Congress charged the U.S. Equal Employment Opportunity Commission (EEOC or Commission) with interpreting and enforcing federal laws barring workplace discrimination, including the A ge Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq. This appeal raises two principal questions involving the ADEA that are of interest to the EEOC. First, the district court held that Plaintiff Mark Thompson failed to establish the fourth element of his prima facie case of age discrimination because, ostensibly, he did not adduce evidence that the County replaced him with a younger attorney. In so ruling, the court failed to consider appropriately the factual context of Thompson’s job and workplace. In addition, the court wrongly discounted as “stray” remarks the decisionmaker made before firing Thompson that she wanted to hire younger attorneys, dismissing them entirely because they were not “direct evidence” of discrimination. A reasonable jury could find these statements were part of a “convincing mosaic” of circumstantial evidence demonstrating that age discrimination motivated Thompson’s termination.

Because the Commission has a strong interest in the proper interpretation of the ADEA, the EEOC offers its views to the Court. Fed. R. App. P. 29(a).

1. Whether the district court wrongly held that Thompson failed to establish a prima facie case of age discrimination for summary judgment purposes because the next attorney hired, although twenty-four years younger, was not assigned Thompson’s former caseload?

2. Whether the district court wrongly failed to consider as circumstantial evidence of discrimination (a) repeated statements by the County Attorney responsible for firing Thompson that reflected age bias and (b) evidence that the County Attorney consistently replaced departing older attorneys with attorneys in their thirties?

STATEMENT OF THE CASE

A. Statement of the Facts [2]

Defendant DeKalb County hired Mark Thompson in 2003 as an Assistant County Attorney in its Law Department “representing the County in civil matters.” Vol.IX, R.129, R&R at 2.[3] The job included “investigating cases, conducting research into legal matters, determining defenses, filing motions, and trying cases.” Id. During his eleven and a half years with the Law Department, Thompson consistently received positive annual performance evaluations and was never rated below “very satisfied.” Vol.III, R.101-2 at 39-51. In 2008, the County promoted Thompson to Senior Assistant County Attorney. Vol.III, R.101-2 at 46.

In 2010, Thompson was assigned to defend the County in a breach of contract action filed by Paul Champion, a County contractor (the Champion case). Vol.IX, R.129, R&R at 2. While investigating the facts to develop the County’s defenses, Thompson uncovered what he believed to be evidence that Champion had defrauded the County with the help of a County employee, billing the County for grounds-clearing services that Champion’s company allegedly never performed. Id. at 2-3; Vol.I, R.100-1 at 12, 15. The evidence was presented to a Special Purpose Grand Jury, which ultimately recommended further criminal investigation. Vol.III, R.101-1 at 130.

In mid-2013, Overtis Brantley was appointed DeKalb County Attorney. Vol.III, R.101-2 at 5-6. At the time, all sixteen Law Department attorneys had significant legal experience and, like Thompson, were Senior Assistant County Attorneys. Vol.V, R.102-1 at 12, 33-35. On her arrival, Brantley divided the department’s attorneys into four “teams,” each with a different focus: Administrative, Development, Infrastructure, and Public Safety. Vol.II, R.101-1 at 51. The divisions were not rigid, however: attorneys in one section were routinely assigned cases that would ordinarily fall within another section. See Vol.VII, R.105-1 at 40; Vol.V, R.102-1 at 8, 10-14 (assignments varied over time). Thompson, for example, was assigned to the Development Team even though the Champion case—his primary case assignment during most of his last three years, Vol.IX, R.133 at 7—fell within the purview of the Infrastructure Team. See Vol.II, R.101-1 at 51-53; Vol.III, R.101-2 at 30-32; Vol.V, R.102-1 at 15-17. As Interim County Attorney Viviane Ernstes explained, “It is not unusual in county government work for lawyers to do all kinds of projects, [and] not to be pigeonholed into one.” Vol.II, R.100-1 at 132.

Brantley soon began stating at Law Department staff meetings that she wanted to hire “baby lawyers,” once saying she planned to “fill the nursery” with them. Vol.1, R.32-1 (Thompson Dep.) at 45-48;[4] Vol.VI, R.105-1 at 17, 20; Vol.VII, R.106-1 at 23-26; Vol.V, R.104-1 at 40-42. Senior attorney John Jones observed that, although he had initially found Brantley’s “baby lawyer” remarks “kind of benign,” “with the repetition, it became a little uncomfortable.” Vol.VII, R.106-1 at 26. Another time, Thompson attested, Brantley told her staff that Interim County Chief Executive Officer (“CEO”) Lee May was “tired of going around the County and seeing people who were all older than him[self]” and “wanted the County workforce to look younger.” Vol.I, R.32-1 at 43, 44-46.

