Petition for Writ of Certiorari — BCI Coca-Cola Bottling Co. v. EEOC, 127 S. Ct. 852 (2007) (No. 06-341)

Supreme Court brief2007

Ask Donna

What actually matters in this document.

Text

Ci, 341 ser 5 - 2006

No. OFFICE OF THE CLERK

Hn the

Supreme Court of the Anited States

BCI COCA-COLA BOTTLING

COMPANY OF LOS ANGELES,

Petitioner,

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION,

Respondent.

Ona Petition for a Writ of Certiorari to the United

States Court of Appeals for the Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

Eric Topp PRESNELL

Counsel of Record

KARA E. SHEA

MILLER & MARTIN PLLC

1200 OnE NASHVILLE PLACE

150 FourtH AVENUE Nort

NASHVILLE, TENNESSEE 37219

(615) 244-9270

Counsel for Petitioner

Becker Gallagher Legal Publishing, Inc. 800.890.5001

Question Presented For Review

Under what circumstances is an employer liable under

federal anti-discrimination laws based on a subordinate’s

discriminatory animus, where the person(s) who actually

made the adverse employment decision admittedly harbored

no discriminatory motive toward the impacted employee.

Parties to the Proceedings

The parties to this proceeding include the Equal

Employment Opportunity Commission (“EEOC”), a

governmental agency, and BCI Coca-Cola Bottling Company

of Los Angeles (“BCI”), a non-governmental corporation.

iil

Rule 29.6 Statement

BCI Coca-Cola Bottling Company of Los Angeles is a

wholly owned subsidiary of Coca-Cola Enterprises Inc., a

publicly traded company. The Coca-Cola Company, a

publicly traded company, owns ten percent (10%) or more of

the stock of Coca-Cola Enterprises Inc.

TABLE OF CONTENTS

Question Presented for Review .................. |

Parties to the Proceeding . eee ey re il

RD DP TD ok bce ck cccusdenescere ili

Wee i MD 6 6h ree oe eas 0 45 bea eee iv

Table of Authorities .............. Sere. ST vi

SN Es o> 0 4.000 bo ae es oe ee l

PRED. 3s «S000 bee bees 4 eee |

Statutory Provisions Involved .................. l

SE GE OG ino 65 edo oe ee ncee kee 2

I. Background Facts and Issues ............. 2

II. Decision of the District Court... 2... .000... 4

Ili. Decision of the Tenth Circuit ............. 5

Reasons for Granting the Petition ............... 6

I. The Circuits Are Split............. i ween 6

A. There is an Acknowledged Split Among the

Tenth/Seventh, Fifth, and Fourth Circuit

Courts of Appeal With Respect to Subordinate

fs everett 8

B. The Tenth and Fourth Circuit Courts of

Appeal are in Conflict over the Proper

Application of Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133 (2000), in the Area

of Subordinate Bias Liability ........... 12

C. Other Circuit Courts of Appeal Apply —

Different Standards of Subordinate Bias

Dstt eeees wan Ghd 6eeet eens es 14

Il. This Case Is an Excellent Vehicle to Resolve an

Important Question of Federal Law ......... 18

Ct aos. ao 65 6a ee eee 4 0 0 0's 6 6 0's.s\00 21

Appendix

Appendix A - Equal Employment Opportunity

Commission v. BCI Coca-Cola Bottling Company of

Los Angeles, 450 F.3d 476 (10" Cir. 2006) ...... la

Appendix B - Equal Employment Opportunity

Commission v. BCI Coca-Cola Bottling Company of

Los Angeles, 2004 WL 3426757 (D.N.M. June 10,

Tot inh sks week e Ubeneeeeec ees 32a

TABLE OF AUTHORITIES

Cases

Abramson vy. William Paterson Coll. of New Jersey,

Bee Fae Bee COC. FEED oc cc ccccvewss 7,17

Argo v. Blue Cross & Blue Shield of Kansas, Inc.,

452 F.3d 1193 (10" Cir. 2006) .............. 19

Beason v. United Tech. Corp.,

Oe Cee OFS es ED oc cccectnccveans 20

Bender v. Hecht's Dep't Stores,

ft og errr 19

Bergene v. Salt River Project Agric. Improvement

& Power Dist.,

272 F.3d 1136 (9 Cir. 2001) ............. 7, 16

Burlington Industries, Inc. v. Ellerth,

PO as PUD Nc nach ranecsinetetsas 13

Christian v. Wal-Mart Stores, Inc.,

252 F.3d 862 (6" Cir. 2001) ........... 7, 16, 20

Dey v. Colt Constr. & Dev. Co.,

28 F.3d 1446 (7" Cir. 1994) ................ 9

Eiland. v. Trinity Hosp..,

Rk ff oe | ee 7

English v. Colorado Dep't of Corr.,

248 F.3d 1002 (10" Cir. 2001) .......... 5,7, 15

Vii

Ercegovich v. Goodyear Tire & Rubber Co.,

154 F.3d 344 (6" Cir. 1998) ........... 7, 15, 16

Gee v. Principi,

pk Dg Se ee er ee 7

Griffin v. Washington Convention Cir.,

142 F.3d 1308 (D.C. Cir. 1998) ........... 7,17

Hill v. Lockheed Martin Logistics Mgmt., Inc.,

tk pt gs | ee passim

Holcomb v. Powell,

RS 19

Kendrick v. Penske Transp. Servs., Inc.,

220 F.3d 1220 (10" Cir. 2000) .............. 7

Kientzy v. McDonnell Douglas Corp..,

990 F.2d 1051 (8" Cir. 1993) ............... 16

LaBove v. Raftery,

ee SED «bss se ow lore eee 20

Laxton v. Gap, Inc.,

a ae eee 1}

Lilampallas v. Mini-Circuits, Lab, Inc.,

163 F.3d 1236 (11" Cir. 1998) ............ 7,17

Long v. Eastfield Coll.,

ok a a re 7

Lust v. Sealy, Inc., .

383 F.3d 580 (7" Cir. 2004) .... 2.2... 8, 10, 11, 17

vill

Millbrook v. IBP, Inc.,

ee BOG” Ge, SED viv vce cccecccee 19

Ocana v. American Furniture Co. ,

ee a, i oe ae eisele’ 20

Pippin v. Burlington Res. Oil & Gas Co.,

440 F.3d 1186 (10" Cir. 2006) .............. 19

Reeves v. Sanderson Plumbing Products, Inc..,

Se COGN eccgecccccacs 12, 13, 14, 18

Rios v. Rossotti,

ee ee ae, GD nc ce cccceecceces 7

Rose v. New York City Bd. of Educ.,

oo ee ee 7

Russell v. McKinney Hosp. Venture,

235 F.3d 219 (S" Cir. 2000) ....... 7, 8, 15, 17, 18

Santiago-Ramos v. Centennial P.R. Wireless Corp.,

217 F.3d 46 (1* Cir. 2000)... 2.2... ee. 15, 16

Shager v. Upjohn Co.,

913 F.2d 398 (7 Cir. 1990) ............ 4,6, 11

Simms v. Oklahoma ex rel. Dept. of Mental Health

& Substance Abuse Servs.,

165 F.3d 1321 (10" Cir. 1999) .............. 19

Stacks v. Southwestern Bell Yellow Pages, Inc..,

27 F.3d 1316 (8" Cir. 1994) ............. 7, 16

Stallings v. Hussmann Corp.,

447 F.3d 1041 (8" Cir. 2006) ............... 19

Stimpson v. City of Tuscaloosa,

186 F.3d 1328 (11" Cir. 1999) .......... ree me

Walden v. Georgia-Pacific Corp.,

Se Gs DUD ccc ce cise ccccene 7

Wascura v. City of South Miami,

Bee 0 Geta GO. SOD oo cece. 7,17

Willis v. Marion County Auditor’s Office,

(Tet Teale eee 7

Statutes

MU cag a'y ae eles dg ee ee eo ake l

er err Tree eee. 20

a Ee ee ere 20

42 U.S.C. § 2000e(2)(ayl) .. 2... 2... 1, 2, 6, 18, 20

Opinions Below

The opinion of the United States Court of Appeals for the

Tenth Circuit (App. la-3la) is published at 450 F.3d 476.

The memorandum opinion and order of the United States

District Court for the District of New Mexico (App. 32a-76a)

is unpublished, but unofficially reported at 2004 WL

3426757.

Jurisdiction

The judgment of the court of appeals was entered on June

7, 2006. This Court has jurisdiction pursuant to 28 U.S.C.

§ 1254(1).

Statutory Provisions Involved

Section 703(a) of Title VII of the 1964 Civil Rights Act,

42 U.S.C. § 2000e-2(a)(1), which provides as follows:

It shall be an unlawful employment practice

for an employer—

(1) to fail or refuse to hire or to discharge

any individual, or otherwise to discriminate

against any individual with respect to his

compensation, terms, conditions, or privileges

of empleyment, because of such individual’s

race, color, religion, sex, or national origin.

Statement of the Case

Il. BACKGROUND FACTS AND ISSUES

This case, which arises under Title VII of the 1964 Civil

Rights Act, stems from an incident of insubordination

involving an African American merchandiser, Stephen Peters,

who was employed at BCI’s facility in Albuquerque, New

Mexico.' Mr. Peters reported to the local District Sales

Manager (“DSM”), Cesar Grado, who is Hispanic. Mr.

Grado had no authority to terminate employees, and was

required to run all decisions regarding disciplinary action

through BCI’s Human Resources Department. (App. 35a).

Mr. Peters was scheduled to be off work on the weekend

of September 29 and 30, 2001. Due to a shortage of workers,

Mr. Grado ordered Mr. Peters to come to work on the

weekend. Mr. Peters refused, and Mr. Grado warned him

that continued refusal would be considered insubordination

and could be grounds for termination. (App. 40a). Mr. Peters

admitted in his deposition that he responded by saying: “You

do what you have to do, and | will do what I have to do.”

(App. 40a). True to his word, Mr. Peters did not appear for

work as ordered, and was terminated for insubordination. He

later claimed he was sick, and presented evidence he had

visited a walk-in clinic on Saturday, September 29, 2001.

(App. 43a). The EEOC claims that Mr. Peters was a victim

of race discrimination, in that white and Hispanic employees

who missed work were not treated as harshly. (App. 46a).

' BCI is a bottler of Coca-Cola® products. Merchandisers are

hourly employees whose job duties include product placement, and

cleaning, arranging, and rotation ot displays and promotional

materials in retail grocery outlets. (App. 33a).

The termination decision was actually made by Pat Edgar

who, at the time, was a Human Resources Manager working

in Phoenix but who .had supervisory authority over

Albuquerque. It is undisputed that Ms. Edgar did not know

that Mr. Peters was African American when she made the

termination decision. (App. 9a). She based her decision in

part, but not exclusively, on Mr. Grado’s account of Mr.

Peter’s statements and actions. Ms. Edgar never spoke to

Mr. Peters prior to the termination; however, she-did pull

Mr. Peters’ personnel file, discovering an unrelated but

similar incident of insubordination two years before, including

a final warning, which also contributed to her decision to

terminate. The prior incident of insubordination did not

involve Mr. Grado. (App. 42a-43a).

Contrary to the EEOC’s characterization of the incident,

Mr. Grado did not initially contact Ms. Edgar in order to

report Mr. Peters’ insubordination. Rather, he contacted Ms.

Edgar, before he ever contacted Mr. Peters, for advice on

handling the possibility that Mr. Peters would refuse to work

on the weekend (which in fact occurred). Thus, Ms. Edgar

was involved in advising Mr. Grado while the incident was

unfolding. Ms. Edgar walked Mr. Grado through the exact

statements to make and instructions to give to Mr. Peters, and

it is undisputed that Mr. Grado followed Ms. Edgar’s

directions. It is also undisputed that Mr. Grado was never

asked for his opinion as to what should happen to Mr. Peters

based on his refusal to work, never recommended

termination, and, in fact, never made any comments or

Suggestions at all other than asking Ms. Edgar’s advice on

how to handle the situation and reporting to her what had

occurred. (App. 44a).

The EEOC argued that a subordinate bias theory of

liability (sometimes referred to as “cat’s paw” or “rubber

stamp” liability)’ should apply, because the termination

decision, though made by Ms. Edgar, was supposedly

influenced by racial bias on the part of Mr. Grado. The

EEOC presented some rather vague and conclusory

declarations from former, disgruntled employees, indicating

that Mr. Grado previously treated other African Americans

worse than white or Hispanic employees, and made racially

disparaging remarks towards African Americans. (App. 46a

~ 47a). The EEOC claimed that Mr. Grado, though he never

expressly recommended or even mentioned termination,

presented Ms. Edgar with a distorted version of what

occurred with Mr. Peters, resulting in his termination.

I}. DECISION OF THE DISTRICT COURT

The District Court granted summary judgment in favor of

BCI, dismissing the case in its entirety. (App. 76a). The

district court found that there was no question that Mr. Peters’

conduct (most significantly , his undisputed admonition to Mr.

Grado to “do what you have to do”) was insubordination

warranting termination (App. 58a), and that Ms. Edgar had

no idea Mr. Peters was African American when she made the

termination decision. (App. 69a-71a). The district court also

> The “cat's paw” doctrine derives its name from a fable in

which a monkey convinces an unwitting cat to pull chestnuts from

a hot fire. Courts typically use “cat’s paw” language to refer to a

situation in which a biased subordinate who lacks decision making

power uses the formal decision maker as a dupe to carry out a

discriminatory employment action. (App. 14a). The “rubber

stamp” doctrine refers to a situation in which a decision maker

gives perfunctory approval for an adverse employment action

initiated or recommended by a biased subordinate. (App. 15a).

Judge Posner is believed to have been the first to use the descriptor

“cat's paw” for this category of claim. See Shager v. Upjohn Co.,

913 F.2d 398, 405 (7" Cir. 1990).

found that, while there was sufficient evidence to conclude

that Mr. Grado was racially biased (App. 71a) (a decision

with which BCI disagrees), there was insufficient evidence of

influence by Mr. Grado on the termination decision to

warrant application of a subordinate bias theory of liability.

(App. 66a-67a,71a). The court pointed to the fact that Mr.

Grado never made any recommendation to Ms. Edgar as to

what should happen to Mr. Peters, and to the fact that Ms.

Edgar independently researched Mr. Peters’ employment

history prior to making the termination decision. (App. 66a-

67a,7 1a).

Il. DECISION OF THE TENTH CIRCUIT

The Tenth Circuit reversed the order of summary

judgment, holding that the district court misapplied the

subordinate bias theory of liability because it placed too much

emphasis on the fact that Mr. Grado made no express

recommendation to terminate Mr. Grado. (App. 21a-22a).

The Court expressly rejected the notion that a plaintiff must

show that a decisionmaker followed the recommendation of

a biased subordinate in order to prevail under a subordinate

bias theory of liability, thereby effectively overruling a prior

Tenth Circuit decision addressing this issue. See English v.

Colorado Dep't of Corr., 248 F.3d 1002, 1011 (10" Cir.

2001). .

The Court also ruled that Ms. Edgar's independent

investigation of the report received from Mr. Grado--namely

looking at Mr. Peters’ personnel file including his prior

history of insubordination—was insufficient, as a matter of

law, to defeat the inference that Mr. Grado's racial bias

tainted her decision. (App. 30a-31a). The Court implied that

direct contact by the decisionmaker with the accused

employee is an essential requirement for a true “independent

investigation” sufficient to negate subordinate bias liability.

(App. 30a-3la). The Court acknowledged that Mr. Peters

telling Mr. Grado to “do what you have to do” was

undeniably insubordinate, but focused on discrepancies

(which BCI contended were immaterial) between Mr. Grado’s

and Mr. Peter’s accounts of events leading to the termination,

pointing out that only Mr. Grado’s version of events was

relayed to Ms. Edgar. (App. 28a-30a). The Court held that

whether or not Mr. Grado's supposed bias was a factor in the

termination decision was for a jury to decide, and remanded

the case for trial. (App. 31a).

REASONS FOR GRANTING THE PETITION

BCI respectfully submits that there are two reasons why

this Court should grant its petition for writ of certiorari and

review the Tenth Circuit’s decision. First, as the Tenth

Circuit and other courts have recognized, there is a distinct

split of opinion among the circuit courts of appeal as to the

proper standard for applying subordinate bias liability, or the

so-called “cat’s paw” theory of liability, under Title VII.

Second, the Tenth Circuit’s ruling hinges upon an important

question of federal employment law that has not been, but

should be, settled by the Supreme Court: namely, under what |

circumstances may an employer be held liable for intentional

discrimination when the person who made the adverse

employment decision admittedly harbored no discriminatory

bias toward the impacted employee.

I. THE CIRCUITS ARE SPLIT

Judge Posner of the Seventh Circuit is believed to have

been the first to use the descriptor “cat’s paw” to label the

doctrine of employer liability based upon the motivations of

a biased subordinate. See Shager, 913 F.2d at 405. The

circuit courts of appeal that have subsequently considered the

issue of subordinate bias liability have generally embraced the

concept that an employer’s culpability for an adverse

employment decision may sometimes extend beyond the

motivations of the official decisionmaker. See, e.g., Gee v.

Principi, 289 F.3d 342, 345-47 (5" Cir. 2002); Christian v.

Wal-Mart Stores, Inc. , 252 F.3d 862, 876-78 (6" Cir.), reh’g

denied, 266 F.3d 407 (2001); Bergene v. Salt River Project

Agric. Improvement & Power Dist., 272 F.3d 1136, 1141 (9"

Cir. 2001); Abramson v. William Paterson Coll. of New

Jersey, 260 F.3d 265, 285-86 (3d Cir. 2001); Wascura v. City

of South Miami, 257 F.3d 1238, 1247 (11" Cir. 2001); Rose

v. New York City Bd. of Educ., 257 F.3d 156, 162 (2d Cir.

2001); Rios v. Rossotti, 252 F.3d 375, 381-82 (5" Cir. 2001):

English v. Colorado Dep’t of Corr., 248 F.3d 1002, 1011

(10" Cir. 2001); Russell v. McKinney Hosp. Venture, 235

F.3d 219, 226-28 (5 Cir. 2000); Kendrick v. Penske Transp.

