FOR THE FOURTH CIRCUIT
______________________
No. 01-1359
______________________
ETHEL LOUISE HILL,
Plaintiff-Appellant,
vs.
LOCKHEED MARTIN LOGISTICS MANAGEMENT, INC.,
Defendant-Appellee.
_____________________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA, Case No. 99-CV-2343
REHEARING EN BANC
_____________________________________________________
BRIEF OF U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
AS AMICUS CURIAE IN SUPPORT OF APPELLANT
_____________________________________________________
NICHOLAS M. INZEO
Acting Deputy General Counsel
PHILIP B. SKLOVER
Associate General Counsel
LORRAINE C. DAVIS
Assistant General Counsel
SUSAN R. OXFORD
Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMM.
1801 L Street, N.W.
Washington, D.C. 20507
(202) 663-4791
TABLE OF CONTENTS
TABLE OF CONTENTS i
TABLE OF AUTHORITIES ii
STATEMENT OF INTEREST 1
STATEMENT OF THE ISSUES 3
STATEMENT OF THE CASE 3
A. Statement of Facts 3
B. District Court Decision 7
C. Panel Decision 8
SUMMARY OF ARGUMENT 11
ARGUMENT
THE DISCRIMINATORY ANIMUS OF A SUBORDINATE WHO
HAS NO FORMAL DECISIONMAKING AUTHORITY IS
PROPERLY IMPUTED TO THE EMPLOYER WHEN THE BIASED
SUBORDINATE SUBSTANTIALLY INFLUENCES THE EMPLOYMENT
DECISION 12
CONCLUSION 23
CERTIFICATE OF COMPLIANCE 24
CERTIFICATE OF SERVICE
APPENDIX (Panel Decision)
TABLE OF AUTHORITIES
FEDERAL CASES
Bergene v. Salt River Proj. Agricul.
Improvement & Power Dist.,
272 F.3d 1136 (9th Cir. 2001) 21
David v. Caterpillar, Inc.,
324 F.3d 851 (7th Cir. 2003) 15
Dey v. Colt Constr. & Devel. Co.,
28 F.3d 1446 (7th Cir.),
reh'g en banc denied (1994) 18, 19
Griffin v. Washington Convention Ctr.,
142 F.3d 1308 (D.C.Cir. 1998) 22
Hill v. Lockheed Martin,
314 F.3d 657 (4th Cir. 2003) passim
Mateu-Anderegg v. School Dist. of Whitefish Bay,
304 F.3d 618 (7th Cir. 2002) 22
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) 9
O'Connor v. Consolidated Coin Caterers Corp.,
56 F.3d 542 (4th Cir. 1995), rev'd on other
grounds, 517 U.S. 308 (1996) 12
Ostrowski v. Atlantic Mutual Ins. Cos.,
968 F.2d 171 (2nd Cir. 1992) 21
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) 10
Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133 (2000) 20
Russell v. McKinney Hosp. Venture,
235 F.3d 219 (5th Cir. 2000) 21
Simpson v. Diversitech General, Inc.,
945 F.2d 156 (6th Cir.), reh'g den. (1991),
cert. dismissed 502 U.S. 1083 (1992) 21, 22
Stacks v. Southwestern Bell Yellow Pages, Inc.,
27 F.3d 1316 (8th Cir. 1994) 21
Wallace v. SMC Pneumatcs, Inc.,
103 F.3d 1394 (7th Cir. 1977) 15
FEDERAL STATUTES
29 U.S.C. §§ 621 et seq passim
29 U.S.C. §623(a)(1) 12, 22
29 U.S.C. §623(d) 12, 22
42 U.S.C. §§ 2000e, et seq. passim
42 U.S.C. § 2000e-2(a)(1) 12, 22
42 U.S.C. § 2000e-3(a) 12, 22
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
______________________
No. 01-1359
______________________
ETHEL LOUISE HILL,
Plaintiff-Appellant,
vs.
LOCKHEED MARTIN LOGISTICS MANAGEMENT, INC.,
Defendant-Appellee.
____________________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
_____________________________________________________
BRIEF OF U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
AS AMICUS CURIAE IN SUPPORT OF APPELLANT
IN REHEARING EN BANC
_____________________________________________________
STATEMENT OF INTEREST
The Equal Employment Opportunity Commission is the agency established
by Congress to administer, interpret and enforce Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. ("Title VII"), the Age
Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA"), and
other federal employment discrimination laws. This case raises important
questions concerning an employer's liability under Title VII and the ADEA
for the discriminatory acts of its employee where the biased employee,
although not a formal decisionmaker, was effectively vested with substantial
influence over employment decisions affecting a worker who is protected
under anti-discrimination laws.
