ARGUMENT

The only element of the prima facie case in contention as to the Commission’s ADA retaliation claim was causation—whether a reasonable jury could infer that Adam Breaux would not have been fired but for his participation as a witness in an EEOC investigation. In analyzing this retaliation claim, the panel departed from Supreme Court and this Court’s precedent when it improperly drew inferences and resolved competing inferences in favor of the moving party Product Fabricators, Inc. (PFI). The panel’s decision also omits material facts that affect both the prima facie and pretext analyses, which, when properly considered, warrant submission of this claim to a jury.

The Commission interviewed Adam Breaux in June 2008 as part of its investigation into a discrimination charge filed by another PFI employee Dennis Anderson. Apx-259 (Mark 121-23). PFI was aware of Breaux’s protected activity around the time it occurred, June 2008. Apx-258 (Mark 118-120). The next year, on August 31, 2009, the Commission filed a lawsuit against PFI seeking relief for Anderson. Apx-65 (Pladson Decl. ¶ 43). The Commission contacted PFI on August 31, by telephone, to alert it to the lawsuit, and left a message with a PFI employee conveying that information. Apx-66 (Pladson Decl. ¶¶ 44-45). The next day, on the morning of September 1, PFI manager Mark Murphy met with Breaux. Apx-279 (Mark 202-04). The only topic of discussion at that meeting was Breaux’s participation in the Commission’s Anderson investigation. Apx-338 (Breaux 157) (“All he did was ask me if I talked about Dennis Anderson and the investigation.”). In the same meeting, Mark Murphy had Breaux sign an acknowledgement that Murphy had written, Apx-279 (Mark 204), reflecting that Breaux had spoken to the Commission about Anderson. Apx-68 (written acknowledgement). Hours later, on September 1, PFI fired Breaux. Apx-280-81 (Mark 206-09); Apx-148 (Murphy Jr. 139).

Based on this evidence, the Commission asserted that when PFI learned it was subject to a Commission lawsuit seeking relief for Anderson, this unwelcome news altered the company’s view of Breaux’s participation in the Commission’s Anderson investigation, and prompted PFI to question Breaux on September 1 about his involvement, obtain a written acknowledgement for purposes of defending against the Anderson lawsuit, and fire him hours later. See EEOC Opening Br. pp. 27-29; EEOC Reply Br. 6.

The panel held that the filing of the lawsuit and Breaux’s termination the next day did not establish causation. Order at 14. PFI, the panel reasoned, had already been notified one year earlier that the Commission had found reasonable cause as to Anderson’s charge, and thus, “could have” concluded at that time that Breaux provided information to the Commission that was adverse to PFI. Id. The timing of Breaux’s termination the day after the Commission’s filing of its Anderson lawsuit, the panel concluded, was thus “coincidence,” and the assertion that PFI fired Breaux in connection to his participation in the Anderson investigation only “speculation.” Id. As for the written acknowledgment that PFI had Breaux sign hours before his termination, the panel stated that PFI had done so “in an attempt to gather evidence that could potentially be necessary in the Anderson case.” Order at 13.

The Commission does not contend that the record here precludes the panel’s interpretation of the evidence in this case—that the filing of the Commission’s lawsuit and Breaux’s termination one day later was “coincidence.” Rather, because the record allows for another reasonable interpretation supporting the Commission’s retaliation claim—that PFI would not have fired Breaux but for his protected activity—this Court should reverse the grant of summary judgment on the Commission’s retaliation claim to allow a jury to resolve these competing inferences. The panel’s analysis failed to credit evidence that contradicts its bases for affirming the grant of summary judgment to PFI, and reached factual inferences that it then construed in favor of the moving party, contrary to the summary judgment standards recently addressed by the Supreme Court in Tolan v. Cotton, 134 S.Ct. 1861 (2014).