Meanwhile, at Thompson’s request, Brantley hired outside counsel to assist him with the Champion case, which was becoming more complex. Vol.IX, R.129, R&R at 4. But when the County decided to appeal an adverse trial court decision, Thompson disagreed strongly with outside counsel and Deputy County Attorney Laura Johnson over appellate strategy. Id. at 3-7. Although Brantley had previously approved Thompson’s approach, which involved referencing a County employee’s fraudulent conduct, she now vetoed it. Id. Brantley explained in her deposition that the Champion trial “had the potential to highlight previous corruption” the county wished to “move past.” Vol.III, R.101-1 at 220.

In response, Thompson requested permission to withdraw from the case. Vol.IX, R.129, R&R at 6-7. According to Thompson, his request so angered Brantley that she considered terminating his employment; Johnson urged Brantley to allow Thompson to withdraw from the case intead of firing him. See Vol.VIII, R.117 at 8-9. In December 2014, Brantley approved Thompson’s request. Vol.IX, R.129, R&R at 7.

In early May 2015, Champion moved for attorney’s fees against the County and against Thompson in his individual capacity, accusing Thompson of presenting false information to the court. Id. at 8; Vol.VII, R.107-1 at 168-69. On May 29, Thompson met with Brantley, Johnson, and outside counsel to discuss the County’s response. Vol.IX, R.129, R&R at 9. The parties offer differing accounts of the meeting. According to Thompson, he became “upset” when Brantley suggested a response that he believed involved “hid[ing] the truth from the court again,” but he “did not yell, call anyone a name, or pound his fists.” Vol.VIII, R.117 at 10. According to the County, “Thompson became upset, hostile, angry, and acted unprofessionally toward the other attorneys at the meeting.” Vol.I, R.85-1 at 7-8. Because Champion sought fees against him personally, Thompson asked to be included in future discussions about the response, but Brantley rejected his request. Vol.IX, R.129, R&R at 9. Brantley also told Thompson he was not a “team player” and implied that he was “acting like a child who could not get along with others.” Id.; Vol.VIII, R.117 at 10. Both parties agree that Brantley told Thompson to start looking for another job. Vol.IX, R.129, R&R at 9; Vol.I, R.85-1 at 8; Vol.VIII, R.117 at 10.

Three weeks later, at a meeting with Thompson and Johnson on June 19, Brantley fired Thompson. Vol.V, R.101-2 at 319. According to Johnson’s contemporaneous notes, Brantley told Thompson she was firing him primarily because he insisted on withdrawing from the Champion case. Id. at 315. Five days later, Brantley sent Thompson a letter documenting the reasons for his termination as his “lack of demonstrated ability to discuss legal issues in a clear and concise way” and his recent “respon[ses] to stressful litigation situations in a hostile and arrogant manner” that was “inconsistent with the team environment” Brantley was trying to build. Id. at 317. Thompson was fifty-four years old.

Brantley attested that when an attorney left, she and her management team would “rework” the Law Department assignments, and the next attorney hired did not necessarily do the same work as the attorney who left. Vols.II & III, R.101-1 at 35, 69. Accordingly, after Brantley fired Thompson, she distributed his active caseload among the current attorneys. Three months later, Brantley hired William Scott, age thirty, and assigned him different responsibilities. Vol.II, R.100-2 at 87; Vol.III, R.101-2 at 35. As Brantley later explained, a better way to think of it was not “who took [a departing attorney’s] position,” but “who was the next person hired.” Vol.III, R.101-1 at 68; see also Vol.VII, R.107-1 at 15 (with one exception, Johnson did not “think any of the new attorneys were hired specifically to replace an attorney who had left”).

During Brantley’s tenure as County Attorney from mid-2013 to December 2017, the Law Department fluctuated between sixteen and twenty-one attorneys and experienced substantial attorney turnover. Between January 2014 and November 2017, nine attorneys including Thompson either resigned in lieu of termination, were fired, or left for other positions. Vol.II, R.100-2 at 86-88. Seven were in their forties or fifties. Id. The two in their thirties were attorneys whom Brantley hired. Id. at 87. During the same period, Brantley hired a total of thirteen attorneys. Vol.II, R.100-2 at 86-88. The first, forty-three-year-old Matthew Welch, was hired for a specially budgeted position to do infrastructure work. Id. at 86; Vol.II, R.100-1 at 126. The next twelve were in their thirties. Vol.II, R.100-2 at 86-88. The demographic shift in the Law Department did not go unnoticed; for example, Jones recounted that after Brantley’s arrival “a number of … senior people [who] had been there … for a while left, and then younger people were hired.” Vol.VII, R.106-1 at 24-25.

