Equal Employment Opportunity Commission v. Sears Roebuck & Co.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION,

Plaintiff-Appellant,

and

FRANCISCO G. SANTANA,  No. 00-1507

Plaintiff,

v.

SEARS ROEBUCK AND COMPANY,

Defendant-Appellee.



FRANCISCO G. SANTANA, 

Plaintiff-Appellant,

and

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION,  No. 00-1509

Plaintiff,

v.

SEARS ROEBUCK AND COMPANY,

Defendant-Appellee.



Appeals from the United States District Court

for the Eastern District of North Carolina, at Greenville.

Malcolm J. Howard, District Judge.

(CA-98-136-4-H)

Argued: December 6, 2000

Decided: March 16, 2001

2 EEOC v. SEARS ROEBUCK AND CO.

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

Reversed and remanded by published opinion. Judge Motz wrote the

majority opinion, in which Judge Michael joined. Judge Niemeyer

wrote a dissenting opinion.

COUNSEL

ARGUED: Robert John Gregory, Office of General Counsel,

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Wash-

ington, D.C., for Appellants. James Bernard Spears, Jr., HAYNS-

WORTH, BALDWIN, JOHNSON & GREAVES, L.L.C., Charlotte,

North Carolina, for Appellee. ON BRIEF: C. Gregory Stewart, Gen-

eral Counsel, Philip B. Sklover, Associate General Counsel, Lorraine

C. Davis, Assistant General Counsel, Lisa J. Banks, Office of General

Counsel, EQUAL EMPLOYMENT OPPORTUNITY COMMIS-

SION, Washington, D.C., for Appellants. Jerry H. Walters, Jr.,

HAYNSWORTH, BALDWIN, JOHNSON & GREAVES, L.L.C.,

Charlotte, North Carolina, for Appellee.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

The Equal Employment Opportunity Commission (EEOC) brought

this Title VII action on behalf of intervenor Francisco Santana, assert-

ing that Sears Roebuck & Co. discriminated against Santana on the

basis of national origin when it refused to hire him as a loss preven-

tion associate. The district court granted summary judgment to Sears;

Santana and the EEOC now appeal. For the reasons that follow, we

reverse.

I.

Santana, born in Mexico in 1960, has olive skin and speaks with

an Hispanic accent. He moved to this country in 1971 and has since

EEOC v. SEARS ROEBUCK AND CO. 3

become a naturalized citizen of the United States. In 1979, after grad-

uating from high school, Santana enlisted in the United States Marine

Corps and has continually served as a Marine since that time.

During much of his adult life, Santana has also worked for Sears.

In 1985, while he was stationed at a Marine base in Tustin, California,

Sears hired Santana as a part-time loss prevention agent to provide

undercover store security in its Costa Mesa, California store. Except

for a one-year military leave of absence when he was stationed

abroad, for the next ten years, Santana continued to work as a part-

time loss prevention agent at the Costa Mesa store. In late 1995, the

Marines transferred Santana to the Marine Corps Air Station in

Cherry Point, North Carolina.

In preparation for this transfer in October 1995, Santana visited

North Carolina. During his visit, Santana went to the Sears store in

Morehead City, North Carolina to inquire about job opportunities for

the same position he had held for ten years in California — specifi-

cally part-time loss prevention agent. Santana spoke with William

Mansfield, the loss prevention manager in the Morehead City store.

Mansfield assured Santana that the Morehead City store could use

someone with his experience and that there would be a job waiting

for him when he arrived. Mansfield then gave Santana a business card

with the telephone number of the store’s operations manager, Teri

Katsekes, and said he would talk to Katsekes about Santana and his

background and experience.

Upon his return to California, in November 1995, Santana asked

the personnel department at the Costa Mesa Sears to send a transfer

form to the personnel department at the Morehead City store. The

Costa Mesa personnel department prepared the form, dated November

27, 1995, and forwarded it as requested. Santana contacted the More-

head City operations manager, Katsekes, by telephone, in November

or early December, 1995. They had a brief conversation in which

Santana told Katsekes that he would be available for work in North

Carolina approximately the last week in December; she responded

that they would be glad to have him in the North Carolina store and

to get in touch with the store when he arrived.

In late December 1995, Santana reported for duty at the Marine

base in Cherry Point, North Carolina. Shortly thereafter, he visited the

4 EEOC v. SEARS ROEBUCK AND CO.

Sears store in Morehead City to inquire about starting work. Loss pre-

vention manager Mansfield told Santana that a job would not be

available until after the holidays. When Santana returned to the store

the first week in January, Mansfield again indicated that there were

no openings, so Santana completed an employment application, told

Mansfield he would continue to check back, and gave Mansfield his

address and telephone number. Santana returned to the store twice in

February but was unable to see either Mansfield or operations man-

ager Katsekes.

Periodically, throughout the spring and summer of 1996, Santana

returned to the Morehead City store to check on employment possibil-

ities. Santana submitted an additional employment application on

March 23, 1996. Although Santana made several attempts to talk with

Katsekes or Mansfield during this period, he was unable to speak with

either of them. On July 20, 1996, Santana submitted a third applica-

tion; in that application he indicated that he would accept a loss pre-

vention position or "any other position" with Sears. (At his

deposition, Santana identified copies of the March and July applica-

tions, which were submitted as exhibits in opposition to Sears’s

motion for summary judgment.) Despite these efforts, Sears did not

contact Santana until October 1996.

