The U.S. Equal Employment Opportunity Commission (“EEOC”) is charged by Congress with interpreting, administering, and enforcing various federal laws against employment discrimination, including Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., and the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621 et seq. This case raises an important issue concerning when an internal complaint to an employer is sufficiently specific to constitute protected opposition under the antiretaliation provisions of Title VII and the ADEA. This case also provides an occasion for this Court to address the relevance of co-worker testimony when analyzing pretext in a discrimination case. The Commission offers its views to the Court pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure.

I. Given this Court’s precedent holding that a complaint is protected

opposition under Title VII’s antiretaliation provision where it identifies a discriminatory practice and a protected category on which the discrimination is based, whether the district court erred in holding that McKinley’s complaint of disparate discipline based on age and sex was not sufficiently specific to constitute protected activity.

II. In light of evidence that the Director of Human Resources and another

manager counseled McKinley against complaining because she could be fired, and where McKinley did complain and was fired approximately seven months later, whether the district court erred in refusing to submit her retaliation claim to a jury.

III. Whether the district court erred in holding that McKinley failed to create a

triable issue of pretext as to her discrimination and retaliation claims despite ample record evidence contesting the factual bases for Skyline’s termination decision.

STATEMENT OF THE CASE

A. Statement of the Facts [2]

Skyline Chili, Inc., hired Mary McKinley in 2006 as a district manager. R20, P701 (McKinley Ex. 4). McKinley reported to Senior Vice President of Restaurant Operations Debi Chitwood. R20, P256 (McKinley 48); R19, P128 (Chitwood 6). Shari Bleuer is Skyline’s Director of Human Resources (R22, P922-23 (Bleuer 5-6)) and, in that capacity, is involved in personnel decisions such as hiring and termination (R22, P938, P940, (Bleuer 66, 74-75)) and responding to employee discrimination complaints. R22, P927 (Bleuer 24-25).

District managers were assigned to manage certain stores within a given market and supervise those stores’ general managers. R20, P292-93, P295 (McKinley 84-85, 87). In 2006, Skyline’s business was in “much better shape in Cincinnati” due to McKinley’s “strong background and business acumen,” with one of her locations experiencing “an impressive turnaround” to “emerg[e] as a front runner under [McKinley’s] coaching.” R20, P751 (McKinley Ex. 8). Chitwood specifically noted her appreciation of McKinley’s leadership over her team. Id. In 2007, McKinley “once again…increased coney volume and profitability as well as brand awareness,” with “very strong” market performance in a “banner year for [McKinley] and [her] team.” R20, P753 (McKinley Ex. 9).

In April 2008, Skyline promoted McKinley to the position of market manager. R19, P133 (Chitwood 29); R22, P941(Bleuer 78). In this role, McKinley oversaw both stores and venues in the Cincinnati market. R20, P319 (McKinley 111). The Cincinnati market included around thirteen to sixteen stores (R20, P294-95, (McKinley 86-87)) and had at least two district managers, Heather Pressler and Angela Hornsby. R22, P937 (Bleuer 64). (Pressler worked with McKinley when McKinley was a district manager and later market manager in the Cincinnati territory; Pressler remains currently employed as a Skyline district manager in Cincinnati). R24, P1023-24, P1034 (Pressler 20, 22-23, 62). In November 2008, Chitwood praised McKinley for “incredible leadership and fortitude,” being a “resonant leader,” and “work[ing] relentlessly to create a great work environment and culture.” R20, P759-60 (McKinley Ex. 12). Chitwood also noted McKinley’s “never ending commitment” and “the incredible effort [she] put forth.” Id. at P761. That year, ninety-three percent of Cincinnati stores experienced growth from the prior year. Id. at P759. In 2008, McKinley also received a merit-based salary increase. R20, P354 (McKinley 146).

Following McKinley’s 2008 promotion to market manager, Chitwood provided McKinley with a description of her “vision of a well synergized leadership team” in an August 25, 2009, letter and explained Chitwood’s, McKinley’s, and others’ roles in that scheme. R20, P763 (McKinley Ex. 14). While Chitwood was to manage the performance of “Jay, Heather and Angela,” by allowing them “autonomy,” McKinley was to be a “culture keeper and the standards bearer who models the way” and leads in a “collaborative manner.” Id. Therein, Chitwood referred to McKinley as her “number one leadership partner in Cincinnati” and “a passionate Skyline brand ambassador.” Id.