Thompson sued the County, alleging violations of the Georgia Whistleblower Act and race and age discrimination under Title VII and the ADEA, respectively. Vol.I, R.1-2. Following discovery, the County moved for summary judgment. Vol.I, R.85.

B. District Court Decision

In relevant part, the district court adopted the magistrate judge’s recommendation and granted DeKalb County summary judgment on Thompson’s ADEA claim. Vol.IX, R.135, Order dated 3/7/2019. The court agreed with the magistrate judge that Thompson failed to present sufficient evidence of the fourth element of his prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), because he did not show either that he “was replaced by someone outside the protected class or was treated less favorably than similarly-situated individuals outside the protected class.” Vol.IX, R.135 at 4-5 (citing R&R at 27-29 & n.7). The court noted that it was “uncontroverted” that Thompson’s duties “were divided among existing attorneys” upon his departure, and that Scott, the younger attorney hired three months after Thompson was fired, was not assigned any of the work that Thompson had previously performed. Id. at 5. Moreover, the court stated, Thompson “identified no comparator outside his protected class who was treated more favorably” than he was. Id. at 5-6.

The court rejected Thompson’s reliance on Brantley’s “baby lawyers” comments, stating that “isolated or stray comments made by the actual decision maker but completely unrelated to the challenged employment action do not constitute direct evidence of discrimination.” Id. at 6 (citing Plaisance v. Travelers Ins. Co., 880 F. Supp. 798, 810 (N.D. Ga. 1994)). The court ignored Thompson’s argument that his evidence as a whole, including Brantley’s comments and her pattern of hiring younger attorneys, created a convincing mosaic of circumstantial evidence from which a jury could infer discriminatory motive. Instead, the court characterized Thompson’s lawsuit as “based for the most part on” his whistleblower claim, describing his race and age discrimination claims as “half-hearted at best.” Id. at 7.

SUMMARY OF THE ARGUMENT

The district court wrongly ignored Supreme Court and this Court’s precedent in rejecting Thompson’s evidence that he was replaced by a younger attorney and concluding that he did not establish a prima facie case of age discrimination under McDonnell Douglas. That precedent dictates that the prima facie case is intended to be applied flexibly, in light of the particular circumstances of the case, and that it ultimately presents a minimal burden for a plaintiff to meet. Thompson adduced evidence that assignments within the Law Department routinely fluctuated and that departing attorneys’ case loads were reassigned to existing colleagues, as was the case when Thompson was fired. Given this factual context, the district court erred in holding that the thirty-year-old Scott—the next hire after Thompson’s termination—could not constitute Thompson’s replacement merely because he did not inherit Thompson’s exact cases.

Thompson also argued that he adduced a convincing mosaic of circumstantial evidence of age discrimination sufficient to defeat summary judgment. The district court addressed only one aspect of this argument, ruling, erroneously, that Brantley’s remarks about wanting to hire “baby lawyers” were “isolated and stray” and, thus, unworthy of consideration because they were not direct evidence of age discrimination. The remarks at issue were neither isolated nor stray; under this Court’s precedent, they constitute strong circumstantial evidence of age discrimination. Moreover, Thompson also adduced evidence of Brantley’s multi-year pattern of hiring attorneys in their thirties to replace departing attorneys in their forties and fifties; the fact that Brantley replaced Thompson with Scott, more than twenty years his junior; and the fact that the reasons Brantley gave Thompson for firing him shifted over time, among other things. Had the district court addressed Thompson’s “convincing mosaic” argument, it should have determined that summary judgment on this basis was improper.

ARGUMENT

The ADEA protects employees age 40 and older from, inter alia, discharge because of their age. 29 U.S.C. §§ 623(a)(1), 631(a). As this Court has recognized, there are several equally viable methods of proof available to a plaintiff seeking to prove employment discrimination. He may offer “direct evidence of discriminatory intent,” follow the three-step burden-shifting framework the Supreme Court first articulated in McDonnell Douglas, or adduce “a convincing mosaic of circumstantial evidence that warrants an inference of intentional discrimination.” See, e.g., Lewis v. Union City, Ga., 918 F.3d 1213, 1220-21 & n.6 (11th Cir. 2019) (en banc) (internal citations omitted). If a plaintiff alleging age discrimination adduces sufficient evidence to create a genuine dispute of material fact by any of these three methods, he has done enough to survive summary judgment.