In October, Patty Haynes, a human resources specialist at the

Morehead City store, telephoned Santana and invited him to come in

for an interview. During this interview, Haynes commented on San-

tana’s accent and asked where he was "[o]riginally from." Santana

answered that he had been born in Mexico City. At the conclusion of

the interview, Haynes offered Santana a position as a stock clerk.

When Santana referred to his loss prevention experience, Haynes real-

ized that he was "the guy from California" and remembered his previ-

ous applications.

Haynes then took Santana to meet with Katsekes, who interviewed

him in the office of the store manager, Patricia Kiely; according to

Santana, Katsekes told him that Kiely was on vacation at the time.

Santana remembered this because Katsekes apologized for the messi-

ness of the desk during the interview, explaining that it was not her

office, where she normally conducted interviews, but that she was

"standing in" for store manager Kiely, using Kiely’s desk, while Kiely

EEOC v. SEARS ROEBUCK AND CO. 5

was on vacation. Santana maintains that, during the interview,

Katsekes became increasingly disinterested and abrupt due to his

accent, although she did not comment on the accent, as Haynes had.

Nevertheless, at the conclusion of the interview, Katsekes offered

Santana a part-time loss prevention position, sent him for a routine

drug screening, and stated that he would begin work right after a sat-

isfactory drug screening result was received. Two days later, on Octo-

ber 25, 1996, Santana underwent a drug screening test; the negative

result was sent to Sears.

On November 1, 1996, Santana returned to the store to give

Haynes a copy of his social security card and asked when he could

begin work. Haynes told him that "the trainer was sick." When San-

tana demurred that he had been trained and worked for the company

for ten years, she replied that company policy required retraining. A

week later, on November 8, 1996, Santana telephoned Haynes, again

inquiring when he could start work. Haynes told him that a back-

ground investigation was being conducted and that he would be called

by November 12. During this time, Santana spoke twice with David

Mrazick, the loss prevention manager who had replaced Mansfield;

Mrazick indicated that there was an immediate need for someone in

the loss prevention department, that he was impressed by Santana’s

experience, and that he would speak to "management" on Santana’s

behalf.

Despite this, no one at Sears contacted Santana about starting work.

When Santana did not hear from Sears, he telephoned the store

repeatedly; he also contacted Sears loss prevention officials in Cali-

fornia, including that region’s manager, to see if they could determine

the reason for the delay. After these telephone calls failed to yield an

answer, on November 22, Santana went to the store to speak with

Haynes or Katsekes; Haynes saw him and told him Katsekes would

telephone him by November 26. On November 27, after Santana had

not heard from Katsekes, he called her. At that time she told him that

he was not going to be hired after all because Sears had hired some-

one else in his place and the store did not have the payroll to hire yet

another person. Subsequently, Santana learned that Virginia Born, a

Caucasian woman, had been hired as a part-time loss prevention agent

two weeks earlier, on November 12, 1996.

6 EEOC v. SEARS ROEBUCK AND CO.

Upon hearing that he was not going to be hired, Santana immedi-

ately telephoned Sears corporate headquarters to complain about the

way he had been treated. After Santana related his story, an employee

in the corporate office asked if he was willing to take any available

position at the Morehead City Sears; Santana stated that he was.

Shortly thereafter, the corporate employee called him and said that the

Morehead City store was going to find him a position before Decem-

ber 6 and someone would call him by November 29. When Santana

did not hear from anyone, he called on December 2, 1996 and talked

to Haynes, who said she did not know anything about finding him a

position. The Morehead City Sears never employed Santana.1

In early 1997, Santana filed an EEOC claim against Sears alleging

discrimination on the basis of national origin. Sears assigned David

Cross, the Fair Employment Manager for the South Central region, to

respond to the charge. Cross contacted Katsekes and Haynes in the

course of preparing this response and asked why Santana had not

been hired. Based on their explanations, Cross submitted a position

statement for Sears to the EEOC. The position statement acknowl-

edged Santana "had a number of years" experience in loss prevention

at a Sears store in California, and that his job history was "a positive

one." The Sears position statement asserted that the Morehead City

store did not hire Santana before October 1996 because "he had not

shown up or contacted the unit" and, although store employees repeat-

edly tried to contact him, they were "unable to do so." When Santana

"finally showed up," he was told "that the position had been filled,"

and he responded that he "had been on deployment with the military."

Thereafter, Santana "constantly inquired about any open positions in

the unit." Recognizing that Santana "would be an asset" to the store,

Sears interviewed him and requested "additional hours and payroll for

its" loss prevention division, but the request was denied. Sears main-

tained that they did not hire Santana because there were no hours

available in loss prevention.

1

The above facts are those related by Santana. For purposes of sum-

mary judgment, they all must be accepted as true. However, in order to

understand the legal issues involved in this case, we also set forth below

Sears’s version of the facts.