Servs., Inc., 220 F.3d 1220, 1231 (10" Cir. 2000); Stimpson

v. City of Tuscaloosa, 186 F.3d 1328, 1331 (11" Cir. 1999);

Liampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1249-

50 (11" Cir. 1998), reh’g denied, 178 F.3d 1305, cert.

denied, 528 U.S. 930 (1999); Griffin v.. Washington

Convention Ctr., 142 F.3d 1308, 1310-11 (D.C. Cir. 1998);

Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344,

354-55 (6" Cir. 1998); Eiland vy. Trinity Hosp. , 150 F.3d 747,

752 (7" Cir. 1998); Willis v. Marion County Auditor's Office,

118 F.3d 542, 547 (7" Cir. 1997); Walden v. Georgia-Pacific

Corp., 126 F.3d 506, 514-15 (3d Cir. 1997), cert. denied,

523 U.S. 674 (1998); Long v. Eastfield Coll., 88 F.3d 300,

307 (5" Cir. 1996); Stacks v. Southwestern Bell Yellow Pages,

Inc., 27 F.3d 1316, 1325 (8" Cir. 1994). As expressly

acknowledged by the Tenth Circuit, however, there has been

much confusion, disagreement, and outright debate over both

the appropriate analytical framework for such a theory of

liability, and the facts that a plaintiff must show to permit it

to be applied.

A. There is an Acknowledged Split Among the

Tenth/Seventh, Fifth, and Fourth Circuit Courts of

Appeal With Respect to Subordinate Bias Liability

Prior to the Tenth Circuit’s decision in this case, the most

fully fleshed-out analyses of the subordinate bias theory of

liability were found in decisions from the Seventh, Fourth,

and Fifth Circuits, none of which utilized the same standards

or approach in applying the theory. Compare Hill v.

Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277 (4"

Cir. 2004), cert. dismissed, 543 U.S. 1132 (2005), with

Russell, 235 F.3d at 219, with Lust v. Sealy, Inc. , 383 F.3d

580 (7" Cir. 2004). Before setting forth its own analysis, the

Tenth Circuit expressly acknowledged this split of authority:

Despite broad support for some theory of

subordinate bias liability, our sister circuits

have divided as to the level of control a biased

subordinate must exert over the employment

decision.

(App. 18a)

The Tenth Circuit then presented its own characterization

of the split, first recognizing what it described as a “lenient”

approach, currently followed by the Fifth Circuit, wherein a

plaintiff is merely required to demonstrate some “influence”

over the titular decision maker in order to prevail on a theory

of subordinate bias liability. (App. 18a-19a) (citing Russell,

235 F.3d at 227). Under this view

summary judgment generally is 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.

(App. 19a) (quoting Dey v. Colt Constr. & Dev. Co., 28 F.3d

1446, 1459 (7" Cir. 1994)). The Tenth Circuit rejected this

“lenient” approach, observing that “[sjuch a weak

relationship between the subordinate’s actions and the ultimate

employment decision improperly eliminates a requirement of

causation.” /d.

The Tenth Circuit next discussed the approach set forth in

Hill, 354 F.3d at 277, in which the Fourth Circuit held that

to survive summary judgment, an aggrieved

employee who rests a _ discrimination

Claim...upon the discriminatory motivations of

a subordinate employee must come forward

with sufficient evidence that the subordinate

employce possessed such authority as to be

viewed as the one principally responsible for

the decision or the actual decisionmaker of the

employer.

Id. at 291. In Hill, the Fourth Circuit ruled that an employer

cannot be held liable unless this standard is met, even if there

is evidence the biased subordinate exercised “substantial

influence” or played a “significant” role in the employment

decision. /d. at 289. The Tenth Circuit rejected the Fourth

Circuit’s standard as being so strict as to undermine the

deterrent effect of subordinate bias claims. (App. 20a).

After characterizing the Fifth and Fourth circuits as being

at “opposite extreme{s|” on the issue of subordinate bias

liability (App. 19a), the Tenth Circuit announced it was

aligning itself with the Seventh Circuit, which, while

expressly rejecting the “actual decision maker” standard set

forth by the Fourth Circuit in Hill, also requires the plaintiff

to establish more than mere “influence” or “input” in the

decisionmaking process in order to prevaé! a a claim based

on subordinate bias. (App. 20a-21a) (citing Lust, 383 F.3d at

584 (Posner, J.)). The Tenth Circuit thus embraced what

might be described as the “causation” standard of subordinate

bias liability, an approach that requires the plaintiff to

establish a causal link between the subordinate’s bias and the

adverse employment decision. /d. at 488.

The Tenth Circuit is not the first court to wrestle with

intra-circuit confusion, disagreement, and _ conflicting

precedent on the issue of subordinate bias liability, nor is it

the first court to observe the extra-jurisdictional conflict

among the circuits on how this theory is articulated and

applied. In the Hili decision, for instance, a divided Fourth

Circuit panel initially reversed an award of summary

judgment to the employer, applying a theory of subordinate

bias liability based on the “substantial influence” standard

applied by the Fifth Circuit. See Petition for Certiorari to the

United States Court of Appeals for the Fourth Circuit in Hill

v. Lockheed Martin Logistics Mgmt. , Inc., No. 03-1443, 2004

WL 838126 at *4 (“Hill Petition”). The dissenting panel

member maintained that an employer could be held liable only

if there was a discriminatory purpose on the part of the

“actual decisionmaker.” /d. at *4-5. The Fourth Circuit

reheard the case en banc, voting 7-4 to vacate the panel

opinion and reinstate the award of summary judgment. /d. at

Like the Tenth Circuit, the Fourth Circuit in Hill

expressly acknowledged the split of opinion on this issue,

observing that “while the courts often utilize the same

terminology...they have not always described the theory in a

consistent way....” Hill, 354 F.3d at 290. The en banc

majority opinion in Hill frankly recognized that its holding

conflicted with the Fifth Circuit’s decision in Laxton v. Gap,

Inc., 333 F.3d 572 (5" Cir. 2003), which held that “the

relevant inquiry is whether the supervisor harboring a

discriminatory animus had ‘influence or leverage over’ the

decisionmaking of those ‘principally responsible’ for the

adverse employment actions.” Hill, 354 F.3d at 290 (quoting

Laxton, 333 F.3d at 584). The dissent in Hill also

acknowledged the split, noting that the majority’s decision

“puts us at odds with virtually every other circuit...” /d. at

299.

The Seventh Circuit (specifically , Judge Posner, revisiting

the “cat’s paw” theory of liability which he inaugurated

fourteen years prior) has also expressly acknowledged the

split of authority on this issue, stating that the rationale set

forth by the Fourth Circuit in Hill is “not the view of this

court.” Lust, 383 F.3d at 584. Judge Posner pointedly

criticized the Hill court for applying what he characterized as

an overly literal reading of his earlier opinion in Shager:

The [cat’s paw] formula was (obviously) not

intended to be taken literally (Sealy employs

no felines), and were it taken even

semiliterally 1 would be inconsistent with the

normal analysis of causal issues in tort

litigation.

Id. As is readily apparent from Judge Posner’s comments, as

well as the conflicting commentary and analysis set forth in

the Hill case and the case at bar, the issue of subordinate bias

liability presents a pronounced divergence of opinion, ripe for

resolution by this Court.

B. The Tenth and Fourth Circuit Courts of Appeal

are in Conflict over the Proper Application of

Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133 (2000), in the Area of Subordinate Bias

Liability

In articulating their contradictory standards for

subordinate bias liability, the Fourth and Tenth Circuits based

their holdings, in part, on this Court’s decision in Reeves v.

Sanderson Plumbing Prods., Inc. , 530 U.S. 133 (2000). In

Reeves, this Court reinstated a jury verdict for a plaintiff,

finding that he had produced sufficient evidence of age

discrimination. This evidence included testimony that Powe

Chestnut, the director of manufacturing (and the company

president’s husband) harbored age animus against the

plaintiff. /d. at 151. Although the president, Sandra

Sanderson, made the decision to terminate plaintiff's

employment, this Court acknowledged plaintiff's “evidence

that Chestnut was motivated by age-based animus and was

principally responsible for [plaintiff's] firing.” /d. (emphasis

added). The Court also noted plaintiff's evidence that

“Chestnut was the actual decisionmaker behind his firing”

even though it was Sanderson “who made the formal decision

to discharge {plaintiff].” /d. at 152 (emphasis added).

Relying upon this language in Reeves, the Fourth Circuit

stated that:

Reeves informs us that the person allegedly

acting pursuant to a discriminatory animus

need not be the “formal decisionmaker” to

impose liability upon an employer for an

adverse employment action, so long as the

plaintiff presents sufficient evidence to

establish that the subordinate was the one

“principally responsible” for, or the “actual

decisionmaker” behind, the action.

Hill, 354 F.3d at 288-89. The Fourth Circuit rejected the

argument that this language in Reeves “does not define the

outer contours of who may be considered a decisionmaker for

purposes of imposing liability upon an employer.” /d. at 289.

Rather, the court embraced the Reeves language, and further

noted that “the Court’s clear emphasis upon who holds the

‘actual decisionmaking’ power and authority or who has

‘principal responsibility’ for an employment decision is

consistent with the limitations set forth in [Burlington Indust.,

Inc. v. Ellerth, 524 U.S. 742 (1998)].” Id.

In adopting a different standard than Hill, the Tenth

Circuit expressly rejected Hill’s reliance upon Reeves. Ina

clear contradiction of opinion, the Tenth Circuit stated that

“[t}he Fourth Circuit’s strict approach makes too much of the

phrase ‘actual decisionmaker’ in Reeves; the Court was

describing what the petitioner’s evidence showed, not

prescribing the ‘outer contours’ of liability.” (App. 20a).

Finding the Hill court’s reliance upon Reeves “peculiar,” id. ,

the Tenth Circuit stated bluntly that the Fourth Circuit's

“focus on ‘who is a decisionmaker’ for purposes of

discrimination actions seems misplaced.” /d. (citation

omitted). Moreover, while the Fourth Circuit found its

standard consistent with this Court’s agency analysis in

Ellerth, the Tenth Circuit found just the opposite. Compare

Hill, 354 F.3d at 289 with App. 20a.

The circuit split over the appropriate standard for

subordinate bias liability, therefore, includes a circuit split

over the proper application of this Court’s holdings and

findings in Reeves. This circuit split further supports BCI’s

petition for review as this case will present the opportunity for

this Court to rule upon how its findings in Reeves affect and

control the contours of subordinate bias liability.

C. Other Circuit Courts of Appeal Apply Different

Standards of Subordinate Bias Liability

The current stand-off among the Tenth/Seventh, Fifth, and

Fourth circuits on the appropriate standard for application of

subordinate bias liability is only the latest permutation of a

shifting but longstanding discord among the circuits (and even

within circuits) regarding this issue. See, e.g, Hill Petition,

*9-19 (gathering and summarizing cases applying various

theories of subordinate bias liability). Over the years, courts

have widely differed on the level of influence that an allegedly

biased subordinate or supervisor must have on the ultimate

decisionmaker, and the level of involvement the subordinate

must have in the decisionmaking process, before liability will

be imposed on the employer.

A prime example of this divergence of opinion is

presented by the case at bar, where the Tenth Circuit

announced and applied a standard that conflicts with its prior

precedent. Specifically, the court stated that, under its chosen

standard for application of a theory of subordinate bias

liability, an employer may be liable even if the biased

subordinate never expressly recommended termination.

(App. 21a-22a). Indeed, the Tenth Circuit held that the trier

of fact might conclude that Mr. Grado caused Mr. Peters’

termination, despite the fact that Mr. Grado admittedly made

no comments or suggestions at all regarding what should

happen to Mr. Peters.’ In so doing, the Tenth Circuit

effectively overruled circuit precedent, which required that a

claimant “must show that the decisionmaker ‘followed the

biased recommendation [of a subordinate] without

independently investigating the complaint against the

employee.’” See English, 248 F.3d at 1011. By altering its

position on the requirement of a recommendation, the Tenth

Circuit not only contradicted (without expressly overruling)

its precedent, but also placed itself in opposition to numerous

cases Clearly indicating that, in order for subordinate bias

liability to apply, a subordinate must assert more overt

influence over the decisionmaker and/or play a more

proactive role in instigating or orchestrating the employment

decision than occurred in the case at bar. See, e.g., Russell,

235 F.3d at 221 (finding that plaintiff's fellow-manager

substantially influenced the termination decision of upper-

level management, when he gave his boss the ultimatum that

he would quit if she did not fire the plaintiff); Santiago-Ramos

v. Centennial P.R. Wireless Corp., 217 F.3d 46, 55 (1" Cir.

2C00) (stating that plaintiff's direct supervisor substantially

influenced the termination where he had repeated “daily

conference calls” with regional manager regarding plaintiff,

and was asked for his opinion regarding plaintiff’ s dismissal).

The Sixth Circuit has also offered varying standards. In

a 1998 case, the court stated that “remarks by those who did

not independently have the authority or did not directly

exercise their authority to fire the plaintiff, but who

nevertheless played a meaningful role in the decision to

terminate the plaintiff, were relevant.” Ercegovich, 154 F.3d

* Even assuming Mr. Grado harbored a racial bias, the EEOC

failed to present any evidence demonstrating that Mr. Grado, who

was short-staffed and desperately seeking workers to cover shifts,

wanted Mr. Peters to be terminated. (App. 38a-39a).

at 354-55 (emphasis added). Three years later, however, the

court ignored Ercegovich’s “meaningful role” standard and

stated that “the plaintiff must offer evidence that the

supervisor’s racial animus was the cause of the termination or

somehow influenced the ultimate decisionmaker.” Christian,

252 F.3d at 877 (emphasis added).

Whereas the Sixth Circuit maintains the different

standards of a subordinate’s level of involvement

—“meaningful role” vs. “somehow influenced” — the Ninth

Circuit applies a more lenient standard than either of the Sixth

Circuit standards, requiring that the subordinate merely be

“involved” in (as opposed to have actually influenced) the

decision. See Bergene, 272 F.3d at 1141 (stating that,

“{e]ven if a manager was not the ultimate decisionmaker, that

manager's retaliatory motive may be imputed to the company

if the manager was involved in the hiring decision”). The

Eighth Circuit, on the other hand, describes its standard in

terms of whether the subordinate used the ultimate

decisionmaker as a conduit and actually acted to set the

plaintiff up to fail. See Kientzy v. McDonnell Douglas Corp. ,

990 F.2d 1051 (8" Cir. 1993); Stacks, 27 F.3d at 1316.

Some circuit courts of appeal simply state that liability

will be imposed if there is evidence that the biased

subordinate merely “influenced” the ultimate decisionmaker.

The First Circuit, for example, stated that, in order to prove

that the employer’s reason for the adverse action was a

pretext for discrimination, the employee need only “show that

discriminatory comments were made by the key

decisionmaker or those in a position to influence the

decisionmaker.” Santiago-Ramos, 217 F.3d at 55 (emphasis

added). ‘The Third Circuit described the standard differently ,

stating that, “[u]nder our case law, it is sufficient if those

exhibiting discriminatory animus influenced or participated in

the decision to terminate.” Abramson, 260 F.3d at 286

(Alito, J., participating) (emphasis added).*

The level of influence that must be exerted by a biased

subordinate in order to impose liability on the employer is

higher in the Eleventh Circuit. In that circuit, liability will be

imposed where the biased subordinate actually “is the

decisionmaker, and the titular ‘decisionmaker’ is a mere

conduit for the harasser’s discriminatory animus.”

Llampallas, 163 F.3d at 1249 (emphasis in original). See

also Wascura, 257 F3d at 1247 (indicating that the biased

subordinate must be a “dominant decision-maker whose

decision was rubber-stamped by others”). The District of

Columbia Circuit has spoken in reverse terminology, “holding

that evidence of subordinate bias is relevant where the

ultimate decision maker is not insulated from the

subordinate’s influence.” Griffin, 142 F.3d at 1312

(Ginsburg, J.).

As these decisions reveal, there existed intercircuit and

intracircuit disagreement over the appropriate standard long

before the issue ripened over the last two years in Hill, Lust,

Russell, and (now) BCI. In short, there is a longstanding,

expressly acknowledged circuit split with respect to the

determinative issue in this case, bringing this matter squarely

within the ambit of this Court’s discretionary jurisdiction.

The Third Circuit cited, among other cases, the D.C. Circuit's

1998 decision, authored by then-Judge Ginsburg, wherein the court

held that “evidence of a subordinate’s bias is relevant where the

ultimate decision maker is not insulated from the subordinate’s

influence.” Griffin, 142 F.3d at 1312 (Ginsburg, J.).

il. THIS CASE IS AN EXCELLENT VEHICLE TO

RESOLVE AN IMPORTANT QUESTION OF

FEDERAL LAW

The ultimate question in any employment discrimination

case involving a claim of disparate treatment is whether the

plaintiff was a victim of intentional discrimination. Reeves,

530 U.S. at 153. This ultimate question is at the heart of the

matter that was presented to the Tenth Circuit in this case:

Based on the undisputed facts, could a reasonable trier of fact

conclude that Mr. Peters was subjected to intentional

discrimination on the basis of his race? It is clear that the

answer to this question would have been different if the matter

had arisen in the Fourth Circuit. Indeed, the case might have

turned out very differently even under the supposedly

“lenient” standard applied in the Fifth Circuit, where in

Russell, the Fifth Circuit found that a theory of subordinate

bias liability was applicable in a case where the influence

exercised by the subordinate over the decisionmaking process

far exceeded the supposed “influence” exerted by Mr. Grado

over Ms. Edgar. See Russell, 235 F.3d at 228 (observing that

the allegedly biased subordinate exerted so much influence

over the decisionmaker that she “essentially regarded her

decision to terminate [the employee] as ordained by other

forces”). In fact, the case might have turned out differently

in any circuit, even the Tenth Circuit, depending upon the

predilections of the panel regarding which of the various

available standards to apply. Such indirection and ambiguity

in the law severely undermine the best efforts of mult:

jurisdictional employers such as BCI to comply with Title VII

and other anti-discrimination laws.