Here, Thompson relied on circumstantial evidence, arguing that summary judgment was unwarranted based on both the McDonnell Douglas burden-shifting framework and the “convincing mosaic” analysis. The magistrate judge and the district court, however, ruled that Thompson could not establish the fourth element of his McDonnell Douglas prima facie case because he failed to adduce sufficient evidence that the thirty-year-old Scott was his direct replacement. They did not address Thompson’s “convincing mosaic” argument at all, except to dismiss Brantley’s and May’s remarks about “baby lawyers” and wanting a younger workforce as “isolated or stray comments” that “do not constitute direct evidence of discrimination.” With respect to both methods of proof, the district court erred by misapplying the governing legal standards.

I. Thompson offered sufficient evidence for a jury to find he was replaced by a younger attorney.

As noted above, plaintiffs may prove a claim of age discrimination via circumstantial evidence using the McDonnell Douglas burden-shifting framework. See, e.g., Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc). The plaintiff’s establishment of a prima facie case at the first McDonnell Douglas step creates a presumption of discriminatory motive. At the second step, the defendant employer may rebut that presumption by articulating a legitimate, nondiscriminatory reason for its action. Finally, at the third step, the plaintiff must offer sufficient evidence for a jury to find that the employer’s stated reason is a pretext for age discrimination. Id. at 1024-25.

The district court here correctly noted both that the McDonnell Douglas framework applies to the ADEA and that, for summary judgment purposes, the first three elements of Thompson’s prima facie case were not in dispute: he was over age forty, qualified for his position, and subjected to an adverse employment action. Vol.IX, R.135, Order at 4 (citing R.129, R&R at 27 & n.7). The court also recognized that plaintiffs can establish the fourth element of their prima facie case by showing, inter alia, “replace[ment] by someone outside the protected class.”[5] Id. See Chapman, 229 F.3d at 1024 (identifying replacement by a “younger individual” as “one method” of establishing a prima facie violation of the ADEA).

The court went awry, however, in concluding that Thompson “presented no evidence that he was replaced by someone outside of his protected class.” Vol.IX, R.135, Order at 5. The court based this conclusion on the fact that after discharging Thompson, the County Attorney divided his former duties “among existing attorneys” and that, when Brantley hired Scott three months later, he was not assigned “any of the work previously performed by Thompson.” Id. A jury could reasonably find, however, that the thirty-year-old Scott “replaced” Thompson within the meaning of the McDonnell Douglas prima facie framework, based on the practical realities of the workplace where they worked.

Three important principles guide this analysis. First, as the Supreme Court and this Court have repeatedly recognized in discrimination cases, “a plaintiff’s prima facie burden is ‘not onerous.’” Lewis, 918 F.3d at 1229 n.15 (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54 (1981)); see also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (burden is minimal); Flowers v. Troup Cty. Sch. Dist., 803 F.3d 1327, 1336 (11th Cir. 2015) (noting that prima facie showing is “not onerous” and “a low bar to hurdle”). Second, beginning with McDonnell Douglas itself, the Supreme Court has unequivocally stated that the prima facie case is flexible and must be adapted to the particular circumstances of the case. McDonnell Douglas, 411 U.S. at 802 n.13 (“The facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required … is not necessarily applicable in every respect to differing factual situations.”); see also, e.g., Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978) (“The method suggested in McDonnell Douglas … was never intended to be rigid, mechanized, or ritualistic.”); Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 358 (1977) (no “inflexible formulation” of prima facie case).

This Court has long followed both principles. See, e.g., Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004) (in Title VII sex discrimination case, finding that “[t]he methods of presenting a prima facie case are not fixed” but are “flexible” and “depend to a large degree upon the employment situation”) (citation omitted); Carter v. City of Miami, 870 F.2d 578, 583 & nn.12, 14 (11th Cir. 1989) (noting, inter alia, “this Court’s repeated eschewal of an overly strict formulation of the elements of a prima facie case, especially in age discrimination cases”); Nix v. WLCY Radio/Rahall Commc’n, 738 F.2d 1181, 1185 (11th Cir. 1984) (describing multiple alternative methods of establishing prima facie case), abrogated on other grounds by Lewis, 918 F.3d 1213. See also Lewis, 918 F.3d at 1227 (observing that, in determining whether comparators are sufficiently similarly situated to support a prima facie case of discrimination, “precisely what sort of similarity the in ‘all material respects’ standard entails will have to be worked out on a case-by-case basis, in the context of individual circumstances”).[6]

Third, in deciding the County’s motion for summary judgment, the district court was obligated to “review the record, and all its inferences, in the light most favorable” to Thompson as “the nonmoving party.” Jameson v. Arrow Co., 75 F.3d 1528, 1531 (11th Cir. 1996) (emphasis added). Where record facts are susceptible to more than one interpretation, it is for a jury—not the court on summary judgment—“‘to decide what inferences should be drawn.’” Id. at 1531 n.1 (quoting Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203-04 (2d Cir. 1995)).

