Petition for Writ of Certiorari — Berquist v. Washington Mutual Bank, 128 S. Ct. 1124 (2008) (No. 07-640)

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| 07-640 NOV 13 2007

Ne. 7 | OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

PHILIP BERQUIST,

Petitioner,

WASHINGTON MUTUAL BANK,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

JOSEPH Y. AHMAD

Counsel of Record

AIIMAD, ZAVITSANOS & ANAIPAKOS, P.C.

3460 ONE Houston CENTER

1221 McKINNEY STREET

Houston, TX 77010

(713) 655-1101

(713) 655-0062 FAx

Counsel for Petitioner

November 12, 2007

Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001

QUESTIONS FOR REVIEW

1. Ina case involving a reduction in force, what is

the fourth prong of a prima face case of age

discrimination?

2. May a court require two similarly situated

employees to be “nearly identical” in order for their

disparate treatment to support a prima facie case of

age discrimination?

3. What is the test for determining whether ageist

comments support an inference of age discrimination

at the prima facie case and at the ultimate

determination of pretext?

4, Whether the United States Court of Appeals for

the Fifth Circuit has varied far from the other circuit

courts of appeal by suggesting that an employer’s

otherwise discriminatory conduct may be excused

because the employee refused to sign a release.

5. Whether the United States Court of Appeals for

the Fifth Circuit ignored the plaintiffs evidence in

support of his prima facie case and failed to draw all

inferences in favor of Petitioner when considering

whether petitioner had ultimately proved

discrimination.

CERTIFICATE OF INTERESTED PARTIES

Pursuant to Supreme Court Rule 14(b), the

undersigned counsel of record certifies that the

following listed persons or entities have an interest in

the outcome of this case:

PHILIP BERQUIST, Plaintiff - Petitioner

Joseph Y. Ahmad, Ahmad, Zavitsanos, &

Anaipakos, P.C. , Attorney for Plaintiff - Petitioner

PHILIP BERQUIST

WASHINGTON MUTUAL BANK, Defendant -

Respondent

Washington Mutual Bank is owned by Washington

Mutual, Inc., a publicly traded company.

Jeffrey C. Londa, Robert L. Ivey, Ogletree,

Deakins, Nash, Smoak & Stewart, P.C., Attorneys

for Defendant - Respondent WASHINGTON

MUTUAL BANK

TABLE OF CONTENTS

QUESTIONS FOR REVIEW .................. i

CERTIFICATE OF INTERESTED PARTIES .... ii

SARs OF AUSEREREED ccc ccccceevensen vi

CITATIONS OF THE OFFICIAL AND UNOFFICIAL

REPORTS OF THE OPINIONS AND ORDERS

Sir Been EE 650s 5 vo Sene seb vea peter eaee 1

STATEMENT OF JURISDICTION ............ 1

STATUTORY PROVISION INVOLVED ........ 2

STATEMENT OF THE CASE ................ 2

A. Course of the Proceedings and Disposition in

See Re IN 6 oh'5 5 on ok hess ean eavas 2

ey SURO GE UD vgn cc eee daeecee ven 3

SUMMARY OF ARGUMENT ................. 8

PPI 6s of CNG Be eEees Con eetee ee 10

A. The Court of Appeals Imposed Unduly

Burdensome Hurdles to Establishing the

Fourth Element of the Prima Facie Case. . 10

1. By literally requiring that Berquist

show “replacement” or else provide

ultimate proof of discrimination, the

court of appeals departed from the

authorities of other courts of appeal.

2. The Courts of Appeals employ a wide

array of “fourth prongs” of the prima

facie case in RIF cases, and their

differences are material. ............ 15

3. The Fifth Circuit’s standard

erroneously requires the plaintiff, as

part of the prima facie case, to rebut

the employer’s nondiscriminatory

rationale, in conflict with other circuit

NG a ean bade ene shes eee wns 19

B. The Court of Appeais improperly required

Berquist to be “nearly identical” to younger

employees in order to be similarly situated

to them, and based on this faulty standard,

determined that Berquist did not establish a

SN I, 1k ov x ha 8 ee ven een ees 22

C. In deciding that Martinez’s ageist comments

did not support Berquist’s prima facie case,

the Court of Appeals improperly weighed

and assessed their credibility. .......... 28

D. The Court of Appeals’ opinion appears to

equate “following procedures” with “si¢uing

Serio ee ese 33

E. The Court of Appeals ignored all of

Berquist’s evidence in support of his prima

facie case and held that he had “no evidence”

to rebut the Bank’s legitimate,

nondiscriminatory reason for his discharge.