The Director of Operations position is one promotional level above market manager. R22, P934, P936 (Bleuer 51, 59). Sometime before late December 2009, Skyline hired Mario Nocero as a district manager within the Cincinnati market. R20, P382-83 (McKinley 174-75). Skyline hired Nocero “with the understanding” that he would “be based in Cincinnati” and promoted to Director of Operations in October 2010. R26, P1120 (Nocero Aff. ¶ 3). Nocero also told Pressler that the “intention was for him to come in as a District Manager, quickly move to a Market Manager and into a Director of Operations role within a year, because…he took the job for that reason.” R24, P1027 (Pressler 34-35). McKinley first became aware of Nocero’s hire after the decision had been made. R20, P382-83 (McKinley 174-75); R26, P1120 (Nocero Aff. ¶ 4). Ordinarily, however, she would “[a]bsolutely” have been expected to participate in the hire of any district manager in her market. R22, P941 (Bleuer 78).

In McKinley’s December 8, 2009, performance evaluation, Chitwood stated that the Cincinnati market’s overall finish was “behind net sales plan” and lower than the prior year because of “Cincinnati leadership,” which had “diverted from strategy” and “did not execute consistently.” R20, P774 (McKinley Ex. 17). Chitwood stated that McKinley “struggled in her leadership effectiveness.” Id. Two of McKinley’s locations, however, were Skyline’s “2 top growth performers.” Id. In addition, fifty percent of her stores “beat prior year” performance, and Skyline experienced “continued growth” of the venue business “led by [McKinley]” despite 2009 “prov[ing] to be a tough economic market.” Id. In McKinley’s 2009 evaluation, Chitwood made no reference to customer complaints, response times, or accounting issues. Id.

On May 25, 2010, McKinley met with Chitwood and Bleuer for their regularly scheduled “people planning” meeting, with the intent of having a “people planning discussion.” R20, P400-401 (McKinley 192-93). Instead, Chitwood read aloud a two-page letter, signed by Chitwood, criticizing McKinley’s performance. R20, P400-403 (McKinley 192-95); R20, P782-83 (McKinley Ex. 22). Chitwood’s letter stated that “[o]ver the past 18 months, [McKinley’s] leadership acumen ha[d] eroded as evidenced by the performance of [her] direct report stores” and that she had lost “personal credibility.” R20, P782-83 (McKinley Ex. 22). In explaining the loss of credibility, the letter referred to McKinley’s “[c]ontinued lack of planning for success” and her “non-reactive” response to “store decisions that are off-strategy, such as the Harrison store’s decision to stop using headsets.” Id. The letter also referred to McKinley’s lack of responsiveness to customer complaints and “serious disappointment” over “Mike Payne’s hiring of minors” to work at venues within McKinley’s market. Id. The letter stated that Skyline was providing her with “this final opportunity” to improve, and would reevaluate “the allocation of your responsibilities and role within Skyline Chili” in 120 days. Id. McKinley felt “blindsided” and told Chitwood she disagreed with the letter. R20, P403-404 (McKinley 195-96).

Upon receiving the letter, McKinley asked all of her team members, (i.e., other district managers), whether “they had ever received written documentation relative to a customer complaint….No was the answer from all of them.” R20, P433 (McKinley 225). On or around May 27, 2010, McKinley went to Bleuer’s office to discuss the May 25, 2010, letter. R20, P427 (McKinley 219). McKinley told Bleuer she was “really upset” about the May 25th letter, as “all of my team members are significantly younger and some are male, and I said I feel as though I'm being discriminated against because I'm the only person disciplined for a customer complaint.” R20, P427-28 (McKinley 219-220). See also R22, P959 (Bleuer 150-51) (recalling that McKinley “was upset” about the letter and told Bleuer that she disagreed with it). She told Bleuer she had “basically made a formal complaint.” R20, P434 (McKinley 226). At this time, McKinley’s team consisted of two men, Jay Swallow and Mario Nocero (R20, P431 (McKinley 223)), and two women, Myong Hunkins and Heather Pressler. R20, P432-33, P479 (McKinley 221, 224-25, 271). All of her team members were significantly younger than she. R20, P431 (McKinley 223). Swallow, for example, was born in 1976 (R25, P1040, Swallow 4) and Hunkins in 1964. R23, P1002 (Hunkins 4). At the time of her deposition in January 2012, McKinley was 57 years old. R20, P209, P218 (McKinley 1, 10) (born in 1954).

On or around May 29, 2010, McKinley again told Bleuer that she was being “discriminated against” and “being treated differently than everyone else” because “yet again in my letter dated May 25th I’m the only one written up for a minor infraction” while no other team member had been disciplined for minor infractions, even though one infraction had resulted in a fine. R20, P437-39, P441-42 (McKinley 229-31, 233-34). Swallow, for example, also had issues while he was district and market manager with the hiring of minors at the locations he supervised. R25, P1064 (Swallow 100). McKinley showed Bleuer a print-out of infractions and told her, “I’ve gone to everyone and asked them if they’ve been disciplined or received any written documentation relative to a minor infraction….They all said no.” R20, P438-39 (McKinley 230-31).