Here, Thompson adduced evidence that, three months after he was fired, Brantley selected thirty-year-old Scott as her next Law Department hire, continuing her ongoing pattern of hiring younger attorneys to fill the vacancies created when older attorneys departed. This evidence, buttressed by Brantley’s repeated ageist comments, satisfies Thompson’s “minimal” burden of establishing an ADEA prima facie case of age discrimination. See Hicks, 509 U.S. at 506 (prima facie burden is minimal); Corbin v. Southland Int’l Trucks, 25 F.3d 1545, 1549 (11th Cir. 1994) (prima facie case established by evidence of replacement by younger individual buttressed by age-biased comments).

In Corbin, the district court had granted summary judgment to the defendant on the ground that Corbin had failed to identify who, exactly, had replaced him after he was fired. This Court vacated and remanded, holding that the district court wrongly “failed to consider the circumstantial evidence” that in the same year the defendant fired plaintiff and five other mechanics, it hired six new mechanics, five of whom “were under 33 years of age” and a sixth who was “younger than [plaintiff].” Corbin, 25 F.3d at 1549. Buttressed by the decisionmaker’s comment to Corbin that “[a]t your age, you cannot produce like you once could,” the evidence was sufficient to permit a jury to determine whether age bias motivated Corbin’s termination. Id. (emphasis added).

Likewise, in Kilgore v. Trussville Development, LLC, this Court ruled that the employer’s decision to hire two younger employees before firing plaintiff and then retain them after her discharge “suggest[ed] that [plaintiff] was replaced … by persons outside her protected class[].” 646 F. App’x 765, 774 (11th Cir. 2016). “Viewing the evidence as a whole,” this Court said, including her manager’s “several references to [her] as being ‘old,’” and mindful that the prima facie case “is ‘not onerous,’” this Court found sufficient circumstantial evidence for a jury to infer unlawful discrimination. Id. In both Corbin and Kilgore, this Court applied the McDonnell Douglas framework flexibly to the facts presented, and concluded that a reasonable jury could find the plaintiff was replaced by the younger individuals hired before or after the plaintiff’s discharge.

It is somewhat unclear from the district court’s decision to what extent it relied on the three-month lapse between Thompson’s discharge and Scott’s hiring in ruling that Scott did not replace Thompson. See Vol.IX, R.135 at 5. Nonetheless, Brantley generally took between one and three and a half months to hire a new attorney after someone left, so there was nothing remarkable about the three-month gap under the circumstances. See Vol.II, R.100-2 at 86-88. And this Court, like other circuits, has recognized that the key inquiry is not necessarily how long it took to replace someone, but whether the individual ultimately hired did, in fact, fill the vacant slot created by the plaintiff’s termination. See, e.g., Baker v. Sears, Roebuck & Co., 903 F.2d 1515, 1519-20 (11th Cir. 1990) (younger worker hired two months after plaintiff’s termination was her replacement for purposes of ADEA prima facie case); see also, e.g., Blizzard v. Marion Tech. Coll., 698 F.3d 275, 283-84 (6th Cir. 2012) (finding plaintiff was replaced by person hired three months after plaintiff’s discharge); Benson v. Tocco, Inc., 113 F.3d 1203, 1212 (11th Cir. 1997) (evidence permitted inference of discrimination where employer posted a job position with the same qualifications as plaintiff’s former job eight months after discharging plaintiff in a reduction in force).

More importantly, given the nature of a government law office and the Law Department’s particular staffing and assignment structure, the district court erred in ruling as a matter of law that Brantley’s decision to distribute Thompson’s active cases to current attorneys upon his termination meant the next attorney hired did not replace him. For several reasons, this issue was properly a fact question for a jury.

First, and notably, the County did not eliminate Thompson’s position after he left, either as part of an overall restructuring or a reduction in force. Rather, staffing levels in the Law Department gradually rose under Brantley, from sixteen attorneys when she first arrived, to nineteen attorneys just before she fired Thompson, to twenty-one attorneys during most of her last year in office. See Vol.II, R.100-2 at 86-88. Second, reconfiguring assignments after Thompson’s departure comported with the usual course of events when attorneys left the Law Department. Brantley attested that when an attorney departed, she and her management team would “rework” or “rearrange” attorney assignments, with the result that “the next person who came in didn’t necessarily do the same work” as the person who left. Vols. II & III, R.101-1 at 35, 69.