Cubes As ¥os PEE ene eee 34

1. The court below ignored Berquist’s

evidence, including that which

supported his prima facie case........ 34

2. Berquist has substantial evidence of

pretext and discrimination, more than

sufficient to defeat summary

Ce ee errr re rere Lr 35

oe Be rrr rere reece 37

APPENDIX:

Appendix A: Fifth Circuit decision

Ce EE i 9 hee he eh eee eee es la

Appendix B: District Court decision

SN tos Seon een tLe eee 27a

Appendix C: Fifth Circuit denial of rehearing

CN ob ae ee VAs eee 36a

Appendix D: Fifth Circuit judgment

Og Re: re er eT eee ee! 38a

Appendix E: Age Discrimination in Employment

Act, ZO U.S.C. $6 GZE-G84 . wo icc tcccns 40a

TABLE OF AUTHORITIES

Cases

Abdu-Brisson v. Delta Air Lines, Inc.,

239 F.3d 456 (2d Cir. 2001) ............ 18, 22

Aragon v. Republic Silver State Disposal, Inc.,

292 F.3d 654 (9th Cir. 2002) .............. 25

Ash v. Tyson Foods, Inc.,

ee es I as 30

Berquist v. Washington Mutual Bank,

500 F.3d 344 (5th Cir. 2007) 1, 11, 13, 17, 20, 23

Bowman v. Lopereno,

i era ae we bem sce wen 2

Coburn v. Pan American World Airways, Inc.,

711 F.2d 339 (D.C. Cir.); cert. denied, 464 U.S.

edly k ou Cs eb Ure ee 15, 19-21

Coleman v. Quaker Oats Co.,

235 ©.S0 1271 (OG Cir. 2000) .. wc ccc cece 35

Collier v. Budd Co.,

6 F.3d 886 (7th Cir. 1995) .......... 13, 15, 16

Conward v. Cambridge Sch. Committee,

yag @ be Ck 2s a. | Berane 25

Ercegovich v. Goodyear Tire & Rubber Co.,

154 F.3d 344 (Gth Cir. 1998) .............. 25

Vili

Graham v. Long Island Rail Road,

230 F.3d 34 (2d Cir. 2000) ...........-.. 24, 28

Holland v. U.S.,

EE SP RR GS Sic as eves ce webawewns 29

Holley v. Sanyo Mfg., Inc.,

771 F.2d 1161 (8th Cir. 1985) .......... 17, 19

Ingels v. Thiokol Corp.,

42 F.3d 616 (10th Cir. 1994) .............. 15

James v. New York Racing Ass’n,

2338 F.3d 149 (2d Cir. 2006) ..........-: 18, 21

LaGrant v. Gulf & Western Manufacturing Co., Inc.,

748 F.2d 1087 (6th Cir.1984).............. 17

LeBlanc v. Great American Ins. Co.,

6 F.3d 836 (1st Cir. 1993); cert. denied, 511 U.S.

EE ol nl laa on ok 6es eae Caos 16

Lopez v. Gonzalez,

peg 8 Fe err 30

Martinez v. Potter,

347 F.3d 1208 (10th Cir. 2003) ............ 15

Marzano v. Computer Science Corp., Inc.,

Oe Fe Get We CAP. BOO) oc ee cece ncaa 16

McDonald v. Santa Fe Trail Transp. Co.,

ee Bee ee Ce is hk ne ob eee wens 24

vill

McDonneil Vouglas v. Green,

411 U.S. 792 (1973) ........ 9, 10, 16, 20-22, 24

McGuinness v. Lincoln Hall,

2638 F.3d 49 (2d Cir. 2001)... ee wees 24, 25

Miller-El v. Dretke,

Ge Ua ee GET o's 0k bbe ee ee see 23

Moore v. Frederick,

TSF Bl RE 600d £20 8b Ra ee 30

Nidds v. Schindler Elevator Corp..,

113 F.3d 912. (Oth Une. 1997) «oc cecccees i8

Oxman v. WLS-TYV,

846 F.2d 448 (7th Cir. 1988) ........ 17, 19, 20

Perez v. Tex. Dep’t of Criminal Justice,

395 F.3d 206 (Sth Cir. 2004) ........... 23, 27

Rachid v. Jack In The Box, Inc.,

376 F.3d 306 (Gth Cir. 20046) ... 2. icc ee 8,17

Smith v. Stratus Computer,

40 F.3d 11 (1st Cir. 1994); cert. denied, 514 U.S.

TROUT EON) 66 0 bpd wsianes tne ieee 24

Sullivan v. Liberty Mutual Ins. Co.,

444 Mass. 34, 825 N.E.2d 522 (Mass. 2005) .. 22

Swierkiewicz v. Sorema N.A.,

Gee US. CS ee a is ced en eee 1]