In response, Bleuer told McKinley to “keep your head down. Stay below the radar. Play the game.” R20, P442 (McKinley 234); R22, P959 (Bleuer 150). On another occasion, Bleuer told McKinley that “it wasn't a good idea to go up against Debi Chitwood” because it would cost McKinley her job, and told her “not to go up against Debi,” cautioning McKinley “to be careful.” R20, P424-426 (McKinley 216-218). When McKinley spoke with manager Sarah Lapham as an intermediate step towards escalating her complaint to manager Terry Donovan (R22, P935, Bleuer 56), Lapham “shut it down,” telling her that “if I went up against Debi I would lose my job,” and “you do not want to go up against Debi Chitwood.” R20, P425 (McKinley 217).

By September 2, 2010, “every metric at [McKinley’s] stores at this point had improved….CSI scores, turnover, you name it.” R20, P451 (McKinley 243). Yet, Chitwood met with McKinley that day and told her she was being demoted to district manager in relation to the May 25th letter. R20, P448, P450-51 (McKinley 240, 242-43). Immediately after her meeting, McKinley called Bleuer to say that her demotion was “wrong” and ask for “documentation relative to why exactly I’m being demoted.” R20, P454 (McKinley 246). Meanwhile, on September 3, 2010, Chitwood told Nocero of her plans to promote him to market manager. R20, P452-53 (McKinley 244-45); R26, P1120 (Nocero Aff. ¶ 7). In the same meeting, Nocero resigned from Skyline because the position he had been hired for – Director of Operations – had been given to Swallow. R20, P453-54 (McKinley 245-46). See also R19, P150 (Chitwood 97) (stating that Nocero resigned because the Director position had been given to Swallow).

Though September 25, 2010, marked 120 days after McKinley received Chitwood’s letter, she received no information regarding the issues raised in the May 25th letter. R20, P456 (McKinley 248). Consequently, after September 25, 2010, McKinley went to Bleuer “multiple times” to seek “closure” with respect to the May 25th letter, saying “Shari, I’m not going to let this go.” R20, P466 (McKinley 258). Bleuer said she would discuss it with Chitwood and arrange a meeting. Id. On October 25, 2010, Chitwood met with McKinley and Bleuer to discuss the letter, and told McKinley that she “would remain in my market manager position,” that her stores “are all doing really well,” and that “she was pleased with what I had done since May 25th.” R20, P456, P469 (McKinley 248, 261). Chitwood told her “[e]verything’s all right with the world.” R20, P456 (McKinley 248). There was closure on issues relating to the May 25th letter. R20, P958 (Bleuer 148).

Skyline managers “saw everyone’s financial results” and had access to that information at any time. R24, P1023-24 (Pressler 21-22). Pressler never observed any erosion of McKinley’s leadership or a loss of her credibility. R24, P1034 (Pressler 62-63). McKinley was a “high performer,” as demonstrated by “[h]er reaction to her people” and “financial results.” R24, P1023 (Pressler 20-21). Pressler could not recall ever noticing McKinley’s stores performing worse than other managers. R24, P1024 (Pressler 22). In terms of the general performance of McKinley’s stores as compared to those of other managers, McKinley’s “[p]robably were the top performing stores.” R24, P1023-24 (Pressler 21-22).

On December 1, 2010, Chitwood met with McKinley and told her she was being fired. R20, P583-586 (McKinley 374-77); R20, P829-30 (McKinley Ex. 49). The termination letter stated that she was being fired for “ongoing performance issues” that included the “erosion of [her] leadership acumen,” as “evidenced by loss of sales and profitability of your direct report stores and with the loss of your personal credibility.” R20, P829-30 (McKinley Ex. 49). The letter also cited “[l]ack of communication or miscommunication” and a problem of “[r]esponsiveness to deadlines” that had “caused frustration in Accounting.” Id.

Hornsby, who is “significantly younger” than McKinley (R20, P366 (McKinley 158)), replaced her as market manager over Cincinnati by early 2011. R20, P604 (McKinley 395); R19, P133 (Chitwood 29). As district manager, however, Hornsby had managed the Covington market, which had a “dismal year” in 2009 and “fell far behind budget,” with “[d]eclining sales, leadership gaps and poor financial controls” that “plagued the market for a good part of the year.” R20, P788 (McKinley Ex. 26). Chitwood had also issued Hornsby “documents for failure to follow up on customer feedback and other gaps in her performance,” and met with Hornsby on at least one occasion to discuss performance problems. R19, P141 (Chitwood 60-61). Based on “any metric,” Hornsby’s stores were “terrible” and her store results “had steadily declined.” R20, P531, P533 (McKinley 322, 324). Pressler complained to Human Resources of a “hostile work environment” in relation to Hornsby, as did McKinley, who complained in 2009. R24, P1029 (Pressler 42); R20, P364 (McKinley 156). Eventually, Hornsby was removed as a district manager in the operations department and transferred to Skyline’s training department. R20, P362 (McKinley 154). Hornsby was in this training role in 2010, before replacing McKinley. R19, P133, P156 (Chitwood 29, 120).