Third, the nature of Thompson’s job as a county attorney necessitated redistributing his workload to other current attorneys so that the needs of County departments for legal advice and representation would not be left unaddressed during the process of filling his vacancy. A governmental entity involved in civil litigation or administrative procedures cannot suspend the deadlines of a departing attorney’s caseload while awaiting the selection of his or her replacement.

This Court has stated that if an employee’s position “is clearly delineated[,] and responsibilities are well defined, the court should focus on the person that physically replaced the employee or consider whether that job title was actually filled.” Hawkins v. Ceco Corp., 883 F.2d 977, 982 (11th Cir. 1989). Furthermore, “[i]f an employer uses positions in a job category interchangeably,” as could fairly be said about the Law Department’s fluctuations in assignments, “it can be assumed to hire interchangeably as well.” Id. at 983. Like all attorneys in the Law Department, Thompson’s job as a (Senior) Assistant County Attorney was defined not by the particular cases he handled at any given time, but by the general duties of all assistant county attorneys: to investigate and litigate cases involving the County and provide legal advice to County agencies. That is what Thompson did until he was fired, and that is what Brantley hired Scott to do three months later.

Accordingly, a reasonable jury could find that Scott filled Thompson’s position. The fact that Brantley, like any prudent manager of a legal department, redistributed Thompson’s current caseload while she searched for a new attorney to fill his vacant slot does not alter this conclusion. If that common-sense action could, by itself, defeat a plaintiff’s prima facie case of discriminatory discharge, attorneys and other workers with long-term caseloads could virtually never utilize the “replaced by a substantially younger person” method of establishing a prima facie case.

Under analogous circumstances where the facts would permit a jury to find a plaintiff’s former position and a new one were actually the same or similar, courts of appeals have vacated summary judgment. See, e.g., Garcia v. Pueblo Country Club, 299 F.3d 1233, 1239-40 (10th Cir. 2002) (where both the former and new positions were supervisory, salaried, and had analogous levels of responsibility, it was for a jury to decide whether small differences in responsibilities made the new job a different position); Quaratino v. Tiffany & Co., 71 F.3d 58, 64-65 (2d Cir. 1995) (where plaintiff contended that “new” job had “only one inconsequential change” from job she held before her pregnancy leave, for jury to decide whether the two jobs were essentially the same). Likewise here, Thompson adduced sufficient evidence to create a jury question as to whether Scott “replaced” him.

II. Thompson presented a “convincing mosaic” of circumstantial evidence sufficient for a jury to find that age discrimination motivated the County Attorney to fire him.

As discussed supra at 12, this Court has held that discrimination plaintiffs relying on circumstantial evidence have at least two different methods of proof available to them: the McDonnell Douglas framework and the “‘convincing mosaic’ of circumstantial evidence that warrants an inference of intentional discrimination.” Lewis, 918 F.3d at 1220 n.6 (quoting Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011)). “[N]o matter its form, so long as the circumstantial evidence raises a reasonable inference that the employer discriminated against the plaintiff, summary judgment is improper.” Smith, 644 F.3d at 1328.

Thompson argued below that he presented a convincing mosaic of circumstantial evidence of the County Attorney’s age bias, consisting of (a) Brantley’s remarks about wanting to hire “baby lawyers” and “fill the nursery with them,” and her repetition of the County CEO’s stated desire for a younger-looking workforce; (b) her pattern of hiring substantially younger attorneys to replace older attorneys who left or were fired; (c) her replacement of fifty-four-year-old Thompson with thirty-year-old Scott; and (d) the fact that her explanation for firing Thompson shifted over time and was not worthy of credence. Vol.VIII, R.117 at 11-12, 29-34; Vol.IX, R.133 at 13-20. The court acknowledged only the “baby lawyer” remarks, which it labeled “isolated or stray” and dismissed out of hand as not “direct evidence” of discrimination. Vol.IX, R.135 at 6-7. Its analysis was flawed in multiple respects.

First, even assuming Brantley’s remarks do not constitute direct evidence of discrimination, that does not render them “isolated or stray” or justify disregarding them. Brantley was the primary, if not sole, decisionmaker with respect to Thompson’s termination, Scott’s hiring, and the broader pattern of hiring younger attorneys for the Law Department between 2014 and 2017. Especially in the context of a small government law office with a finite number of positions, the department head’s explicit and repeated ageist statements are highly relevant to an older attorney’s claim of age-based discriminatory termination. See, e.g., Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1362 (11th Cir. 1999) (observing that decisionmaker’s remark to younger replacement immediately after older worker’s termination that he “wanted ‘aggressive, young men’ like himself to be promoted is highly suggestive circumstantial evidence from which a jury could infer discriminatory animus. Far from being a stray remark, … we find it to be a significant piece of circumstantial evidence.” (emphasis in decision)); Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 162-63 (2d Cir. 1998) (company director’s references to “youth,” “younger blood,” and “younger vision” in the context of warning older workers to “watch your ass” were not stray comments, but “represented the official company position”); Alphin v. Sears, Roebuck & Co., 940 F.2d 1497, 1499-1502 (11th Cir. 1991) (store manager’s remarks to plaintiff that they had both “been around too long and were too old” constituted probative, albeit not direct, evidence of ADEA prima facie case (emphasis in decision)).