Vasquez v. County of Los Angeles,

348 F.3a 634 (9th Cir. 2001) .............. 24

Village of Arlington Heights, v. Metropolitan Housing

Development Corp.,

ey 5 31

Williams v. General Motors Corp..,

656 F.2d 120 (5th Cir. 1981) ...... 14, 15, 18-21

Williams v. Vitro Services Corp.,

144 F.3d 1438 (llth Cir. 1998) ............ 17

Wilson v. B/E Aerospace, Inc.,

376 F.3d 1079 (11th Cir. 2004) ............ 23

Woodhouse v. Magnolia Hospital,

92 F.3d 248 (5th Cir. 1996) ............. 9,17

Constitutional and Statutory Provisions

EE a | 2

ES. rr 2

Age Discrimination in Employment Act (“ADEA”),

Pub. L. 90-202, § 4, 81 Stat. 602 (1967), codified at 29

U.S.C. § 621, et seq. ........ 2, 3, 10, 12, 14, 19, 20

Rules

a 2

CITATIONS OF THE OFFICIAL AND

UNOFFICIAL

REPORTS OF THE OPINIONS AND ORDERS

OF THE CASE

1. The opinion of the United States District for the

Southern District of Texas awarding summary

judgment to Respondent is Berquist v. Washington

Mutual Bank, 2005 WL 2171903 (S.D. Tex. Sept. 7,

2005) (No. CIV. A. H-04-376).

2. The original opinion of the United States Court of

Appeals for the Fifth Circuit in No. 05-20956 is

Berquist v. Washington Mutual Bank, 492 F.3d 576

(5th Cir. 2007). This opinion was withdrawn and

superseded on denial of rehearing by Berquist v.

Washington Mutual Bank, 500 F.3d 344 (5th Cir.

2007).

STATEMENT OF JURISDICTION

1. The judgment for which review is sought was

entered by the United States Court of Appeal for the

Fifth Circuit on July 12, 2007. App. D., p. 38a.

2. Petitioner Philip Berquist (“Berquist”) filed a

petition for rehearing. The court of appeals allowed the

late filing and considered the motion for rehearing on

the merits. App. C, p. 37a. The court denied rehearing

by order entered August 13, 2007. Jd. On August 31,

2007, the court withdrew its original opinion and

issued a substituted opinion in response to Petitioner’s

Petition for Rehearing. App. A, p. la.

3. This Petition for Certiorari is timely under

Supreme Court Rule 13.3 as the Court of Appeals

appropriately considered Petitioner’s Petition for

Rehearing and issued a revised opinion in response to

Petitioner’s Motion for Rehearing, thereby

demonstrating that the Petition for Rehearing was

considered on the merits. App. A, p. la; see also

Bowman v. Lopereno, 311 U.S. 262, 266 (1940) (where

court of appeals allows filing and considers merits of

petition for rehearing, its judgment does not become

final until denial of rehearing). This petition is timely

filed on the first working day after 90 days from the

denial of rehearing, as required by Supreme Court

Rule 13.3.

4. Pursuant to Article II, Section 2 of the

Constitution of the United States and 28 U.S.C.

§ 1254, this Court has jurisdiction to review on a writ

of certiorari the claims in this case.

STATUTORY PROVISION INVOLVED

The claims in this case arise under the Age

Discrimination in Employment Act (“ADEA”), Pub. L.

90-202, Section 4, 81 Stat. 602 (1967), codified at 29

U.S.C. § 621, et seg., set forth in relevant part in the

Appendix E at 40a - 85a.

STATEMENT OF THE CASE

A. Course of the Proceedings and Disposition in

the Courts Below.

Plaintiff Philip Berquist (“Berquist”) brought this

suit against Washington Mutual Bank for violation of

the ADEA in the United States District Court for the

Southern District of Texas, Houston Division on

January 30, 2004. On September 7, 2005, the District

Court entered a Final Summary Judgment Order on

behalf of Washington Mutual.

The United States Court of Appeal for the Fifth

Circuit affirmed the District Court’s Final Summary

Judgment Order, but on different grounds than those

relied upon by the District Court. The original panel

decision was reported at 492 F.3d 576 (5th Cir. 2007).

The court’s superseded opinion is reported at 500 F.3d

344 (5th Cir. 2007) and is included in Appendix A, pp.

la - 26a.