B. District Court Opinion

In its analysis of McKinley’s retaliation claim under both the ADEA and Title VII, the district court held that her May complaint to Director of Human Resources Shari Bleuer was a “vague charge of discrimination” insufficient to constitute protected opposition as defined in Booker v. Brown and Williams Tobacco Co., 879 F.2d 1304, 1313 (6th Cir.1989). McKinley v. Skyline Chili, Inc., 2012 WL 3527222, at *9-10 (S.D. Ohio Aug. 14, 2012). Without analyzing the content of McKinley’s complaint or otherwise explaining the basis for its conclusion, the court then reasoned that even if her complaint constituted protected opposition, her claim ultimately failed “for the same reasons as her age and sex discrimination claims” — she had not shown that Skyline’s reasons for terminating her employment were pretextual. Id. at 10. The court concluded that Skyline had “successfully shown that no genuine dispute of material fact exists with respect to whether Plaintiff was terminated in retaliation for engaging in protected activity.” Id. In so holding, the court did not analyze causation. Id.

Though the district court concluded that McKinley had established a prima facie case of age discrimination, the district court held that she had failed to present sufficient evidence of pretext. Id. at 5, 9. In that analysis, the district court held that McKinley had failed to show that a similarly situated employee was treated more favorably by her submission of testimony from several co-workers that she was more qualified for a promotion than male employee Jay Swallow. Id. at 6-8. The court characterized that evidence as “opinion testimony” insufficient to show pretext and “essentially, speculation,” concluding that McKinley had presented “no evidence” that her co-workers Angela Hornsby, Mario Nocero, and Heather Pressler had “any facts to support their assertions.” Id. at 6-7. At most, the court observed, the testimony “simply reflect[ed] their personal opinions” and “perceptions” about McKinley’s work, and as such, was insufficient to “create a genuine dispute of material fact as to whether Defendant’s stated reasons masked impermissible discrimination.” Id. at 7. Stating that courts “have consistently held that a plaintiff's former coworkers’ personal opinions of the plaintiff's past work performance fail to create a genuine issue of material fact,” the district court cited two out-of-Circuit and one district court case in support of that assertion. Id. at 6.

Finding that McKinley had “presented no substantive evidence that the reasons for termination were false,” the district court granted summary judgment to Skyline on all claims. Id. at 8, 10. The court explained that it was “not enough that [McKinley] simply allege a dispute over the facts on which her discharge was based” to create a triable issue as to pretext. Id. at 9.

ARGUMENT

Under de novo review, this Court should reverse the district court’s grant of

summary judgment as to all claims. McKinley’s complaint to Human Resources was sufficiently specific under this Court’s precedent to fall within Title VII’s and the ADEA’s protective ambit, and the district court erred in concluding otherwise. The district court also erred in holding that McKinley had presented insufficient evidence to create a triable issue of pretext, despite direct evidence of retaliatory animus and other evidence rebutting the factual bases for Skyline’s proffered reason that it fired McKinley for deficient performance. In its pretext analysis, the district court also committed error in dismissing co-worker testimony from Skyline manager Heather Pressler, who positively appraised McKinley’s performance and provided specific facts based on first-person observation to support her assessment and rebut the bases for Skyline’s termination decision.

I. McKinley established a prima facie case of retaliation

Under both the ADEA and Title VII, a plaintiff establishes a prima facie case of retaliation by showing that (1) the plaintiff engaged in protected activity; (2) the defendant knew of the protected activity; (3) thereafter, the defendant took an adverse action against the plaintiff; and (4) there was a causal connection between the protected activity and the adverse employment action. Wasek v. Arrow Energy Services, Inc., 682 F.3d 463, 468-69 (6th Cir. 2012) (defining prima facie elements of a Title VII retaliation claim); Spengler v. Worthington Cylinders, 615 F.3d 481, 491-92 (6th Cir. 2010) (same, but as to elements in an ADEA retaliation claim).

McKinley has met the “minimal” burden of proof required at the prima facie stage to establish all four elements of a retaliation claim. Upshaw v. Ford Motor Co., 576 F.3d 576, 588 (6th Cir. 2009). First, termination plainly qualifies as an adverse action in the context of a Title VII retaliation claim. See, e.g., Wasek, 682 F.3d at 470. Regarding the second element of employer knowledge, the record reflects that McKinley complained of “discrimination” directly to Bleuer, who was involved not only in resolving employee discrimination complaints, but also in personnel actions generally, such as termination. Mulhall v. Ashcroft, 287 F.3d 543, 552 (6th Cir. 2002) (stating that a plaintiff need only present “evidence sufficient to establish that the individuals charged with taking the adverse employment action knew of the protected activity”). Here, not only was Bleuer the direct recipient of McKinley’s discrimination complaint, but she was also present when Chitwood presented the May 25, 2010, letter criticizing McKinley’s performance, and when McKinley was fired on December 1, 2010.