In Tolan, the Supreme Court revisited a court’s role and function when evaluating evidence on a motion for summary judgment. Id. at 1866-68. The Court concluded, after examining the Fifth Circuit’s characterization of facts central to a Fourth Amendment claim, that the court of appeals had “credited the evidence of the party seeking summary judgment and failed properly to acknowledge key evidence offered by the party opposing that motion.” Id. at 1867-68. In so doing, the Court explained that the Fifth Circuit “neglected to adhere to the fundamental principle that at the summary judgment stage, reasonable inferences should be drawn in favor of the nonmoving party.” Id. at 1868. By way of example, the Court discussed the Fifth Circuit’s conclusion from the record that the plaintiff, during the course of his arrest, was “shouting” and “verbally threatening” the police officer before being shot by the officer. Id. at 1867. Though the parties agreed that the plaintiff told the officer to remove his hands from his mother, whom the officer had grabbed, the Court pointed to the plaintiff’s testimony that he “was not screaming.” Id. Other evidence, the Court stated, reflected that the officer had slammed the plaintiff’s mother against a garage door. Id. Because a jury could reasonably infer that the plaintiff’s words did not amount to a statement of intent to inflict harm to the officer, but could infer it was rather “a son’s plea not to continue any assault of his mother,” the Court cited this as one example among several in which the Fifth Circuit had resolved a disputed issue in favor of the moving party. Id. at 1866-67. The Court vacated the Fifth Circuit’s judgment so that the court could determine whether, after properly crediting the non-moving party’s evidence and drawing factual inferences reasonably in his favor, liability could be established. Id. at 1868.

Certainly, this Court has also made clear that “[e]ven where the historical facts are unchallenged, summary judgment is not appropriate if the facts are subject to more than one reasonable interpretation.” Riedl v. General American Life Ins. Co., 248 F.3d 753, 759 (8th Cir. 2001).

Here, the panel drew the inference that, because PFI had long known that the

Commission had made a reasonable cause determination on Anderson’s charge, PFI already had a basis to view Breaux’s disclosures to the Commission in a suspect light, and it was thus speculation that the lawsuit triggered a negative view on the part of PFI toward Breaux’s protected activity. The Commission, however, had presented the testimony of PFI manager Mark Murphy, which would allow the reasonable inference that it was the filing of the Commission’s Anderson lawsuit—not the EEOC’s prior cause finding—that caused PFI concern about the investigation. Specifically, Murphy testified, when questioned about his reaction to learning about the EEOC lawsuit, that he was “a little concerned with the EEOC and how they did the investigation, and I—you know, I felt I was—we were—I felt we were right and you guys were wrong.” Apx-277 (Mark 195-96); see EEOC Reply Br. p. 6 (discussing this evidence). Nor did the panel acknowledge other evidence presented by the Commission that would support the same reasonable inference. Mike Murphy Sr., PFI President at the time (Apx-54) (Murphy Sr. Decl. ¶ 1), testified that when he learned of the lawsuit, he was “very concerned,” as the fact of the lawsuit was being “distributed around town,” and he had “never had this happen to him” in 30 years in business. Apx-224-25 (Murphy Sr. 192-93); see EEOC Reply Br. p. 12 (discussing this evidence).

The record also supports the reasonable inference that Murphy closely associated Breaux with the EEOC’s Anderson investigation, as the note (Apx-68) that Murphy wrote for Breaux to sign (Apx-279) (Mark Murphy 204), highlighted the Commission’s selection of Breaux as a witness and that Breaux had discussed Dennis Anderson during that interview. Apx-68.[1]

Furthermore, and perhaps most critical to this case, is evidence of the meeting PFI had with Breaux on September 1 just hours before firing him. The panel drew the inference that this meeting was to obtain a written acknowledgement before firing Breaux to document that the Commission had improperly discussed Anderson with PFI employees. Order at 12-13. The evidence of the meeting and signed statement, however, would also allow the reasonable inference that PFI fired Breaux later that same day with Breaux’s protected activity as its motivation. In that meeting, it is undisputed that there was only one topic discussed—Breaux’s protected activity. Murphy questioned Breaux about what he told the Commission and had him sign a statement about what he told the Commission. This evidence allows the reasonable inference, when drawn in the Commission’s favor, that due to the just-filed lawsuit, PFI had a renewed interest in Breaux’s participation in the Anderson investigation at the time of his termination, and shows what was on Murphy’s mind just hours before firing Breaux—what Breaux had told the Commission. Indeed, that PFI believed it had been improper for the Commission to discuss Anderson with Breaux in its investigation supports the reasonable inference that it likewise viewed Breaux’s disclosures to the Commission with similar disapproval.