Plaintiff Ethel Louise Hill alleges that she was subjected to discriminatory
terms and conditions of employment because of her age and gender based, in
large part, on the disparaging comments and negative reports of the safety
inspector assigned to review her work. She further alleges that the inspector's
deficiency reports (following directly on the heels of her complaints)
resulted in her termination. The majority concluded that the biased safety
inspector's statements were attributable to Lockheed as direct evidence of
age and sex discrimination because the inspector "substantially influenced"
Lockheed's decision to fire Hill. As a result, the majority found that Hill
raised disputed issues of fact concerning whether her termination was because
of her sex or age or in retaliation for her complaints of discriminatory
treatment based on sex and age. The dissent, having concluded that Lockheed
terminated Hill only after her immediate supervisor independently verified
the biased inspector's various performance deficiency reports, argued that
the biased subordinate was not "principally responsible" for the decision
and, therefore, that the inspector's discriminatory animus was not causally
connected to Hill's termination.
It is the Commission's position that the panel majority correctly held that
a subordinate's discriminatory motive should be imputed to the decisionmaker
when the subordinate has substantially influenced the employment decision
(i.e., whenever a subordinate has exerted sufficient influence to be considered
a "cause" of the employment action), even if the formal decisionmaker cannot be
said to have simply "rubber stamped" the biased subordinate's recommendation.
Because of the importance of this issue to the proper enforcement of the
statutes within EEOC's purview, we offer our views for the Court's
consideration.
STATEMENT OF THE ISSUE
Whether the bias of the safety inspector in this case is properly imputable
to Lockheed Martin because the biased inspector substantially influenced
Lockheed's decision to terminate Hill.
STATEMENT OF THE CASE
Statement of Facts
Plaintiff-Respondent Ethel Louise Hill was terminated by Defendant-Petitioner
Lockheed Martin Logistics Management, Inc., in May of 1998 at the age of 58,
after having worked for Lockheed as a sheet metal mechanic for over 11 years.
Hill v. Lockheed Martin, 314 F.3d 657, 660 (4th Cir. 2003).1 Hill worked at
various Lockheed sites during her tenure, the last being Lockheed's Fort Drum,
New York, operation. Id. At the time of her termination, Hill was the oldest
person and the only female on her team of eight workers. At each location,
Hill's work was checked by a safety inspector who submitted reports to Hill's
immediate supervisor. Id. at 662.Hill's Fort Drum assignment began in January
1998 and proceeded without incident for the first month. Starting in February
1998, Fultz was assigned to inspect Hill's work. Fultz had served as Hill's
safety inspector during a Fort Drum assignment three years earlier, at
which time
"Hill overheard Fultz say that he did not like to have women working
under him."
Id. at 660. During the next three months, Fultz made a number of derogatory
comments about Hill's age and gender, and commented to Hill that she was too old
for this kind of work. Id. After Hill complained to Dixon the first
time about
Fultz's treatment, Fultz reported Hill for misplacing one of her tools under
circumstances which led Dixon to suspend Hill for three days. Id. at
661. Although
tool accountability is important to Lockheed, Dixon later explained that he did
not suspend Hill because she misplaced her tool, but because he
believed, based
on Fultz's statements, that Hill had lied about the misplaced tool.
Lockheed's tool control policy requires employees to account for their tools at
all times and to report any missing tools to their immediate supervisor. To
facilitate compliance, all tools contain a label identifying their owner, and
toolboxes are "shadowed" so that missing tools can be easily spotted. Id. at
661, 686. Hill had three identical pairs of four-inch cutters; in April 1998,
an Army employee found one of them on a maintenance stand and gave it to Fultz.
Id. at 661. Fultz then gave the tool to Dixon, stating that he [Fultz] had
checked Hill's toolbox at the end of her shift and asked her where her missing
cutters were, to which Hill replied (according to Fultz), "I told
Richard [Dixon]
I took [them] home." The conversation made Dixon believe that Hill had lied to
Fultz about the missing tools, since she had not said anything to
Dixon. Id.
