INTRODUCTION

In its opening brief, the Commission argued that its filing of the Anderson lawsuit on August 31, 2009, and PFI’s questioning of Breaux the next day about whether he discussed Anderson with the EEOC, established the required causal connection between Breaux’s protected participation and PFI’s firing of Breaux on September 1, 2009. The Commission also argued that PFI’s claim that it fired Breaux for performance problems was pretext for retaliation, particularly given evidence that PFI fired Breaux without issuing him a single written warning though it was its practice to issue such warnings before suspending or firing employees.

In response, defendants emphasize PFI’s long-term knowledge of Breaux’s EEOC interview before it fired him on September 1, 2009, and assert that PFI was not aware of the Commission’s Anderson lawsuit before it fired him. The record evidence, however, would allow a reasonable juror to conclude that PFI knew about the EEOC’s filing of the suit based on Anderson’s charge before it fired Breaux for having discussed Anderson with the EEOC.

In their response, defendants make a significant concession that directly supports the Commission’s evidence of pretext—defendants admit that PFI would issue written warnings when employee performance issues affected customer shipments. As PFI claims that Breaux’s performance was deficient in this very regard, and it is undisputed that PFI never issued Breaux a written warning, its departure from this protocol when firing Breaux is indicative of pretext under this Court’s precedent. Defendants’ legal argument that the Commission must provide additional evidence of a similarly situated comparator to show pretext must be rejected. This Court’s precedent makes clear such comparator evidence is not required.

On the issue of successor liability, defendants do not identify a single factual dispute concerning the record evidence relevant to that analysis. Should this Court remand the Commission’s retaliation claim and direct the district court to submit this claim to a jury, this Court should also hold that M&M is PFI’s successor under the doctrine of successor liability, as the uncontested record establishes such.

ARGUMENT

I. Record evidence allows the reasonable inference that but for Breaux’s participation in the EEOC’s Anderson investigation, PFI would not have fired him.

Causation is the only element of the prima facie case in contention. Defs. Resp. Br. p. 53. The district court held that the Commission failed to show a causal connection between Breaux’s protected activity and PFI’s termination of Breaux’s employment. Order at 32. The Commission’s causation evidence, however, is more than sufficient to meet the “minimal” evidentiary showing required at the prima facie stage. Willnerd v. First Nat’l Neb., Inc., 558 F.3d 770, 778 (8th Cir. 2009).

The following facts are undisputed and support the causal chain that demonstrates PFI’s retaliatory motive for firing Breaux. (1) In June 2008, the EEOC interviewed charging party Adam Breaux during its investigation of a discrimination charge filed by another PFI employee, Dennis Anderson. Apx-259 (Mark 121-23); see Defs. Resp. Br. p. 10. (2) Since the time of the interview, around June 2008, PFI knew that the EEOC interviewed Breaux. Apx-258 (Mark 120); see Defs. Resp. Br. p. 10. (3) Breaux had worked directly with Anderson as his immediate supervisor, unlike the two other non-managerial PFI employees whom the EEOC had also interviewed. Apx-75 (EEOC interview notes) (interviewee Cathy Hunt was an Assembly Lead); Apx-259 (Mark 123) (interviewee Jeff Bergeron was a Press Brake Lead). Indeed, Mark Murphy noted this fact about Breaux in his deposition testimony. Apx-258 (Mark 120) (testifying that he assumed the EEOC “asked for Adam because he was [Anderson’s] direct supervisor”). (4) The EEOC filed a lawsuit against PFI seeking relief for Anderson in district court on August 31, 2009. Apx-65 (Pladson Decl. ¶ 43). (5) The following day, on September 1, PFI manager Mark Murphy summoned Breaux into a private meeting for the express purpose of discussing Breaux’s participation in the EEOC’s Anderson investigation. Apx-338 (Breaux 157) (the only topic of discussion was whether Breaux had discussed Anderson with the EEOC); Apx-279 (Mark 204) (“I just wanted him to state that they discussed Dennis Anderson”); see Defs. Resp. Br. pp. 22-23. (6) That same day, hours after that exchange, PFI fired Breaux. Apx-337 (Breaux 150-51); Apx-280 (Mark 206-08).

The district court held that causation could not be established based on these facts because the time period “between Breaux’s interview in June 2008 and his termination more than one year later is too long” to support causation. Order at 32 (citing Stewart v. Indep. Sch. Dist. No. 196, 481 F.3d 1034, 1044 (8th Cir. 2007). But Stewart,[1] and cases cited by defendants addressing temporal proximity (see Defs. Resp. Br. pp. 54-55), are inapposite because causation can be proven in a variety of ways, and the Commission’s causation evidence and its retaliation claim as a whole do not rely solely on temporal proximity between Breaux’s June 2008 protected conduct and his termination on September 1, 2009.

Indeed, a demonstration of close temporal proximity—or any temporal proximity—between protected activity and an adverse action is not required to show causation at all; it is merely a fact that may help prove causation. See, e.g., Kachmar v. Sungard Data Sys., Inc., 109 F.3d 173, 178 (3d Cir. 1997) (“It is important to emphasize that it is causation, not temporal proximity itself, that is an element of plaintiff’s prima facie case, and temporal proximity merely provides an evidentiary basis from which an inference can be drawn. The element of causation, which necessarily involves an inquiry into the motives of an employer, is highly context-specific.”); Sitar v. Indiana Dep’t. of Transp., 344 F.3d 720, 728 (7th Cir. 2003) (holding that the district court erred in “focus[ing] on such a small part of the picture—the time period between the [protected activity] and the date of termination. We have never said that this factor is dispositive in proving or disproving a causal link.”). In any event, as the Commission stated in its opening brief, this Court has specifically rejected a reading of its precedent that would establish an outer time limit (between the protected activity and the adverse action) that would operate to preclude a showing of causation. EEOC Opening Br. p. 34 (discussing Heaton v. Weitz Co., 534 F.3d 882 (8th Cir. 2008)). Defendants, in their response brief, present no conflicting authority. See Defs. Resp. Br. pp. 54-55.

Although defendants and the district court focused on the time between Breaux’s June 2008 EEOC interview and his termination, the Commission’s theory of causation is based on a significant intervening event directly related to Breaux’s protected activity, which occurred the day before PFI fired Breaux. That crucial event was the Commission’s filing of a lawsuit based on the Anderson charge and the investigation in which Breaux had participated. Even accepting as true that PFI had long viewed Breaux’s EEOC interview and the EEOC investigation in a benign light—a point much emphasized by defendants (Defs. Resp. Br. pp. 53-58)—a reasonable juror could conclude from the evidence that the EEOC’s lawsuit changed PFI’s perceptions of Breaux’s participation. Indeed, Mark Murphy testified that when he learned of the lawsuit, he was “concerned with the EEOC and how they did the investigation.” Apx-277 (Mark 195-96).

A. Record evidence allows the reasonable inference that PFI knew about the EEOC’s Anderson lawsuit before it fired Breaux.

Though defendants contend that PFI lacked knowledge of the EEOC lawsuit until after it fired Breaux (Defs. Resp. Br. p. 56), the record evidence, discussed in further detail below, allows the reasonable inference that PFI learned of it before it fired Breaux. Should this factual dispute be resolved in the Commission’s favor, a jury could reasonably conclude that PFI’s knowledge of the lawsuit led it to view Breaux’s participation in the EEOC investigation in a hostile light, and prompted PFI to question Breaux about that protected activity midday on September 1, and then to fire him within hours of questioning him about it.

Calling the Commission’s assertion about PFI’s knowledge of the EEOC lawsuit “speculation,” defendants notably fail to address any of the record evidence that the Commission cited in its opening brief that supports that reasonable inference. See Defs. Resp. Br. pp. 55-56; EEOC Opening Br. pp. 7; 28-29 (discussing this evidence). Among this record evidence is a declaration reflecting that EEOC attorney Nicholas Pladson called PFI on August 31, 2009, to inform the company that it had filed a lawsuit seeking relief for Anderson. Apx-66 (Pladson Decl. ¶ 44). Pladson requested that the PFI employee who answered the phone relay to Murphy Sr. that the EEOC had just filed a lawsuit against PFI based on Anderson’s EEOC charge, and the employee agreed to do so. Id. at ¶ 45. Given the gravity of the news that a lawsuit had just been filed against the company, a factfinder could reasonably infer that the PFI employee who received Pladson’s call informed Murphy Sr. on that day or the next day, that PFI was being sued. That inference is supported by Pladson’s declaration (Apx-66) (Pladson Decl. ¶ 46) and Murphy Sr.’s own affidavit and deposition testimony, stating that Murphy Sr., in fact, returned Pladson’s phone call on September 2, 2009. Apx-55 (Sr. Aff. ¶ 3) (“On September 2, 2009, I called the EEOC attorney, Nicholas Pladson . . . .”); Apx-224 (Sr. 190-92).[2]

In addition, it is undisputed that hours before PFI fired Breaux, Mark Murphy called Breaux into a midday meeting on September 1, 2009, to question him about his involvement in the EEOC’s Anderson investigation. See supra pp. 3-4; Defs. Resp. Br. pp. 22-23. From this evidence, a reasonable juror could infer that PFI, more than a year after the EEOC interview had occurred, was prompted to meet with Breaux about his EEOC interview and obtain a written acknowledgment because it had just become aware there was now a potential need for such documentation. Though PFI contends that this meeting and written disclosure were “done in an effort to complete Breaux’s personnel file prior to PFI’s planned termination” (Defs. Resp. Br. p. 23), a juror could reasonably reject that contention. Indeed, it is difficult to believe that PFI would need a written acknowledgment from an employee about his year-old protected activity to “complete” his personnel file before firing him. It is additionally unclear why PFI would need such documentation from Breaux to “substantiate the scope of the EEOC’s interviews,” had it not been for the purpose of defending against litigation in the Anderson lawsuit, which necessarily means PFI was aware of the suit. See Defs. Resp. Br. p. 23.

The district court, presented with this evidence, concluded that the “content of the acknowledgment itself supports PFI’s uncontradicted claim that PFI wanted to complete its records.” Order at 35. In so concluding, the district court not only failed to draw all reasonable inferences in favor of the Commission, as it was required to do at summary judgment (Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011), but also erred in resolving competing inferences rather than submitting the Commission’s claim to a jury. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (“[A]t the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”); Riedl v. Gen. Amer. Life Ins. Co., 248 F.3d 753, 759 (8th Cir. 2001) (Summary judgment “is not appropriate if the facts are subject to more than one reasonable interpretation.”).

B. Breaux’s responses to PFI’s questioning on September 1, 2009, about his June 2008 protected activity, are closely related to that protected activity.

PFI further contends that its meeting with Breaux to discuss his June 2008 EEOC interview and obtain a written acknowledgement about that EEOC interview is unrelated to Breaux’s June 2008 protected activity, and “irrelevant.” See Defs. Resp. Br. pp. 55, 59. Under this Court’s precedent, however, Breaux’s responses to Mark Murphy’s questions on September 1 about his June 2008 protected activity are closely related to – if not in substance part of – his June 2008 protected activity.

In Womack v. Munson, 619 F.2d 1292 (8th Cir. 1980), this Court discussed the interrelated nature of the plaintiff’s protected activity (filing a lawsuit alleging discriminatory practices) and a verbal exchange with his employer two days after the filing, during which the plaintiff responded to his employer’s questions about the lawsuit’s allegations. Id. at 1297. This Court held that the district court erred in concluding that the plaintiff was later fired, not for filing the lawsuit, but because of his admission—made during that verbal exchange—that he had also engaged in some of the abusive practices alleged in his lawsuit. Id. at 1297-98. This Court explained that the plaintiff’s responses to his employer’s questions during that exchange were “virtually inextricable from his protected” activity, as “he was initially questioned only because he filed the lawsuit” and the plaintiff’s answers concerned his “personal knowledge of the substance of his allegation.” Id. at 1297. This Court ultimately held that the plaintiff’s responses to questions about the lawsuit shared the lawsuit’s protected status. Id. at 1298. Though this Court need not decide whether Breaux’s responses to Mark Murphy’s September 1 questioning about his June 2008 EEOC interview amount to protected activity, this Court’s analysis in Womack certainly supports the view that the questioning, and Breaux’s responses at that meeting, are strongly related to Breaux’s June 2008 EEOC interview. Indeed, here, PFI not only questioned Breaux, but also requested that he sign a written acknowledgment about his EEOC interview.

Evidence that PFI then fired Breaux within hours of questioning him about his June 2008 EEOC interview, and one day after the EEOC filed its lawsuit based on Anderson’s charge, would allow a reasonable juror to conclude that Breaux’s termination would not have occurred but for his June 2008 protected activity. See Fasold v. Justice, 409 F.3d 178, 190 (3d Cir. 2005) (holding causation satisfied in part based on evidence that the employer “specifically questioned” plaintiff about his discrimination charge during the grievance procedure and later “specifically mentioned” his charge in the letter denying the grievance; stating “we cannot discount the possibility that [the manager]’s irritation” with the plaintiff’s protected activity “influenced the calculus” of his decision to deny the plaintiff’s grievance).

Nor have defendants cited any legal authority to challenge the Commission’s argument that causation may be met when, despite pre-existing knowledge of a plaintiff’s protected activity, the employer’s retaliatory animus is later triggered by new information directly related to that protected activity. In Sitar, for example, the plaintiff’s supervisor was aware of the plaintiff’s protected activity for several months before firing her. Despite this, the Seventh Circuit held that the evidence would allow a trier of fact to “find that the causal relationship existed from much more” than temporal proximity. Sitar, 344 F.3d at 728-29. In so holding, the Seventh Circuit underscored the fact that at the time the plaintiff’s manager decided to fire her, he had just received new information directly related to her protected activity. Id. Specifically, the plaintiff’s manager was informed of the findings of an investigation of the plaintiff’s allegations against him, which made him “visibly upset.” Id. Immediately following his receipt of this new information, he decided to fire her. Id. (rejecting the district court’s view that this timing was “coincidental”).

Similarly, here, despite long-held prior knowledge of Breaux’s EEOC interview, PFI took no adverse action until the disclosure of new, negative information to PFI directly related to Breaux’s protected activity. Indeed, Murphy Sr. testified that he was “very very upset” when he learned of the EEOC’s lawsuit, and “very concerned,” as news about the lawsuit had been “distributed around town.” Apx-224-25 (Murphy Sr. 192-93). It was from that point on—after the EEOC’s filing on August 31, 2009—that PFI swiftly and significantly changed its conduct toward Breaux: it questioned Breaux about what he told the EEOC, had him sign a statement that he discussed Anderson with the EEOC, and then fired him, all in the course of a single day. As the foregoing evidence would allow the reasonable inference that Breaux would not have been fired but for his participation in the Anderson investigation, this Court should remand the case and direct the district court to submit the Commission’s retaliation claim to a jury. See Willnerd, 558 F.3d at 773 (reversal of grant of summary judgment on plaintiff’s ADA claims warranted “[b]ecause reasonable jurors could resolve these outstanding questions” in the plaintiff’s favor and conclude he is entitled to relief).

II. PFI’s departure from its protocol when firing Breaux is evidence sufficient to create a triable issue of pretext.

This Court has repeatedly stated that one method of establishing pretext is to show that the employer departed from its own policy or practice in the way it acted toward the plaintiff. Ridout v. JBS USA, LLC, 716 F.3d 1079, 1084 (8th Cir. 2013) (pretext can be demonstrated “by showing that ‘it was not the employer’s policy or practice to respond to such problems in the way it responded in the plaintiff’s case’”) (citation omitted); Lake v. Yellow Transp., Inc., 596 F.3d 871, 874 (8th Cir. 2010) (pretext can be shown with evidence that “an employer failed to follow its own policies”).

As the Commission argued in its opening brief, the record shows that it was PFI’s practice—including up through the time of Breaux’s termination—to issue written warnings called action notifications to its employees about performance and other issues, before taking more serious disciplinary action in the form of a suspension or termination. See EEOC Opening Br. pp. 12-14 (citing action notifications that PFI issued to employees for performance and attendance issues, from at least 1998 through 2009). PFI’s departure from this practice when firing Breaux without issuing him a single action notification is therefore indicative of pretext. The absence of any documentation in PFI’s employee records reflecting performance issues related to Breaux allows the reasonable inference that Breaux, in fact, did not have performance problems.

A. Evidence of similarly situated comparators is not required to show pretext based on PFI’s departure from its practice when it fired Breaux without any written warning.

As a legal matter, PFI contends that to show pretext with evidence of its deviation from its normal practice when firing Breaux without prior written warning, the Commission must demonstrate that other employees to whom PFI issued action notifications were similarly situated to Breaux “in all relevant respects.” See Defs. Resp. Br. 65-66. This is incorrect. In so arguing, defendants confuse the evidentiary showing required to demonstrate pretext on the basis of disparate treatment with the showing required to establish pretext through evidence of an employer’s deviation from its policy or practice.

At the outset, these two methods of demonstrating pretext are distinct. See, e.g., Lake, 596 F.3d at 874 (listing three different ways of showing pretext, including through evidence that an employer failed to follow its own policies or that an employer treated similarly-situated employees in a disparate manner). Correspondingly, each method of proof triggers and requires different types of evidence. See, e.g., Ridout, 716 F.3d at 1084 (analyzing evidence relating to the defendant’s practice separately from comparator evidence).

These differences in evidence comport with the differences between the two theories as a way of showing discriminatory animus. A theory of disparate treatment, for example, seeks to show that an employer took an adverse action on a discriminatory basis—and not because of the plaintiff’s misconduct—through evidence that employees outside the plaintiff’s protected class committed misconduct of comparable seriousness but were not subject to similarly adverse actions. See Johnson v. West, 218 F.3d 725, 733 (7th Cir. 2000) (stating that “one means of demonstrating pretext is to put forth evidence that employees outside the protected class who were involved in misconduct of comparable seriousness were not subject to similar adverse employment action”). A showing of pretext through proof of an employer’s deviation from a standard policy or practice, however, does not focus on the plaintiff’s misconduct as compared to other employees, but focuses on whether the employer had a particular policy or practice and then departed from it when taking the adverse action against the plaintiff. See, e.g., Ridout, 716 F.3d at 1084 (where employer claimed it fired plaintiff for yelling on the factory floor, discussing pretext evidence that it was employer’s practice not to discipline employees for yelling on the factory floor). The departure itself, then, is a way to show that the employer may have acted with discriminatory intent toward the plaintiff, as its normal conduct is to adhere to its protocols.

It is plain from this Court’s precedent that evidence of similarly situated comparators is not required when showing pretext by way of an employer’s deviation from its policy or practice. See Fitzgerald v. Action, Inc., 521 F.3d 867, 874-75 (8th Cir. 2008) (analyzing pretext evidence of departure from company policy separately from evidence of disparate treatment, citing comparator evidence only in context of disparate treatment analysis); Russell v. TG Missouri Corp., 340 F.3d 735, 745-46 (8th Cir. 2003) (same); Briscoe v. Fred’s Dollar Store, Inc., 24 F.3d 1026, 1028 (8th Cir. 1994) (discussing district court’s finding of race discrimination based on employer’s deviation from its policy when firing plaintiff and evidence that employer typically followed its policies when dealing with white employees, with no additional comparator analysis).