That such an inference is reasonable is supported by this Court’s holding in Young-Losee v. Graphic Packaging Int’l, Inc., 631 F.3d 909 (8th Cir. 2011). This Court held that the plaintiff had presented “direct evidence that she was terminated in retaliation for filing a formal complaint of harassment.” Id. at 912. This Court was careful to explain that the use of “direct” to describe the evidence did not refer to whether it was circumstantial or not, but rather, referred to “evidence that demonstrates a specific link between a materially adverse action and the protected conduct, sufficient to support a finding by a reasonable fact finder that the harmful adverse action was in retaliation for the protected conduct.” Id. This Court then cited the following evidence as constituting such a direct link: a meeting between the plaintiff and her supervisor in which her supervisor wadded up the plaintiff’s complaint, called it “total bullshit,” threw it in the garbage can, told her to leave, and said he never wanted to see her again. Id.

The panel distinguished the Commission’s case from Young-Losee on the following bases: that there was no evidence that Mark Murphy “disfavored Breaux’s participation in the interview, unlike the Young-Losee supervisor”; “over a year had passed between Breaux’s participation in the Anderson interview and his termination”; and that “when Breaux was terminated on September 1, 2009, there was no mention of his participation in the EEOC investigation.” Order at 11-12, n. 2. Yet, these factual bases for distinguishing the evidence supporting the Commission’s retaliation claim from the evidence in Young-Losee are not dispositive on the question of whether the timing and circumstances of Breaux’s termination create a triable issue as to causation.

Like the plaintiff in Young-Losee, Breaux was called into a meeting with his supervisor to discuss his protected conduct. Apx-338 (Breaux 157). Although Mark Murphy did not go so far as to verbally express his displeasure with Breaux’s protected activity as in Young-Losee, certainly his actions that day would allow a reasonable inference of Murphy’s disapproval of Breaux’s protected activity: Murphy fired Breaux just hours after questioning him about it. As discussed earlier, Murphy also testified that he became concerned about the Commission’s Anderson investigation when he learned of the lawsuit.

Meanwhile, the passage of time between Breaux’s original protected activity and his termination is immaterial to this retaliation analysis because the record shows that on the same day Breaux was fired, PFI both questioned Breaux about his protected activity, which he answered, and had him sign a statement reflecting his personal knowledge of Anderson and what he told the Commission. These events at the time of Breaux’s termination establish a link—both temporally and substantively—between his protected activity and his termination the same day. Indeed, this Court in Womack v. Munson, 619 F.2d 1292 (8th Cir. 1980), concluded that the plaintiff’s responses to his employer’s questions about the plaintiff’s protected activity were inextricable from his original protected conduct so as to share its protected status. Id. at 1297-98. That aspect of this Court’s analysis in Womack favors viewing Breaux’s responses on September 1, 2009, to Mark Murphy’s questions about his protected activity in June 2008, as, at a minimum, so closely associated with that June 2008 protected activity so as to render the passage of time between his termination and his original protected activity a non-issue in this case.

Nor does this Court, or other courts of appeals, require an employer’s explicit reference to the protected activity in the same instant as the adverse action is taken to find a triable issue of retaliation. See, e.g., Hudson v. Norris, 227 F.3d 1047, 1051-53 (8th Cir. 2000) (holding that triable issue existed on plaintiff’s First Amendment retaliation claim, where employer took several adverse actions after plaintiff testified as a witness in a lawsuit between a former co-worker and his employer; discussing evidence as to each adverse action, at which time no decisionmaker made any express reference to the plaintiff’s protected conduct). Here, PFI questioned Breaux about his protected activity and then fired him just hours later, on the same day.

When the inferences reasonably drawn from the record are construed in favor of the Commission, as required under Tolan, the facts in this case are sufficient to make out the “minimal showing” required to establish a prima facie case. See Willnerd v. First National Nebraska, Inc., 558 F.3d 770, 778 (8th Cir. 2009) (“The evidentiary showing required at the prima facie stage is ‘minimal’”) (quoting Pope v. ESA Servs., Inc., 406 F.3d 1001, 1007 (8th Cir.2005); Sprenger v. Federal Home Loan Bank of Des Moines, 253 F.3d 1106, 1111 (8th Cir. 2001) (stating that, as the “burden-shifting mechanism reflects in part the expediency of having an employer explain an adverse employment action,” a prima facie case accordingly “requires only a minimal showing before shifting the burden to the employer”) (citations omitted); Johnson v. Arkansas State Police, 10 F.3d 547, 551 (8th Cir. 1993) (stating that the “threshold of proof necessary to make a prima facie case is minimal”). The timing and other circumstances surrounding Breaux’s termination would allow a reasonable juror to conclude—on the ultimate question of whether discrimination occurred—that PFI would not have fired Breaux but for his participation as a witness in the Commission’s Anderson investigation. That this panel concluded such evidence was not even sufficient to satisfy the “minimal” showing required at the prima facie stage on the element of causation demonstrates the panel’s application of an evidentiary standard in conflict with this Court’s repeated iterations concerning the light burden of proof on the plaintiff at the prima facie stage.