The next morning, Dixon showed the tool to Hill and asked if it was hers. Hill
acknowledged that the cutters had her number on them, but she was otherwise
unaware that a pair of her cutters was missing, because (according to Hill)
Fultz never said anything to her about it. Hill was also unaware that Fultz
had falsely told Dixon that Hill said she reported to Dixon that she had taken
the cutters home. Therefore, Hill said nothing to correct Dixon's belief that
she had lied to Fultz the day before. As a result, Dixon was left with the
impression not only that Hill had lied to Fultz the day before (claiming she
had reported the missing cutters to Dixon when she hadn't), but also that Hill
was less than forthcoming with Dixon in his conversation with her about the
missing tool the next morning. According to Hill's evidence, Fultz
manufactured
the information that led Dixon to believe Hill had lied about the
tool's whereabouts.
Id.
When Hill returned from her suspension, she again complained to Dixon
about Fultz's
discriminatory treatment. Dixon raised the issue with Fultz, and
Fultz reacted with
noticeable anger towards Hill. Id. Starting the next day, Fultz
submitted a "flurry"
of discrepancy reports concerning Hill's performance (six separate
reports in three
consecutive work days, all for performance deficiencies that Fultz
designated as "minor").
Id. at 661-62, 677. After refusing to endorse one of the reports
that Fultz issued
against Hill, Dixon gave Hill a written reprimand (her third since
September 1997).
Id. at 662.
Lockheed's Standard Operating Procedure (SOP) permitted, but did not
require, termination
of an employee who received three written reprimands in twelve months
where at least one
of the reprimands resulted in a suspension. Id. at 660. The
decision to discharge Hill
was formally made by Archie Griffin, Lockheed's east coast senior
site representative who
was located in Georgia, and Thomas Prickett, Lockheed's program
manager in charge of contract
field teams who was located in Texas. Id. at 662. Neither Griffin
nor Prickett ever talked
to Hill during this time or personally examined her work. Id. at
662, 671. It is unclear
whether Griffin ever talked with Dixon about Hill, but he talked with
Fultz several times,
and Fultz provided Griffin a written statement of Fultz's
observations about Hill's work
performance. Prickett, who said the decision to fire Hill was "based
entirely on information
... gathered from people that work[ed] at the [Fort Drum] site,"
talked about Hill with Fultz
but did not remember any conversations with Dixon. Id. at 662, 672.2
Griffin and Prickett
relied on Fultz to write and sign Hill's termination statement
listing the reasons why
Hill was fired, all of which were based on Fultz's observations of,
and dissatisfaction
with, Hill's job performance. Id. at 662, 672. District Court
DecisionThe district court
granted Lockheed's motion for summary judgment. The court concluded
that Hill presented
no direct evidence of sex or age discrimination (discounting Fultz's
derogatory comments
because Fultz did not make the final decision to fire Hill), and found
Hill's circumstantial
evidence insufficient to withstand summary judgment. The court
further concluded that Hill
established a prima facie case of retaliatory discharge, but did not
establish that Lockheed's
assertion that it discharged Hill for poor job performance was a
pretext for retaliation.
Id. at 662.
Panel Decision
A divided panel of this Court reversed. The panel majority rejected
the district
court's conclusion that Fultz's derogatory statements did not
constitute "direct" evidence
of discrimination because he was not the final decisionmaker. The
majority stated:
[A] biased subordinate who does not make the final or formal
employment decision may
still count as a decisionmaker in a Price Waterhouse mixed-motive case
.... if he has
a substantial influence on the employment decision. Consequently,
evidence of the
subordinate's discriminatory animus may constitute direct evidence in
a mixed-motive
case.
Id. at 670.3 The majority concluded that because Hill had proffered
"considerable
evidence" that Fultz had a substantial influence on Lockheed's
decision to fire her,
Lockheed must be denied summary judgment on Hill's claim of
discrimination based on
sex and age. Id. at 671-76.4
Since Hill did not allege any direct evidence of retaliation, the
majority analyzed
Hill's retaliatory discharge claim under the framework established in
McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), and concluded that Hill had
presented sufficient
evidence to create a material issue of fact concerning her claim that
Fultz acted with a
retaliatory motive in issuing the flurry of discrepancy reports that
led to her discharge.
314 F.3d at 677-80. The majority explained:
[T]he question is not whether Fultz could have written up Hill's
mistakes. The question
is whether Hill creates a genuine issue as to whether Fultz would
have written the reports
absent a retaliatory animus. ... Hill has offered sufficient evidence
to allow a reasonable
factfinder to conclude that had Fultz not been gunning for her, he
would not have written
a discrepancy report on every minor mistake that she made [during her
last three days].
Id. at 678 [emphasis in original]. Finding that, under Lockheed's
SOP, Fultz's discrepancy
reports were the basis for Hill's discharge and that Hill had created
a genuine issue concerning
whether these discrepancy reports were generated in retaliation for
Hill's discrimination complaints,
the majority held that Lockheed was not entitled to summary judgment
on Hill's retaliation claim.
Id. at 679-80.
In the dissent's view, the majority's decision "expands the scope of
the discrimination statutes
and Price Waterhouse[v. Hopkins, 490 U.S. 228 (1989),] beyond their
intended limits." Id. at 680.
In order to impute the discriminatory motives of a subordinate
employee to the formal decisionmakers
of an employer, the dissent said it would require a plaintiff to
establish that the subordinate was
the "actual decisionmaker" because the formal decisionmakers merely
"rubber-stamped" or acted as a
"cat's paw" for the subordinate's report, decision, or recommendation.
Id.; see also at id. 685 (aggrieved employee should be required to
make threshold showing that
subordinate was either "actual decisionmaker" or "principally
responsible" for decision because
"'[formal] decisionmaker followed the biased recommendation [of a
subordinate] without independently
investigating the complaint against the employee' and making his own
determination as to the propriety
of the employment action"). Applying this narrower standard, the
dissent concluded that Hill did not
present sufficient evidence that the actions of the formal
decisionmakers were tainted by Fultz's bias
because, in the dissent's view, Dixon had investigated and
independently corroborated Fultz's reports
of Hill's misconduct or performance deficiencies. Id. at 686-97.
SUMMARY OF ARGUMENT
A plaintiff alleging intentional discrimination based on sex under
Title VII and based on age under
the ADEA establishes a statutory violation by proving that gender or
age were motivating factors in
an employment decision. In response to a defendant's motion for
summary judgment, a plaintiff must
present sufficient evidence to demonstrate the existence of genuine
issues of disputed fact with
regard to her claim that the reason(s) proffered by the employer are
unworthy of credence or that
the employer's decision was motivated by unlawful discrimination. In
this case, Plaintiff Hill
demonstrated the requisite disputed material facts with evidence that
(a) Fultz, the safety inspector
assigned to review Hill's work, exhibited discriminatory animus
toward Hill at the workplace based
on her gender and age, and (b) Fultz substantially influenced the
decision to fire Hill through his
involvement in the "misplaced tool" incident, the discrepancy reports
he generated concerning the
quality of Hill's work, and his discussions with Prickett and Griffin
preceding their decision to
terminate Hill. In reversing the district court's grant of summary
judgment, the panel majority
correctly held that Fultz's discriminatory animus should be imputed to
Lockheed because Fultz substantially influenced Lockheed's decision to
terminate Hill.
ARGUMENT
THE DISCRIMINATORY ANIMUS OF A SUBORDINATE WHO HAS NO FORMAL
DECISIONMAKING AUTHORITY IS PROPERLY
IMPUTED TO THE EMPLOYER WHEN THE BIASED SUBORDINATE SUBSTANTIALLY
INFLUENCES THE EMPLOYMENT DECISION.
The panel majority correctly held that the district court erred in
declining to take Fultz's bias into
account. In determining whether Lockheed disciplined and then
terminated Hill "because of" her sex,
42 U.S.C. § 2000e-2(a)(1), "because of" her age, 29 U.S.C. §623(a)(1),
or in retaliation for having
complained of sex and age discrimination, 42 U.S.C. § 2000e-3(a); 29
U.S.C. §623(d), Fultz's bias is
appropriately considered because (a) Fultz's derogatory comments
about Hill's gender and age "clearly
demonstrate that Fultz had a discriminatory attitude towards Hill at
the workplace," 314 F.3d at 665,5
and (b) Fultz's bias bore directly on Hill's termination because Fultz
exercised substantial influence
on the employment decisions that resulted in Hill's discipline and
then termination. Id. at 666-73.6
The majority's analysis properly takes into account two important
principles recognized by the dissent,
as well: that an employer, on the one hand, should not be "'unfairly
tagg[ed] ... with the discriminatory motives of subordinate employees
who have not been entrusted with formal decision-making authority'"
and,
on the other hand, should not be able to "insulate itself from
liability by hiding behind a formal decisionmaker." Compare id. at
670-71 with id. at 684 (Traxler, J., dissenting). In our view, the
standard set forth by the majority fulfills these principles and, at
the same time, fully reflects
Congress's goal to make the workplace free from discrimination. The
dissent's narrower proposed standard
would leave much actual discrimination unabated. The majority in Hill
concluded that Fultz's derogatory
comments toward Hill – referring to her, among other things, as a
"damn woman," "troubled old lady," and
a "useless old lady" who needed to go home and retire – constitute
direct evidence of a discriminatory
attitude at the workplace. 314 F.3d at 665-66. The majority
therefore proceeded to consider whether
the requisite nexus exists between Fultz's discriminatory attitude and
the contested employment decision,
and properly determined that it did. Id. at 666, 671-73. We agree
that on these facts, a reasonable jury
could conclude that Fultz's actions directly and substantially
influenced not just the process that led
to Hill's termination, but Lockheed's decision to fire Hill, as well.