In any case, as noted above, Thompson did not rely on Brantley’s statements alone to prove his ADEA claim; rather, he argued that they were one part of a “convincing mosaic” of circumstantial evidence from which a jury could infer that Brantley fired him because of his age. The district court did not address this argument at all.

In addition to the cases on age-biased remarks discussed previously, this Court has also held that a jury could infer discriminatory animus from the fact that the decisionmaker engaged in a pattern of replacing workers within a protected class with those outside the protected class. As this Court explained in Hawkins, a race discrimination case, “a company’s hiring practices may reveal its underlying motivation” for discharging an employee, and evidence of an employer’s hiring preference for a nonminority “is indicative of discriminatory intent.” 883 F.2d at 982; see also id. at 982 n.6 (“defendant’s act of hiring a nonminority to replace a minority” allows inference of “a preference for the nonminority, and hence discrimination against the minority” (citation omitted)).

In Damon, for example, this Court found the evidence probative of a discriminatory intent where the decisionmaker not only stated an inclination to favor younger employees, but also acted on that bias by replacing four out of seven older managers with “employee[s] under forty years old.” Id. at 1361. Similarly, in Beaver v. Rayonier, Inc., this Court upheld a jury verdict for a employee who alleged his former employer denied him a new position because of his age. The Court found sufficient evidence to sustain the verdict where the decisionmaker had “expressed a desire to attract ‘younger’” employees and then filled six out of seven vacancies with individuals who were younger and less experienced than plaintiff. 200 F.3d 723, 729-30 (11th Cir. 1999). According to the Court, the decisionmaker’s comment was not enough to show a discriminatory motive “standing alone,” but when “coupled with the other evidence,” it was enough for a jury to infer age bias on the decisionmaker’s part. Id. Likewise here, Thompson buttressed his evidence of Brantley’s ageist comments with evidence that during the eighteen months before Brantley fired him, she replaced four departing attorneys in their forties with seven attorneys in their early- to mid-thirties. She then replaced Thompson with a thirty-year-old, and continued the same pattern in the two-plus years following Thompson’s termination. See Vol.II, R.100-2 at 86-88.

Finally, as this Court has observed, a decisionmaker’s shifting explanations allow a factfinder to question the decisionmaker’s credibility; this, in turn, permits the factfinder to find the decisionmaker is “dissembling to cover up a discriminatory purpose.” Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1194-95 (11th Cir. 2004) (quoting Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 147 (2000)). Here, Thompson’s evidence would permit such a jury finding with respect to Brantley’s asserted reasons for firing him.

According to Johnson, at the meeting with Thompson on June 29, Brantley said she was firing him because he had withdrawn from the Champion case five months earlier—a decision that Brantley herself approved at the time. Then, in the letter Brantley sent Thompson five days later confirming his termination, she made no mention of his withdrawal from the Champion case. Instead, she wrote that she was firing him because he was unable to discuss legal issues in a clear and concise way and he responded to “stressful litigation situations” in a “hostile and arrogant manner” that undermined the “team environment” Brantley was trying to build.

In addition to Brantley’s shifting explanations, a jury would also be entitled to weigh her asserted criticisms of Thompson’s performance against his consistently positive job evaluations, Vol.III, R.101-2 at 39-51, and Brantley’s admission, in her deposition, that other than their disagreements over the Champion case, Thompson “did a good job and functioned well in the department.” Vol.III, R.101-1 at 208. This evidence sufficed to allow a jury to reject Brantley’s explanations and to find, instead, that age animus underlay her decision to fire Thompson.

This Court has explained that the inquiry on summary judgment is “whether an ordinary person could reasonably infer discrimination if the facts presented [by the nonmoving party] remained unrebutted.” Jameson, 75 F.3d at 1531 (citing Alphin, 940 F.2d at 1500). Because Thompson presented a “convincing mosaic” of circumstantial evidence sufficient to support such an inference, the district court erred not only in neglecting to consider this argument but also in failing to send Thompson’s age discrimination claim to a jury.