EEOC v. SEARS ROEBUCK AND CO. 7

During discovery, Sears offered another story. Katsekes testified

that it was difficult to find experienced loss prevention employees and

that she was interested in hiring the "loss prevention agent from a

California Sears store" that Mansfield told her about, but Mansfield

was unable to locate this person in late 1995 or early 1996 at his work

number, and was told by someone that he was on deployment. (Mans-

field ended his employment with Sears in 1996 and did not testify or

submit an affidavit.) Katsekes could not identify who told Sears this,

and acknowledged that no effort was made to contact the California

loss prevention agent at his home. She did not testify that this agent

had been deployed by the Marines or had told the store he had been

deployed. Moreover, Katsekes did not dispute that Santana had filed

employment applications in January, March, and July 1996 but she

maintained that she was "never aware of [the earlier] applications"

and that the first time she saw his July application was in October

1996 when she interviewed him.

Katsekes admitted that the reasons she gave to Cross, and that he

in turn gave to the EEOC in 1997, for refusing to hire Santana in

October 1996 were inaccurate. She explained that she did have an

available loss prevention position when she interviewed Santana

because she had determined to "take those hours from somewhere

else in the store" and "put on extra Loss Prevention help." Katsekes

testified that she had been impressed with Santana’s loss prevention

experience and offered him a job, contingent on his passing a drug

test and background check, "[h]owever . . . after the interview" she

"was instructed not to go any further with the application." Katsekes

acknowledged that a few weeks after she interviewed Santana, a Cau-

casian woman, Virginia Born, was hired as a part-time loss prevention

associate. Sears records produced to Santana indicate that on Novem-

ber 12, 1996, Sears hired Born, who had no loss prevention experi-

ence, no previous employment history with Sears, and less education

than Santana. Katsekes admitted that "[w]ith respect to education and

prior experience," she would "have to say Mr. Santana" was more

qualified than Born.

In her 1999 deposition, Katsekes testified that the reason Sears did

not employ the better qualified Santana was not what she previously

told Cross, but rather that, a few hours after her interview with San-

tana, Mrazick came into her office and told her that store manager

8 EEOC v. SEARS ROEBUCK AND CO.

Patricia Kiely "decided that we’re not going to go any further with

this application." Katsekes maintained that she did not ask either

Mrazick or Kiely the reason for this decision because she was angry

at Kiely for overruling her without an explanation. Katsekes further

testified that she did not inform Santana or Cross or the EEOC that

Kiely had overruled her decision to hire Santana because she thought

it reflected badly on the store.

Kiely testified in her deposition (taken in 1999, several months

after Katsekes’s) that in October 1996, when Mrazick told her that

Katsekes "was getting ready to hire a guy from California with asset

protection experience," she told him she "did not want that to hap-

pen," without explaining her reasons. Kiely maintained that in the

beginning of 1996, she had a telephone conversation with Ann Man-

herz, a Sears regional manager, who mentioned in passing an

unnamed "asset protection agent from California that had some sexual

harassment issues," and Kiely mistakenly thought Santana "could be

that person." (Sears does not contend and has not contended that San-

tana was in fact the individual to whom Manherz had referred.) Kiely

acknowledged that she did not investigate or attempt to confirm that

Santana was the suspected individual. Rather, she "assumed" that he

was the individual Manherz had spoken about and therefore decided

not to hire him. Kiely further asserted that, at the time she decided not

to hire Santana, she had not met or seen Santana, and that she did not

know his national origin or even his name.

Ann Manherz testified that she had no involvement with Santana’s

attempt to become employed at the Morehead City store, and that she

had never discussed Santana with Kiely, Katsekes, Haynes, or anyone

else except her lawyer. Manherz further testified that she never had

any conversations with Kiely, Katsekes, or Haynes about employment

decisions at the Morehead City store. In response to a question from

Sears as to whether she "[c]ould . . . have had a conversation with Ms.

Kiely about a loss prevention agent being accused of sexual harass-

ment," Manherz responded, "I could have." In a later affidavit, Man-

herz elaborated that she was aware, in early 1996, that a loss

prevention agent from a California store, who had been accused of

sexual harassment, was looking for work in the Southeast and she

could "very well" have talked with Kiely about this agent, but reiter-

EEOC v. SEARS ROEBUCK AND CO. 9

ated that she did not know Santana or talk about him specifically with

Kiely.

After discovery was completed, the district court granted Sears’s

motion for summary judgment. The court reasoned that, although the

EEOC had established a prima facie case of national origin discrimi-

nation, it had failed to establish that Sears’s proffered legitimate non-

discriminatory reason for its failure to hire Santana — namely,

Kiely’s belief that he had "some sexual harassment concerns" — was

a pretext for illegal discrimination.

II.

A plaintiff establishes a prima facie case of discrimination in hiring

when he demonstrates that (i) he belongs to a protected class, (ii) he

applied and was qualified for a job for which the employer was seek-

ing applicants, (iii) despite his qualifications, he was rejected, and (iv)

after his rejection, the position remained open and the employer con-

tinued to seek applicants from persons of his qualifications. See

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).2

Plainly, Santana satisfies all four elements of a prima facie case: (i)

as a Hispanic Mexican-American, he is a member of a protected class,

(ii) he applied and was well qualified for a position as a part-time loss

prevention associate at Sears, (iii) despite his qualifications, Sears

rejected him, and (iv) the position remained open, Sears continued to

seek to fill it, and did shortly fill it by hiring a less qualified Cauca-

sian woman.