As set forth below, McKinley also established that she engaged in protected activity and that a causal link existed between her complaint and her termination.

A. McKinley’s May 27, 2010, complaint was sufficiently specific to constitute protected activity under the antiretaliation provisions of Title VII and the ADEA.

This Court has held that complaints constitute protected opposition where they identify a discriminatory practice and implicate the protected category on which that discrimination is based. Blizzard v. Marion Technical College, 698 F.3d 275, 288-89 (6th Cir. 2012) (oral complaint qualified as protected opposition, where the plaintiff told the Director of Human Resources that she was “treated differently than younger employees”); Trujillo v. Henniges Automotive Sealing Systems North America, Inc., No. 11-1148, 2012 WL 3570654, at *2-4 (6th Cir. Aug. 20, 2012) (unpub) (statement to Human Relations manager about another employee’s “continued…choice to say inappropriate or derogatory things about other races” constituted protected opposition because it could “be construed as a complaint about a hostile work environment caused by racial and national origin discrimination”); Johnson v. Univ. of Cincinnati, 215 F.3d 561, 580-81 (6th Cir. 2000) (holding that plaintiff’s letter complaining of “the apparent underutilization of minorities and women at the University Hospital and Medical College” and “lack of commitment or intent to create an equal playing field” constituted protected opposition).

In Blizzard, this Court underscored invocation of the phrase “treated differently” when analyzing the complaint at issue to conclude that the plaintiff’s complaint was protected opposition. 698 F.3d at 289. There, the plaintiff had complained that “she was ‘treated differently than younger employees’ and that she ‘received emotionally abusive and intimidating treatment from Nutter, who treated the younger people in the office much better.’” Id. at 288-89. In analyzing her complaint, this Court concluded that Blizzard’s “comment about being ‘treated differently’ distinguishe[d] Blizzard's communications with Hauenstein from her other oral complaints.” Id. at 289. The Blizzard Court also rejected the defendant’s argument that the plaintiff did not sufficiently identify age as the basis for the discrimination. Id. The Court’s emphasis on terms and phrases that convey different treatment is consonant with the protection that Title VII’s antiretaliation provision was intended to provide. Burlington N. & Santa Fe Ry Co. v. White, 548 U.S. 53, 59 (2006) (discussing the term “discriminate against” in Title VII’s antiretaliation provision, stating that “[n]o one doubts that the term ‘discriminate against’ refers to distinctions or differences in treatment that injure protected individuals”).

Like the complaint in Blizzard, McKinley’s complaint is similarly protected because she identified an unlawful employment practice of disparate discipline (when stating she was “the only person disciplined for a customer complaint”), and identified the protected bases of age and sex by means of comparison to “all of my team members” who she told Bleuer were “significantly younger and some are male.” A few days after her May 27, 2010, complaint, McKinley provided further reinforcement to the substance of that complaint when telling Bleuer she was “being treated differently than everyone else” because “yet again in my letter dated May 25th I’m the only one written up for a minor infraction.”

McKinley’s complaint about being treated differently than younger and/or male employees also differs from the complaint found insufficient in Booker v. Brown & Williamson Tobacco Co., Inc., 879 F.2d 1304 (6th Cir. 1989). This Court held that Booker did not engage in protected opposition because his letter was “not in opposition to a violation of the Act” in that “Booker generally attempt[ed] to dispute the employer's position with regard to his managerial style, and he suggest[ed] that the focus of the company's inquiry should be on his supervisor, Pavona.” Booker, 879 F.2d at 1309, 1313-14. In characterizing Booker’s letter in a subsequent decision, this Court stressed that it was not protected opposition because the “gravamen of the letter to human resources” principally concerned a complaint about management style rather than race discrimination. Trujillo, 2012 WL 3570654, at *4. The Trujillo Court distinguished Trujillo’s complaint from that in Booker because Trujillo complained exclusively about racial comments, not about management style, and also because Trujillo’s complaint of ongoing racial comments was “relevant to the underlying alleged Title VII violation” of a hostile work environment “in a way that [wa]s not the case in Booker,” where the plaintiff referred to a single “racially-oriented” comment but objected in his letter to his demotion. Id.