Indeed, Fultz's involvement meets
this standard in at least three separate and distinct points, each of
which, standing alone, warrant
imputation of Fultz's bias to Lockheed.
Lockheed's SOP permitted (but did not require) termination of an
employee who has had three written
reprimands in a twelve-month period, one of which resulted in a
suspension. The second and third
reprimands were, therefore, both necessary predicates for termination
under Lockheed's SOP,7 and both
are tied directly to Fultz's actions. Hill received reprimand #2 for
misplacing one of her tools.
This is not a case, however, where a particular consequence was
mandated as soon as the supervisor
learned of this infraction. Rather, Dixon had the discretion to
impose a range of consequences for a
misplaced tool, id. at 675, and he testified in his deposition that
he suspended Hill solely because
he believed Hill was being untruthful when asked about the tool - a
belief based entirely on statements
made by Fultz that Hill says were untrue. Id. at 661. As the
majority explained, construing the facts
in the light most favorable to Hill, as is appropriate in a summary
judgment context, this incident
would have never resulted in a suspension (or, indeed, any form of
discipline) if Fultz had not lied
to Dixon about his conversation with Hill concerning the missing tool.
Without this suspension, Hill
would not have met the criteria for termination in Lockheed's SOP.
Under these circumstances, Fultz's
bias is properly imputed to Lockheed. See David v. Caterpillar,
Inc., 324 F.3d 851, 861 (7th Cir. 2003)(discriminatory motive of
nominative nondecisionmaker may be imputed to company where
"'nondecisionmaker' influenced the employment decision by ... feeding
false information to[] the
ultimate decisionmaker.")(citing Wallace v. SMC Pneumatcs, Inc., 103
F.3d 1394, 1400 (7th Cir. 1977)).
Even with the suspension, however, Hill did not meet the criteria for
termination under Lockheed's SOP
until the third written reprimand which, in this instance, was also
caused directly by Fultz's actions.
Reprimand #3 was based solely on the "flurry" of discrepancy reports
that Fultz issued over a three-day
period. Fultz had been inspecting Hill's work for almost three
months prior to that point, and had not
yet issued a single discrepancy report concerning her work. These
six "minor" discrepancy reports were
issued over a very short period of time that began the day after
Dixon told Fultz that Hill had again
complained about Fultz's discriminatory treatment. Given the evidence
that Fultz was extremely angry
toward Hill when Dixon told him of Hill's complaint, a reasonable
jury could conclude that Fultz was
motivated by retaliation in issuing these six "minor" discrepancy
reports, and that the reports would
never have been issued by Fultz (and, therefore, would never have
resulted in a third written reprimand)
if it were not for the fact that Fultz wanted to retaliate against
Hill. The fact that Dixon may have
independently verified five of the six discrepancy reports8 is
immaterial if, as a jury could conclude
on these facts, these minor performance deficiencies would never have
been written up and submitted to
Dixon but for Fultz's discriminatory and retaliatory animus. Since
the discrepancy reports were all
admittedly "minor," the actions for which Hill was being criticized
were not the kind of performance
deficiencies that would inevitably result in a written reprimand if
Fultz had not chosen to write them
up. See 314 F.3d at 676, 678-79 (Lockheed inspectors have discretion
on whether to write up minor
mistakes).9
Most significantly and, again, construing the facts in the light most
favorable to Hill, once Dixon
forwarded the three disciplinary actions to Griffin and Prickett,
Dixon's involvement ceased as a
practical matter and the formal decisionmakers looked exclusively to
Fultz for additional information
as they determined how to proceed. Lockheed's SOP permitted, but did
not require, termination under
these circumstances. In deciding how to proceed, Prickett and Griffin
did not speak directly to Hill
or observe her work personally. Indeed, it is questionable whether
either decisionmaker ever conferred