B. Statement of Facts

Philip Berquist began working for Bank United in

1984 in the Internal Audit Department, and received

a number of promotions during the course of his

career. R. 631. In 1994, Berquist was promoted to Vice

President - Senior Asset Review Analyst, Asset

Review. R. 631. This position is also known as “credit

review officer,” “loan review officer,” or “credit review

associate.” R. 631, 652, 654. In this position, he was

performing loan review or credit review work.

After Bank United merged with Washington

Mutual in 2001, his title was changed to “Senior Credit

Examiner,” but he was still performing loan (or credit)

review and was assigned to the Loan Review

Department of Corporate Credit Risk Management,

performing these duties until he was terminated

effective August 1, 2003. R. 632, 917, 931, 936.

Melissa Martinez started at Washington Mutual on

September 30, 2002, and shortly thereafter became

Berquist’s supervisor. R. 633, 641. At that time,

Berquist was 54 years old, R. 633, and his department

in Houston contained four employees: Berquist, Ron

Yancis (age 56), David Plaisance (approximately 39

years old), and Carl Zatopek (approximately 41 years

old). R. 606. Martinez was 42 years old during this

time. R. 641. Berquist, like Plaisance and Zatopek,

exclusively performed SFG work from March 2003

until his termination. R. 634.

Prior to Martinez becoming Berquist’s supervisor,’

Berquist had always received very favorable

evaluations during his employment and had never

been given any type of counseling, performance

warning, or been told any negative information

concerning his job performance. R. 633. However, upon

his assignment to Martinez, Berquist’s career rapidly

declined.

On December 9, 2002, Martinez openly advised her

staff in a nationwide conference call that she would

seek to “attract younger talent.” R. 488. Berquist made

a contemporaneous note of it, R.922-24, 488, as did Ed

Groshens, who was over 60 years old at the time.’ R.

726-27. Groshens was so alarmed that he called

Martinez about the comment that very same day,

' Berquist’s immediate report was Scott Frazee, who in turn

reported to Martinez.

“In Groshens’ notes, Martinez’s “younger talent” comment is in

bold and accompanied by a star to the side.

hoping that she would retract it or provide some other

explanation, but she did neither, rather responding

only that the comment was taken “out of context.” R.

727.

Less than three months later, on March 4, 20038,

and with no advance warning, Martinez issued

negative Performance Imp.ovement Notices (“PINs”)

to Berquist and Yancis, both of whom were at least ten

years older than the younger employees in their

department. R. 606.

Included in their individual PINS, both Berquist

and Yancis were told in identical language that:

Work product is not produced in a timely

manner

Also, both were told in identical language that:

Execution of assignments is_ disjointed

compromising accuracy and completeness.

Finally, both Berquist and Yancis were criticized

for having skills that did not match their position

(despite performance evaluations to the contrary) in

language that was only slightly differed:

[Berquist]

Technical skills and_ proficiencies are

“operational” in nature and not commensurate

with the job function, CCR focus, or those

required for a Credit Review Officer.

[Yancis]

Technical skills and proficiencies are not

commensurate with the job function and those

required for a Senior Credit Review Officer.

R. 743-744; R. 746.

In addition, the “Action Plan” listed in the PIN to

correct the alleged unsatisfactory performance of both

Berquist and Yancis is identical. R. 743-744; R. 746.°

The two younger employees, Zatopek and Plaisance did

not receive PINs, R. 665.

Approximately two months after receiving his PIN,

Berquist was advised that he had 45 days to apply for

other jobs within the Bank or else he would be

terminated.* R. 633. However, under the Bank’s

* Martinez also issued other performance improvement notices to

other subordinate employees across the country, all of whom were

over the age of 40. R. 643-644.

*The PIN was only to document Berquist’s alleged failures, not as

any genuine attempt to improve his performance. The PIN’s

themselves were very general. What little of it that was specific in

nature was simply palpably false. For example, Martinez knew

that Berquist did not even have any subordinate employees so it

would be impossible for him to have created “a demoralizing

environment” for them. R. 649, 668, 670.

Moreover, Berquist asked for specifics on what he was doing

wrong, but none were provided. He even provided Martinez a

detailed response to the PIN asking if any of his assertions were

incorrect and requesting a clear understanding of her criticisms.

R. 705. Having heard nothing in response, Berquist again

standard guidelines, and under the terms of the PIN,

an employee on formal written documentation (such as

Berquist’s PIN) was ineligible to apply for a transfer.

R. 743, 803. Berquist asked that Martinez change his

PIN to a “notice of concern” so that he would be eligible

to apply for other jobs within the Company, but she

refused to do so. R. 803.