Finally, as to pretext, the Commission had submitted evidence reflecting that it was PFI’s practice to issue written and verbal warnings before firing employees, including after PFI changed human resources personnel, but issued Breaux neither a single written or verbal warning before firing him on September 1, 2009. See EEOC Opening Br. pp. 12-14. The panel concluded, however, that because the Commission’s evidence did not show such a practice was an “established” policy, “the pretext argument fails.” Order at 9. Instead, the evidence, in the panel’s view, showed that after a transition in human resources personnel in 2007, “PFI’s employee appraisal process suffered” and the “fact that some employees received either written or verbal reprimands, without more, does not indicate that the company had an established policy.” Id. at 8-9.

In so concluding, however, the panel overlooked material admissions by PFI that would allow a reasonable inference that it was indeed PFI’s “established” policy to provide verbal warnings about performance issues, and to issue written warnings when an employee’s performance affected customer shipments. Specifically, PFI stated in its response brief on appeal that “[i]n terms of employee discipline, PFI dealt with many disciplinary matters verbally” and “an employee’s performance issues were addressed verbally in an attempt to improve the employee’s performance.” Defs. Resp. Br. p. 6. Yet, despite this admitted practice, and though PFI argued that purported performance problems exhibited by Breaux were the basis for his termination, Breaux stated he had never been verbally warned about his performance. Apx-59 (Breaux Decl. ¶ 3) (“I was never told by anyone at PFI that my performance was below expectations or that I was at risk of termination due to my performance.”).

Furthermore, PFI admitted in its response brief that “[o]n occasion, when an employee’s performance-related issue resulted in incorrect, incomplete, or inadequate items being shipped to a customer, PFI would issue a written warning to the employee.” Defs. Resp. Br. p. 6, n. 3. Here, PFI asserted that Breaux’s deficient performance caused the very problem for which it would issue written warnings to employees—late customer shipments. Defs. Resp. Br. p. 18 (contending that Breaux was “no longer effectively managing his departments,” which were failing to timely complete tasks and sometimes “resulted in products being shipped late to PFI’s customers”). Yet PFI concedes it never issued him a written warning. See Defs. Resp. Br. p. 65 (“PFI acknowledges it did not document Breaux’s performance issues.”). Given these admissions, the record here would allow a reasonable juror to conclude that it was PFI’s regular practice to verbally address performance issues and issue written warnings for performance issues like those it attributed to Breaux.

That PFI did neither before firing him on September 1, 2009, is sufficient to create a triable issue as to pretext. See Fitzgerald v. Action, Inc., 521 F.3d 867, 874 (8th Cir. 2008) (plaintiff presented evidence of pretext by showing “that the circumstances surrounding his termination contravened [defendant]’s normal policies,” where defendant’s policy was to have employees “written up three times for the same violation” before being fired, but plaintiff had not been written up three times; evidence also reflected that it was “protocol” to verbally warn an employee about a violation before any written warning, but employer provided no such verbal warning before giving plaintiff a written warning). See also Ridout v. JBS USA, LLC, 716 F.3d 1079, 1084 (8th Cir. 2013) (holding that rational trier of fact could find declining performance was not true reason for plaintiff’s termination based on evidence including that plaintiff had never been counseled or warned about any declining performance prior to his termination).

CONCLUSION

This Court, under Tolan and Riedl, should rehear this case, as the evidence, when viewed in the light most favorable to the Commission, allows the reasonable inference that PFI would not have fired Breaux but for his participation as a witness in the Commission’s Anderson investigation. Because the record allows for this and other inferences to be reasonably drawn from the record, a jury, not the court, must weigh and resolve these disputed issues of material fact.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

CAROLYN L. WHEELER

Acting Associate General Counsel

LORRAINE C. DAVIS

Assistant 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

[1] The note read: “Adam Breaux was selected to be interview[ed] regarding Dennis Anderson. In the meeting Dennis was the topic of conversation. Adam was asked how well he knew Dennis. He stated years. Also was asked many other questions regarding Dennis.”

TABLE OF AUTHORITIES

RULE 35(b) REQUIRED STATEMENT

ARGUMENT

CONCLUSION

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE