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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0294%3A02

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2007

## 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,

Vs

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

i
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.

il
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.

IV

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

Vv

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

vi
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

ix

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.

2

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).

3

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

4

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).

5

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

6

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

7

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

8

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

9

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).

10

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
5.

I]

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

12

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

13

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.

14

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

15

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).

16

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

17

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.).

4

18

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

19

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).

20

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).

6

' 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.

21

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

«!

la

— —

APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

No. 04-2220

[Filed June 7, 2006]

EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff-Appellant,

V.

BC] COCA-COLA BOTTLING
COMPANY OF LOS ANGELES,
doing business as Phoenix Coca-Cola
Bottling Company; COCA-COLA
BOTTLING COMPANY OF
ALBUQUERQUE,
Defendants-Appellees.

ee

ORDER

BEFORE: LUCERO, McKAY, and McCONNELL, Circuit
Judges.

The Equal Employment Opportunity Commission
(“EEOC”) asks us to reverse the district court’s decision

2a

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

3a

“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.

4a

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

Sa

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,

6a

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

Ta

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.

Ra

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.

9a

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. 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
6.

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

os

> 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

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0294%3A02. Public record. Not legal advice.