In the realities of today’s workplace, ultimate decisions

are frequently made by decisionmakers who are at some level

removed from employees and who must rely to varying

degrees on information received from subordinates. Indeed,

the practice utilized by BCI in this case, of elevating the

decision at issue to trained Human Resources personnel, is

inarguably a deterrent against discrimination, as it provides

for consistent application of policies and neutrality in

decisionmaking. Are employers such as BCI best advised to

eschew such centralized decisionmaking, either entirely, or in

certain areas, depending upon the prevailing judicial views in

its various operational divisions? As the Tenth Circuit

suggests, is someone in Ms. Edgar’s position required to have

direct contact with the employee at issue in every instance, in

order to avoid a claim based upon subordinate bias liability?

And if that is the case, does that mean it is now appropriate,

in contradiction to the overwhelming weight of prior

authority,? for -courts to act as “super personnel

department(s)” dictating in minute detail the practices of

employers? All of these extremely important and timely

questions underlie the issue presented for review, and make

this case an excellent vehicle for the Court to provide much-

needed guidance to employers, employees, the EEOC, and all -

interested parties, regarding these matters.

> The following cases state that courts may not act as a “super

personnel departments” that second guess employers’ business

judgments: Pippin v. Burlington Res. Oil & Gas Co., 440 F.3d

1186, 1197 (10" Cir. 2006) (quoting Simms v. Oklahoma ex rel.

Dept. of Mental Health and Substance Abuse Serv., 165 F.3d 1321,

1330 (10" Cir. 1999)); Argo v. Blue Cross & Blue Shield of

Kansas, Inc., 452 F.3d 1193, 1203 (10" Cir. 2006): Bender v.

Hecht's Dep't Stores, 455 F.3d 612, 628 (6" Cir. 2006); Stallings

v. Hussmann Corp., 447 F.3d 1041, 1052 (8" Cir. 2006):

Millbrook v. IBP, Inc., 280 F.3d 1169, 1181 (7" Cir. 2002), cert.

denied, 537 U.S. 884 (2002); Holcomb v. Powell, 433 F.3d 889,

897 (D.C. Cir. 2006).

The issue presented for review undeniably has a far-

reaching impact, applying to all employers covered by federal

anti-discrimination laws, including Title VII, 42 U.S.C.

§ 1981, and the Age Discrimination in Employment Act, 29

U.S.C. § 621 et seq. (“ADEA”).° Christian, 252 F.3d at

868; Hill, 354 F.3d at 283-84, 286-87. Moreover, parties on

all sides of the issue agree both as to the importance of the

issue and the need for guidance—as the Court will recall, the

unsuccessful plaintiff in the Hill case petitioned this Court for ~

review of this very issue in 2004.’ See Hill Petition, 2004

WL 838126. In fact, the Court invited the Solicitor General

to submit a brief addressing the issue of subordinate bias

liability, prior to the petitioner’s voluntary withdrawal of the

petition in /7ill. BCI is hopeful the Court will seize upon this

renewed opportunity to articulate a reasonable, universal

standard for application of the subordinate bias theory of

liability.

This Court’s review of this issue will also have an impact on

state anti-discrimination laws, as state courts frequently look to

federal law for guidance when applying their own state anti-

discrimination statutes. See, e.g., Ocana v. American Furniture

Co., 91 P.3d 58, 68 (N.M. 2004) (applying New Mexico law);

Christian, 252 F.3d at 880 (applying Ohio law); Beason v. United

Tech. Corp., 337 F.3d 271, 276 (2d Cir. 2003) (applying

Connecticut law); LaBove v. Raftery, 802 So. 2d 566, 573 (La.

2001) (applying Louisiana law).

' The EEOC has gone on record opining about the importance of

the issue of subordinate bias liability, filing an amicus brief with the

Fourth Circuit in the Hill case.

CONCLUSION

For all of the reasons set forth above, BCI Coca-Cola

Bottling Company of Los Angeles respectfully submits that

the petition for writ of certiorari should be granted.

Respectfully submitted,

ERIC TODD PRESNELL

Counsel of Record

KARA E. SHEA

MILLER & MARTIN PLLC

1200 ONE NASHVILLE PLACE

150 FOURTH AVENUE NORTH

NASHVILLE, TENNESSEE 37219

615-244-9270

«!

— —

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 04-2220

[Filed June 7, 2006]

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION,

Plaintiff-Appellant,

BC] COCA-COLA BOTTLING

COMPANY OF LOS ANGELES,

doing business as Phoenix Coca-Cola

Bottling Company; COCA-COLA

BOTTLING COMPANY OF

ALBUQUERQUE,

Defendants-Appellees.

ORDER

BEFORE: LUCERO, McKAY, and McCONNELL, Circuit

Judges.

The Equal Employment Opportunity Commission

(“EEOC”) asks us to reverse the district court’s decision

granting summary judgment to BCI Coca-Cola Bottling Co.

of Los Angeles (“BCI”) on a claim of race discrimination

arising from the termination of a black employee, Stephen

Peters. It is undisputed that the human resources official who

made the decision to terminate Mr. Peters worked in a

different city, had never met Mr. Peters, and did not even

know that he was black. In making the decision to terminate,

however, the human resources official relied exclusively on

information provided by Mr. Peters’ immediate supervisor,

who not only knew Mr. Peters’ race but allegedly had a

history of treating black employees unfavorably and making

disparaging racial remarks in the workplace. Because we find

that genuine issues of material fact exist as to whether BCI’s

proffered explanation for the termination is a pretext for racial

discrimination, we reverse the decision of the district court

and remand for further proceedings.

I. Factual and Procedural Background

Stephen Peters worked as a merchandiser for BCI at its

Albug. erque, New Mexico facility from May 1995 through

October 2001. More than 60% of the 200 employees at the

Albuquerque facility were Hispanic, while fewer than 2%

were black. Merchandisers are hourly employees responsible

for placement of Coca-Cola products in retail outlets such as

grocery stores. Their job duties include arranging, cleaning,

and rotating product displays and promotional materials.

They generally work five days a week, with two days off, but

because grocery stores remain open seven days a week,

merchandisers’ schedules are staggered and they must

occasionally work overtime to cover shifts. As the most

senior merchandiser in the district, Mr. Peters had the most

desirable schedule, with Saturdays and Sundays off. He was

generally regarded as a “good merchandiser,” and in 2001 he

received a certificate from BCI thanking him for five years of

“service, dedication and commitment to the Company.” App.

143, 151. The certificate specifically thanked him for “being

a team player.” /d. at 151.

Mr. Peters reported to Cesar Grado, a District Sales

Manager, who is Hispanic. On a day-to-day basis, Mr.

Peters was supervised by a salaried Account Manager, Jeff

Katt, who is white. Although both Mr. Katt and Mr. Peters

both reported directly to Mr. Grado, who handled all

scheduling and route assignments for merchandisers and

account managers in his district, it was common for

merchandisers to call in sick to the account manager who

supervised their work. Mr. Grado was responsible for

monitoring and evaluating the employees under his

supervision, but was not authorized to discipline or terminate

anyone. Instead, Mr. Grado had broad discretion to “bring

facts relating to the matter to the attention of [the] Human

Resources Department,” which was ultimately responsible for

deciding which company policy applied and whether to take

any disciplinary action. App. 34. The highest-ranking

human resources official in the Albuquerque office was

Sherry Pederson. Ms. Pederson’s supervisor, Pat Edgar,

worked 450 miles away in BCI’s Phoenix, Arizona office.

Neither Ms. Pederson nor Ms. Edgar had met or even heard

of Mr. Peters until September 28, 2001, four days before his

termination.

The weekend of September 29-30, 2001, Mr. Grado faced

a serious scheduling crunch. Several stores in his district

were running ads for Coca-Cola products, necessitating an

extra merchandiser for the weekend, and on the morning of

Friday, September 28 he learned that another merchandiser

who ordinarily worked as a “floater” to cover extra shifts had

suffered an on-the-job injury and would be out for a week.

Sometime between midday and 2:00 pm on Friday, Mr.

Grado directed Mr. Katt to direct Mr. Peters to work on

Sunday, September 30.' When Mr. Katt relayed the

instruction, Mr. Peters responded, “I can’t do it. I’ve got

plans.” /d. at 67. According to Mr. Grado, when Mr. Katt

recounted the conversation he added that Mr. Peters said he

“might call in sick.” /d. at 35. Both Mr. Peters and Mr.

Katt, however, deny that Mr. Peters said anything about

being sick during that conversation, and Mr. Katt denies

passing along any such comment to Mr. Grado.

Frustrated, Mr. Grado decided to seek advice from the

Human Resources Department. Ms. Pederson was out of the

office on Friday afternoon, so Mr. Grado called Ms. Edgar

in Phoenix. Mr. Grado said that he expected Mr. Peters was

going to refuse to come to work on Sunday, and asked

whether he could require Mr. Peters to come in on his day

off. Specifically, he told Ms. Edgar that Mr. Peters planned

to call tn sick on Sunday. Ms. Edgar found that prospect

“unacceptable” because, under BCI policy, an employee may

not call in sick two days in advance. /d. at 23. She advised

Mr. Grado to “find out what the situation was” and, unless

Mr. Peters had a “compelling reason” why he could not come

to work, to order Mr. Peters to work on Sunday. /d. She

told Mr. Grado to characterize the instruction as a “direct

order” and to say that failure to comply would amount to

insubordination, which is grounds for termination. /d.

' In his declaration, Mr. Grado stated that he had already

discussed the matter with Mr. Katt and Mr. Peters had already

agreed to work on Sunday, September 30. It is unclear, then, why

he contacted Mr. Katt to order Mr. Peters yet again to work that

day. In any case, Mr. Katt denies that Mr. Grado ever contacted

him before Friday at 2:00 concerning the possibility that Mr. Peters

might work on Sunday

Mr. Grado then paged Mr. Peters, who called

immediately. Mr. Grado ordered Mr. Peters to work on

Sunday, and Mr. Peters responded that he had plans.. Mr.

Grado says that he asked Mr. Peters what his plans were, but

that Mr. Peters angrily responded that his plans were “none

of [Mr. Grado’s] business,” and started yelling. Mr. Peters

says that Mr. Grado never asked his plans; instead, he simply

told Mr. Grado that he had plans and that he had not been

feeling well all week. They both agree, however, that Mr.

Grado said, “I’m not asking you to come to work, I’m telling

you to come to work. If you do not come to work, it could

lead to insubordination and could lead to termination.” /d. at

58. They also agree that the conversation ended with Mr.

Peters telling Mr. Grado, “[DJo what [you] got to do and I'll

do what I got to do.” Jd. Mr. Peters claims that he intended

this statement as a way to end the conversation without a

confrontation. Mr. Grado interpreted it as open defiance, and

a firm ‘ntention to disobey the order to come to work on

Sunday.

Late in the afternoon on Friday, Mr. Grado again

contacted Ms. Edgar in Phoenix. He related “exactly what

had happened”: that he had asked Mr. Peters to describe his

plans, but that Mr. Peters had refused to say what his plans

were, had angrily said his plans were “none of [Mr. Grado’s}

business,” and had told Mr. Grado to “do what he needed to

do.” /d. at 24, 65. Ms. Edgar determined at that time that

Mr. Peters’ conduct in that conversation, standing alone,

amounted to insubordination warranting termination.

Nonetheless, because it was late in the day on Friday, she did

not make the decision to terminate Mr. Peters that day.

In fact Mr. Peters was sick. On the evening of Saturday,

September 29 he cancelled his plans for Sunday and went to

an urgent care clinic, complaining of a headache, sinus pain,

and cough. A doctor diagnosed him with a sinus infection,

gave him a prescription, and directed him not to return to

work until Monday, October 1. That night Mr. Peters

phoned Mr. Katt and explained that he had just come from the

doctor’s office and probably could not work Sunday because

of illness. Mr. Katt “seid he didn’t have any problem with

that,” but asked Mr. Peters to call in the morning if he felt

well enough to work. /d. at 197. After hanging up, Mr. Katt

repeatedly tried to page Mr. Grado to describe the

conversation, but for some reason Mr. Grado never

responded to the pages.

Mr. Peters did not work on Sunday, September 30. Mr.

Katt and Mr. Grado personally worked routes that day to

ensure coverage. Mr. Peters returned to work as usual on

Monday morning.

On Monday, October 1, Ms. Edgar held a series of phone

calls with Ms. Pederson (who was back in the office) and Mr.

Grado concerning Mr. Peters’ conduct. Mr. Grado explained

that Mr. Peters had not come to work on Sunday. Also, Ms.

Pederson pulled Mr. Peters’ file and found a Disciplinary

Status Notice describing an incident in 1999 where Mr. Peters

received a two-day disciplinary suspension and “final

warning” for insubordination from a different supervisor.

During that incident, the supervisor had called Mr. Peters on

a Friday morning and ordered him to work on his day off that

weekend. Mr. Peters refused and, according to the status

notice, “was rude and unprofessional in his conduct.” /d. at

53. He was warned that “{a]ll Coca-Cola employees must...

follow direct orders from their supervisors. Failure to

comply is considered a direct act of insubordination....

subject to disciplinary action up to and including

termination.” /d. at 54. Although Ms. Edgar did not know

it, because the file provides no further details, Mr. Peters had

good reason to be upset during the 1999 incident. He had

learned earlier that week that his fiancee’s son -- whom he

iad raised as his own son for years -- had been killed in a car

accident. He could not work that Saturday because he had to

serve as a pallbearer at the funeral. His supervisor told him

that the funeral was no excuse for refusing a direct order

because “he was not your biological son.” /d. at 147.

By the end of the day on Monday, Ms. Edgar made a final

decision to terminate Mr. Peters for insubordination. In a

declaration prepared as part of this litigation in 2004, Ms.

Edgar said that her decision was based “[f]irst and foremost”

on “the conduct of Mr. Peters toward Mr. Grado on Friday.”

Id. at 26. The 1999 incident from the file reinforced for Ms.

Edgar that Mr. Peters had a track record of insubordination,

and also contributed to the decision. She emphasized that

“Mr. Peters was not terminated because he did not show up

for work on Sunday, except to the extent this conduct is

viewed in context with his exchange with Mr. Grado on

Friday... as the fulfillment of Mr. Peters {sic] stated intention

to defy a direct order from Mr. Grado.” /d. at 27. Ms.

Edgar claims that she had already learned, in a conversation

with Mr. Grado, that Mr. Peters had been excused by Mr.

Katt from work on Sunday, but that this information did not

affect her decision. She found Mr. Peters’ “alleged sickness”

to be “highly suspect,” and “found it particularly suspicious

that Mr. Peters chose to call in sick to Mr. Katt, rather than

Mr. Grado, given the fact that Mr. Peters had been warned by

Mr. Grado the day before that if he did not come to work he

would be subject to termination.” /d. at 27.

Mr. Katt’s deposition provides a different account of these

events. Mr. Katt says that he did not tell Mr. Grado that Mr.

Peters phoned in sick until Monday evening at 6:00 pm,

during a discussion of the upcoming week’s schedule. Mr.

Katt asked which route Mr. Peters was going to cover, and

Mr. Grado replied, “I think I’m going to terminate him.” /d.

at 203. Mr. Katt asked, “You do know he called in, he called

in sick tome?” /d. at 204. Mr. Grado “kind of paused” and

asked, “Why didn’t you tell me that earlier?” Jd. Mr. Katt

replied, “I did. I tried to page you.” /d. According to Mr.

Katt, this exchange took place Monday evening, after Ms.

:dgar already made her decision to terminate Mr. Peters.

Mr. Peters was terminated Tuesday morning, October 2,

at a meeting attended by Mr. Peters, Mr. Grado, Mr. Grado’s

supervisor Don Bateluna, and Ms. Peterson. Mr. Grado

began the discussion by announcing, “ You’ ve been terminated

for insubordination, for not showing up for work.” /d. at

193. Mr. Peters was promptly presented with a termination

paper. That document said nothing about Mr. Peters raising

his voice or refusing to explain his plans during the phone

conversation on Friday. Instead, the notice states that Mr.

Peters had been given a direct order to work on Sunday, and

had been warned that “failure to comply with the directive

would be considered insubordination and would result in

termination.” /d. at 41. It concludes, “You did not report to

work on Sunday 9-30-01, therefore your employment in [sic]

being terminated for insubordination.” /d. The “violation

date” listed is Sunday, September 30, the day Mr. Peters was

supposed to come to work, not Friday, September 28, the day

of the conversation with Mr. Grado. /d.

Mr. Peters explained that he had not reported to work

because he was sick. He said that he had called Mr. Katt and

had received permission to miss work that day “because |

went to the doctor.” /d. at 193. He protested that “[nJeither

one of {you} asked me why I didn’t show up for work.” /d.

Mr. Peters says that after he told them about the call to Mr.

Katt, “they all got quiet. And when | left they shut the door

and was [sic] in there talking.” /d.

Shortly after that meeting, Ms. Pederson cailed Ms. Edgar

and asked whether she knew Mr. Peters was black. Neither

Ms. Pederson nor Ms. Edgar had ever met Mr. Peters, and

neither knew that he was black until the meeting on Tuesday

morning. Apparently Ms. Pederson’s inspection of the file

was so cursory that she did not even learn basic information

such as Mr. Peters’ race -- which was noted on several

documents in his personnel file -- even as she was taking steps

toward terminating him. Ms. Edgar maintains that “[rJace

played no part whatsoever in my decision to terminate the

employment of Stephen Peters.” /d. at 28. Indeed, part of

her job as a human resources official was to conduct

affirmative action and equal employment opportunity training

sessions for BCI management.

On October 11, 2001, Mr. Peters filed a charge with the

EEOC alleging that his termination was the result of racial

discrimination. The EEOC filed suit on his behalf in federal

court on December 30, 2002. Its theory was that, even if Ms.

Edgar was the sole decisionmaker and she did not know that

Mr. Peters was black, “Grado harbored racial animus toward

African American employees and... this bias was properly

imputed to BCI because of Grado’s substantial involvement in

(the termination process as Peters’ supervisor and Edgar’s sole

source of information about the events on which BCI alleges

the termination was primarily based.” Aplt. Br. 12. Relying

principally on cases from other circuits, the EEOC

characterized this claim as arising under a “cat’s paw” or

“rubber stamp” theory, whereby an employer may be liable

for the acts of a biased subordinate, even if that subordinate

is not the formal decisionmaker.