To the extent that comparability is an issue in these cases, it is enough to show that the plaintiff and other employees were subject to the same policy. See Lake, 596 F.3d at 875 (where black plaintiff was fired under employer’s policy for attendance issues, discussing evidence supporting the inference that plaintiff was a probationary employee, and therefore subject to the same policy as the white probationary employees who were not fired despite having missed days of work); Young v. Warner-Jenkinson Co., Inc., 152 F.3d 1018, 1024 & n.6 (8th Cir. 1998) (in discussing evidence that the defendant may have deviated from its policies, rejecting the defendant’s argument that the policy did not apply to the plaintiff because he was a temporary employee in light of testimony from a manager that the policy at issue applied to all employees).

Here, the Commission cited evidence in the form of action notifications issued to other PFI employees prior to suspension or termination to establish the existence of PFI’s practice of issuing those notifications. See Hite v. Vermeer Mfg. Co., 446 F.3d 858, 868 (8th Cir. 2006) (in analyzing evidence that company deviated from its own practice when it disciplined plaintiff, citing evidence showing that it was defendant’s practice not to punish employees “for leaving the plant at lunch without clocking out,” where defendant punished plaintiff for not clocking out on her break). A reasonable juror could infer, based on the substantial documentation reflecting such a practice, that the absence of any such documentation for Breaux reflects that PFI did not fire Breaux for performance problems, but because of his protected activity.

B. The record reflects that PFI treated a similarly situated comparator more favorably than Breaux.

Though not required to show pretext here, even if this Court were to analyze evidence relating to other PFI employees who received action notifications, the record shows that PFI adhered to its protocol before firing a supervisory employee who is similarly situated to Breaux.

PFI fired SS,[3] a paint line employee, on June 5, 2009. SApx-28. SS held a supervisory level position at PFI. SApx-52 (stating that SS held the position of “Paint Line Supervisor”); Apx-179 (Jr. 326) (recalling that SS was a supervisor on the paint line). As the paint line supervisor, SS would have worked in the South Plant, as did Breaux. Apx-129 (Jr. 54) (testifying that the paint line was housed in the South building and managed by the paint line supervisor). Also like Breaux, SS reported directly to Murphy Jr. Apx-179 (Jr. 328).

The record evidence reflects that SS had caused “numerous jobs [to be] shipped to the customer with incorrect quantity counts. Leading to lost revenue, strained customer relationships and additional paperwork.” SApx-49. PFI fired SS for “refus[ing] to follow job instructions” and “not complet[ing] his work properly.” SApx-28. Murphy Jr. testified that another reason PFI fired SS was for failing to “enforc[e] policies and rules on the paint line.” Apx-179 (Jr. 326).

SS is thus similarly situated to Breaux, as SS held a supervisor position in the South Plant where Breaux also worked (Apx-129) (Jr. 54), reported to Murphy Jr., the same supervisor as Breaux (Apx-325) (Breaux 88), and was accordingly subject to Murphy Jr.’s performance standards. See Ridout, 716 F.3d at 1085-86 (stating that the similarly situated co-worker inquiry is “a search for a substantially similar employee, not for a clone”) (citation omitted). SS is also similarly situated to Breaux in the type of conduct that PFI attributes to Breaux, as PFI accused SS of shipment errors to customers, causing strain on customer relationships, and failing to follow through on Murphy Jr.’s directives. SApx-49-50. Likewise, PFI claims that Breaux’s deficient performance was the cause of customer shipment issues and internal complaints, and that Breaux failed to improve after Murphy Jr.’s purportedly repeated “coaching” about his performance. Defs. Resp. Br. 18-19. See Ridout, 716 F.3d at 1086 (employee was valid comparator for plaintiff because “employee was accused of the same infraction as [plaintiff] (poor performance)”).

Despite these similarities, PFI issued SS multiple action notifications before firing him, but did not issue Breaux a single one. Murphy Jr. testified that he gave multiple written warnings to SS. Apx-179 (Jr. 327-28) (testifying that he issued warnings to SS for “not disciplining his individuals below him. So following the policy in the handbook…” and for his failure to “cooperate with me when I asked him to do things. Just wouldn’t do it.”). Indeed, PFI issued SS at least three action notifications, one for incorrect customer shipments on February 16, 2005 (SApx-49), and another for failing to enforce company policy, on October 18, 2005. SApx-50. PFI’s third action notification to SS, on April 8, 2009, about two months before firing him, expressly warned the supervisor of possible suspension or termination for his absences. SApx-52; SApx-53 (reflecting his last date of employment as June 5, 2009). This evidence not only shows that it was PFI’s practice to issue written warnings before firing an employee, but also shows that PFI followed this protocol before firing a supervisor substantially similar to Breaux, but treated Breaux less favorably than SS when it failed to do so with him.

C. Defendants make conflicting assertions about PFI’s practices and then ultimately concede that PFI did issue written warnings for the type of performance issue it attributes to Breaux.

Defendants concede that there is no documentary evidence to corroborate that Breaux had any type of performance problem. See Defs. Resp. Br. p. 65 (“PFI acknowledges it did not document Breaux’s performance issues.”) To explain the absence of such documentation, defendants make conflicting assertions about PFI’s disciplinary practices, only to ultimately make an admission that directly supports the Commission’s pretext evidence.

Defendants contend that the absence of any documentation concerning Breaux resulted from a change in Human Resources personnel in late 2007, from Tracy Blazek to Carol Murphy, after which PFI “rarely documented performance issues or issuing [sic] written discipline.” Defs. Resp. Br. pp. 4-5; 66. On that basis, defendants argue that this Court should differentiate action notifications that PFI issued before 2008 from those it issued after that time. Defs. Resp. Br. pp.66-67. Defendants’ record citations, however, do not support these assertions. See Defs. Resp. Br. pp.4-5, 66 (citing PFI-120-21, PFI 148) (Jr. 68-69, 178-79).

Defendants’ first citation in support of this assertion is an excerpt from Murphy Jr.’s deposition testimony. See Defs. Resp. Br. pp.4-5, 66 (citing PFI-120-21) (Jr. 68-69). This testimony, however, is wholly silent on the issuance of action notifications and neither concerns nor reflects any changes in PFI’s disciplinary practices. PFI-120-21 (Jr. 68-70). Instead, Murphy Jr. testified that Carol Murphy replaced Blazek around late 2007 and that PFI stopped issuing annual performance evaluations at that time.[4] Id. Defendants’ only other citation is to another excerpt from Murphy Jr.’s deposition, where he testified that after Blazek left, “[t]here wasn’t much performance appraisals going on.” Defs. Resp. Br. pp. 4-5, 66 (citing PFI 148) (Jr. 178-79). This testimony is likewise silent on PFI’s disciplinary practices, any change in its disciplinary practices, or its issuance of action notifications. Id. To the contrary, as cited in the EEOC’s opening brief, documentary evidence reflects that PFI issued action notifications well before, during, and after late 2007. EEOC Opening Br. pp. 12-14 (citing record evidence reflecting that PFI issued action notifications to employees during the years including 2005, 2006, 2007 (including on December 27, 2007), and multiple notifications in 2009).

Defendants then make an admission that directly supports the Commission’s pretext argument. Defendants concede that PFI did in fact issue written warnings to employees “when an employee’s performance-related issue resulted in incorrect, incomplete, or inadequate items being shipped to a customer.” Defs. Resp. Br. p.6. n.3. Defendants also assert that Breaux exhibited that very performance issue—repeatedly causing production delays that, on more than one occasion, resulted in late customer shipments. See Defs. Resp. Br. 18. The absence of any documentation as to Breaux, then, about this specific performance issue is even more suspect, especially given defendants’ insistence that the delays caused by Breaux were a “chronic” problem. See id. at 19 (“This became a chronic problem . . . .”).

Defendants then emphasize that PFI “dealt with many disciplinary matters verbally.” Defs. Resp. Br. p. 6. Breaux, however, stated that no one at PFI ever verbally informed him that his performance was unsatisfactory, or that his job performance was jeopardizing his job. Apx-59 (Breaux Decl. ¶ 3). Consistent with that evidence, Murphy Jr. and Mark Murphy each conceded that he had never told Breaux he was at risk of being fired. Apx-161 (Jr. 227-28); Apx-282 (Mark 214-15) (“Q: But he was never warned that he was at risk of termination, was he? A: Those words never came out of my mouth.”). A reasonable juror could thus conclude that had Breaux’s performance been problematic, particularly to the point of warranting termination, PFI would have at least verbally told Breaux that his deficient performance was jeopardizing his job, even if it failed to document it. It is uncontested that PFI did not do so here.

Given that the evidence shows it was PFI’s practice to issue action notifications to employees—especially when employee performance resulted in a problem with customer shipments, as PFI claims of Breaux—PFI’s deviation from its protocol when firing Breaux without ever having issued a single action notification is indicative of pretext. See Fitzgerald, 521 F.3d at 874, 876 (reversing grant of summary of judgment, where pretext evidence showed that company protocol was to verbally warn an employee, then issue a written warning, and fire the employee only after issuing three written warnings, but defendant fired plaintiff without any verbal warning or written warnings).

III. Genuine issues of material fact concerning Breaux’s performance, and the circumstances surrounding his termination, also preclude summary judgment on the Commission’s retaliation claim.

The record evidence also allows competing inferences to be drawn concerning other circumstances surrounding Breaux’s termination. As these disputes of fact “might affect the outcome of the suit under the governing law,” they “properly preclude the entry of summary judgment” and warrant reversal of the district court’s grant of summary judgment on the Commission’s retaliation claim.[5] Anderson, 477 U.S. at 248; Riedl, 248 F.3d at 759-760 (Given conflicting evidence, the record did not establish, as a matter of law, that plaintiff was capable or incapable of performing his job in context of ADA claim; holding that the issue was therefore a genuine issue of material fact that rendered summary judgment improper).

Specifically, the record contains conflicting evidence concerning whether PFI decided to fire Breaux before the EEOC filed the Anderson lawsuit. Defendants contend that PFI decided to fire Breaux several months before terminating him, asserting that PFI functionally demoted Breaux to Turret Lead, then advertised for the position of Turret Lead in July 2009 to replace Breaux, and hired Craig Baker to replace Breaux. See Defs. Resp. Br. pp. 21-22, 63-64. As the EEOC argued in its opening brief, however, the record evidence would allow the reasonable inference that PFI never demoted Breaux to Turret Lead, and that PFI advertised for that position to replace an experienced turret operator who had just left PFI, not to replace Breaux. See EEOC Opening Br. pp. 40-42.

As to the alleged demotion, for example, testimony from Murphy Jr., among other evidence, creates a genuine issue as to whether Breaux was functionally demoted to Turret Lead in 2009. Murphy Jr. testified that he would not have allowed Breaux to return to the position of Turret Lead, as Breaux’s medical condition rendered him unable to do certain lifting associated with that position. Apx-172-73 (Jr. 284-85). Indeed, defendants contend that PFI moved Breaux out of the position of Turret Lead in 2008 to accommodate Breaux’s medication restrictions (Defs. Resp. Br. p. 12) and that “[a]t no time during his employment was Breaux asked to work outside of his restrictions.” Defs. Resp. Br. p. 14. A reasonable juror could thus conclude that PFI could not and did not functionally demote Breaux to Turret Lead because of Breaux’s medical restrictions. In addition, Murphy Sr. and Murphy Jr. both testified that Breaux’s positive performance as Turret Lead formed the basis, in part, for PFI’s decision to promote him from Turret Lead to South Plant Supervisor in September 2008. Apx-209 (Sr. 126) (“He was doing a good job . . . He was doing everything the way he should.”); Apx-172 (Jr. 284). A reasonable juror, then, could infer that even if PFI functionally demoted Breaux to Turret Lead in the summer of 2009, it would not have fired him for deficient performance in a role that he had previously excelled in just a year prior.

In support of its contention that Baker replaced Breaux in the position of Turret Lead, defendants assert that Breaux met Baker and identified him as his replacement. See Defs. Resp. Br. p. 22 (“Breaux saw Baker and later identified him as his replacement”) (citing PFI-533-36; PFI 564); p. 63 (“Breaux admitted that he met his replacement before he was terminated. Thus, by Breaux’s own admission, PFI’s decision to terminate him was made prior to learning of the Anderson lawsuit.”) (citing PFI 533-36; PFI 564). This is a mischaracterization of the record evidence.[6] Nor does that factual assertion—that Breaux met his purported replacement before he was fired—establish that PFI hired that replacement without knowledge of the Anderson lawsuit. The EEOC filed the Anderson lawsuit on August 31, 2009. Baker did not even apply for a job at PFI until August 26, 2009, just days before the Commission’s filing. Apx-53 (Murphy Jr. Aff. ¶ 8) (Baker “applied for the job at PFI on or about August 26, 2009.”). Thus, PFI could have hired a replacement on August 31 or September 1, in response to learning about the Anderson lawsuit.[7] The assertion that PFI replaced Breaux at all is undermined by the deposition testimony of Murphy Sr., where he stated, “I don’t believe there was anybody that replaced [Breaux]” at the time PFI fired Breaux, and also that he did not know if anyone ever eventually replaced Breaux. Apx-215 (Sr. 151).

In any event, record evidence allows the reasonable inference that PFI hired Baker—not to replace Breaux—but to replace an experienced turret operator on Breaux’s team who had left PFI earlier in 2009. Murphy Jr. testified that PFI lost an experienced turret operator, Steve Shisler, who was a good, effective employee. Apx-177 (Jr. 307-08). Though PFI hired multiple employees to try and replace Shisler, Murphy Jr. testified that these replacements “weren’t capable to do what he was able – capable of doing.” Apx-178 (Jr. 309-10). Given this ongoing need for an experienced turret operator at Shisler’s level, a reasonable jury could conclude that PFI’s advertisement in July 2009 for a Turret Lead and its hire of Baker as a Turret Lead was to replace or compensate for the loss of Shisler.

As the foregoing demonstrates, genuine issues of material fact preclude disposition of the Commission’s retaliation claim at summary judgment.

IV. The absence of any factual dispute relevant to the successor liability analysis enables this Court to hold that M&M is PFI’s successor as a matter of law.

Defendants, in their response brief, do not contest any of the evidence the Commission relied on to argue that M&M is PFI’s successor. See Defs. Resp. Br. pp. 25-26, 68-72; EEOC Opening Br. pp. 16-21; 43-55. The absence of any factual dispute relevant to the successor liability determination enables this Court to address this issue on appeal—though it was not analyzed by the district court—and grant summary judgment to the Commission. See Reeder v. Kansas City Bd. of Police Comm’rs, 733 F.2d 543, 548-49 (8th Cir. 1984) (where district court had not reached equal protection issue below, acknowledging this Court’s ability to address the issue but declining to do so in light of inadequate record, where certain information was provided via stipulation after oral argument and this Court had “no definite information” about certain state rules and regulations relevant to the analysis). As the EEOC argued in its opening brief, ample record evidence

establishes that, under the applicable nine factor test, M&M is liable for PFI’s discrimination of Breaux as a matter of law. See EEOC Opening Br. pp. 43-55.

CONCLUSION

This Court should reverse the district court’s grant of summary judgment on the Commission’s retaliation claim based on Breaux’s participation in the EEOC’s Anderson investigation. The record evidence allows the reasonable inference that the filing of the Anderson lawsuit altered PFI’s formerly benign view of Breaux’s protected conduct and led it to fire Breaux for providing information about Anderson to the EEOC. The evidence is also sufficient to create a triable issue of pretext, as PFI claims it fired Breaux for poor performance, but did not issue a single action notification about any performance issue, in contravention of its normal practice. Material factual disputes concerning Breaux’s performance at the time of his termination also warrant submission of the Commission’s retaliation claim to a jury to resolve. The complete absence of any factual disputes, however, relevant to the successor liability analysis provides this Court with an uncontested record that shows that M&M is PFI’s successor as a matter of law.

Respectfully submitted,

P. DAVID LOPEZ General Counsel

LORRAINE C. DAVIS

Acting Associate General Counsel

CAROLYN L. WHEELER

Assistant General Counsel

S/Christine J. Back______________

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[1] In Stewart, this Court observed “that ‘[a] gap in time between the protected activity and the adverse employment action weakens an inference of retaliatory motive,’ and that, given a delay of sufficient length, the ‘causal nexus tends to evaporate.’” 481 F.3d at 1044 (citations omitted). Nonetheless, this Court in Stewart also noted its recent discussion in Green v. Franklin National Bank of Minneapolis, 459 F.3d 903, 915 (8th Cir. 2006), concerning “the difficulty of placing too much reliance on timing as evidence of causation.” Stewart, 481 F.3d at 1044.

[2] The record would also allow an inference that PFI learned of the EEOC lawsuit through the local media, which reported the lawsuit against PFI on September 1, 2009. Apx-77 (Star Tribune article); see also Apx-148 (Jr. 137-38) (lawsuit was also covered in the Pine City newspaper).

[3] The initials of certain PFI employees are being used in lieu of a full name, as the related exhibits were submitted to this Court under seal.

[4] Even as to these documents, Murphy Jr. testified he was “not sure” whether PFI then resumed giving out annual performance evaluations in 2008, 2009, or 2010. PFI-121 (Jr. 69-70).

[5] This Court need not look to the economic status of PFI at the time it fired Breaux, as PFI appears to suggest (Defs. Resp. Br. p. 62), but should properly “focus instead on the factual issues surrounding [defendants]’ specific selection of [plaintiff] as the employee for termination.” Willnerd, 558 F.3d at 779.

[6] PFI’s first record citation in support of the above contention is to PFI 533-36, a document entitled “Unemployment Insurance Request for Information” that concerns Breaux’s application for unemployment benefits from the state of Minnesota. PFI-533-36 (Exhibit P). That document reflects written responses to questions concerning the termination of Breaux’s employment from PFI. Id. In response to the question, “Were you discharged during a ‘new hire’ probationary period?,” the check boxes for both yes and no are marked, with handwriting stating, “They already hired a ‘new guy’ to replace me shortly before I was terminated.” PFI 533. Nothing from this ambiguous record excerpt shows that Breaux met Baker, or that Baker was Breaux’s replacement. That the boxes for both yes and no are marked suggests that Breaux was unclear about the question, and about the circumstances surrounding the hire of a replacement for him. Meanwhile, PFI’s second record citation is to PFI 564, which is not record evidence at all, but a page of argument from a memorandum of law submitted in district court, which moreover, contains no record citations. PFI 564.

[7] In fact, according to Murphy Jr., Baker began working at PFI on September 2, 2009. Apx-53 (Jr. Aff. ¶ 8).