Berquist was told that he was ineligible for

severance because he was being terminated, not laid

off. R. 633-634. Later, the Bank reversed itself on the

severance issue, but only if Berquist signed a

confidential release agreement, which 1) released his

claims of age discrimination, among others, against

the Bank, and 2) would bar him from telling future

employers about the circumstances of his termination.

R. 946-947. Berquist informed the Bank that he would

not sign the separation proposal and release on Friday,

June 13, 2003. R. 799, 806. As of this time, Berquist

was still deemed ineligible for severance since he was

being terminated, not laid off. R. 797-798. On Monday,

June 16, 2003, the mention of a “layoff”? and the

transfer of his alleged CBG duties to California,

appears for the first time. On June 26, Berquist is told

that despite his rejection of the separation proposal, he

would be let go anyway because his job was being

eliminated in Houston. R. 634. Zatopek and Plaisance

were retained and months later offered transfers to the

Dallas office. R. 759.

requested more details two months later. R. 706. Again, Martinez

never responded.

The District Court awarded summary judgment to

Washington Mutual on grounds that Berquist failed to

meet his prima facie case because he was not

“qualified” for the job he had been holding for years.

App. B, pp. 33a - 34a. The Fifth Circuit Court of

Appeals affirmed summary judgment for the Bank, but

on other grounds: that Berquist failed to establish the

fourth prong of the prima facie case (that he was

“replaced by someone outside the protected class,

replaced by someone younger, or otherwise discharged

because of his age”). App. lla, 23a. In addition, the

Court of Appeals, assuming arguendo that Berquist

had established a prima facie case, determined that

Berquist “presented no evidence to contradict

Washington Mutual’s legitimate, non-discriminatory

reason for eliminating his position.” App. 25a.

SUMMARY OF ARGUMENT

The case law from the courts of appeal is in a state

of disarray concerning the fourth prong of the prima

facie case in cases involving a reduction in force. The

Fifth Circuit’s standard conflicts with that of other

circuit courts with the result that plaintiffs whose

evidence would demonstrate a prima facie case in one

circuit are failing in others.

Some circuit courts look simply to whether younger

employees are treated more favorably, while others,

including the Fifth Circuit, employ a standard which

mimics the ultimate issue in the case: whether the

plaintiff has produced “evidence, either circumstantial

or direct, from which a factfinder might reasonably

conclude that the employer intended to discriminate in

reaching its decision.” Rachid v. Jack In The Box, Inc.,

376 F.3d 305, 309 (5th Cir. 2004). See also Woodhouse

v. Magnolia Hospital, 92 F.3d 248, 252 (5th Cir. 1996).

In requiring proof concerning the ultimate issue in the

case, this standard turns the McDonnell Douglas

standard on its head and requires the employee to

rebut the employer’s rationale at the prima facie stage.

In particular, the type of analysis used by the court

below has been sharply criticized by the Seventh

Circuit Court of Appeals.

Moreover, in requiring evaluation of the plaintiffs

ultimate case in the prima facie case, this standard

has generated additional confusion among the courts

as to the proof necessary to demonstrate that co-

workers are similarly situated. The court below

required Berquist to show, at the prima facie stage,

that he was “nearly identical” to his coworkers.

However, the court derived the “nearly identical”

standard from a case which had employed that

standard in a jury instruction, not in deciding the

prima facie case. Given the simple gate-keeping

function of the prima facie case, it is not appropriate to

use such a stringent definition at the prima facie

stage, if ever. Utilizing this rigorous standard, the

court below erroneously determined that Berquist had

not shown a prima facie case because he was not

“nearly identical” to the younger employees retained

by the Bank, even though they all were in the same

office performing the same work at the time of

Berquist’s PIN and discharge.

Furthermore, in stating that Berquist submitted

“no evidence” to contradict the Bank’s “legitimate, non-

discriminatory reason” for terminating his

employment, the Court of Appeals ignored the

evidence Berquist submitted in support of his prima

facie case, including evidence of suspicious timing of

Berquist’s “layoff,” in contravention of this Court’s and

other authorities. Likewise, the Court denied the most

plausible and common sense _ interpretation of

Martinez’s remark that she wanted to “attract younger

talent.”

Finally, the court below suggested that if only

Berquist had, like Yancis and other older employees,

been “willing to follow procedures,” he too could have

been rehired. It appears that “willing to follow

procedures,” refers to the signing of a release in

exchange for an option to be rehired. App. 25a. The

Court appears to hold that an offer of severance in

exchange for a release absolves the employer of any

unlawful discrimination.

ARGUMENT

A. The Court of Appeals Imposed Unduly

Burdensome Hurdles to Establishing the

Fourth Element of the Prima Facie Case.