10a

In support of its allegations concerning Mr. Grado’s racial

bias, the EEOC presented affidavits from a number of other

BCI employees. Three other merchandisers who worked

under the supervision of Mr. Grado--two black and one

Hispanic -- stated that Mr. Grado treated black employees

worse than employees of other races. App. 181 (affidavit of

James Young) (“African American employees were treated

worse by Cesar Grado as compared to non-African American

employees.”); id. at 183 (affidavit of Bryan Esquibel) (“If

Grado did not like you, he treated you badly; but African

American employees were treated even worse.”); id. at 185

(affidavit of Michael Wilson) (“It is my belief that Cesar

Grado dislikes African Americans based on his treatment of

me during my employment at [BCI].”). All three cited

specific examples of incidents in which Mr. Grado subjected

black employees to greater scrutiny and more scrious

discipline than Hispanic employees. Mr. Wilson, who is

black, says that Mr. Grado “continually demeaned me and

threatened to replace me” but always “treated Hispanic

Merchandisers with respect.” /d. at 185.

Mr. Wilson also “recall[ed] many race-based remarks

made to me by Cesar Grado during work hours.” /d. at 184.

According to Mr. Wilson, Mr. Grado told jokes about black

men dating Anglo women, and stated that “Black guys [do]

not look good in trucks, they should drive Cadillacs.” /d. at

185. One day, while watching Mr. Wilson clean an outdoor

vending machine during the winter, Mr. Grado urged him to

hurry because “brothers don’t like the cold.” /d. (internal

quotation marks omitted). Also, Mr. Katt says that after the

termination, during a drive to a work site, Mr. Grado asked,

“Did you hear Steve is trying to sue me?” /d. at 212.

Although he is less than “100 percent clear” about his

recollection of the conversation, Mr. Katt says that Mr.

Grado may have used the word “nigger” or a comparable

lla

racial epithet to describe Mr. Peters during that conversation.

Id.

The EEOC also compared Mr. Grado’s treatment of Mr.

Peters with his treatment of Hispanic employees under similar

circumstances. On one occasion, for example, Mr. Grado

was short merchandisers during a busy weekend, so he

directed Mr. Katt to direct Monica Lovato, a Hispanic

merchandiser, to work one of her days off. Ms. Lovato

planned to celebrate her birthday that weekend, and she told

Mr. Katt she wanted both days off, but Mr. Katt insisted and

tried to accommodate her schedule as much as possible. That

weekend Ms. Lovato never showed up to work as directed,

even after Mr. Katt paged her repeatedly. When he was

informed that Ms. Lovato had disobeyed an order to come

into work, Mr. Grado never inquired about her reasons.

Instead, Mr. Grado remarked, “You can’t make somebody

work one of their days off.” /d. at 211. Ms. Lovato never

received any discipline -- not even a warning -- as a result of

the incident.

The district court granted summary judgment in favor of

BCI. Operating within the McDonnell Douglas burden-

shifting framework, it held that the EEOC had established a

prima facie case of discrimination, but that BCI had

articulated a legitimate nondiscriminatory reason for the

termination: “his insubordinate conduct toward Grado.”

Mem. Op. & Order, 2004 U.S. Dist. LEXIS 28277 at *33.

It held that no genuine issue of material fact exists as to

whether this proffered explanation was pretextual because the

pretext inquiry must focus exclusively on whether Ms. Edgar

honestly believed that Mr. Peters was guilty of

insubordination on Friday, September 28. Citing our

statement in Kendrick v. Penske Transportation Services, Inc..,

220 F.3d 1220, 1231 (10th Cir. 2000), that pretext must be

12a

evaluated by “look[ing] at the facts as they appear to the

person making the decision to terminate plaintiff,” the district

court concluded that any factual disputes concerning the

Friday conversation were immaterial because Ms. Edgar

correctly applied BCI’s policy concerning insubordination to

the facts as she understood them. Mem. Op. & Order 24-25,

2004 U.S. Dist. LEXIS at *39-40. The district court found

the termination letter (“You did not report to work on Sunday

9-30-01, therefore your employment [is] being terminated for

insubordination”) “consistent” with Ms. Edgar’s declaration

that the sole act of insubordination for which he was

terminated was his conduct during the call on Friday. /d. at

26. According to the district court, the phone call and the

failure to come to work formed part of the same “chain of

events,” and no reasonable jury could find that BCI’s

explanations were shifting or inconsistent.

In evaluating the EEOC’s “rubber stamp” or “cat’s paw”

claim, the district court acknowledged that the EEOC had

raiscd a genuine issue of fact as to whether Mr. Grado

harbored racial bias against African Americans. It noted,

however, that other circuits’ “rubber stamp” cases “involved

situations in which a_ decision-maker accepted — the

recommendations of a biased supervisor without conducting

an independent investigation.” /d. at 29 (emphasis in

original). Here, Mr. Grado never officially recommended

that Mr. Peters be terminated; he merely provided

information to Ms. Edgar, who made the final decision.

Also, according to the district court, Ms. Edgar did conduct

an independent investigation: she asked Ms. Pederson to pull

Mr. Peters’ personnel file. The issue of Mr. Grado’s bias

therefore was not material.

The district court granted BCI’s motion for summary

judgment, and the EEOC now appeals. We review the

13a

district court’s decision de novo, viewing the evidence in the

light most favorable to the EEOC and drawing all reasonable

inferences in its favor. Fuerschbach v. S.W. Airlines Co.,

439 F.3d 1197, 1207 (10th Cir. 2006). We will affirm “if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact” and BC]

is entitled to a judgment as a matter of law. Fed. R. Civ. P.

56(c).

II. Discussion

Under the McDonnell Douglas framework, a plaintiff

bears the initial burden of establishing a prima facie case of

racial discrimination, which “consists of a showing that

(1) the plaintiff belongs to some protected class, (2) the

plaintiff was qualified for the position or benefit at issue, (3)

the plaintiff suffered an adverse employment action, and (4)

the plaintiff was treated less favorably than others (e.g., the

position at issue remained open after the adverse employment

action).” Exum v. U.S. Olympic Comm., 389 F.3d 1130,

1134 (10th Cir. 2004). BCI concedes that the EEOC has

established a prima facie case here’ Mr. Peters is black, he

was qualified for his job as a merchandiser, he was

terminated, and the position remainc* open

The burden therefore shifts to BCI to articulate a

legitimate, nondiscriminatory reason for the employment

action. Jaramillo v. Colo. Judicial Dep't, 427 F.3d 1303,

1308 (10th Cir. 2005). The EEOC concedes that BCI has

articulated a nondiscriminatory reason for its termination of

Mr. Peters: his insubordination on Friday, September 28

during the phone conversation with Mr. Grado. Significantly,

BCI maintains that Mr. Peters’ absence on Sunday, September

30 had nothing to do with the decision, except insofar as it

l4a

confirmed that Mr. Peters’ statements on Friday were

insubordinate. App. 27 (“Mr. Peters was not terminated

because he did not show up for work on Sunday....”).

The sole issue on appeal is whether the EEOC has made

a sufficient showing that BCI’s proffered explanation is a

pretext for race discrimination. See McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 804, 93 S. Ct. 1817, 36 L.

Ed. 2d 668 (1973). Here, it is undisputed that Ms. Edgar,

who formally made the termination decision, worked in a

different city and had no idea that Mr. Peters is black. She

therefore could not have acted for racially discriminatory

reasons. For the EEOC to prevail, it must make not only a

factual showing that Mr. Grado harbored racial animus

toward black employees, but also a convincing legal claim

that his racial animus should be imputed to BCI despite the

fact that Mr. Grado had no power to terminate anyone.

A. Subordinate Bias Liability

Other courts have recognized claims under Title VII based

on the bias of a subordinate, often using the terms “cat’s

paw” or “rubber stamp” to describe the theory. The “cat’s

paw” doctrine derives its name from a fable, made famous by

La Fontaine, in which a monkey convinces an unwitting cat

to pull chestnuts from a hot fire. See Fables of La Fontaine

344 (Walter Thornbury trans., Chartwell Books 1984). As

the cat scoops the chestnuts from the fire one by one, burning

his paw in the process, the monkey eagerly gobbles them up,

leaving none left for the cat. /d. Today the term “cat’s-paw”

refers to “one used by another to accomplish his purposes.”

Webster’s Third New International Dictionary Unabridged

354 (2002). In the employment discrimination context, “cat’s

paw” refers to a situation in which a biased subordinate, who

lacks decisionmaking power, uses the formal decisionmaker

1Sa

as a dupe in a deliberate scheme to trigger a discriminatory

employment action. Llampallas v. Mini-Circuits, Lab, Inc.,

163 F.3d 1236, 1249 (11th Cir. 1998). The “rubber stamp”

doctrine has a more obvious etymology, and refers to a

situation in which a decisionmaker gives perfunctory approval

for an adverse employment action explicitly recommended by

a biased subordinate. See Hill v. Lockheed Martin Logistics

Memt., Inc., 354 F.3d 277, 288 (4th Cir. 2004) (en banc).

Our sister circuits overwhelmingly have endorsed some

version of these doctrines. See Galdamez v. Potter, 415 F.3d

1015, 1026 n.9 (9th Cir. 2005); Hill, 354 F.3d at 290;

Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th

Cir. 1999); Griffin v. Wash. Convention Ctr., 330 U.S. App.

D.C. 81, 142 F.3d 1308, 1311-12 (D.C. Cir. 1998);

Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344,

354-55 (6th Cir. 1998); Long v. Eastfield Coll. , 88 F.3d 300,

307 (Sth Cir. 1996); Abrams v. Lightolier Inc. , 50 F.3d 1204,

1213-14 (3d Cir. 1995); Stacks v. S.W. Bell Yellow Pages,

Inc., 27 F.3d 1316, 1323 (8th Cir. 1994); Shager v. Upjohn

Co., 913 F.2d 398, 405 (7th Cir. 1990) (Posner, J.)

(inaugurating the descriptor “cat’s-paw” for this category of

claim).

Although this Court has not yet had occasion to find for

a plaintiff on a subordinate bias claim, we have strongly

signaled our endorsement of the theory. We have stated that

“under certain circumstances, a defendant may be held liable

for a subordinate employee’s prejudice even if the manager

lacked discriminatory intent.” English v. Colo. Dep't of

Corrs., 248 F.3d 1002, 1011 (10th Cir. 2001). Specifically,

we have described a “rubber stamp” theory of liability, noting

that “[t}o recover under this theory, the plainuff must show

‘that the decisionmaker followed the biased recommendation

jof a subordinate] without independently investigating the

complaint against the employee.’” /d. (quoting Stimpson, 186

l6a

F.3d at 1332) (alteration in original). ‘twice we have held

that a plaintiff could not prevail because the decisionmaker

had conducted an independent investigation of the facts, rather

than relying entirely on the recommendation of the biased

subordinate. See Kendrick v. Penske Transp. Servs., Inc.,

220 F.3d 1220, 1231-32 (10th Cir. 2000) (finding it

“{ijmportant[]” that “in the course of his investigation” the

decisionmaker asked the employee “to give his version of the

exchange,” but the employee declined to do so); English, 248

F.3d at 1011 (noting that the decisionmaker met twice with

the employee and his attorney, and specifically asked for

evidence rebutting or mitigating the findings of the allegedly

biased subordinates). But we have described the plaintiffs’

underlying theory of liability as “correct.” English, 248 F.3d

at 1011.

These subordinate bias theories comport with the basic

agency principles incorporated by statute into Title VII. For

purposes of Title VII, the term “employer” includes not only

any “person engaged tn an industry affecting commerce” but

“any agent of such a person.” 42 U.S.C. § 2000e(b).

Although that language “surely evinces an intent to place

some limits on the acts of employees for which employers are

to be held responsible,” Meritor Sav. Bank, FSB v. Vinson,

477 U.S. 57, 72, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986),

employers may be vicariously liable for the actions of their

employees -- even intentional torts outside the scope of their

employment -- if the employee “‘was aided in accomplishing

the tort by the existence of the agency relation,’” Burlington

Indus., Inc. v. Ellerth, 524 U.S. 742, 758, 118 S. Ct. 2257,

i41 L. Ed. 2d 633 (1998) (quoting Restatement (Second) of

Agency § 219(2)(d) (1958) [hereinafter Restatement]). In

Ellerth, which involved a hostile work environment claim, the

Supreme Court held that “a tangible employment action taken

by the supervisor becomes for Title VII purposes the act of

17a

the employer.” /d. at 762. Citing with approval the seminal

“cat’s paw” opinion by Judge Posner, the Court seemed

unconcerned with the possibility that the “tangible

employment decision{]” might “be subject to review by

higher level supervisors.” /d. (citing Shager, 913 F.2d at

405). The “aided by the agency relation” standard applies

even more clearly to subordinate bias claims, such as “cat’s

paw” or “rubber stamp” claims, because the allegedly biased

subordinate accomplishes his discriminatory goals by

misusing the authority granted to him by the employer -- for

example, the authority to monitor performance, report

disciplinary infractions, and recommend employment actions.

See Restatement § 219(2) cmt. e (explaining that the “aided

by the agency relation” standard applies in situations where

“the servant may be able to cause harm because of his

position”); cf. Faragher v. City of Boca Raton, 524 U.S. 775,

802-05, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998)

(contemplating vicarious liability based on abuse of authority

by supervisors, but emphasizing that the “aid” in the “aided

by the agency relation” formula must amount to more than

access to a pool of potential victims and “the unspoken

suggestion of retaliation” ).

Holding employers accountable for the actions of biased

subordinates also advances the purposes of Title VII. It

should go without saying that a company’s organizational

chart does not always accurately reflect its decisionmaking

process. See Reeves v. Sanderson Plumbing Prods., Inc. , 530

U.S. 133, 151-52, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000)

(finding that the bias of a supervisor, the husband of the

formal decisionmaker, could be imputed to the company

because the supervisor “was the actual decisionmaker” and

was “principally responsible for petitioner’s firing”); Russell

v. McKinney Hosp. Venture, 235 F.3d 219, 227 (Sth Cir.

2000) (noting that “courts will not blindly accept the titular

18a

decisionmaker as the true decisionmaker”). A biased low-

level supervisor with no disciplinary authority might

effectuate the termination of an employee from a protected

class by recommending discharge or by selectively reporting

or even fabricating information in communications with the

formal decisionmaker. Recognition of subordinate bias claims

forecloses a strategic option for employers who might seek to

evade liability, even in the face of rampant race

discrimination among subordinates, through willful blindness

as to the source of reports and recommendations. /d. n.13

(holding that employers may not insulate themselves from

Title VII claims simply “by ensuring that the one who

performed the employment action was isolated from the

employee”). Indeed, such claims have the salutary effect of

encouraging employers to verify information and review

recommendations before taking adverse employment actions

against members of protected groups -- particularly if, as we

have held, an employer can escape liability entirely by

performing an independent investigation. See English, 248

F.3d at 1011. Construing the definition of an “employer” to

permit subordinate bias claims therefore serves Title VII's

“deterrent purpose.” See Ellerth, 524 U.S. at 764 (noting

that the extent of employer liability under Title VII should not

depend exclusively on common-law agency principles, but

also should encourage employer procedures that prevent

discriminatory actions).

Despite broad support for some theory of subordinate bias

liability, our sister circuits have divided as to the level of

control a biased subordinate must exert over the employment

decision. Some courts take a lenient approach, formulating

the inquiry as whether the subordinate “possessed leverage,

or exerted influence, over the titular decisionmaker.” See

Russell, 235 F.3d at 227. On this view, “summary judgment

generally is improper where the plainuff can show that an

19a

employee with discriminatory animus provided factual

information or other input that may have affected the adverse

employment action.” Dey v. Colt Constr. & Dev. Co., 28

F.3d 1446, 1459 (7th Cir. 1994) (citing Shager, 913 F.2d at

405). This standard apparently contemplates that any

“influence,” the reporting of any “factual information,” or

any form of “other input” by a biased subordinate renders the

employer liable so long as the subordinate “may have

affected” the employment action. Such a weak relationship

between the subordinate’s actions and the ultimate

employment decision improperly eliminates a requirement of

causation. See Ellerth, 524 U.S. at 745 (construing Title VII

“to accommodate the agency principle of vicarious liability

for harm caused by misuse of supervisory authority”

(emphasis added)). When a biased subordinate merely plays

a peripheral role, it cannot be said that he has

“accomplish[ed]” a tortious act and “cause[{d] harm” as

required under agency law principles and, accordingly, under

Title VII. Restatement § 219(2)(d) & cmt. e: see also id.

cmt. a (“Rationale of liability”) (“The assumption of control

is a usual basis for imposing tort liability when the thing

controlled causes harm.”). Morcover, a lenient “may have

affected” standard that punishes employers for any “input” --

no matter how minor -- weakens the deterrent effect of

subordinate bias claims by imposing liability even where an

employer has diligently conducted an independent

investigation.

At the opposite extreme, the Fourth Circuit has held that

an employer cannot be held liable even if a biased subordinate

exercises “substantial influence” or plays a “significant” role

in the employment decision. Hill, 354 F.3d at 291. Taking

its cue from the Supreme Court’s statements in Reeves that

“petitioner [had] introduced evidence that [the supervisor]

was the actual decisionmaker” and was “principally

20a

responsible” for his firing, Reeves, 530 U.S. at 151-52, the

Fourth Circuit held that these formulations mark “the outer

contours of who may be considered a decisionmaker for

purposes of imposing liability upon an employer.” Hill, 354

F.3d at 289. On this view, the decisionmaker must be a

“cat’s paw” so completely beholden to the subordinate “that

the subordinate is the actual decisionmaker.” /d. at 290. The

Fourth Circuit’s strict approach makes too much of the phrase

“actual decisionmaker” in Reeves; the Court was describing

what the petitioner’s evidence showed, not prescribing the

“outer contours” of liability. See Reeves, 530 U.S. at 151-52

(using the phrases “actual decistonmaker” and “principally

responsible” only in Part III.B, which begins, “Applying this

standard here...”). The Fourth Circuit’s peculiar focus on

“who is a ‘decisionmaker’ for purposes of discrimination

actions,” Hill, 354 F.3d at 286, seems misplaced. The word

“decisionmaker” appears nowhere in Title VII. Instead, the

statute imposes liability for discrimination by employers and

their agents, 42 U.S.C. § 2000e(b), which in accordance with

agency law principles includes not only “decisionmakers” but

other agents whose actions, aided by the agency relation,

cause injury. Ellerth, 524 U.S. at 760. The Fourth Circuit’s

standard also undermines the deterrent effect of subordinate

bias claims, allowing employers to escape liability even when

a subordinate’s discrimination is the sole cause of an adverse

employment action, on the theory that the subordinate did not

exercise complete control over the decisionmaker.