Here, McKinley specifically complained of Chitwood’s disparate discipline based on age and sex, and like the plaintiff in Trujillo, did not couch that complaint in the context of a generalized discussion of management style. Moreover, McKinley’s complaint describes the discriminatory practice with more particularity than in Trujillo, as she not only identified disparate discipline as the unlawful employment practice, but also cited a specific illustration by referring to the written warning she received from Chitwood. Cf. Trujillo, 2012 WL 3570654 at *4-5 (observing that plaintiff’s complaint of another manager’s “continued…choice to say inappropriate or derogatory things about other races” was “perhaps not a model of clarity or specificity,” but was nonetheless protected opposition and “far more concrete than a charge of ‘ethnocism’” made in Booker). Thus, in light of this Court’s precedent, the district court erred when it held that McKinley’s complaint was too vague to constitute protected activity.

B. The evidence of retaliatory animus is sufficient to establish causation and further constitutes evidence of pretext.

Testimony in the record reflecting retaliatory animus on the part of Skyline is alone sufficient to show a causal relationship between McKinley’s May 27, 2010, complaint of Chitwood’s disparate discipline of her and her termination on December 1, 2010, approximately seven months later. In Harrison v. Metropolitan Gov’t of Nashville and Davidson Cnty., TN, where fifteen months elapsed between the plaintiff’s EEOC charge and termination, this Court held that evidence that several employees feared retaliation for testifying at the plaintiff’s hearing, and comments by the plaintiff’s direct supervisor suggesting “he would not hesitate to run employees out of his department,” were sufficient to establish a prima facie case. 80 F.3d 1107, 1118-19 (6th Cir. 1996), overruled on other grounds by Jackson v. Quanex Corp., 191 F.3d 647, 667 (6th Cir. 1999). Likewise, evidence here, of two explicit warnings, including one from the company’s highest ranking Human Resources manager, and corroborative testimony from Pressler that she feared retaliation for her participation in this case, is sufficient evidence upon which a reasonable factfinder could “deduce a causal connection between the retaliatory action and the protected activity” in satisfaction of McKinley’s prima facie case. Nguyen v. City of Cleveland, 229 F.3d 559, 566 (6th Cir. 2000). McKinley testified that Bleuer told her “it wasn’t a good idea to go up against Debi Chitwood” because it could cost McKinley her job, and also told McKinley “not to go up against Debi.” Bleuer herself testified that she counseled McKinley to “play the game” and “stay under the radar.” R22, P959 (Bleuer 150). When McKinley spoke with manager Sarah Lapham as an intermediate step towards escalating her complaint to another manager, Lapham “shut it down,” telling her that “if I went up against Debi I would lose my job” and “you do not want to go up against Debi Chitwood.” The record additionally includes testimony from Pressler that she was concerned about being retaliated against for her own testimony in this case. R24, P1033 (Pressler 59-60) (testifying that when she told Bleuer that she feared retaliation, Bleuer had no other response to the concern but to say that Pressler had no choice).

As evidence presented in support of a plaintiff’s prima facie case may alone be sufficient to create a triable issue of pretext, (Blair v. Henry Filters, Inc., 505 F.3d 517, 530, 533 (6th Cir. 2007), abrogated on other grounds by Gross v. FBL Financial Services, Inc., 557 U.S. 167, 178 n.4 (2009)), the foregoing evidence of retaliatory animus would also allow a reasonable factfinder to conclude that Skyline fired McKinley in retaliation for her complaint, and not for deficient performance, particularly in light of evidence — discussed in further detail below — disputing the factual bases for the company’s negative evaluations of her performance. See Blair, 505 F.3d at 530, 533 (acknowledging that plaintiff’s evidence in support of his prima facie case of age discrimination could alone “suffice to show a genuine issue of material fact concerning pretext” and ultimately holding that evidence of animus comments satisfied both his prima facie case of age discrimination and created a triable issue as to whether the defendant’s reduction-in-force was pretextual).

II. McKinley presented evidence sufficient to create a genuine issue of material fact as to whether Skyline fired her for discriminatory or retaliatory reasons.

The record evidence is more than sufficient to cast doubt on Skyline’s explanation that it fired McKinley for deficient performance, specifically “leadership issues and loss of personal credibility.” R17, P88 (Def. SJ Mot. 17); R28, P1155 ( Def. Reply Br. 13). Her rebuttal evidence is sufficient to require remand of her claims of age and gender discrimination, as well as of her retaliation claim, because a factfinder could find Skyline’s reasons implausible.