Indeed, the prima facie case here is a strong one. The evidence as

to Santana’s year-long job seeking odyssey — including his numer-

2

The Supreme Court has made it clear that because the facts of given

cases "necessarily will vary" this formula "is not necessarily applicable

. . . to differing factual situations." McDonnell Douglas, 411 U.S. at 802,

n.13. See O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312

(1996). What is critical with respect to the fourth element is that the

plaintiff demonstrate he was not hired (or fired or not promoted, etc.)

"under circumstances which give rise to an inference of unlawful dis-

crimination." Texas Dept. of Comty. Affairs v. Burdine, 450 U.S. 248,

253 (1981).

10 EEOC v. SEARS ROEBUCK AND CO.

ous visits to the store, contacts with store personnel, and the filing of

three different job applications — is uncontroverted. Unlike some

cases, here the EEOC presented overwhelming evidence that Santana

diligently applied for the job denied him. Cf. Brown v. Coach Stores,

Inc., 163 F.3d 706, 710 (2d Cir. 1998) (upholding dismissal of failure-

to-promote claim where plaintiff did not allege that she had applied

for a promotion); Brown v. McLean, 159 F.3d 898, 903 (4th Cir.

1998) (plaintiff who failed to apply for re-employment could not

establish a prima facie case of discrimination); Chambers v. Wynne

Sch. Dist., 909 F.2d 1214, 1217 (8th Cir. 1990) (plaintiff did not

establish a prima facie case of discrimination with regard to openings

for which she never formally applied).

Furthermore the uncontroverted evidence clearly demonstrates that

Santana, again unlike some discrimination claimants, was well quali-

fied for the position he so eagerly sought. Cf. Montgomery v. John

Deere & Co., 169 F.3d 556, 559-60 (8th Cir. 1999) (plaintiff’s prima

facie case was, "at best, weak" where evidence showed that, at the

time of his termination, his performance was deficient); Pafford v.

Herman, 148 F.3d 658, 669 (7th Cir. 1998) (absent evidence that

plaintiff was qualified for promotion, her prima facie case was "too

weak to allow the factfinder to speculate" as to employer’s motive)

(internal quotation marks omitted). In fact, his previous ten years of

experience as a part-time loss prevention agent with Sears would

seem to make him as qualified as any person could be for this posi-

tion.

It is also beyond question that Santana satisfied the third and fourth

elements of the prima facie case, namely that, despite his qualifica-

tions, Sears rejected his application for employment and then quickly

filled the position by hiring a Caucasian woman. While employers

often insist in hiring cases such as this one that the person chosen for

the job over the plaintiff was better qualified, see, e.g., Bray v. Marri-

ott Hotels, 110 F.3d 986, 990 (3d Cir. 1997), here even Sears con-

cedes, as it must, that Santana’s education and experience were

superior to the Caucasian woman hired in his stead, who had never

before worked for Sears, had less education, and had no loss preven-

tion experience. In sum, Santana presented uncontroverted evidence

of a strong prima facie case — despite his repeated applications, his

superb qualifications, and his expressed willingness to accept any

EEOC v. SEARS ROEBUCK AND CO. 11

available position, Sears refused to hire him at the Morehead City

store and instead hired a Caucasian woman who, Sears itself con-

cedes, was less qualified than Santana.

Once a plaintiff establishes a prima facie case, the burden then

shifts to the employer to "produc[e] evidence that the plaintiff was

rejected, or someone else was preferred, for a legitimate, nondiscrimi-

natory reason." Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248,

254 (1981). In this case, Sears has, over time, proffered several rea-

sons for its failure to hire Santana, including the selection of someone

else, a lack of available hours in the loss prevention department, and

the belief that Santana had been investigated for sexual harassment in

the past. Sears now insists that only this last explanation — the belief

that Santana was the person described by Manherz who had been

investigated for sexual harassment — is the true reason for its failure

to hire Santana. If this is the reason Sears did not hire Santana —

although this belief ultimately proved to be unfounded — it nonethe-

less constitutes a legitimate non-discriminatory explanation. See Pol-

lard v. Rea Magnet Wire Co., 824 F.2d 557, 559-60 (7th Cir. 1987).

Once an employer offers a legitimate, non-discriminatory explana-

tion for the challenged employment decision, "the plaintiff must than

have an opportunity to prove . . . that the legitimate reasons offered

by the defendant were not its true reasons, but were a pretext for dis-

crimination." Burdine, 450 U.S. at 253. The Supreme Court recently

clarified the plaintiff’s burden at the pretext stage in Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097

(2000). The Court reiterated that evidence of pretext, combined with

the plaintiff’s prima face case, does not compel judgment for the

plaintiff, because "[i]t is not enough . . . to disbelieve the employer;

the factfinder must [also] believe the plaintiff’s explanation of inten-

tional discrimination." Id. at 2108 (quoting St. Mary’s Honor Ctr. v.

Hicks, 509 U.S. 502, 519 (1993)). However, the Reeves Court made

plain that, under the appropriate circumstances, "a plaintiff’s prima

facie case, combined with sufficient evidence to find that the employ-

er’s asserted justification is false, may permit the trier of fact to con-

clude that the employer unlawfully discriminated." Id. at 2109.

Here, looking at the totality of the circumstances, there is ample

evidence from which a factfinder could conclude that, in the words

12 EEOC v. SEARS ROEBUCK AND CO.

of the Reeves Court, Sears’s "asserted justification is false." Id.