with Dixon.10 Both decisionmakers, however, solicited Fultz's views,
and Fultz not only discussed the
matter with Griffin and Prickett, but provided an additional written
statement of his observations of
Hill's work. After conferring with Fultz, Griffin and Prickett
decided to terminate Hill, and then
relied on Fultz to write and sign Hill's termination statement listing
the reasons for termination, all
of which were based on Fultz's dissatisfaction with Hill's job
performance. Thus, in deciding how to
proceed under the SOP, Prickett and Griffin turned to Fultz, and not
Dixon, for additional information
and then relied on Fultz, not Dixon, to draft and sign the notice
terminating Hill's employment. See
Dey v. Colt Constr. & Devel. Co., 28 F.3d 1446, 1459 (7th Cir.), reh'g
en banc denied (1994)(summary
judgment improper where plaintiff's sexual harassment claim may have
affected alleged harasser's
"unflattering assessment of [plaintiff's] job performance)
(collecting cases).11
As the majority observed, on these facts a reasonable jury could
conclude that Fultz was "principally
responsible" for Hill's termination because Griffin and Prickett
simply "rubber-stamped" Fultz's
recommendations. Thus, Fultz's discriminatory actions are properly
imputed to Lockheed even under
the more restrictive standard advocated by the dissent. 314 F.3d at
672-73. It is the Commission's
position that the standard advanced by the dissent is, nevertheless,
improperly narrow and could result,
in other cases, in unlawful discrimination remaining unaddressed
where a subordinate's discriminatory
bias substantially influenced the employment decision.12Under the
dissent's standard, an employer would
be liable for the discriminatory actions of a subordinate only where
"the subordinate was the 'actual
decisonmaker' because the formal decisionmakers merely
'rubber-stamped' or acted as a 'cat's paw' for
the subordinate's report, decision, or recommendation." Id. at 680.
The dissent relies on Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000), for the
proposition that liability should be
limited to those situations where the subordinate was "principally
responsible" for the adverse employment
action. See 314 F.3d at 683, citing Reeves, 530 U.S. at 151-52. As
the majority properly noted, however,
the Supreme Court was not purporting, in Reeves, to set forth the
full extent of situations in which a
subordinate's actions can be imputed to the employer. 314 F.3d at
671. Thus, although a subordinate's
discriminatory bias can be imputed to an employer where the
subordinate is "principally responsible" for
an adverse action, that does not describe the full scope of such
liability, and this Court should likewise
reject the dissent's proposed standard.
A number of other circuits have reached the same result as the panel
majority in Hill. See, e.g.,
Ostrowski v. Atlantic Mutual Ins. Cos., 968 F.2d 171, 182 (2nd Cir.
1992)("statements of a person involved
in the decisionmaking process that reflect a discriminatory or
retaliatory animus of the type complained
of in the suit" are relevant to establish employment action was
discriminatorily motivated); Simpson v.
Diversitech General, Inc., 945 F.2d 156, 160 (6th Cir.)(where race
more likely than not played a role in
actions of intermediate supervisor that led substantially to
plaintiff's termination, fact that intermediate
supervisor was not "final" decisionmaker was insufficient to
establish employer's Price Waterhouse defense), reh'g den. (1991),
cert. dismissed 502 U.S. 1083 (1992); Stacks v. Southwestern Bell
Yellow Pages, Inc., 27
F.3d 1316, 1323 (8th Cir. 1994)("evidence that gender was a motivating
factor includes evidence of '[c]omments
which demonstrate a discriminatory animus ... uttered by individuals
closely involved in employment
decisions'"); Bergene v. Salt River Proj. Agricul. Improvement & Power
Dist., 272 F.3d 1136, 1141 (9th Cir.
2001)(former supervisor's statement to plaintiff that pursuit of her
pregnancy discrimination claim would
impede her chances of promotion was direct evidence of retaliation
because former supervisor "played an
influential role in the selection process"). See also Russell v.