We find ourselves in agreement with the Seventh Circuit,

which has rejected the Fourth Circuit’s approach as

“inconsistent with the normal analysis of causal issues in tort

litigation.” Lust v. Sealy, Inc., 383 F.3d 580, 584 (7th Cir.

2004). To prevail on a subordinate bias claim, a plaintiff

must establish more than mere “influence” or “input” in the

decisionmaking process. Rather, the issue is whether the

2la

biased subordinate’s discriminatory reports, recommendation,

or other actions caused the adverse employment action. /d.

This standard comports with the agency law principles that

animate the statutory definition of an “employer.” See

Restatement § 219 (describing the scope of a master’s liability

“for the torts of his servants” and thereby incorporating

standard tort concepts like causation). Both the Supreme

Court and this Court require a comparable causal connection

as part of analogous workplace discrimination claims. See,

e.g., Clark County School Dist. v. Breeden, 532 U.S. 268,

272, 121 S. Ct. 1508, 149 L. Ed. 2d 509 (2001) (requiring a

“causal connection” between the plaintiffs protected activities

and the adverse employment action in a Title VII retaliation

claim); Rea v. Martin Marietta Corp., 29 F.3d 1450, 1457

(10th Cir. 1994) (requiring a “causal nexus” between

allegedly discriminatory workplace statements and the

termination decision in an ADEA claim). We reaffirm our

earlier decisions holding that, because a plaintiff must

demonstrate that the actions of the biased subordinate caused

the employment action, an employer can avoid liability by

conducting an independent investigation of the allegations

against an employee. English, 248 F.3d at 1011. In that

event, the employer has taken care not to rely exclusively on

the say-so of the biased subordinate, and the causal link is

defeated. Indeed, under our precedent, simply asking an

employee for his version of events may defeat the inference

that an employment decision was racially discriminatory.

Kendrick, 220 F.3d at 1231-32. Employers therefore have a

powerful incentive to hear both sides of the story before

taking an adverse employment action against a member of a

protected class.

Finally, we address the district court’s conclusion that an

employer may be liable on a subordinate bias theory only if

the decisionmaker receives and approves an_ explicit

22a

recommendation to terminate an employee. Regrettably,

subordinate bias cases have suffered from an abundance of

vivid metaphors. The Fourth Circuit, for example, seems to

have taken the “cat’s paw” metaphor too literally in deriving

its total-control-over-the-actual-decision standard. Lust, 383

F.3d at 584. Likewise, the district court in this case seems to

have taken the “rubber stamp” metaphor too literally,

requiring that an explicit recommendation must cross the desk

of the decisionmaker, regardless of whether the subordinate’ s

discriminatory actions in fact caused the termination. That

limitation of subordinate bias claims not only runs counter to

the fairly broad “aided by the agency relation” principle

embodied in Title VII, but would leave employees

unprotected so long as a subordinate stops short of mouthing

the words “you should fire him,” in person or on paper, to

the decisionmaker. Stripped of their metaphors, subordinate

bias claims simply recognize that many companies separate

the decisionmaking function from the investigation and

reporting functions, and that racial bias can taint any of those

functions. We see no reason to limit subordinate bias liability

to situations that closely resemble the “cat’s paw,” “rubber

stamp,” “conduit,” “vehicle,” or other metaphors that

imaginative lawyers and judges have developed to describe

such claims.

With these principles in mind, we turn to BCI’s decision

to terminate Mr. Peters.

B. The Subordinate Bias Claim in this Case

The EEOC argues that BCI’s proffered explanation for its

termination decision is pretextual. To survive summary

judgment on a subordinate bias theory, the plaintiff must first

establish a genuine issue of material fact concerning the bias

of the subordinate. It must then establish genuine issues of

23a

material fact as to whether the proffered reason for the

employment action is pretextual, which in a subordinate bias

claim requires the plaintiff to demonstrate a causal

relationship between the subordinate’s actions and the

employment decision.

1. Mr. Grado’s Racial Bias

The district court held, and we agree, that the EEOC has

raised a genuine issue of fact concerning Mr. Grado’s racial

animus. In general, “isolated racial comments” are

insufficient to establish pretext unless they “can somehow be

tied to the employment actions disputed in the case at hand.”

Stewart v. Adolph Coors Co., 217 F.3d 1285, 1289 (10th Cir.

2000) (internal quotation marks omitted). Nonetheless, at the

summary judgment stage “all rational inferences from the

evidence must be made in favor of the party opposing the

summary judgment motion.” Ortiz v. Norton, 254 F.3d 889,

896 (10th Cir. 2001). In Ortiz, we held that evidence of

discrimination in employment decisions affecting other

workers “could support an inference that the decision makers

harbored a bias against Hispanics which might have affected

other decisions, including the decisions adverse to plaintiff.”

Id. <A plaintiff also “may show pretext ‘by providing

evidence that he was treated differently from other similarly

situated, nonprotected employees who violated work rules of

comparable seriousness,’” provided the “similarly situated”

employee shares the same supervisor, is subject to the same

performance standards, and otherwise faces comparable

“relevant employment circumstances.” Green v. New

Mexico, 420 F.3d 1189, 1194 (10th Cir. 2005) (quoting

Kendrick, 220 F.3d at 1232).

In this case, the EEOC has produced sufficient evidence

to create a jury question concerning Mr. Grado’s racial

24a

animus. Mr. Wilson claims that Mr. Grado directed “many

race-based remarks,” and offered three examples of racial

jokes and put-downs. App. 184-85. In his affidavit, Mr. Katt

says that Mr. Grado may have used a racial epithet to

describe Mr. Peters in the immediate aftermath of the

termination and lawsuit.’ /d. at 212. These comments may

have been infrequent, but they certainly were not “isolated”:

they were directed at other black merchandisers under Mr.

Grado’s supervision, suggesting a pattern of racial bias in

disciplinary matters that could have affected Mr. Grado’s

conduct with respect to Mr. Peters’ termination, and in one

case concerned Mr. Peters himself.

In addition, three other merchandisers -- two black and

one Hispanic -- submitted affidavits giving specific examples

of Mr. Grado’s disparate treatment of black and Hispanic

merchandisers. Mr. Young claims that Mr. Grado “nit-

pick{ed] my work” and “constantly threatened to change my

? BCI argues, in a footnote and without elaboration, that Mr.

Katt’s testimony on this point “is clearly inadmissible pursuant to

Federal Rules of Evidence 602 and 403,” and therefore should be

ignored. Br. of Appellee 41 n.17. The first objection is obviously

wrong. Rule 602 requires that a witness must have “personal

knowledge of the matter” before testifying, but Mr. Katt’s affidavit

recounts a conversation he personally conducted with Mr. Grado.

The second objection is difficult to discern. Rule 403 provides that

evidence “may be excluded” if, in the view of the district court,

“its probative value is substantially outweighed by the danger of

unfair prejudice.” If credited, Mr. Katt’s testimony about a racial

slur directed at Mr. Peters shortly after his termination is at least

probative of Mr. Grado’s4motive-atthe time of the termination.

Like the district court, which considered the testimony, see Mem.

Op. & Order, 2004 U.S. Dist. LEXIS at *22, we are not inclined

to ignore the testimony as unduly prejudicial at this stage.

25a

days off and to change my route,” but “did not... treat non-

African American employees in this manner.” App. 181. He

recalls being threatened with a schedule change for leaving

the back room of one of his stores “a bit messy,” while Mr.

Grado tolerated a non-black merchandiser’s “very messy”

back room “many times.” /d. Mr. Esquibel named six

Hispanic employees who weve not fired after disobeying

company directives. /d. at 183. Mr. Wilson says that Mr.

Grado was “unusually picky” with black merchandisers,

“often calling us back to stores that had been serviced to redo

some minor detail, while the Hispanic Merchandisers were

not subject to this same level of scrutiny.” /d. at 185.

Broadly, he claims that Mr. Grado “treated Hispanic

Merchandisers with respect” but “continually demeaned me

and threatened to replace me.” /d.

Most importantly, the EEOC produced evidence of Mr.

Grado’s unfazed response to the incident involving a Hispanic

merchandiser, Ms. Lovato. Like Mr. Peters, Ms. Lovato

reported to Mr. Grado and was directed te work one of her

days off. Like Mr. Peters, she failed to come to work, in

direct violation of her instructions and in spite of considerable

efforts by Mr. Katt to come to accommodate her schedule.

Unlike Mr. Peters, who was fired two days later, Ms. Lovato

received no discipline whatsoever as a result of the incident,

with Mr. Grado reportedly saying, “You can’t make

somebody work one of their days off.” /d. at 211. To be

sure, there are factual] differences between these incidents:

Ms. Lovato received all of her orders through Mr. Katt

whereas Mr. Peters spoke to Mr. Grado directly, and Ms.

Lovato initially acquiesced in the orders (before disobeying

them) whercas, according to Mr. Grado, Mr. Peters initially

behaved in a defiant manner and announced an intention to

disobey the orders (before being excused from work). They

are similar enough, however, that in light of the dramatic

26a

difference between Mr. Grado’s actions in each case, as well

as the other evidence of discriminatory conduct, a reasonable

jury could find the situations comparable and infer that racial

animus played a role in Mr. Peters’ treatment.

We do not necessarily believe that each of the incidents

recounted above would support a charge of discrimination in

isolation, but taken as a whole, this evidence of racial

comments and disparate treatment of black merchandisers

creates a genuine issue of fact regarding Mr. Grado’s racial

bias.

2. Pretext and Causation

To show that an employer’s proffered nondiscriminatory

reason for an employment action is pretextual, a plaintiff must

produce evidence of “‘such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the

employer’s proffered legitimate reasons for its action that a

reasonable factfinder could rationally find them unworthy of

credence and hence infer that the employer did not act for the

asserted non-discriminatory reasons.’” Morgan v. Hilti, Inc.,

108 F.3d 1319, 1323 (10th Cir. 1997) (quoting Olson v. GE

Astrospace, 101 F.3d 947, 951-52 (3d Cir. 1996)). Because

the EEOC’s pretext argument depends in part on a

subordinate bias theory, it must establish a genuine issue of .

material fact as to whether Mr. Grado’s bias translated into

discriminatory actions that caused Mr. Peters’ termination.

BCI now maintains that it fired Mr. Peters solely because

of his defiant conduct on the phone with Mr. Grado on

Friday, and that “Mr. Peters was not terminated because he

did not show up for work on Sunday, except to the extent this

conduct is viewed... as the fulfillment of [his] stated intention

to defy a direct order from Mr. Grado.” App. 27. On this

27a

theory, missing work on Sunday merely confirmed that Mr.

Peters’ statements on Friday were insubordinate, and did not

serve as a basis for dismissal. Yet the first explanation

provided by Mr. Grado at the Tuesday morning meeting was,

“You’ve been terminated for insubordination, for not showing

up for work.” Id. at 193 (emphasis added). The Disciplinary

Status Notice unequivocally states that the failure to show up

for work on Sunday was the act of insubordination: “You did

not report to work on Sunday 9-30-01, therefore your

employment in [sic] being terminated for insubordination. ”

Id. at 41. That document lists Sunday, not Friday, as the date

of the violation that prompted the termination, indicating that

the act of insubordination was the failure to come into work,

not Mr. Peters’ attitude during the earlicr phone call. Indeed,

on October 16, 2001, just two weeks after the termination,

Ms. Pederson filed paperwork with the New Mexico

Department of Labor stating that “Stephen was told by Cesar

Grado that if he didn’t show up, it would be considered

insubordination.” /d. at 165 (emphasis added). When asked

to describe the “final incident that caused the discharge,” Ms.

Pederson wrote, “Stephen did not show up for work on

9/30.” Id. Only later did BCI characterize its decision to fire

Mr. Peters as hinging on his defiant conduct over the phone,

rather than on his absence.

A jury might reasonably conclude that BCI’s original

explanation, that Mr. Peters was fired because he failed to

show up for work on Sunday, was pretextual because Mr.

Peters was excused from work that day. Mr. Peters was in

fact sick, had visited an urgent care clinic, and had been

diagnosed with a sinus infection and directed not to work until

Monday. He phoned Mr. Katt to report the illness, and was

excused from work--an interaction that BCI concedes is

perfectly ordinary between merchandisers and account

managers. A jury could credit Ms. Edgar’s statements that

28a

she knew that Mr. Peters’ absence was excused and

nonetheless (incorrectly, as it turns out) deemed Mr. Peters’

“alleged sickness” suspicious under the circumstances. But

it might just as easily credit Mr. Katt’s testimony, rather than

Ms. Edgar’s, and conclude that neither Mr. Grado nor Ms.

Edgar learned that Mr. Peters called in sick until the

scheduling discussion between Mr. Katt and Mr. Grado on

Monday evening, after Ms. Edgar claims she had already

made the decision to fire Mr. Peters. The affidavits of Mr.

Katt and Mr. Peters state that key players in the decision fell

silent upon hearing that Mr. Peters’ absence was excused,

suggesting that they were indeed surprised by the news.

Recognizing the weakness of the original explanation, BCI

has refined its position by relying entirely on Mr. Peters’

purported insubordination in his conversation with Mr. Grado

on Friday. A jury could conclude, however, that this reason

too is a pretext for race discrimination, as the result of Mr.

Grado’s racial animus. It is undisputed that Ms. Edgar, and

Ms. Edgar alone, made the formal termination decision. Mr.

Grado has succinctly described his role in the disciplinary

process: “I gather the facts and I present them to our HR

department, and they decide whether it is an insubordination

or not and whether there’s action to be taken or not.” App.

63. Surely Ms. Edgar harbored no ill will toward Mr. Peters

on account of his race, because she worked in Phoenix and

did not even know that he was black. Yet it is also

undisputed that Ms. Edgar relied exclusively on Mr. Grado’s

account of the Friday phone conversation in making her

decision. She conducted no independent inquiry into the

events that took place that Friday, and failed to take even the

basic step -- cited by this Court in Kendrick, 220 F.3d at

1231-32 -- of asking Mr. Peters for his side of the story.

Accordingly, Mr. Grado’s report that Mr. Peters had behaved

in a defiant, insubordinate manner on Friday caused the

29a

termination. If the jury concludes that Mr. Grado’s report

was tainted by race discrimination -- as it might, for the

reasons explained above -- it could also find that the proffered

reason for firing Mr. Peters, which rests entirely on that

report, is pretextual.

BCI argues that any factual disputes concerning the Friday

conversation between Mr. Grado and Mr. Peters are

immaterial because both parties agree that Mr. Peters ended

the conversation by saying, “[D]o what [you] got to do and

I'll do what I got to do.” App. 58. We agree that this

statement can only be interpreted as defiance, and if Mr.

Grado had reported nothing but this closing remark to Ms.

Edgar, there would be no reason to believe that racial bias on

the part of Mr. Grado caused the termination. Yet Mr. Grado

reported several additional facts about his conversations on

Friday afternoon. First, he told Ms. Edgar that he had

learned, through Mr. Katt, that Mr. Peters was already

planning to call in sick two days later, in violation of

company policy. Second, he reported that in their phone call

Friday afternoon, he asked Mr. Peters to describe his plans,

affording an opportunity for Mr. Peters to explain his

scheduling conflict. ‘Third, he reported that Mr. Peters

angrily replied that it was “none of |your] business,” and was

“yelling” during the discussion. /d. at 36, 65.

All of those facts are disputed. Instead of crediting Mr.

Grado’s testimony, a jury might believe Mr. Katt, who says

that he never told Mr. Grado that Mr. Peters had advance

plans to call in sick on Sunday, or Mr. Peters, who says that

he simply told Mr. Grado that he had been feeling sick that

week, not that he planned to violate company policy. A jury

might also credit Mr. Peters’ version of the Friday afternoon

conversation, in which Mr. Grado never bothered to ask Mr.

Peters’ reasons, Mr. Peters never refused to answer Mr.

30a

Grado’s questions, and Mr. Peters remained calm throughout

the discussion. There is good reason to believe that Ms.

Edgar acted on those additional facts, not just on Mr. Peters’

“do what you have to do” remark. She denounced Mr.

Peters’ advance plans to call in sick as “not acceptable,” an

abuse of the company sick leave policy. /d. at 23. Also, it

was Ms. Edgar who originally insisted that Mr. Grado “find

out what the situation was” and determine whether Mr. Peters

had a “compelling reason” he could not come to work, which

suggests that she found that information important in making

her decision. /d. at 23. Taking the evidence in the light most

favorable to the EEOC, it is easy to imagine that the

additional details of Mr. Grado’s account, in which Mr.

Peters appeared to be fabricating his illness, started yelling at

his supervisor, and refused to answer questions, led -Ms.

Edgar to characterize the conversation as “insubordination”

warranting dismissal. The question is not whether Ms. Edgar

could have terminated Mr. Peters because of his closing

remark alone, which appears to have been permissible under

BCI policy, but what actually did cause the adverse

employment action. If a jury credits the testimony of Mr.

Peters and Mr. Katt, and thus concludes that Mr. Grado lied

to Ms. Edgar, it could also find that the additional claims

about Mr. Peters’ conduct caused the termination.

Finally, BCI argues, and the district court agreed, that

Ms. Edgar did not rely solely on Mr. Grado but conducted an

independent investigation. This investigation consisted of

exactly one action: directing Ms. Pederson to pull Mr.

Peters’ personnel file. We find this “investigation”

inadequate, as a matter of law, to defeat the inference that

Mr. Grado’s racial bias tainted the decision. Obviously the

file contained no information about the recent incident

involving Mr. Grado, so it is difficult to see how reading it

could “independently” confirm what had happened. True, the

3la

file contained a description of a 1999 incident of

insubordination, which (despite its ignoble back story) seemed

consistent with Mr. Grado’s version of events. The problem

is that Ms. Edgar never sought any other version of events,

and therefore had no reason other than Mr. Grado’s report to

believe that the file was relevant. Simply pulling the file

therefore does not constitute an independent investigation, and

a jury could conclude that Mr. Grado’s factually disputed

report -- the sole source of information on which Ms. Edgar

relied -- caused the termination.