Indeed, the fact that Sears has offered different justifications at differ-

ent times for its failure to hire Santana is, in and of itself, probative

of pretext. See, e.g., Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d

424, 432 (1st Cir. 2000) ("[W]hen a company, at different times,

gives different and arguably inconsistent explanations, a jury may

infer that the articulated reasons are pretextual."); Thurman v. Yellow

Freight Sys., Inc., 90 F.3d 1160, 1167 (6th Cir. 1996) ("An employ-

er’s changing rationale for making an adverse employment decision

can be evidence of pretext."); EEOC v. Ethan Allen, Inc., 44 F.3d 116,

120 (2d Cir. 1994) (holding that a reasonable juror could infer that the

shifting and inconsistent explanations given by the employer at trial

were pretextual, developed over time to counter the evidence suggest-

ing discrimination).

Moreover, a factfinder could infer from the late appearance of

Sears’s current justification that it is a post-hoc rationale, not a legiti-

mate explanation for Sears’s decision not to hire Santana. See Tyler

v. Re/Max Mountain States, Inc., 232 F.3d 808, 813 (10th Cir. 2000)

("We are disquieted . . . by an employer who ‘fully’ articulates its rea-

sons for the first time months after the decision was made.").

Katsekes interviewed and offered Santana a job in October 1996; the

first time Katsekes claimed that Kiely overruled her decision to hire

Santana was in her deposition in May 1999, over two and a half years

later. Katsekes stated that she chose not to tell Santana at the time that

her decision to hire him had been overruled by Kiely because she

thought it reflected badly on the store. This explanation certainly

seems possible. But, Katsekes had another opportunity to disclose

Kiely’s involvement in the decision not to hire Santana, namely in

1997, when Cross contacted her in the course of preparing his

response to Santana’s EEOC Charge of Discrimination, and she did

not do so. Instead, Katsekes told Cross that no hours were available

in loss prevention — an explanation that she conceded years later at

her deposition was not accurate and is further belied by the fact that

Virginia Born was hired as a loss prevention associate less than three

weeks after Katsekes interviewed Santana.

Katsekes’s failure to tell Cross or the EEOC of Kiely’s involve-

ment seems curious. If Kiely had instructed Katsekes not to hire San-

tana, why would Katsekes not tell this to Cross? She could hardly be

EEOC v. SEARS ROEBUCK AND CO. 13

embarrassed to disclose this fact to Cross, a fellow Sears employee,

and, as an operations manager, she must have known the importance

of responding truthfully and completely to an EEOC discrimination

charge. Furthermore, would she not have realized that Cross would

want to talk to Kiely, if Kiely had indeed made the ultimate decision

not to hire Santana? It seems probable that Katsekes would have men-

tioned Kiely’s involvement during the EEOC investigation, if not

before. Given that she did not do so, a trier of fact would certainly

be entitled to infer that this explanation is nothing more than a post

hoc rationale, invented for the purposes of litigation.

Apart from the late appearance of Sears’s current explanation, there

is additional evidence from which a factfinder could infer that it is

unworthy of belief. Kiely claims that she ordered Katsekes not to hire

Santana because, based on a casual conversation with Manherz eight

months earlier, she believed that Santana had been investigated for

sexual harassment. While Sears now acknowledges that this belief

was incorrect, it contends that a mistaken belief, honestly held, is not

a pretext for discrimination. In this case, however, the evidence does

not support Sears’s contention that Kiely honestly believed that San-

tana was the individual investigated for sexual harassment. Kiely

admits that, at the time she rejected Santana, she did not know the

name of the individual to whom Manherz referred and did not make

any attempt to verify that Santana was, in fact, that individual. A juror

could easily find it implausible that Kiely would reject a qualified

applicant, such as Santana, without first substantiating that he was, in

fact, the individual accused of sexual harassment. See Smith v. Chrys-

ler Corp., 155 F.3d 799, 807-08 (6th Cir. 1998) ("When the employee

is able to produce sufficient evidence to establish that the employer

failed to make a reasonably informed and considered decision before

taking its adverse employment action, thereby making its decisional

process ‘unworthy of credence,’ then any reliance placed by the

employer in such a process cannot be said to be honestly held."). This

is particularly true given that both Kiely and Katsekes testified that

the Morehead City store had difficulty finding people experienced in

loss prevention, as Santana was. The credibility of Kiely’s explana-

tion is further undermined by the fact that, until after this litigation

was underway, she admittedly failed to reveal to anyone, including

Mrazick or Katsekes, the now-asserted reason for her claimed direc-

tive not to hire Santana.

14 EEOC v. SEARS ROEBUCK AND CO.

In sum, the EEOC made out a strong prima facie case of national

origin discrimination and offered ample evidence to discredit Sears’s

proffered non-discriminatory reason for its failure to hire Santana.

Under Reeves, this showing is sufficient to permit a trier of fact to

"infer the ultimate fact of discrimination from the falsity of the

employer’s explanation." Reeves, 120 S. Ct. at 2108. Indeed, Reeves

teaches that when "the employer’s justification has been eliminated,

discrimination may well be the most likely alternative explanation,

especially since the employer is in the best position to put forth the

actual reason for its decision." Id. at 2108-09. Of course, if "no ratio-

nal factfinder could conclude that the [employer’s job] action was dis-

criminatory," then the case should not proceed beyond summary

judgment. Id. at 2109. But, in the absence of evidence requiring such

a conclusion, a prima facie case and evidence of pretext raises a suffi-

cient inference of discrimination to entitle a plaintiff to survive a

motion for summary judgment.