Skyline’s criticisms of McKinley’s leadership and credibility could be viewed as implausible in light of Chitwood’s assessment of McKinley’s leadership in her December 2008 performance evaluation, where she specifically lauded her “incredible leadership and fortitude.” McKinley had also just received a promotion in 2008 from district manager to market manager. Given that context, a jury could find it suspicious that Skyline’s concern with McKinley’s performance only arose in December 2009, the very month it hired a younger male to eventually take over the Cincinnati territory. Indeed, McKinley’s December 2009 evaluation is the first instance in the record where Chitwood singles out leadership as a problem; Skyline listed that 2009 performance review as the first in a series of documents outlining her performance deficiencies, with no citation to documentation reflecting performance deficiencies prior to that time. Meanwhile, Nocero’s affidavit, and testimony from Pressler and McKinley of his disclosure to them of this plan, establish that in December 2009, Chitwood hired him as a district manager, with the understanding that he would transition to market manager, and then director of operations over McKinley’s Cincinnati territory by late 2010. In addition, though McKinley would ordinarily have been involved in a hiring decision of a manager within her Cincinnati territory, she was only made aware of Nocero’s hire after the fact.

This evidence — of a specific plan in place to promote Nocero to manage the Cincinnati territory by late 2010 and his hire before or around December 2009 (without McKinley’s knowledge or approval) — would permit a jury to find Skyline’s reliance on performance problems documented only after Nocero’s hire plainly suspect. See Logan v. Denny’s Inc., 259 F.3d 558, 573, 575 (6th Cir. 2001) (holding that plaintiff had presented sufficient evidence to show that employer’s reason for her termination — poor performance — was pretext for race discrimination, including her history of positive performance and the fact that citation of her alleged performance deficiency began only after employees at her newly assigned restaurant location, all of whom were white with the exception of one other black employee, began making discriminatory comments to her; concluding that “a reasonable person could conclude that Defendant took calculated efforts to portray Plaintiff as being a poor” performer, though she “was actually very good at her job”). Though in its reply brief, Skyline later added a citation to an August 25, 2009, letter from Chitwood to McKinley, (R28, P1155, Def. Reply Br. 13), as further evidence of McKinley’s deficient leadership and credibility, that letter contains no such criticisms. R20, P763 (McKinley Ex. 14). Therein, Chitwood refers to McKinley as her “number one leadership partner in Cincinnati” and “a passionate Skyline brand ambassador.” Id.

The contention that leadership was an ongoing problem for McKinley is further undermined by testimony from Skyline manager Angela Pressler. Pressler, who worked with McKinley as a district manager in the Cincinnati territory up through the time of McKinley’s termination, testified that she never observed any erosion of McKinley’s leadership and that McKinley never lost credibility with her. Pressler further testified that her opinion of McKinley as a “high performer” was based on McKinley’s “reaction to her people,” her “care for people, and financial results.” Pressler was aware of McKinley’s financial results because “[w]e saw everyone’s financial results.” Thus, Pressler substantiated her positive assessment based on specific observations made in the context of working with McKinley in the same market, and her access to financial data. The district court erred in characterizing this evidence as “essentially speculation,” with “no evidence” of “any facts to support their assertions.” McKinley, 2012 WL 3527222 at *7. The district court further erred by stating that co-workers’ personal opinions about McKinley’s work failed to create a triable issue of pretext because they merely offered “differing opinions” about McKinley’s performance but did not speak to the issue of whether Skyline’s “stated reasons masked impermissible discrimination.” Id. Pressler’s testimony provided facts about McKinley’s performance that refuted Skyline’s stated reasons for firing her – poor leadership and credibility – and was therefore evidence of pretext. Blizzard, 698 F.3d at 286 (concluding that the district court erred in failing to consider testimony “contesting the facts behind [defendant]’s stated reasons for firing [plaintiff]”); Hamilton v. Gen. Elec. Co., 556 F.3d 428, 436-37 (6th Cir. 2009) (reversing summary judgment, as plaintiff had “done much more than deny GE’s reason for firing him; he contests the facts underlying the incident that led to his termination”).

Moreover, as a general matter, co-worker and supervisor testimony of a plaintiff’s positive performance may certainly constitute evidence of pretext, and the district court’s assertion that “federal courts have consistently held that a plaintiff's former coworkers’ personal opinions of the plaintiff’s past work performance fail to create a genuine issue of material fact” ignores various Circuit decisions holding to the contrary. 2012 WL 3527222 at *6 (citations omitted). See, e.g., EEOC v. Boeing Co., 577 F.3d 1044, 1052-53 (9th Cir. 2009) (holding that co-worker and supervisors’ detailed testimony that claimant’s work was significantly better than the low scores she received on the evaluation used for identifying terminations under a reduction-in-force was indicative of pretext); Dey v. Colt Constr.& Dev. Co., 28 F.3d 1446, 1460-61 (7th Cir. 1994) (distinguishing co-worker and supervisor statements that “create an issue of fact by specifically refuting facts that allegedly support the employer’s claim of performance deficiencies” from those that are “insufficient to raise a question of fact about an employer’s honest assessment of inadequate performance” where they only “generally corroborate a plaintiff's own perception of satisfactory job performance”) (discussing cases); Colgan v. Fisher Scientific Co., 935 F.2d 1407, 1422 (3d Cir. 1991) (holding that affidavits of plaintiff’s co-workers, which the district court refused to consider, “raise[d] a genuine issue of material fact” as to whether the plaintiff’s poor performance evaluation was a pretext for age discrimination, where defendant argued that plaintiff’s failure to implement a program was the reason for his poor evaluation, but employees stated that plaintiff did in fact implement the program). See also Abuan v. Level 3 Commc’ns., Inc., 353 F.3d 1158, 1174 (10th Cir. 2003) (finding no error in district court’s refusal to adopt defendant’s jury instruction limiting the jury’s review of evidence to the plaintiff’s managers’ perception of the plaintiff’s performance to determine whether a poor evaluation was discriminatory; stating that to the contrary, co-workers’ assessment of plaintiff’s work “is clearly probative of pretext” and observing that “under Level 3’s proposed instruction most evidence of pretext would become irrelevant once a defendant has stated that its action was based on its own evaluation of the plaintiff's performance. This result is legally insupportable.”).