McKinney Hosp. Venture, 235 F.3d 219,
227 (5th Cir. 2000)("it is appropriate to tag the employer with an
employee's age-based animus if the
evidence indicates that the worker possessed leverage, or exerted
influence, over the titular
decisionmaker."); Mateu-Anderegg v. School Dist. of Whitefish Bay, 304
F.3d 618, 627 (7th Cir. 2002)
(Ripple, J., concurring)("[s]ummary judgment is generally improper
where the plaintiff can show that
an employee with discriminatory animus provided factual information or
other input that may have affected
the adverse employment action.")(citation omitted); Griffin v.
Washington Convention Ctr., 142 F.3d 1308,
1312 (D.C.Cir. 1998)("Thus do we join at least four other circuits in
holding that evidence of a
subordinate's bias is relevant where the ultimate decision maker is
not insulated from the subordinate's
influence.").13
These courts have recognized, like the majority in this case, that the
fact that the biased subordinate
"did not 'pull the trigger' is of little consequence." Simpson, 945
F.2d at 160. What matters in employment
discrimination claims like this is causation, i.e., whether the
adverse employment action was "because of"
gender, age or retaliation. 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a);
29 U.S.C. §§ 623(a)(1), 623(d). Where,
as here, the biased subordinate had a substantial influence on the
decision, "causation" is clearly satisfied
and Lockheed's motion for summary judgment should have been denied, as
the panel majority properly concluded.
CONCLUSION
For the foregoing reasons, we urge this Court to affirm the majority's
holding that, under these facts,
the discriminatory animus of Safety Inspector Fultz is properly
imputed to Lockheed Martin and that, as
a result, Hill has presented sufficient evidence, in response to
Lockheed's summary judgment motion, to
permit her claims of gender and age discrimination and retaliatory
discharge to go to trial.
Respectfully submitted,
NICHOLAS M. INZEO
Acting Deputy General Counsel
PHILIP B. SKLOVER
Associate General Counsel
LORRAINE C. DAVIS
Assistant General Counsel
________________________________
SUSAN R. OXFORD
Attorney
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
1801 L Street, N.W.
Washington, D.C. 20507
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DATED: May 6, 2003
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SUSAN R. OXFORD
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Ronald A. Rayson, Esq.
BURKHALTER, RAYSON &
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________________________________
Susan R. Oxford, Esq.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMM.
1801 L Street, N.W.
Washington, D.C. 20507
1 EEOC's factual statement is drawn exclusively from the panel's
opinion, and we have not conducted
any independent review of the factual record in this case.
2 Thus, apart from the fact that Dixon forwarded the disciplinary
actions against Hill to Griffin and
Prickett, it is unclear to what extent Dixon was involved in Griffin's
and Prickett's decision to terminate
Hill pursuant to the SOP. Prickett did not remember having any
conversations with Dixon, and Dixon told
inconsistent stories about his conversations with Griffin. Although
at one point Dixon attested that he told
Griffin he did not think Hill could do the job, at another point he
attested that he submitted Hill's file
without any recommendation and, when Griffin asked for a
recommendation, responded, "That's up to you." 314
F.3d at 672. The panel majority concluded that "[w]hen the facts are
taken in the light most favorable to
Hill, Dixon's role was limited to the two reprimands he issued. But
these reprimands, which led to Hill's
termination, were based on information (some of it false, according to
Hill) provided by Fultz." Id.
3 The majority noted that its standard focused on a subordinate's
influence on the decision, not his or
her influence on the process that led to the employment decision. See
314 F.3d at 671 & n.10. The majority
explained that this distinction reflects its agreement with the
dissent's concern "that employers [should]
not be 'unfairly tagg[ed] ... with the discriminatory motives of
subordinate employees who have not been
entrusted with formal decision-making authority.'" Id. at 671, quoting
id. at 684 (Traxler, J., dissenting).
4 The court expressly declined to consider whether Hill could also
proceed under a pretext theory. 314
F.3d at 676 n.13.
5 The court noted that Fultz, on various occasions, called Hill
"useless," a "useless old lady," "a
troubled old lady" and a "damn woman" and, on other occasions, said
that Hill was "useless and they need
to retire her" and that she needed to go home and retire. 314 F.3d
at 665. The court said that these
comments could not be construed as "humorous, jocular, or general
'commentary on the fact that all people
age,'" citing O'Connor v. Consolidated Coin Caterers Corp., 56 F.3d
542, 549-50 (4th Cir. 1995), rev'd on
other grounds, 517 U.S. 308 (1996), nor could they be discounted as
not sufficiently connected to Hill,
since they were specifically directed at her while she was on the
job. 314 F.3d at 665-66.