Thus, the only remaining question is whether Sears has presented

evidence such that "no rational factfinder" could conclude that Sears’s

refusal to hire Santana was motivated by national origin discrimina-

tion. Id. Sears maintains that it has. Specifically, Sears contends that

it has presented evidence proving that: (1) the person who decided not

to hire Santana was Kiely, and (2) Kiely did not know Santana’s

national origin. That argument must fail, however, because, although

Sears has certainly presented evidence that could lead a factfinder to

these conclusions, Sears has not presented evidence that requires this.

Rather, ample evidence in the record would permit a reasonable trier

of fact to reject either or both of these conclusions.

Sears maintains that Kiely, not Katsekes, decided to revoke the job

offer to Santana. While that is certainly Sears’s contention, there is a

good deal of record evidence that discredits it. For example, Katsekes

failed to tell anyone that Kiely was the decision-maker either at the

time of Santana’s job application or during the EEOC administrative

process. The trier of fact could reasonably infer from Katsekes’s fail-

ure to disclose Kiely’s involvement until litigation had begun that the

explanation is simply untrue, and that the relevant decision-maker in

this case was Katsekes, not Kiely. Furthermore, Santana testified, in

the kind of detail that imbues his testimony with credibility, that when

Katsekes interviewed him, she did so in Kiely’s untidy office,

EEOC v. SEARS ROEBUCK AND CO. 15

explaining that Kiely was on vacation. If a factfinder credits this testi-

mony, and Sears apparently offered no attendance records or other

evidence to counter it, then Sears’s contention that, within hours of

Santana’s interview, Kiely ordered Katsekes not to hire Santana

appears unlikely.

Moreover, on the present record, it is undisputed that in the weeks

following Santana’s interview, Mrazick told Santana he would talk to

"management" on Santana’s behalf, Haynes told Santana his start date

would begin after training and the background check were completed,

and Katsekes continued to evade Santana’s inquiries as to a start date.

Indeed, Katsekes did not notify Santana for more than a month that

she was withdrawing the job offer and during that time she hired a

Caucasian woman for the job that had been offered to Santana. A

factfinder could infer from this evidence that Katsekes, not Kiely,

decided not to follow through on the job offer to Santana; that remem-

bering Santana’s accent and national origin, Katsekes became increas-

ingly less enthusiastic about Santana as a candidate and for this

reason, she delayed finalizing his start date; and that when Katsekes

found a less "foreign" candidate, she determined to hire that person

and revoke her offer to Santana. Of course, a finder of fact might not

so conclude, but there is certainly evidence, now uncontroverted, that

permits this inference.

Even if a factfinder should conclude that Kiely was the relevant

decisionmaker, a factfinder might not accept Sears’s second conten-

tion — that Kiely did not know Santana’s national origin. As the

EEOC notes, Kiely’s assertion to this effect "is not supported by any

other testimony in the record." EEOC Reply Brief at 6 n.2. In fact,

Katsekes stated in her affidavit not that Mrazick told her to stop activ-

ity on the application of the unnamed California loss prevention

agent, but that "Ms. Kiely had directed [Mrazick] to tell me that the

store would not hire Mr. Santana," (emphasis added), suggesting that

Kiely did know Santana by his "Hispanic sounding" name.

Moreover, Santana testified that he was in the Morehead City store

very frequently over a year-long period, during which time he repeat-

edly talked with store personnel about job openings and submitted

three job applications; even Sears conceded that Santana "constantly

inquired" about open positions. Given this uncontroverted evidence,

16 EEOC v. SEARS ROEBUCK AND CO.

a jury might conclude that Kiely, the manager of this small store,

would over time have heard Santana’s name or seen him and ascer-

tained that this Hispanic man was the loss prevention agent from Cali-

fornia. Furthermore, there is no dispute that numerous other members

of the store’s management — Katsekes, Haynes, Mansfield and Mraz-

ick — who undoubtedly regularly discussed personnel matters with

Kiely, did know of Santana’s national origin. A jury might well infer

that, in these discussions, they mentioned Santana’s national origin to

Kiely.

Because there is evidence from which a factfinder could conclude

that Katsekes made the decision to revoke the job offer, or that Kiely

did know Santana’s national origin, a factfinder would be entitled to

reject Sears’s contentions that Kiely was the sole decision-maker and

that she did not know of Santana’s national origin. In other words,

Sears has failed to demonstrate that "no rational factfinder could con-

clude that" Sears’s refusal to hire Santana was motivated by illegal

discrimination. Reeves, 120 S. Ct. at 2109.

Nor does the lack of direct evidence of anti-Hispanic animus or the

fact that Sears has hired other Hispanics compel this conclusion.