The parties do not dispute that the evidentiary

framework set forth by this Court in McDonnell

Douglas v. Green, 411 U.S. 792 (1973) applies to claims

under the Age Discrimination in Employment Act of

1967 (“ADEA”), 81 Stat. 602, as amended, 29 U.S.C.

§ 621 et seqg., and the courts below applied the

McDonnell Douglas burden-shifting analysis.

The court below employed the following formulation

of the prima facie case:

a plaintiff must show that (1) he was

discharged; (2) he was qualified for the position;

(3) he was within the protected class at the time

of discharge; and (4) he was either i) replaced by

someone outside the protected class; ii) replaced

by someone younger, or iii) otherwise

discharged because of his age.

App. A, p. 7a (500 F.3d at 349).

The court evidently used this standard because it

considered Berquist not to have appealed his

termination as a reduction in force, App. A, p.5a.°

Berquist waived nothing. He claimed only that he was

fired because of his age and that the circumstances

leading up to his termination demonstrated that he

was targeted because of his age, regardless of how

Defendant classified his termination. In fact,

Defendant's classification appears arbitrary because

Berquist's termination was originally deemed

performance-based and then suddenly changed to a

lay-off when he rejected a separation agreement. Cf.

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002)

° As discussed infra, however, this standard differs semantically,

but not substantively (except for the "replacement" element), from

the standard the court uses in cases of reduction in force. The

critical issue here, as in reduction in force cases, is the

interpretation of the requirement that plaintiff otherwise show he

was discharged because of age. Of course, both sides argued the

case on appeal as if the bank's claimed reason for discharge was

job elimination.

(prima facie case is a flexible evidentiary standard, not

a rigid pleading standard). Significantly, it was the

Bank's job, not Berquist's, to assert a legitimate

rationale for his discharge. Berquist's appeal was

that summary judgment was improperly awarded to

the Bank. Indeed, that the Bank would give

conflicting evidence as to whether Berquist's position

was eliminated or transferred speaks volumes as to

the credibility of the Bank's rationale — but the courts

below instead erroneously put the burden on Berquist

to respond to the Bank's presumptively valid reasons

in his prima facie case. Indeed, the court's claim of

waiver exemplifies its mechanical analysis of the

prima facie case.

By requiring the plaintiff to show that he was

“discharged because of his age,” the court of appeals

improperly required Berquist to meet his ultimate

burden of proof at the prima facie stage. Moreover, the

court’s interpretation of this standard was so narrow

that it would be impossible for Berquist, much less any

other ADEA plaintiff, to fulfill the prima facie case

requirement. Even though Berquist’s evidence shows

that he was treated less favorably than younger

employees doing the same work, that the reasons for

termination were extraordinarily suspicious, and that

his supervisor made ageist remarks perceived as

alarming not only by Berquist but other older

employees, he could not pass the court’s test.

As discussed below, the courts of appeal are

struggling with the formulation of the fourth prong of

the prima facie case, particularly in reduction in force

cases, and have adopted a variety of different

standards. The Fifth Circuit’s standard, in general and

as applied by the court below, not only differs in

language and reasoning from the standards of other

circuits but so far deviates from this Court’s

authorities that review by certiorari is warranted.

1. By literally requiring that Berquist show

“replacement” or else provide ultimate

proof of discrimination, the court of

appeals departed from the authorities of

other courts of appeal.

In considering whether Berquist established a

prima facie case, the Court of Appeals first decided

that “the record does not support a finding that

Berquist was replaced by someone either outside the

protected class or by someone younger than himself.”

App. A., p. 12a (500 F.3d at 351). In so holding, the

court expressly rejected Berquist’s argument that the

Bank’s decision to eliminate the credit review positions

of the two oldest Houston employees while retaining

the two younger credit review employees (and months

later affording the younger employees the opportunity

to transfer to Dallas), demonstrated a prima face case

of age discrimination.

In reduction in force cases, other circuits have long

recognized that an employee need not show

replacement as part of the prima facie case because

“(glenerally, when a company reduces or restructures

its work-force, it does not simply hire a new person to

fill the discharged employee’s old position.” Collier v.

Budd Co., 66 F.3d 886, 890-91(7th Cir. 1995).

Accordingly, in such cases, “we do not require a

plaintiff to prove that he has been replaced by a

younger employee.” Jd.

The Fifth Circuit itself has recognized that in a

reduction in force case, replacement need not be shown

as part of the prima facie case. Williams v. General

Motors Corp., 656 F.2d 120, 129 (5th Cir. 1981). In

Williams, the court held that a plaintiff in a job

reduction case under the ADEA could establish a

prima facie case by:

(1) ...showing that he is within the protected age

group and has been adversely affected

discharged or demoted [sic] by defendant’s

employment decision; (2) showing that he was

qualified to assume another position at the time

of discharge or demotion; and (3) producing

evidence, circumstantial or direct, from which a

factfinder might reasonably conclude that the

employer intended to discriminate in reaching

the decision at issue.

