. 20507

202-663-4721

barbara.sloan@eeoc.gov

(FAX) 202-663-7090

[1] Because this is the second appeal in this case, there are several sets of record documents numbered USCA5-**. We cite the first appeal record as (I)USCA5-** and the second appeal record (containing, at pages 28-35, this Court’s first decision) as (II)USCA5-**.

[2] The court later repeated its original finding that “Kimball did not make the ultimate hiring decision” ((II)USCA5-101 n.51), thus apparently disagreeing with this Court’s conclusion that her remarks were direct evidence. Cf. Jones v. Robinson Prop. Gp., 427 F.3d 987, 993 (5th Cir. 2005) (stating that direct evidence includes statements which evince bias and were made by someone with decisionmaking authority).

[3] In its pleadings below, defendant argued that “honesty” is an “objective qualification” at least where, as here, the “dishonesty” concerns alleged misrepresentations in the plaintiff’s resume (even though it was discovered during the litigation). (II)USCA5-58-59. As support, the company cited two unpublished out-of-circuit lower court orders in an EEOC and private suit against Cintas Corp.: 2010 WL 3582656, *6 (E.D. Mich. Sept. 10, 2010), and 2010 WL 3547970 (E.D. Mich. Sept. 3, 2010). Id. Whatever their original merit, however, these orders are arguably no longer good law. On appeal, without expressly addressing the subjective/objective distinction, the Sixth Circuit recently held that unless the employer was aware of the alleged misrepresentations when it rejected the individuals’ applications, evidence of the misrepresentations could be used only in determining relief. See Serrano/EEOC, 699 F.3d at 903-04; see also above discussion of after-acquired evidence.

[4] To support its rule, the district court cited Martin v. Martin, 1993 WL 32343, *1 (D.C. Cir. Jan. 29, 1993), and Fishel v. Farley, 1994 WL 43793, *9 (E.D. La. Feb. 8, 1994). Not only are these cases unpublished and non-precedential, but they are also inapposite. Both predate McKennon, and neither addresses the after-acquired evidence doctrine. The one-paragraph order in Martin is so terse that it is unclear when the employer discovered the misstatements in the plaintiff’s resume. As for Fishel, the plaintiff there was fired largely because the employer learned she had misstated her education on her civil service application. See 1994 WL 43793 at *9. These cases, therefore, provide no support for distinguishing McKennon.