Since no direct evidence of animus is necessary to prove employment

discrimination, see United States Postal Bd. of Governors v. Aiken,

460 U.S. 711, 716-17 (1983), its absence hardly compels a factfinder

to conclude that the employer did not discriminate. Moreover, simply

because Sears hired other Hispanic individuals in other departments

does not mean that its failure to hire Santana was free from discrimi-

natory intent. See Connecticut v. Teal, 457 U.S. 440, 453-55 (1982)

("Congress never intended to give an employer license to discriminate

against some employees . . . merely because he favorably treats other

members of the employees’ group."); Graham v. Long Island R.R.,

230 F.3d 34, 43 (2d Cir. 2000) (evidence that similarly situated non-

black employees were treated in the same manner as plaintiff and that

one other black employee was treated more favorably was insufficient

to sustain summary judgment for employer because of Title VII’s

focus on protecting individuals, rather than a protected class as a

whole). This is not to say that a trier of fact might not ultimately rely

on this evidence in returning a verdict for Sears. But this evidence

does not compel the grant of summary judgment to Sears because it

does not foreclose the possibility that a factfinder could conclude that

EEOC v. SEARS ROEBUCK AND CO. 17

national origin discrimination was the true reason for Sears’s failure

to hire Santana.

Sears’s reliance on Schnabel v. Abramson, 232 F.3d 83 (2d Cir.

2000), is similarly misplaced. In that case, the Legal Aid Society

hired Schnabel, a lawyer, as an investigator to replace a much youn-

ger man, Sherlock, who was attending law school. Id. at 85. Three

years later, after Sherlock graduated, Schnabel’s supervisor dis-

charged him and rehired Sherlock; Schnabel then sued for age dis-

crimination. Id. at 86. The Second Circuit upheld the grant of

summary judgment to Legal Aid, finding that Schnabel had "put forth

the minimal proof necessary to establish a prima facie case," that

Legal Aid had proffered "clear and specific" non-discriminatory rea-

sons for his termination, namely Schnabel’s "asserted contempt for

Legal Aid clients, difficulty following instruction, outright insubordi-

nation, and inept performance," and that Schnabel had little evidence

that these reasons were pretextual. See id. at 87-88 (internal quotation

marks omitted). Moreover, the court noted that Legal Aid offered a

good deal of evidence that age was not the reason for Schnabel’s ter-

mination — Schnabel was fired by the same man who had hired him

three years earlier, when Schnabel already was 60 years old, and

Schnabel was replaced by the person whom he originally had replaced

after his employer "explicitly compared the performances of the two

men, and found that Sherlock was a better investigator." Id. at 91.

Schnabel is distinguishable from the present case in virtually every

important respect. First, while Schnabel proffered only a weak prima

facie case, with his qualifications hotly disputed, Santana’s prima

facie case was strong — unquestionably his vast experience qualified

him for the job he sought. Moreover, while in Schnabel the employer

put forward several "clear and specific" nondiscriminatory reasons for

the discharge and Schnabel offered only very thin evidence of pretext,

see id. at 88, here, Sears’s proffered reasons for its failure to hire San-

tana have constantly changed and there is abundant evidence of pre-

text. Finally, in Schnabel, the employer presented proof that illegal

discrimination was not the reason for its employment decision, see id.

at 91, here, by contrast, Sears has offered no such proof.

The case at hand is far more similar to a recent case from the Elev-

enth Circuit. In Hinson v. Clinch County, 231 F.3d 821 (11th Cir.

18 EEOC v. SEARS ROEBUCK AND CO.

2000), a female high school principal, who the county demoted and

replaced with a less-qualified male vice-principal, established a prima

facie case of sex discrimination and produced evidence that the coun-

ty’s proffered reasons for her demotion were not credible; the district

court, however, granted summary judgment to the county because

Hinson had not offered any additional evidence that the real reason

for the county’s decision was discrimination on the basis of sex. Id.

at 826, 831-32. The Eleventh Circuit reversed, finding that the district

court erred in requiring the plaintiff "to show not only pretext but also

additional evidence that the Board discriminated against her based on

her sex." Id. at 831. While the record contained no additional evi-

dence that indicated gender bias, the appellate court nonetheless con-

cluded that the plaintiff had produced enough evidence to withstand

the county’s motion for summary judgment, explaining: "this is a case

where a plaintiff’s prima facie case, combined with sufficient evi-

dence to find that the employer’s asserted justification is false, may

permit the trier of fact to conclude that the employer unlawfully dis-

criminated." Id. at 832 (internal quotation marks omitted). See also

Blow v. City of San Antonio, 236 F.3d 293, 298 (5th Cir. 2001) (sum-

mary judgment for the employer inappropriate when plaintiff had

proven a prima facie case, presented evidence creating a material

issue of disputed fact as to whether the employer’s explanation was

false and no "unusual circumstances" prevented a rational fact-finder

from concluding that the employer’s reasons for failing to promote

plaintiff were discriminatory).

The instant case is almost identical to Hinson in that there is a clear

prima facie case of employment discrimination, a good deal of evi-

dence of pretext casting serious doubt on the employer’s proffered

justification for its job action, and nothing to prevent a rational fact-

finder from finding that the employer was motivated by discrimina-

tory reasons. Moreover, while, as in Hinson, there is no additional

evidence indicating that unlawful discrimination was the true reason

for the employer’s decision, there is also no evidence that precludes

such a finding. See Rowe v. The Marley Co., 233 F.3d 825, 830 (4th

Cir. 2000). "[A]bsent such evidence [precluding a finding of discrimi-

nation], courts may not require a plaintiff who proves both a prima

facie case and pretext to produce additional proof of discrimination

in order to survive a defendant’s motion for summary judgment." Id.