6 Having first concluded that Fultz was an "actual decisionmaker" in
this case because of his extensive
influence on the contested decision, 314 F.3d at 671-73, the court
then found a sufficient nexus between
Fultz's negative attitude and the employment action taken against
Hill. The court noted that Fultz's remarks
"disparaged Hill's professional abilities and reflected Fultz's harsh
judgment that such a 'useless old lady'
should not be allowed to remain at Lockheed." Id. at 673. The court
concluded that because these remarks
were contemporaneous with the reprimands that triggered Hill's
termination, they reflect Fultz's state of
mind at the time he took the steps that led directly to the adverse
employment action against Hill. Id.
7 Hill received reprimand #1 several months before she was assigned
to Fort Drum, and she did not contest
that reprimand in this litigation.
8 The extent to which Dixon exercised any independent review over the
six discrepancy reports is unclear.
The dissent states that "Dixon, in accordance with his job duties,
personally investigated the discrepancy
records and checked each before it was corrected." 314 F.3d at 691.
The majority, on the other hand, found
that "[t]he summary judgment record does not permit th[e] conclusion"
that "Dixon ... reviewed the facts
and decided independently to issue the [third] reprimand[]." Id. at 672.
9 Thus, we agree with the panel majority that the minor performance
deficiencies reported by Fultz are
very different from the employee wrongdoing in the majority's "theft"
example. 314 F.3d at 673 n.11. For
this reason, the dissent is wrong when it asserts that the majority's
standard for imputing a subordinate's
bias to an employer would hamstring employers from taking appropriate
disciplinary action. Id. at 694. If
a biased subordinate reports a colleague for wrongdoing, such as
theft, out of a discriminatory motivation,
the subordinate's bias would not be imputable to the employer where
"unbiased decisionmakers independently
investigate and verify the violation, ... the employer has a
preexisting policy of taking the precise
employment action as a consequence of the reported violation, and
there is no evidence that the employer
enforces that policy in a discriminatory fashion." See id. Under
those circumstances, the "cause" of the
discipline would be the employee's wrongdoing, as established by the
company's independent investigation or
the employee's admission, not the subordinate's bias. That is clearly
not the case here, however. Lockheed
inspectors have discretion on whether to write up minor mistakes, id.
at 678, so it cannot be said, in the
terminology of the dissent, that Lockheed had "a preexisting policy of
taking the precise employment action
as a consequence of the reported violation," id., with respect to the
third reprimand that Dixon issued to
Hill following Fultz's six discrepancy reports.
10 Dixon provided inconsistent statements about his involvement with
Griffin. He attested, at one point,
that he told Griffin he did not think Hill could do the job. At
another point, he attested that he submitted
Hill's file without any recommendation and, when asked for a
recommendation by Griffin, responded, "That's up
to you." 314 F.3d at 672.
11 In Dey, the Seventh Circuit reversed a district court's grant of
summary judgment where the formal
decisionmaker had an independent familiarity with the plaintiff's job
performance and claimed he decided
independently to terminate the plaintiff for performance deficiencies,
but admitted having solicited the
opinionof a subordinate against whom the plaintiff had lodged a
complaint of sexual harassment. 28 F.3d at
1451. The court of appeals concluded that even if the decisionmaker
was unaware of the pending harassment complaint and thus could not
have harbored any retaliatory animus, "[s]ummary judgment is generally
improper
where the plaintiff can show that an employee with discriminatory
animus provided factual information or
other input that may have affected the adverse employment action."
Id. at 1459. Summary judgment is even
more improper here, where Griffin and Prickett not only spoke to
Fultz, but admit that Fultz provided the
primary source of information on which they based the termination decision.
12 See, e.g., the majority's explanation that, taken literally,
"'cat's paw' would cover only the situation
when a biased subordinate dupes a formal decisionmaker into taking
adverse action against another employee,"
and "'rubber stamp' would apply only to the situation when the formal
decisionmaker automatically endorses
the biased subordinate's recommendation without exercising
independent judgment." 314 F.3d at 669 n.6.
Even though some courts that use these terms do not appear to apply
them literally, id., the potential
ambiguity based on the literal meaning renders these terms an
inappropriate standard for imputing a
subordinate's bias to an employer.
13 We agree with the majority that it is immaterial whether these
decisions address the issue in the
context of a "pretext" or a "mixed motive" analysis, as "the question
of who counts as a relevant
decisionmaker is the same" in both circumstances. 314 F.3d at 668.
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