Because the EEOC has established genuine issues of

material fact as to whether the nondiscriminatory reasons

offered by BCI are pretextual, summary judgment was

inappropriate. |

Ili. Conclusion

We REVERSE the judgment of the district court and

REMAND the case for further proceedings consistent with

this opinion.

32a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

No. CIV 02-1644JB/RHS

[Filed June 10, 2004]

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION,

Plaintiff,

BCI COCA-COLA BOTTLING

COMPANY OF LOS ANGELES,

doing business as Phoenix Coca-Cola

Bottling Company; COCA-COLA

BOTTLING COMPANY OF

ALBUQUERQUE,

Defendants.

’

MEMORANDUM OPINION AND ORDER

BEFORE: James O. Browning, UNITED STATES

DISTRICT JUDGE.

THIS MATTER comes before the Court on the

Defendant’s Motion for Summary Judgment, filed February

33a

19, 2004 (Doc. 65). The primary issue is whether the

Plaintiff Equal Employment Opportunity Commission

(“EEOC”) has demonstrated that there is a genuine issue of

material fact whether Defendant BCI Coca-Cola Bottling

Company of Los Angeles (“BCI”) terminated Stephen Peters

from his employment because he is African American.

Because the Court finds that the EEOC has not established a

genuine issue of material fact, it will grant BCI’s Motion for

Summary Judgment and dismiss the EEOC’s claims.

FACTUAL BACKGROUND

BCI is a wholly owned subsidiary of Coca-Cola

Enterprises, Inc., the world’s largest bottler of Coca-Cola®

products. See Declaration of Patricia K. Edgar § 2, at 1-2

(executed February 2, 2004). BCI does business in

Albuquerque as the Coca-Cola Bottling Company of

Albuquerque. See id. Peters worked as a merchandiser in

the Albuquerque facility under the supervision of Cesar

Grado, a District Sales Manager. See Declaration of Cesar

Grado 4§ 1, 5, at 1-2 (executed February 3, 2004).

Merchandisers are hourly employees whose job duties

include product placement and cleaning, arranging, and

rotation of displays and promotional materials in retail

grocery or other outlets. See id. 42, at 1. Peters was one of

six merchandisers working under Grado’s supervision. See

id. Grado also supervised two account sales representatives

or “account managers.” See id.

Account managers are salaried sales employees

responsible for selling Coca-Cola products to accounts. See

id. At all relevant times, Jeff Katt was an account manager

under Grado’s supervision. See id. § 7, at 3. According to

Peters, Katt supervised his day-to-day work activities. See

34a

Affidavit of Stephen Peters 4 9, at 2 (executed March 17,

2004).

Grado was responsible for scheduling merchandisers to

cover all accounts in his territory. See Grado Decl. § 2, at 1.

Merchandisers work five days each week with two days off.

See id. 4 3, at 2. Because BCI services its accounts seven

days a week, none of the merchandisers had the same two

days off. See id.

Grado occasionally required merchandisers to work on

their scheduled days off to provide extra coverage for routes

during particularly busy times and/or when other employees

are absent. See id. 4 4, at 2. An example of a busy time

requiring additional coverage would be when one or more

accounts is running an “ad” that is offering special prices on

Coca-Cola products which results in increased volume of sales

and thus requires more frequent deliveries. Jd. When Grado

needed extra help covering routes, he first requested

volunteers and then asked merchandisers to come in on their

days off on a rotating basis. See id. Peters disputes that

Grado used this method to find coverage for routes. See

Peters Aff. ¢ 15, at 2-3 (“Mr. Grado just picked people to

work.”).

Because Peters was the most senior merchandiser under

Grado’s supervision, he had Saturday and Sunday as his

scheduled days off. See Grado Decl. 45, at 2. During the

first nine months of 2001, Peters worked on his days off on

8 occasions, including three Sundays and five Saturdays. See

id. During the same 34-week period, merchandiser Frank

Ortiz (Hispanic) worked on his scheduled days off 12 times,

merchandiser Donald Connor (white) worked on_ his

scheduled days off 10 times, merchandiser Arturo Lopez

(Hispanic) worked on his scheduled days off 9 times, and a

35a

later hire, merchandiser Robert Espinosa (Hispanic), worked

on his scheduled days off 7 times in 21 weeks. See id.

According to Peters, he never received a_ written

reprimand for job performance problems or attendance

problems during his employment with BCI. See Peters Aff.

{ 1, at 1. Peters states that he was considered a “good

merchandiser” and was awarded a certificate for his five

years of “service, dedication and commitment” to the

company. /d. ¢§ 2-3, at 1. Peters’ personnel file indicates,

however, that Peters’ supervisor gave him a final warning for

an act of insubordination which involved refusing to work on

a scheduled day off. See Disciplinary Status Notice

(September 17, 1999).

Grado was responsible for monitoring the employees

working under his supervision, and when an employee had an

attendance, performance, and/or disciplinary issue, he was

responsible for bringing the issue to the attention of the BCI

Human Resources Department. See Grado Decl. ¢ 6, at 3.

The Human Resources representative would then make a

decision about which workplace policy, if any, applied to the

situation and the appropriate action to take based upon what

had occurred. See id.; Deposition of Cesar Grado at 31:24 to

32:3 (taken December 3, 2003); Deposition of Sherry

Pedersen at 30:19 to 31:4 (taken December 4, 2003).

The top-ranking BCI Human Resources representative at

the Albuquerque facility during the relevant period was Senior

Human Resources Administrator Sherry Pedersen. See

Declaration of Sherry Pedersen ¢ 1, at 1 (executed February

3, 2004). With the exception of terminations, Pedersen

authorized all disciplinary actions with respect to employees

at the Albuquerque facility. See id. § 2, at 1-2. Patricia

Edgar, who was the Employee Relations Manager for BC] at

36a

all relevant times, had to authorize all terminations. See id.;

Edgar Decl. 43, at 2. Edgar’s office was based in Phoenix,

Arizona and her responsibilities included overseeing human

resource functions at BCI facilities in multiple states. See

Edgar Decl. 4 1, at 1. At all relevant times, Pedersen

reported directly to Edgar. See id.; Pedersen Decl. { 1, at 1.

BCI contends that Grado did not have authority to

discipline or terminate employees working under his

supervision. See Grado Decl. 4 6, at 3. Peters contends that

Grado gave employees the impression that he had the

authority to fire employees. See Deposition of Jeff Katt at

71:21 to 72:13 (taken March 8, 2004); Affidavit of Michael

Wilson 4 8, at 2-3 (executed March 12, 2004). When BCi

terminated Peters’ employment, Katt assumed that Grado was

the one who had made the decision. See Katt Depo. at 70:24

to 71:4.

In addressing employee disciplinary issues, BCL Human

Resources personnel consult written policies setting forth

workplace rules and regulations, which are divided into three

categories according to the severity of the infraction. See

Pedersen Decl. ¢ 3, at 2. Group A violations address the

most serious workplace issues, such as insubordination, and

are sufficient to result in immediate discharge, although

discharge is not a mandatory result. See id. Group B and C

violations, on the other hand, are generally dealt with

according to a progressive discipline policy, depending on the |

nature of the infraction. See id. Group C includes the lowest

level violations, including attendance issues. See id. “No

call/no show” violations, which occur when an employee fails

to report for a scheduled shift without notifying his or her

immediate supervisor in accordance with BCI policy, are

handled under a separate written policy and are nota basis for

immediate termination. /d. BCI contends that Human

37a

Resources personnel retain discretion in applying these rules

and policies, as BCI must assess each situation on an

individualized basis. See id.

BCI Human Resources personnel uses a very specific and

narrow definition of the term insubordination.

Insubordination does not mean a situation where an

employee has failed to carry out normal job

responsibilities or failed to meet performance

expectations. Nor is insubordination simply failing or

even refusing to follow a supervisor’s instructions.

Rather, insubordination occurs when the employee

knows that he is considered to be defying a direct

order of the supervisor and that his conduct could lead

to termination.

Edgar Decl. 49, at 4. Peters disputes this definition, because

he contends that BCI’s policy does not define insubordination.

Peters also contends that there is inconsistent testimony about

what constitutes insubordination. Donald Bateluna, Grado’s

supervisor, tcstified that insubordination occurs when an

employee fails to follow a direct order after being warned that

failure to obey can be considered insubordination. See

Deposition of Donald R. Bateluna at 47: 8-19 (taken January

29, 2004). Bateluna also testified that insubordination occurs

when the employee follows through with his or her refusal to

perform the act a supervisor has ordered him or her to do, not

when the employee refuses to obey. See id. at 48:25 to 49:9.

During the weekend of Saturday, September 29, 2001,

and Sunday, September 30, 2001, three of the chain stores in

Grado’s area were running ads. See Grado Decl. { 7, at 3.

Accordingly , Grado needed extra merchandisers to service the

accounts. One of the merchandisers, Joseph Rivera, had

38a

previously told Grado that he had a commitment which

prevented him from coming in on Sunday, September 30,

2001. See id. Grado asked Katt, to relay a message to Peters

that Grado needed him to work on one of his days off that

weekend. See id.; Katt Depo. at 40:10-14. Katt told Grado

that he did not believe Peters would be willing to work on

Sunday. See Grado Decl. ¢ 7, at 4; Katt Depo. at 40:20-21

(“He’s not going to work six days this week.”). It is Grado’s

recollection that Katt told him he believed Peters was going

to call in sick that weekend. See Grado Decl. 4 7, at 4.

Peters asserts that he never told Katt that he planned to

call in sick. See Peters Aff. { 25, at 4. Peters had worked all

his scheduled days that week and had not been out sick. See

Grado Decl. 47, at 4. Peters had not, however, been feeling

well all week; Peters’ plans were to go out of town for the

weekend, but because he had not been feeling well, he was

going to go to the doctor and postpone his travel plans. See

Deposition of Stephen Brian Peters at 122:12-25 (taken

December 2, 2003).

On Friday, September 28, 2001, Grado learned that one

of the “floater” merchandisers, Damian Mirabal, had suffered

an on-the-job injury and could not return to work for a week.

See Grado Decl. 47, at 3. Mirabal typically covered Peters’

routes on Peters’ scheduled days off. See id. 47, at 4. The

remaining merchandisers were already scheduled to work that

weekend, except Rivera, who was unavailable, and so Grado

was now a person short and had no one left to bring in except

Peters. See id. Grado claims that he checked with other

District Sales Managers to see if they had anyone available to

help him, but they did not. See id.

Based on his conversation with Katt, Grado understood

around mid-day on Friday, September 28, that he was going

39a

to have to require Peters to come in to work that weekend, so

he decided to seek advice from the BC] Human Resources

Department. See id. ¢ 8, at 4. Ordinarily, Grado would have

spoken with Pedersen regarding the situation, but she was out

of the office, and so he called Edgar in Phoenix. See id.

Grado explained to Edgar that he needed Peters to work on

his day off that weekend because of a high volume work

situation and a manpower shortage, and asked whether he

could order Peters to come in to work. See id.; Edgar Decl.

4 4, at 2. Edgar asked Grado if he had looked into every

other way of getting the routes covered, and he said he had.

See Grado 4 8, at 4.

Edgar told Grado he could require Peters to come in to

work. See Grado Decl. § 8, at 4; Edgar Decl. ¢ 5, at 3.

Edgar asked Grado if there were some compelling reason

Peters could not come in to work, and Grado told her that he

had not spoken with Peters yet, but had heard he was going

to call in sick. See Edgar Decl. 45, at 3. Edgar told Grado

that it was not acceptable for Peters to plan to call in sick two

days before his shift. See id.'

BCI policy requires employees to call in sick to their

immediate supervisor at least one-half hour before their

regular starting time on each day of absence. See id. BCI

policy also states that employees do not need to call in on

each day of an absence if other arrangements have been

' Peters objects that Grado’s statement -- “but had heard he was

going to call in sick” -- is inadmissible hearsay. The Court

disagrees. BCI is not offering it for the truth of the statement, but

as evidence of what Grado said to Edgar. See Fed. R. Evid.

801(c)(““Hearsay’ is a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence

to prove the truth of the matter asserted.”).

40a

made. Edgar instructed Grado to call Peters and find out

what the situation was. See Edgar Decl. 4 6, at 3. ,

Edgar told Grado that, if he encountered resistance from

Peters, unless Peters presented some compelling reason why

he could not work on the day in question, he needed to

explain to Peters that he was being given a direct order to

come to work and that failure to comply with the order could

be insubordination and could lead to termination. See Grado

Decl. ¢ 8, at 4; Edgar Decl. ¢ 6, at 3. After Grado got off

the telephone with Edgar, he paged Peters, and Peters called

him back. See Grado Decl. 4 9, at 4.

BCI contends that Grado told Peters he needed him to

work that weekend, and Peters said he could not work

because he had plans. See id. 4 9, at 4-5; Peters Depo. at

121:1-5. BCI maintains that Grado asked Peters what his

plans were, but Peters told Grado that his plans were none of

Grado’s business. See Grado Decl. 49, at 5. Peters denies

that Grado asked him what his plans were. See Peters Aff.

4 28, at 4. Peters also claims that he told Grado he had not

been feeling well all week. See Peters Depo. at 121:5-6.

Grado then told Peters: “I’m not asking you to come to

work, I’m telling you to come to work. If you do not come

to work, it could lead to insubordination and could lead to

termination.” /d. at 121:11-14; Grado Decl. 4 9, at 5; Grado

Depo. at 259:17-21. Peters responded to Grado’s statement

by telling Grado: “Do what {you’ve] got to do, and I'll do

what [I’ve] got to do.” Peters Depo. at 121:25 to 122:1;

Grado Decl. 4 9, at 5. While Peters does not deny that he

and Grado made these statements during their telephone

conversation, he insists that he was not refusing to work on

Sunday, September 30. See Peters Aff. § 29, at 4. Peters

maintains that his statement to Grado was for the purpose of

4la

ending the conversation with Grado so that it would not

become a confrontation. See id. 46, at2. Peters also asserts

that Grado never told him that his conduct during the

telephone call was insubordination. See id. § 29, at 4.

After he spoke with Peters on Friday afternoon, Grado

called Edgar back and told her what had happened. Grado

Deci. § 10, at 5; Edgar Decl. ¢ 7, at 3-4. Peters does not

dispute that Grado told Edgar these details. At that point,

Edgar believed that there was sufficient evidence to find that

Peters had committed the offense of insubordination, a Group

A offense subject to immediate discharge. See Deposition of

Patricia K. Edgar at 38:12-17 (taken December 4, 2003).

Edgar states that Peters’ conduct on Friday, September 28,

2001, standing alone, would have warranted termination

under BCI policy. See Edgar Decl. ¢§ 8, 10 at 4.

At that point, Edgar understood that Peters had left for the

day, because merchandisers’ regular shifts usually end at 2

p.m. See id.; Edgar Depo. at 41:20-25. Peters disputes that

he left work at 2:00 p.m., because on Friday, September 28,

2001, Peters worked over 11 hours, starting at 5:00 a.m. See

Peters Aff. ¢ 30, at 4. In any case, Edgar told Grado they

would deal with the situation on Monday. See Edgar Decl.

¢ 10, at 4-5: Grado Decl. 4 10, at 5.

Because, based on his conversation with Peters, Grado

believed that Peters would not be coming to work on Sunday,

Grado spoke with Katt again on Friday afternoon to make

arrangements to cover all the routes on Sunday. See Grado

Decl. 4 11, at 5; Katt Depo. at 28:3:16. Because no

merchandisers were available, Grado and Katt planned to

cover the routes themselves. See Grado Decl. 4 11, at 5.

42a

Either Friday afternoon or Monday morning, Edgar spoke

with Pedersen about the situation involving Peters. See Edgar

Decl. 11, at 5. According to standard practice, Pedersen

had reviewed Peters’ personnel file after learning of the

situation. See id.; Pedersen Decl. 4 5, at 2-3. At the hearing

on this motion, BCI informed the Court that this file was

located in the Albuquerque office. See Transcript of Motion

Hearing at 19:6-19 (April 7, 2004)(“Transcript”).? The

EEOC did not dispute that assertion. Pedersen informed

Edgar that Peters’ personnel file contained a Disciplinary

Status Notice related to a previous incident of insubordination

in September 1999.’ BCI stated at the hearing that Pedersen

faxed the two page Disciplinary Status Notice to Edgar. See

Transcript at 19:17-25. The EEOC did not dispute that

assertion.

The 1999 incident involved a supervisor, other than

Grado, who wrote Peters up for insubordination because he

refused to work on a scheduled day off. See Disciplinary

Status Notice (1999). BCI suspended Peters and issued him

a final written warning that further instances’ of

insubordination could lead to termination. See id.; Pedersen

Decl. § 5, at 2-3. Grado did not supervise Peters in 1999.

Peters disputes that he received such a final warning in 1999.

Peters Aff. §.5, at 2. BCI contends that Peters’ prior similar

incident with a different supervisor contributed to Edgar’s

* The Court's citations to the transcript of the hearing refer to

the Court Reporter’s original, unedited version. Any finalized

transcript may contain slightly different page and/or line numbers.

> Peters objects to the admissibility of the Disciplinary Status

Notice, contending that it is inadmissible hearsay. Again, BCI is

not offering the Notice as evidence of the truth about the incident

in 1999, but for its influence on Edgar’s state of mind.

43a

conclusion that Grado had presented an accurate account of

events with respect to Peters’ conduct. See Edgar Decl. ¢ 11,

at 5; Edgar Depo. at 41:6-9.

On Saturday, September 29, 2001, Peters went to a

Presbyterian Medical Center clinic because he was still not

feeling well. See Peters Depo. at 146:4-25. Peters reported

to the clinic staff that he was not feeling well, including

headache, sinus pain, and fatigue. See id. at 148:6-9. The

doctor diagnosed a sinus infection and, after Peters told her

he had to go to work on Sunday, she told him he was

exhausted and overworked. The doctor offered to write

Peters an excuse from work, but Peters told her he did not

need one unless he missed 2-3 days. The doctor did,

however, give Peters a prescription for medication. See id.

at 149:10-11; id. at 151:8-11.