In such circumstances, the factfinder is permitted "to infer the ulti-

EEOC v. SEARS ROEBUCK AND CO. 19

mate fact of discrimination from the falsity of the employer’s expla-

nation." Reeves, 120 S. Ct. at 2108; Hinson, 231 F.3d at 832.

In sum, under the rule announced in Reeves, there is sufficient evi-

dence in this case for a trier of fact to conclude that Santana was the

victim of illegal discrimination. The EEOC, on behalf of Santana, has

proven a strong prima facie case of national origin discrimination and

has raised significant questions as to the validity of Sears’s proffered

non-discriminatory reason for its failure to hire Santana. Perhaps at

trial, the EEOC will be unable to convince the factfinder that discrim-

ination was the true reason for Sears’s failure to hire Santana. But on

this record, we cannot hold that "no rational factfinder could con-

clude" that intentional discrimination was the true motivation for

Sears’s decision. Reeves, 120 S. Ct. at 2109. Accordingly, the district

court erred in granting summary judgment to Sears.

III.

For the foregoing reasons, we reverse the judgment of the district

court and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED

NIEMEYER, Circuit Judge, dissenting:

It appears to me, regretfully, that the majority may have permitted

the plaintiff’s personal suspicions, coupled with Sears’ clumsiness in

giving its reasons for not hiring plaintiff, to become the prima facie

case for national origin discrimination. The evidence to support

national origin as a reason for not hiring the plaintiff is completely

lacking. Indeed, because there is no more indication that the plaintiff

was a victim of discrimination on the basis of national origin than

there is that he was a victim of age discrimination or gender discrimi-

nation, the majority is incorrect in holding that a rational factfinder

could conclude that Sears’ decision not to hire Santana was based on

national origin discrimination. See Reeves v. Sanderson Plumbing

Prods., Inc., 120 S. Ct. 2097, 2109 (2000).

Human resources specialist, Patty Haynes, first interviewed Fran-

cisco Santana, the plaintiff, in October 1996 for a position at the

20 EEOC v. SEARS ROEBUCK AND CO.

Morehead City (North Carolina) Sears store and, during the interview,

noted Santana’s accent, asking him where he was originally from. He

said that he had been born in Mexico City. After the interview,

Haynes offered Santana a job, albeit not the one he had originally

applied for in late 1995. When he indicated that he was interested in

a "loss prevention" position, as he had previously held at the Sears

store in California, Haynes realized that Santana was "the guy from

California" who had been an applicant since late in the previous year.

Haynes took Santana to the store’s operations manager, Teri

Katsekes, and Katsekes offered Santana a part-time loss prevention

position.

Later, however, Sears abandoned its offer to Santana on the

instruction of Patricia Kiely, the store manager. When Kiely was told

by an employee that Katsekes "was getting ready to hire a guy from

California with asset protection experience," Kiely told the employee

she "did not want that to happen," but she did not explain why. Kiely

had never met the applicant, nor did she know his name or national

origin. She simply overruled Katsekes, stating, "we’re not going to go

any further with this application." When Katsekes was advised of

Kiely’s decision, she became angry that she had been overruled.

As Kiely later explained, she had been told by a Sears regional

manager several months earlier — during a period when Santana had

been first prosecuting his application — about an unnamed "asset pro-

tection agent from California" who had "some sexual harassment

issues." While Kiely recalls the conversation well and relied on it, the

regional manager later confirmed a more limited recollection. The

regional manager stated that early in 1996, a loss prevention agent

from a California store, who had been accused of sexual harassment,

was looking for work in the southeast and that she could "very well"

have talked with Kiely about this agent. Kiely acknowledged that in

October 1996 when Santana interviewed, she did not check whether

Santana was this person; rather, she simply ended the interview pro-

cess with Santana because she thought he might be the individual

about whom she had heard earlier from the regional manager. Perhaps

Kiely acted too cautiously or too abruptly. But there is nothing in the

record to suggest that Kiely acted by reason of Santana’s national ori-

gin. Indeed, when she interrupted the interview process, she did not

know Santana’s name or his national origin.

EEOC v. SEARS ROEBUCK AND CO. 21

Not only is there a total lack of evidence in this case to support a

motive based on national origin, there is also evidence that the More-

head Sears store did not discriminate by reason of national origin and

was prepared to hire Hispanics. First, both Haynes and Katsekes had

offered Santana a job. They had the authority to do so and obviously

did not discriminate on the basis of Santana’s national origin in doing

so. Second, during this same period, Sears had hired other Hispanics

in the store for various positions.

While it is true that various Sears employees were hesitant during

discovery, indeed even inconsistent, in giving their reasons for not

hiring Santana, at bottom it is apparent that the decision not to hire

Santana occurred solely because of Kiely’s intervention. And the only

evidence about why Kiely made the decision to intervene was in

response to information she had received about a California Sears

employee, who was looking for a job in the southeast and who had

"sexual harassment issues." While this information may not have been

sufficient, without further investigation, to veto an employee’s appli-

cation, there is no evidence to suggest that Kiely was motivated by

Santana’s national origin. Accordingly, I do not believe that a ques-

tion of fact has been created simply by Santana’s personal belief that

discrimination based on his national origin must have been the reason

for his not receiving the Morehead City store job. See Reeves, 120

S. Ct. at 2108. Accordingly, I would affirm the summary judgment

entered by the district court.