We note one final concern about the district court’s decision. As described supra at 10, the court characterized Thompson’s whistleblower claim as the primary thrust of his lawsuit, while disparaging his age discrimination claim as “half-hearted at best.” Vol.IX, R.135 at 7. But, as a matter of law, the relative force of Thompson’s other claims has no bearing on the validity of his age discrimination claim. As this Court has observed, “the Federal Rules of Civil Procedure allow a plaintiff to plead, without penalty, in the alternative.” Devengoechea v. Bolivarian Republic of Venezuela, 889 F.3d 1213, 1229 (11th Cir. 2018) (citing Fed. R. Civ. P. 8(d)(3)); Allstate Ins. Co. v. James, 779 F.2d 1536, 1540 (11th Cir. 1986) (“Litigants in federal court may pursue alternative theories of recovery, regardless of their consistency.”).

In short, the question before a court is whether a plaintiff has offered sufficient evidence to support each claim he advances, not how strongly he may feel about each potential interpretation of the underlying facts. Even the ADEA’s requirement that age be a “but-for” cause of the adverse employment action, Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 174-77 (2009), does not require sole causation, only that age discrimination made the difference. See Burrage v. United States, 571 U.S. 204, 211 (2014) (explaining that but-for causation standard is met when “the predicate act combines with other factors to produce the result, so long as the other factors alone would not have done so—if, so to speak, it was the straw that broke the camel’s back”). Thus, the district court erred insofar as it granted summary judgment on Thompson’s ADEA claim based, in any part, on its view of the relative strengths of his whistleblower claim.

CONCLUSION

For the foregoing reasons, this Court should vacate summary judgment and remand the case for further proceedings.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

s/Susan R. Oxford

SUSAN R. OXFORD

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

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

Washington, D.C. 20507

(202) 663-4791

susan.oxford@eeoc.gov

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the type-volume limitations of Fed. R. App. P. 29(a)(5) and 32(a)(7)(B) because it contains 6,495 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f) and Eleventh Cir. R. 32(b). This brief also complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2016 in Times New Roman 14 point.

s/Susan R. Oxford

SUSAN R. OXFORD

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

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

Washington, D.C. 20507

(202) 663-4791

susan.oxford@eeoc.gov

Dated: July 5, 2019

[1] The EEOC takes no position on any other issues in this appeal.

[2] The following discussion contains only the facts relevant to the issues the EEOC addresses in this brief. Because this is an appeal from summary judgment, we present the facts and reasonable inferences therefrom in the light most favorable to Thompson, the nonmoving party. Fed. R. Civ. P. 56(c); Jameson v. Arrow Co., 75 F.3d 1528, 1531 (11th Cir. 1996) (citations omitted).

[3] “Vol.#” refers to the volume number of plaintiff’s appendix, “R.#” refers to the district court document number, and “R&R” refers to the magistrate judge’s Report & Recommendation. Because much of the relevant record is filed under seal, we cite to the R&R or to record citations in the pleadings for background facts with publicly unavailable source documents, except where otherwise noted.

[4] Although Thompson’s entire deposition was filed under seal below, the parties allowed the EEOC to view the deposition pages in which Thompson attested to the remarks described in this paragraph.

[5] Both the Supreme Court and this Court have held that when an ADEA plaintiff relies on evidence of a younger replacement to establish the fourth element of the prima facie case, the replacement need not be under age forty. Rather, the key inquiry is whether the replacement is “substantially younger” than the plaintiff. See O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312-13 (1996) (noting that in establishing the fourth element of an ADEA prima facie case, replacement by someone “substantially younger than the plaintiff” may be more probative of discrimination than smaller age differences spanning over/under age forty); Eskra v. Provident Life & Acc. Ins. Co., 125 F.3d 1406, 1411 & nn.9 & 10 (11th Cir. 1997) (citing O’Connor). Here, Thompson offered evidence that he, at age fifty-four, was replaced by a thirty-year-old, so his replacement fits the bill regardless.

[6] In Lewis, this Court, sitting en banc, held that a plaintiff who seeks to establish a McDonnell Douglas prima facie case with evidence that the defendant treated her worse than an employee outside the protected group must demonstrate that she and her comparators were “similarly situated in all material respects.” 918 F.3d at 1217-18. This standard is not applicable to the issue the EEOC addresses here, given that Thompson sought to establish his prima facie case with evidence of replacement by a substantially younger person rather than with comparator evidence (e.g., that he was fired while a younger individual was not). See Ch. 7 Trustee v. Gate Gourmet, Inc., 683 F.3d 1249, 1255-56 (11th Cir. 2012) (“[A] plaintiff may use non-comparison circumstantial evidence to raise a reasonable inference of intentional discrimination and thereby create a triable issue.”) (internal citations and quotation marks omitted).