Williams, 656 F.2d at 129. Amplifying this third

element (the fourth in most current formulations of the

prima facie case), the court explained that the

plaintiffs evidence “must lead the factfinder

reasonably to conclude either (1) that defendant

consciously refused to consider retaining or relocating

a plaintiff because of his age, or (2) defendant regarded

age as a negative factor in such consideration.” Id. at

130.

Although the Court of Appeals did not consider the

RIF case, it was used the Williams standard by

requiring Berquist to provide “sufficient” evidence to

show he was "otherwise discharged because of his age.”

App. A, 12a, 15a (comment not “sufficient.”)® The

standard used by the Fifth Circuit in this case, has

been emulated by some circuits and sharply criticized

by others. The difficulty with the Fifth Circuit's

approach is that where, as here, it is applied rigidly

and mechanically, it forces the plaintiff to respond to

the employer's rationale and demonstrate pretext at

the prima facie stage. Because Williams was a RIF

case, this problem appears most clearly in RIF cases,

as discussed below.

2. The Courts of Appeals employ a wide array

of “fourth prongs” of the prima facie case

in RIF cases, and their differences are

material.

The Seventh Circuit has formulated the fourth

prong of the prima facie case in a reduction in force as

proof that “younger employees were treated more

favorably.” Collier, 66 F.3d at 891 (citation omitted).

The D.C. and Tenth Circuits have utilized a similar

approach, and the First Circuit has utilized part of this

test. See Ingels v. Thiokol Corp., 42 F.3d 616, 621 (10th

Cir. 1994) (in a reduction-in-force, fourth element of

prima facie case may be established through

circumstantial evidence that the plaintiff was treated

less favorably than younger employees), abrogated on

other grounds by Martinez v. Potter, 347 F.3d 1208,

1210 (10th Cir. 2003); Coburn v. Pan American World

Airways, Inc., 711 F.2d 339, 343 (D.C. Cir.) (fourth

° That the Court required the comments to be “sufficient” at the

prima facie level exemplifies their approach that the plaintiff

must prove his whole case at the prima facie level.

prong in RIF is that plaintiff “was disadvantaged in

favor of a younger person”), cert. denied, 464 U.S. 994

(1983); compare LeBlanc v. Great American Ins. Co., 6

F.3d 836, 844 (1st Cir. 1993) (in RIF case, for fourth

element plaintiff must demonstrate that employer

either failed to treat age neutrally in making its

decision to terminate him or retained younger persons

in the same position plaintiff held), cert. denied, 511

U.S. 1018 (1994).

Recognizing this Court’s instruction that the

elements of a prima facie case may vary “in differing

factual situations,” McDonnell Douglas, 411 U.S. at

802, n. 13, the Third Circuit has likewise recognized

retention of younger employees as sufficient for the

fourth prong in reduction in force cases. Marzano uv.

Computer Science Corp., Inc., 91 F.3d 497, 503 (3d Cir.

1996) (“we have held that the fourth prong of the

prima facie case should be ‘relaxed’ when the

employee’s layoff occurred in the context of a reduction

in force” and that “it is sufficient to show that he was

discharged while the [employer] retained someone

[outside the protected class]”) (citations omitted).

The touchstone for these cases is that to establish

a prima facie case, the plaintiff must show that he was

treated less favorably than younger employees in

similar circumstances. This standard for reduction in

force cases “is consistent with McDonnell Douglas

because it ‘requires an employer that releases a

protected employee while simultaneously hiring (or not

“bumping”) younger employees ... to explain its actions

without forcing the protected employee to uncover that

elusive “smoking gun.”” Collier, 66 F.3d at 891

(quoting Oxman v. WLS-TV, 846 F.2d 448, 453 (7th

Cir. 1988)).

In contrast, the court below required Berquist to

show that he was “otherwise discharged because of his

age.” Berquist, 500 F.3d at 351. The court drew this

standard from Rachid, 376 F.3d at 309, a non-RIF

case. However, it is in essence the same as the

standard used by the Fifth Circuit in RIF cases:

whether the plaintiff has produced “evidence, either

circumstantial or direct, from which a factfinder might

reasonably conclude that the employer intended to

discriminate in reaching its decision.” Woodhouse uv.

Magnolia Hospital, 92 F.3d 248, 252 (5th Cir. 1996).