Finally, the fact that McKinley had resolved the performance issues identified in the May 25, 2010, letter shortly before she was fired, is further evidence of pretext. In both its motion for summary judgment and reply brief, Skyline pointed to the May 25, 2010, letter as outlining the performance issues that formed the basis for firing her; the letter included criticisms of her leadership and loss of credibility. R17, P89 (Def. Mot. SJ 18) (“Many of these factual bases” for plaintiff’s termination “were outlined in the May 25, 2010 written warning given to Plaintiff.”); R28, P1155 (Def. Reply Br. 13); R20, P782-83 (McKinley Ex. 22). McKinley testified, however, that she met with Chitwood and Bleuer on October 25, 2010, with the express purpose of discussing the letter, at which time Chitwood told her that she was pleased with McKinley’s work, that her stores were “doing really well,” and that “[e]verything’s all right with the world.” Bleuer corroborated that there was a meeting at which there was closure to the May 25, 2010, letter. Chitwood’s November 30, 2010, letter firing McKinley for “ongoing performance issues” just a month after having resolved the issues discussed in the May 25, 2010, letter, significantly undercuts Skyline’s reasons for firing her and a jury could find it indicative of pretext. If performance deficiencies were the basis for McKinley’s termination, that basis is further undermined by Skyline’s decision to replace her with a younger female, Angela Hornsby, who not only had documented performance problems, including the issuance of multiple documents by Chitwood about her performance, but who was also the source of complaints from other managers that she created a hostile work environment.

Given record evidence reflecting McKinley’s consistently positive performance leading up to December 2009, a reasonable factfinder could conclude that Skyline’s sudden negative assessment of McKinley beginning in December 2009 was not due to actual performance problems, but because the company had hired a younger male that same month with the intention of promoting him over her and wanted to portray her as a poor performer in anticipation of those promotions. Pressler’s testimony that McKinley’s stores were well performing and that she never observed a loss of leadership or credibility from McKinley would also allow a reasonable factfinder to conclude that Skyline’s reasons for firing her were untrue. Moreover, evidence that there was resolution to the performance issues relayed in Chitwood’s May 25, 2010, letter would provide yet another basis upon which a jury could find Skyline’s termination of her based on those issues unworthy of credence. Based on the foregoing, a jury could find the performance reason unworthy of credence and thus a cover for Skyline’s discriminatory or retaliatory animus.

CONCLUSION

This Court should hold that, in accordance with its precedent analyzing protected opposition in the context of a retaliation claim, McKinley’s internal complaint to Human Resources constituted protected activity under the antiretaliation provisions in Title VII and the ADEA. In addition, this Court should reverse the district court’s grant of summary judgment on all of McKinley’s claims. There is more than sufficient record evidence to create a triable issue as to pretext on her retaliation and discrimination claims, including evidence of retaliatory animus as well as co-worker testimony that specifically refuted the factual basis for Skyline’s termination reasons and which the district court erroneously dismissed as insufficient to support a showing of pretext.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

CAROLYN L. WHEELER

Acting Associate General Counsel

s/ Christine J. Back

CHRISTINE J. BACK

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M Street, NE

Washington, DC 20507

(202) 663-4734

christine.back@eeoc.gov

December 21, 2012

CERTIFICATE OF COMPLIANCE

I hereby certify that the attached amicus brief is proportionally spaced, has a typeface of 14 points, and contains 6,498 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

s/ Christine J. Back

CERTIFICATE OF SERVICE

I hereby certify that on December 21, 2012, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Sixth Circuit by using the appellate CM/ECF system.

I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by e-mail sent by the appellate CM/ECF system.

s/ Christine J. Back

[1] The Commission expresses no opinion on any other issues presented in this appeal.

[2] “R” refers to the record entry number and “P#” refers to PAGEID#.