Peters called Katt on Saturday evening to tell him he was

sick, he had been to the doctor, and to request permission to

stay home on Sunday. Katt gave Peters permission and told

Peters to call him if for any reason he felt better in the

morning. See id. at 194:15 to 195:18. Katt attempted to

contact Grado once or twice, but did not get a response back

from Grado. See Katt Depo. at 25:14-23. Katt testified that,

because it was a weekend, it was not unusual for Grado not

to call him back. See id. Because Peters was not feeling

well, he stayed home on Saturday, September 29, 2001 and

Sunday, September 30, 2001. See Peters Aff. 4 7, at 2;

Grado Decl. 4 12, at 5. After the conversation with Grado on

Friday afternoon, Peters had no further communication with

Grado until Monday, October 1, 2001. Peters reported for

work as scheduled on Monday morning, October | , 2001. See

Grado Decl. ¢ 12, at 5.

44a

On Monday, October 1, 2001, Edgar had at least two

telephone meetings with Grado and Pedersen to discuss the

situation involving Peters. See Edgar Decl. 4 12, at 5.

During these conversations, Grado gave no opinion or

recommendation as to what he thought should happen to

Peters. See Grado Decl. 4 13, at 5; Edgar Decl. 4 15, at 7.‘

Grado reported that Peters had not come to work on Sunday,

September 30, 2001, and had not attempted to contact him.

See Edgar Decl. 4 12, at 5. Edgar asked Grado to check to

make sure Peters had not made any attempt to contact him

over the weekend. See id.; Grado Decl. 4 13, at 5. Grado

checked and confirmed that Peters had made no attempt to

contact him directly, but learned that Peters had called in sick

to Katt on Saturday night. See Grado Dect. § 13, at 6; Edgar

Decl. ¢ 12, at 5-6.

By the end of the day on Monday, October |, 2001,

Edgar made the decision to terminate Peters’ employment for

insubordination. See Edgar Decl. 4 13, at 6. Peters disputes

that Edgar made the decision. Peters asserts that Grado made

the decision to terminate Peters’ employment and that Edgar

authorized Grado’s decision.

Edgar states that her decision was based on several

factors, but first and foremost was Peters’ conduct towards

Grado on Friday, September 28, 2001. See id. There was no

question in Edgar’s mind that Peters had committed the

offense of insubordination that day. See id. The prior

* Peters disputes this fact because Edgar stated at her deposition

that Grado does have authority to recommend discipline. See Edgar

Depo. at 195:24 to 196:7. The EEOC, however, has not presented

evidence that Grado gave an opinion or recommendation during his

conversations with Edgar.

45a

incident of insubordination, and the final warning BCI issued

to Peters in 1999, also factored into Edgar’s decision to

terminate his employment. See id. Edgar understood that

Peters had already been given more chances than the policy

required on this issue, and that «ny action short of termination

could set a bad precedent for BCI’s stance on insubordination.

See id. Peters’ failure to come to work on Sunday also

contributed, to a lesser extent, to Edgar’s decision to

terminate Peters’ employment, insofar it represented the

continuation of the act of insubordination which Peters

commenced on Friday, September 28, 2001. See id. ¢ 14, at

Peters worked all day Monday from 5:00 a.m. to 5:00

p.m. and then saw Grado at a health insurance meeting on

Monday evening. On Monday evening, Grado told Peters to

be at the plant at 8:00 a.m. the next day, to which Peters

responded “okay.” Peters Depo. at 134:2 to 136:20.

At the meeting on Tuesday October 2, 2001, Grado asked

Peters if he knew why he was there (in Pedersen’s office),

and Peters responded that he did not know. See id. at 138:7-

10. Pedersen and Bateluna, Grado’s supervisor, were also in

present at the meeting. See id. at 137:18-24. Grado told

Peters that he had been terminated for insubordination. See

id. at 138:11-14. Peters informed Grado that he had

“reported off work” to his immediate supervisor, Jeff Katt,

because he had been sick, and that Katt had approved his

absence. /d. at 138:24 to 139:4. Peters was discharged

immediately and did not receive an exit interview. Peters

contends that his immediate dismissal without an exit

interview and investigation was against company policy.

Edgar testified that Peters should have received an exit

interview and that she does not know why he did not receive

one. See Edgar Depo. at 185:18-22.

46a

Edgar stated that she did not learn that Peters was African

American until Pedersen called her after the termination

meeting on Tuesday, October 2, 2001. See Edgar Decl. { 17

at 7-8. Pedersen stated that she did not know that Peters was

African American until he walked into her office for the

termination meeting on Tuesday, October 2, 2001. See

Pedersen Decl. § 10 at 3. The EEOC contends that both

Edgar and Pedersen did have knowledge that Peters is African

American based on their access, to information disclosing

Peters’ race. See Plaintiff Equal Employment Opportunity

Commission’s Response in Opposition to Defendant’s Motion

for Summary Judgment at 14, filed March 17, 2004 (Doc.

73). Peters’ personnel file contained documents that revealed

that he was African American. Included in his file were two

“Confidential Employee Supplemental Data Sheets” where

Peters had marked his race as “black.” The EEOC also

contends that Edgar had direct access to information

concerning employee ethnicity.

Peters contends that BCI treated him differently than other

employees in similar situations. See Peters Aff. { 16 at 3.

According to Peters, other employees missed more days in

one year than Peters missed in six and a half years. See

Peters Depo. at 162:21 to 163:9. Peters missed two days in

six and a half years: one with a doctor’s excuse and one time

when his fiance’s son was killed and he missed work to attend

the funeral (the 1999 incident). See id.

The EEOC has proffered evidence that Grado treated

African Americans less favorably than he treated employees

of other racial groups or otherwise harbored racial bias

toward African Americans. Three BCI] employees submitted

affidavits containing statements that Grado treated African

American employees worse than he treated non-African

Americans and made racial remarks at work. See Affidavit

47a

of James Young 4 6, at 2 (executed March 12, 2004); Wilson

Aff. 445, 7, at 1-2; Affidavit of Bryan Esquibel 44 5-7, at 1-

2 (executed March 12, 2004). Katt also testified that Grado

may have called Peters a “nigger.” Katt Depo. 62:19 to

65:2. Katt also went to great lengths, however, to clarify that

he was not sure that Grado actually made that statement. See

id.

The EEOC directed the Court’s attention to four BCI

employees that it contends were treated more favorably than

Peters. Damian Mirabal is a non-African American

merchandiser who worked under Grado’s supervision from

December 2000 to November 2001. Mirabal received a

verbal warning for having missed work five times in a six

month period. Arturo Lopez, a Hispanic merchandiser,

refused to return a page from his supervisor and was

threatened with insubordination and termination. BCI did not

terminate Lopez because he did not return to work and

therefore “abandoned his job.” Supplemental Declaration of

Sherry Pedersen § 2, at 1-2 (executed March 30, 2004).

Oran Sage was a non-African American employee who was

not under Grado’s direct supervision.’ BCI disciplined Sage

for leaving the premises without his supervisor’s approval.

See Deposition of Oran Sage at 36:3-18. Monica Lovato, a

Hispanic merchandiser under Grado’s supervision, failed to

report for work on a scheduled day off. Lovato voluntarily

terminated her employment in 2002. See Pedersen Decl. 4 14

at 5.

BCI contends that Peters never made- any formal

complaints to anyone at BCI at any time during his

employment that he was subjected to discrimination based on

> At times, the parties also refer to Mr. Sage as “Kelly” Sage.

48a

his race. See Peters Depo. at 87:5-16. In his affidavit, Peters

states that he complained to James Young, a BCI employee,

on several occasions that he felt he was being treated

differently because he was African American. See Peters Aff.

{ 16, at 3. Peters brought no formal complaints of race

discrimination to the attention of the Human Resources

Department during his employment at BCI. See Pedersen

Decl. 4 8 at 3.

SUMMARY JUDGMENT STANDARD

IN EMPLOYMENT CONTEXT

Under rule 56, any party may move for summary

judgment. See Fed. R. Civ. P. 56(a) and (b). The moving

party initially carries the burden of pointing out to the trial

court that there is an absence of evidence to support the

nonmoving party’s case, although the moving party “need not

affirmatively negate the nonmovant’s claim in order to obtain

summary judgment.” Allen v. Muskogee, Oklahoma, 119

F.3d 837, 840 (10th Cir. 1997) (citing Celotex v. Catrett, 477

U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986),

cert. denied, 522 U.S. 1148, 118 S. Ct. 1165, 140 L. Ed. 2d

176 (1998)). Once the movant has met this burden, the

nonmoving party must go beyond the pleadings and show that

a genuine issue of material fact exists that would require a

trial. The nonmoving party may not avoid summary

judgment by resting upon only the allegations or denials in the

pleadings. See Bacchus Indus., Inc. v. Arvin Indus., Inc.,

939 F.2d 887, 891 (10th Cir. 1991). The Court must grant

the motion “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(c).

49a

In ruling on a summary judgment motion, the Court

examines the factual record and all reasonable inferences

therefrom in the light most favorable to the nonmoving party.

See Allen v. Muskogee, Oklahoma, 119 F.3d at 839-40. The

Court’s role in deciding a motion for summary judgment is

not to weigh the evidence and determine the truth of the

matter, but to determine whether there is a genuine issue for

trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Where the

record, taken as a whole, could not lead a rational trier of fact

to find for the nonmoving party, there is no genuine issue for

trial. See Aeolus v. Shvartsman, 61 F.3d 805, 808 (10th Cir.

1995).

“The mere existence of some alleged factual dispute

between the parties will not defeat an otherwise properly

supported motion for summary judgment; the requirement is

that there be no genuine issue of material fact.” Anderson v.

Liberty Lobby, Inc., 477 U.S. at 247-48 (emphasis in

original). “As to materiality, the substantive law will identify

which facts are material. Only disputes over facts that might

affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment. Factual

disputes that are irrelevant or unnecessary will not be

counted.” /d. at 248 (citing 1OA C. Wright, A. Miller, & M.

Kane, Federal Practice and Procedure § 2725, at 93-95

(1983)). If the evidence is merely colorable, or is not

significantly probative, summary judgment is appropriate.

See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50.

A claim of intentional disparate treatment based on race

can survive summary judgment only when the plaintiff has

presented sufficient evidence to show that there is a genuine

issue of material fact whether the plaintiff's race actually

motivated the allegedly discriminatory conduct. See Reeves

50a

v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141,

120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000) (“Liability

depends on whether the protected trait... actually motivated

the employer’s decision.”). “A plaintiff alleging

discrimination on the basis of race may prove intentional

discrimination through either direct evidence of discrimination

(e.g., Oral or written statements on the part of a defendant

showing a discriminatory motivation) or indirect (i.e.,

circumstantial) evidence of discrimination.” Kendrick v.

Penske Transp. Services, Inc., 220 F.3d 1220, 1225 (10th

Cir. 2000) (citing Shorter v. ICG Holdings, Inc., 188 F.3d

1204, 1207 (10th Cir. 1999); Elmore v. Capstan, Inc., 58

F.3d 525, 529 (10th Cir. 1995)). In cases involving

circumstantial evidence of discrimination, courts should apply

the analysis that the Supreme Court of the United States set

forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792,

93S. Ct. 1817, 36 L. Ed. 2d 668 (1973). See Kendrick v.

Penske Transp. Services, Inc., 220 F.3d at 1225.

Under the McDonnell Douglas framework, the plaintiff,

here the EEOC, “must carry the initial burden under the

statute of establishing a prima facie case of racial

discrimination.” McDonnell Douglas Corp. v. Green, 411

U.S. at 802. “Once the plaintiff has established a prima facie

case, ‘the burden then must shift to the employer to articulate

some legitimate, nondiscriminatory reason’ for its

employment action.” Kendrick v. Penske Transp. Services,

Inc., 220 F.3d at 1226 (quoting McDonnell Douglas Corp. v.

Green, 411 U.S. at 802). “If the defendant makes this

showing, the plaintiff must then show that the defendant's

justification is pretextual.” McDonnell Douglas Corp. v.

Green, 411 US. at 804.

Sla

LEGAL ANALYSIS

The sole claim remaining in this case is the EEOC’s

allegation that BCI terminated Peters’ employment because of

his race. It is an “unlawful employment practice for an

employer... to discharge any individual, or otherwise to

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of

employment, because of such individual’s race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).

Both parties agree that this case does not involve direct

evidence of discrimination and that the McDonnell Douglas

analysis applies.°

BCI does not dispute that the EEOC has met its burden to

establish a prima facie case of discriminatory discharge. And

while the EEOC disputes whether BCI has come forward with

a legitimate nondiscriminatory reason for its conduct, the

Court believes that BCI’s burden is one of production and not

of persuasion. Thus, BCI need only articulate a legitimate

nondiscriminatory reason for discharging Peters. The

EEOC’s arguments with respect to the legitimacy of BCI’s

proffered reason are more appropriately directed toward to

the question of pretext. Because the Court finds that the

EEOC has not created a genuine issue of material fact with

respect to the question whether BCI’s stated reason for its

decision is mere pretext for discrimination, the Court will

grant BCI’s motion for summary judgment.

° “In the absence of direct evidence of discrimination, a Title

Vil claimant may prove his case by inference.” Response at 5.

Both parties relied upon the McDonnell Douglas analysis in their

briefs.

52a

I. THE EEOC HAS ESTABLISHED A PRIMA FACIE

CASE OF DISCRIMINATORY DISCHARGE.

In the United States Court of Appeals for the Tenth

Circuit, a plaintiff must demonstrate four elements to establish

a prima facie case of discriminatory discharge: (i) he belongs

to a protected class; (ii) he was qualified for his job;

(111) despite his qualifications, he was discharged; and (iv) the

job was not eliminated after his discharge. See Kendrick v.

Penske Transp. Services, Inc. , 220 F.3d at 1229 (citing Perry

v. Woodward, 199 F.3d 1126, 1138 (10th Cir. 1999)). In this

case, BCI does not dispute that the EEOC satisfies these four

elements. See Memorandum in Support of Defendant’s

Motion for Summary Judgment at 16, filed February 19, 2004

(Doc. 66) (“BCI does not dispute that Plaintiff can establish

a prima facie case of discriminatory discharge.”). BCI’s

acknowledgment of a prima facie case means that, for

purposes of this motion, the Court will accept the following

elements of proof as true: (1) Peters was, at all relevant

times, in a protected racial class; (ii) Peters was, at all

relevant times, qualified for his position with BCI; (ii) despite

Peters’ qualifications, BCI discharged him, and (iv) BCI did

not eliminate Peters’ position after discharging him. See

Kendrick v. Penske Transp. Services, Inc. , 220 F.3d at 1229.

The Tenth Circuit has stated that, when a_ plaintiff

establishes a prima facie case under the McDonnell Douglas

analysis, he or she creates “a rebuttable presumption that [the]

employer unlawfully discriminated against [the plaintiff].”

Perry v. Woodward, 199 F.3d at 1138, n.9 (citing Texas

- Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254-

55, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981)).

When viewed against a backdrop of historical

workplace discrimination, an employee who belongs

53a

to a racial minority and who eliminates the two most

common, legitimate reasons for termination, /.@., lack

of qualification or the elimination of the job, has at

least raised an inference that the termination was

based on a consideration of impermissible factors.

The firing of a qualified minority employee raises the

inference of discrimination because it is facially

illogical for an employer to randomly fire an

otherwise qualified employee and thereby incur the

considerable expense and loss of productivity

associated with hiring and training a replacement.

Perry v. Woodward, 199 F.3d at 1140. Thus, in this case,

the EEOC has created a rebuttable presumption that BCI

discriminated against Peters by terminating his employment

because of his race.

Hi. BCI HAS ARTICULATED A_ LEGITIMATE,

NONDISCRIMINATORY REASON’ FOR

TERMINATING PETERS’ EMPLOYMENT.

Once a plaintiff establishes a prima facie case of racial

discrimination, the burden shifts to the defendant to articulate

a legitimate, nondiscriminatory reason for its employment

action. See Kendrick v. Penske Transp. Services, Inc., 220

F.3d at 1226. “This burden is one of production, not

persuasion; it ‘can involve no credibility assessment.’”

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. at

142 (quoting St. Mary’s Honor Center v. Hicks, 509 U.S.

502, 509, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993)). BCI

can meet this burden by offering admissible evidence

sufficient for the trier of fact to conclude that it based its

decision to terminate Peters’ employment on a legitimate

factor other than race. See Reeves v. Sanderson Plumbing

Products, Inc. , 530 U.S. at 142 (“Respondent met this burden

54a

by offering admissible evidence sufficient for the trier of fact

to conclude that petitioner was fired because of his failure to

maintain accurate attendance records.” ).

BCI asserts that it terminated Peters’ employment because

of his insubordinate conduct toward Grado. See

Memorandum in Support of Defendant’s Motion for Summary

Judgment at 16 (“BCI terminated Mr. Peters for

insubordination.”). “Insubordination could serve as a

legitimate non-discriminatory reason for discharge to rebut

the plaintiff's prima facie case.” Brown v. Parker-Hannifin

Corp., 746 F.2d 1407, 1411 (10th Cir. 1984) (citing Ray v.

Safeway Stores, Inc., 614 F.2d 729, 731 (10th Cir. 1980)).

Thus, BCI has satisfied its burden to articulate a legitimate,

nondiscriminatory reason for the employment action that it

took with respect to Peters.

The EEOC contends that BCI’s proffered reason for

Peters’ termination fails for several reasons: (1) Peters was

not actually insubordinate; (ii) BCI’s claim that the decision-

maker did not know Peters’ race is without merit; and (iti)

substantial evidence exists that Grado, rather than Edgar, was

the decision-maker behind Peters’ termination. See Response

at 8-18. These arguments, even if accurate, do not affect

BCI’s ability to meet its burden to set forth a legitimate,

nondiscriminatory reason for its decision.

The defendant need not persuade the court that it was

actually motivated by the proffered reasons. It is

sufficient if the defendant’s evidence raises a genuine

issue of fact as to whether it discriminated against the

plaintiff. To accomplish this, the defendant must

clearly set forth, through the introduction of

admissible evidence, the reasons for the plaintiff's

[termination]. The explanation provided must be

SSa

legally sufficient to justify a judgment for the

defendant. If the defendant carries this burden of

production, the presumption raised by the prima facie

case is rebutted, and the factual inquiry proceeds to a

new level of specificity.

Texas Dept. of Community Affairs v. Burdine, 450 U.S. at

254-55 (internal citations and footnotes omitted). “The

ultimate burden of persuading the trier of fact that the

defendant intentionally discriminated against the plaintiff

remains at all times with the plaintiff.” /d. at 253 (citations

omitted). Accordingly, the Court believes that it is more

appropriate to address the EEOC’s arguments in a pretext

analysis.

lil. THE EEOC HAS NOT CREATED A GENUINE

ISSUE OF MATERIAL FACT WITH RESPECT

TO THE ISSUE OF PRETEXT.

Once the employer articulates a __ legitimate,

nondiscriminatory explanation for its decision, the

presumption of discrimination disappears. See id. at 255 (“If

the defendant carries this burden of production, the

presumption raised by the prima facie case is rebutted[.]”).

“The plaintiff must then have an opportunity to prove by a

preponderance of the evidence that the legitimate reasons

offered by the defendant were not its true reasons, but were

a pretext for discrimination.” /d. at 253. “A plaintiff

establishes pretext by revealing ‘such weaknesses,

implausibilities, inconsistencies, incoherencies, or

contradictions in the employer's proffered legitimate reasons

for its action that a reasonable factfinder could rationally find

them unworthy of credence.’” Equal Employment

Opportunity Commission v. Horizon/CMS Healthcare Corp.,

220 F.3d 1184, 1198 (10th Cir. 2000) (quoting Bullington v.

56a

United Air Lines, Inc., 186 F.3d 1301, -1317 (10th

Cir.1999)). The EEOC has raised several arguments in an

effort to create a genuine issue of material fact concerning

pretext.

Three of the EEOC’s arguments were mentioned above:

(i) Peters was not actually insubordinate; (ii) BCI’s assertion

that Edgar did not know Peters’ race before making her

decision is without merit; and (iii) substantial evidence exists

that Grado, rather than Edgar, was the decision-maker behind

Peters’ termination. See Response at 8-18. In its briefing

directly addressing the pretext issue, the EEOC also argued

that: (i) BCI acted contrary to a written policy when it

terminated Peters; (ii) BCI acted contrary to an unwritten

company policy or practice by treating similarly situated

individuals of a different class differently from Peters; (ili)

evidence of Grado’s racial bias supports a finding of pretext;

and (iv) statistical evidence concerning the racial composition

of BCI’s work force supports a finding of pretext. See id. at

18. For the reasons stated on the record in open court during

the hearing on this matter, and for the reasons set forth

below, the Court finds that the EEOC has not demonstrated

that there is a genuine issue of material fact that would require

a trial.

A. NO GENUINE ISSUE OF MATERIAL FACT

EXISTS WHETHER BCV’S STATED REASON

FOR TERMINATING PETERS’ EMPLOYMENT

IS FALSE.

The EEOC argues that BCI’s proffered reason for

terminating Peters’ employment is a pretext for discrimination

because Peters was, in fact, not insubordinate. The EEOC

maintains that, to establish that Peters was insubordinate, BCI

“must articulate an occasion when Stephen Peters resisted

S7a

authority, refused to obey, used objectionabie language or

was abusive toward a supervisor.” Response at 8 (citing

Webster’s Third New Dictionary at 999 (1981); 48 Am. Jur.

2d Labor and Labor Relations § 2259). The EEOC contends

that BCI is unable to articulate any of these conditions.

“District courts, when analyzing the pretext issue, do not

sit as ‘super-personnel departments’ free to second-guess the

business judgment of an employer.” Bullington v. United

Airlines, Inc. , 186 F.3d at 1318 n. 14, overruled in part on

other grounds by National R.R. Passenger Corp. v. Morgan,

536 U.S. 101, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002).

The relevant inquiry is not whether BCI’s proffered reasons

were “wise, fair or correct,” but whether BCI “honestly

believed those reasons and acted in good faith upon those

beliefs.” Bullington v. United Airlines, Inc., 186 F.3d at

1318 (citing Sanchez v. Philip Morris Inc. , 992 F.2d 244, 247

(10th Cir.1993) (“Title VII is not violated by the exercise of

erroneous or even illogical business judgment.”); Kariotis v.

Navistar Int'l Transp. Corp., 131 F.3d 672, 677 (7th Cir.

1997) (“Arguing about the accuracy of the employer’s

assessment [of plaintiff's performance] is a distraction,

because the question is not whether the employer’s reasons

for a decision are right but whether the employer’s description

of its reasons is honest.” (internal quotation marks and

Citations omitted.))). Further, “a challenge of pretext requires

{the Court] to look at the facts as they appear to the person

making the decision to terminate plaintiff.” Kendrick v.

Penske Transp. Servs., Inc., 220 F.3d at 1231.

Thus, in this case, Peters’ subjective belief whether he

committed insubordination is not relevant. The Court must

analyze the pretext issue by determining whether a genuine

issue of material fact exists whether BCI honestly believed

that Peters had committed insubordination and whether that

58a

was the true reason for its decision to terminate his

employment. The EEOC has been unable to dispute, by

competent evidence, that Patricia Edgar, the Employee

Relations Manager responsible for deciding all termination

issues, believed that Peters’ conduct on Friday, standing

alone, warranted termination. See Edgar Decl. 4 10, at 4 (“I

made the determination on Friday, September 28, 2001, that

Mr. Peters was insubordinate.”). The EEOC has also been

unable to point to evidence in the record which contradicts

that Edgar made the decision to terminate because she

believed that Peters’ conduct met BCI’s definition of

insubordination. See id. 49, at 4 (“Insubordination occurs

when the employee knows that he is considered to be defying

a direct order of the supervisor and that his conduct could

lead to termination.”). kt is BCI’s definition of

“insubordination” that controls. Although the EEOC argues

for a different definition, Tenth Circuit law states that the

Court must evaluate a pretext challenge by reference to “the

facts as they appear to the person making the decision to

terminate plaintiff.” Kendrick v. Penske Transp. Servs., Inc.,

220 F.3d at 1231.

And while the EEOC challenges BCI’s ultimate conclusion

that Peters was insubordinate, it does not challenge the facts

underlying that conclusion. In fact, Peters admitted those

facts at his deposition. Grado called Peters on Friday to

discuss Peters coming in to work on Sunday and told Peters:

“I’m not asking you to come to work, I’m telling you to come

to work. If you do not come to work, it could lead to

insubordination and could lead to termination.” Peters Depo.

at 121:11-14. Rather than agree to come in to work on

Sunday, Peters told Grado to “do what |you’ve] got to do,

and I'll do what I’ve got to do.” /d. at 121:23 to 122:1.

According to BCI, Peters’ statement during that telephone

conversation was an act of insubordination.

59a

The EEOC argues that the Court should find a genuine

issue of material fact with respect to pretext because it is

unclear when Peters’ insubordination, if any, occurred.

According to the EEOC, Peters could not have committed

insubordination on Friday, September 28, 2001 because

Grado did not order him to take any action on Friday. The

order from Grado required Peters to report to work on

Sunday. The EEOC also argues that Peters did not commit

insubordination on Sunday, September 30, 2001 because he

stayed home from work with Katt’s permission. The EEOC

has not introduced evidence into the record, however, to

contradict Edgar’s stated reasons for the decision to terminate

Peters’ employment.

By the end of the day Monday, October 1, 2001, I had

made a final decision to terminate the employment of

Stephen Peters. This decision was based on several

factors. First and foremost was the conduct of Mr.

Peters towards Mr. Grado on Friday, September 28,

2001. There was no question in my mind that Mr.

Peters had committed the offense of insubordination

that day. A single offense of insubordination is

sufficient to warrant termination under BCI policy.

However, this was not Mr. Peters’ first offense of

insubordination. The fact that Mr. Peters had

previously been written up for insubordination and

had already been given a final warning on this issue

also contributed to my decision to terminate his

employment. Mr. Peters had already been given more

chances than the policy required on this issue, and |

felt that any action short of termination at that juncture

could set a bad precedent on the issue of BCI’s stance

with respect to insubordination.

Edgar Decl. ¢ 13, at 6.

60a

Thus, while the EEOC argues that insubordination did not

occur on Friday, the EEOC has not provided evidence to

contradict BCI’s evidence that Peters engaged in the conduct

that BCI attributes to him. The EEOC’s argument that BCI

somehow misinterpreted that conduct is insufficient to create

a genuine issue of material fact on the issue of pretext. “[A]

challenge of pretext requires [the Court] to look at the facts as

they appear to the person making the decision to terminate the

plaintiff.” Kendrick v. Penske Transp. Servs., Inc. , 220 F.3d

at 1231. There is no evidence to support the contention that

BCI did not honestly believe that Peters was insubordinate on

Friday.

The EEOC also argues that insubordination did not occur

on Sunday because Peters missed work with Katt’s

permission. It is undisputed that Peters called in sick to Katt

on Saturday evening. According to Edgar, however, that call

did not justify Peters’ absence or preclude a determination

that Peters was insubordinate.

The fact that Mr. Peters called in sick to Jeff Katt on

Saturday night had no impact whatsoever on my

assessment of the situation, for several reasons. First,

in my opinion, the timing of Mr. Peters’ alleged

sickness was highly suspect. I knew that he worked

his scheduled shifts on Friday, September 28, 2001

and Monday, October 1, 2001, which led me to

conclude he could have come to work on Sunday if he

wished to do so. | also found it particularly suspicious

that Mr. Peters chose to call in sick to Mr. Katt,

rather than Mr. Grado, given the fact that Mr. Peters

had been warned by Mr. Grado the day before that if

he did not come to work he would be subject to

termination. In my opinion, which I formulated prior

to my decision to terminate, if Mr. Peters had

6la

genuinely been sick, and unable to work, and was

genuinely interested in preserving his employment

relationship with BCI, he would have called in to

explain the situation directly to Mr. Grado.

Edgar Decl. 4 14, at 6-7. Thus, reference to Peters’ Saturday

evening telephone call to Katt does not create a genuine issue

of material fact whether Edgar believed Peters was

insubordinate on Sunday.

The EEOC argues that the Disciplinary Status Notice

creates a genuine issue of material fact whether BCI

terminated Peters for failure to report to work on Sunday

rather than for his conduct toward Grado on Friday. The

Notice shows a violation date of September 30, 2001 and

contains the following narrative:

Group A: Insubordination: On Friday 9-28-01 you

were given a direct order to come into work on

Sunday 9-30-01 due to business necessity. I also

explained how this was a direct order and failure to

comply with the directive would be considered

insubordination and would result in termination. You

explained how you had plans and that I “should do

whatever I had to do.” You did not report to work on

Sunday 9-30-01, therefore your employment is being

terminated for insubordination.

Disciplinary Status Notice (September 30, 2001). Although

the Notice mentions Peters’ failure to report to work on

Sunday, September 30, 2001, the Court does not believe that

it creates a genuine issue of material fact on the issue of

pretext. It is consistent with Edgar’s declaration.

62a

Edgar has stated that Peters’ failure to report to work

played a role in her decision to terminate Peters’ employment.

See Edgar Decl. ¢ 14, at 6. Edgar viewed Peters’ “failure to

come to work on Sunday not as an isolated attendance issue,

but as the fulfillment of his stated intention the previous

Friday to defy Mr. Grado’s direct order.” Jd. Edgar viewed

Peters’ conduct on Friday and Sunday as parts of the same

chain of events. Thus, that the Notice lists Peters’ conduct on

Sunday, September 30, 2001 as the reason for his termination

is not inconsistent with BCI’s stated position and does not

create a genuine issue of material fact.’

’ The EEOC’s characterization of Peters’ termination as one for

failure to report to work serves as the basis for its later argument ~

that BCI treated Peters differently than other similarly situated

individuals. The EEOC has not been able to dispute, however, that

BCI terminated Peters’ employment because of insubordination

rather than attendance violations. See Edgar Decl. P 16, at 7 (“Mr.

Peters was terminated solely for insubordination. Mr. Peters was

not terminated because he did not show up for work on Sunday,

except to the extent this conduct is viewed in context with his

exchange with Mr. Grado on Friday, September 28, 2001, as-the

fulfillment of Mr. Peters stated intention to defy a direct order from

Mr. Grado.”). The fact that Grado’s order to Peters involved

coming into work does not automatically transform Peters’ violation

from insubordination into an attendance violation; the attendance

violation was incidental to Peters’ insubordination. Thus, Peters is

not similarly situated with other employees whom BCI disciplined

for violation of various attendance rules.

63a

B. NO GENUINE ISSUE OF MATERIAL FACT

EXISTS WHETHER GRADO, RATHER THAN

EDGAR, MADE THE DECISION TO

TERMINATE PETERS’ EMPLOYMENT.

The parties dispute whether Edgar or Grado made the

decision to terminate Peters’ employment. The EEOC argues

that “Edgar relied on ‘facts’ obtained from Grado. Based on

the ‘facts’ as reported by Grado, Edgar authorized Grado to

terminate Mr. Peters.” Response at 15 (emphasis in original).

In support of its argument that Grado was the decision-maker,

the EEOC also points out that it was Grado that anticipated a

decision needed to be made and contacted Edgar; that Edgar

did not conduct an independent investigation of the facts she

received from Grado; and that Grado gave employees the

impression that he had the authority to make termination

decisions.

The EEOC argues that Edgar unduly relied on Grado’s

version of the facts because she did not perform an

independent investigation into Peters’ conduct. There was no

evidence, however, either before Edgar or before this Court,

to raise the inference that Grado relayed misleading

information to Edgar. To the contrary, the evidence is that

Peters engaged in the conduct that BCI attributes to him.

Moreover, Edgar did take some steps to more closely

evaluate the situation. She met with Pedersen by telephone to

learn more information about Peters’ disciplinary history. It

was during that conversation that she learned that one of

Peters’ former supervisors had written Peters up for

insubordination in 1999 based on his refusal to work a

scheduled day off. See Edgar Decl. 4 11, at 5. That Peters

had a similar incident with a different supervisor contributed

64a

to Edgar’s conclusion that Grado’s version of events was

accurate. See id.

The EEOC produced evidence that “G.sado made

representations in the workplace that he had the authority to

terminate employees under his supervision. See Katt Depo.

at 72:7-13. During his employment with BCI, Katt assumed

that Grado was the one who made decisions to terminate

employees. See id. at 71:21 to 72:5. Other employees also

believed that Grado had the ability to fire the individuals he

supervised. See Wilson Aff. 4 8, at 2-3. Peters also testified

that he believed Grado had the authority to discipline and fire

employees. See Peters Aff. 18, at 3.

Grado’s statements, however, and employees’ subjective

beliefs, do not create a genuine issuc of material fact whether

Grado had the authority to terminate employees. With respect

to Grado’s actual authority, the evidence is undisputed.

Edgar had to authorize “all terminations.” Edgar Decl. ¢ 3,

at 2 (emphasis in original). See also Pedersen Decl. 4 2, at

2. Grado did not have independent authority to discipline or

terminate employees working under his supervision. See

Grado Decl. § 6, at 3 (“All such disciplinary actions must be

authorized by our Human Resources Department. It is my

responsibility to deliver or communicate all disciplinary

actions -- whether verbal or written -- to employees working

under my supervision.”). When an employee had an

attendance, performance, or disciplinary issue, Grado brought

those facts to the attention of the Human Resources

Department, which would in turn decide which company

65a

polices applied to the situation and the appropriate action to

take under the circumstances. See id.*

BCI has produced admissible evidence that Edgar was the

final decision making authority on terminations generally.

See Edgar Decl. { 3, at 2; Pedersen Decl. 4 2, at 2. It has

also produced competent evidence that Edgar was the

decision-maker specifically with respect to Peters’

termination. See Edgar Decl. 4 15, at 7 (“I was solely

responsible for making the decision to terminate Mr. Peters’

employment. At no point during my meetings with Mr.

Grado did I ask -- or did Mr. Grado offer -- an opinion or

recommendation as to what should be done with Mr.

Peters.”). Seg also Grado Decl. { 13, at 5 (“During these

conversations, I simply reported the facts to Ms. Edgar and

gave no opinion or recommendation as to what I thought

should happen to Mr. Peters.”).

In response to the evidence that Edgar, rather than Grado,

made the final decision to terminate Peters’ employment, the

EEOC argues that “a defendant may be held liable if the

manager who discharged the plaintiff merely acted as a rubber

stamp, or the ‘cat’s paw,’ for a subordinate employee's

prejudice, even if the manager lacked discriminatory intent.”

* The EEOC also brings Grado’s training in discipline to the

Court’s attention. See Response at 16 n.3 (“Moreover, Cesar

Grado was required to attend training on “discipline and dismissal

decisions,” and a supervisor's “role in discipline.”) (emphasis in

original). That Grado participated in such training, however, does

not create a genuine issue of material fact whether Grado was the

decision-maker behind Peters’ termination. It is logical that Grado

would attend such training because he is the supervisor who must

use professional judgment in determining whether to bring certain

conduct to the Human Resources Department’s attention

66a

Kendrick v. Penske Transp. Services, Inc., 220 F.3d at 1231.°

Edgar, however, did not act as a “rubber stamp” or “cat’s

paw” for Grado’s prejudice. The EEOC does not dispute

with any competent evidence that Grado did not express an

opinion or recommendation to Edgar about what he thought

BCI should do about Peters. See Grado Decl. ¢ 13, at 5S.

Cases in which other circuits have recognized this “rubber

stamp” theory involved situations in which a decision-maker

accepted the recommendations of a biased supervisor without

conducting an independent investigation. See e.g., Long v.

Eastfield College, 88 F.3d 300, 307 (Sth Cir. 1996) (“If, on

the other hand, Aguero did not conduct his own independent

investigation, and instead merely ‘rubber stamped’ the

recommendations of Clark and Kelley, the causal link

between Long and Reavis’s protected activities and their

subsequent terminations would remain intact.”); Shager v.

Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990)(“Lehnst not

only set up Shager to fail by assigning him an unpromising

territory but influenced the committee’s deliberations by

portraying Shager’s performance to the committee in the

worst possible light. Lehnst’s influence may well have been

decisive. ‘The committee’s deliberations on the question

whether to fire Shager were brief, perhaps perfunctory; no

member who was deposed could remember having considered

the issue.”). In this case, Grado did not make any

* Although the EEOC cites Kendrick v. Penske Transp.

Services, Inc. for this proposition, the Court notes that Kendrick

does not say that the Tenth Circuit accepts that test. It only says

that “other circuits have recognized” that test and then explains why

it failed to assist the plaintiff in Kendrick.

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.