By requiring evidence of discriminatory intent, this

standard differs vastly from that employed by the

D.C., Third, Seventh, and Tenth Circuits cited above,

but is similar to standards utilized by the Sixth,

Eighth, and Eleventh Circuits.’ See, e.g., Williams v.

Vitro Services Corp., 144 F.3d 1438, 1441 (11th Cir.

1998) (last prong in RIF case is “evidence by which a

fact finder reasonably could conclude that the

employer intended to discriminate on the basis of age

in reaching that decision”); Holley v. Sanyo Mfg., Inc.,

771 F.2d 1161, 1165 (8th Cir. 1985) (agreeing “with the

Sixth Circuit that the ‘plaintiff in such reorganization

cases must come forward with additional ... evidence

that age was a factor in his termination in order to

establish a prima facie case’) (citation omitted);

LaGrant v. Gulf & Western Manufacturing Co., Inc.,

’This is not an e» saustive review of all decisions from each circuit

but demonstrate: che vast array of standards employed.

748 F.2d 1087, 1090-91 (6th Cir.1984) (fact of

termination of a competent employee during economic

cutbacks is insufficient to establish a prima facie case;

rather, the “plaintiff in such reorganization cases must

come forward with additional direct, circumstantial, or

statistical evidence that age was a factor in his

termination in order to establish a prima facie case”),

citing the Fifth Circuit’s opinion in Williams, 656 F.2d

at 129; compare Nidds v. Schindler Elevator Corp., 113

F.3d 912, 917 (9th Cir. 1997) (affording “flexibility,”

the fourth prong in RIF requires plaintiff to show

“through circumstantial, statistical, or direct evidence

that the discharge occurred under circumstances

giving rise to an inference of age discrimination”).

The Second Circuit’s fourth prong in a RIF case

appears similar to the Fifth Circuit’s, but as applied it

has proven less exacting than the approach used by

the court below, perhaps because the court expressly

acknowledged that the plaintiffs burden is de minimis.

Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456,

467 (2d Cir. 2001) (fourth prong is “the circumstances

surrounding that [adverse employment] action give

rise to an inference of age discrimination”); see also

James v. New York Racing Ass’n, 233 F.3d 149, 152-53,

154, 157 (2d Cir. 2000) (RIF case) (fourth prong is a

“preference for a person not of the protected class,” and

recognizing that plaintiff who was dismissed while

younger employees were not, had stated a prima facie

case).

This difference in standards among the circuits is

not a minor or inconsequential issue. Nor have these

standards arisen by happenstance, as some of the

circuits have pointedly criticized the approaches of

others. See, e.g., Oxman, 846 F.2d at 454 (criticizing

Fifth Circuit approach); Holley v. Sanyo Mfg., Inc., 771

F.2d at 1165 (8th Cir. 1985) (rejecting D.C. Circuit’s

formulation in Coburn).®

3. The Fifth Circuit’s standard erroneously

requires the plaintiff, as part of the prima

facie case, to rebut the employer’s

nondiscriminatory rationale, in conflict

with other circuit courts.

As indicated above, the Fifth Circuit’s final prong

in RIF cases has its genesis in Williams, which states

it as:

producing evidence, circumstantial or direct,

from which a factfinder might reasonably

conclude that the employer intended to

discriminate in reaching the decision at issue.

Williams, 656 F.2d at 129.

The Williams “other evidence of intentional

discrimination” standard — which effectively was

applied by the court below in requiring Berquist to

* Of course, contrary to the Holley court’s suggestion, the approach

used by the D.C. Circuit in Coburn did not allow a prima facie

case to be shown by mere termination of an employee within the

protected group; rather, it also required the retention and/or

promotion of younger employees. 711 F.2d at 343. Moreover, the

Coburn court did not itself observe that its standard would allow

anyone in the protected class to “presumptively have a cause of

action under the ADEA,” rather, that was the argument advocated

by the employer.

show he was “otherwise discharged because of his

age,”” has been thoroughly criticized as “going too

far.”° In particular, the Seventh Circuit Court of

Appeals has observed that “(b]y requiring the plaintiff

to produce some evidence of discriminatory intent on

the part of the employer to make out a prima facie

case, the [Williams] RIF formulation at the very least

fuses the ‘prima facie’ and ‘pretext’ steps of the

McDonnell Douglas method” and “seems to stand the

McDonnell Douglas approach on its head-in effect,

requiring the employee to rebut the employer’s

putatively legitimate, nondiscriminatory reason for its

actions, not the other way around.” Oxman, 846 F.2d

at 454. Thus, “as a practical matter, [the Williams

approach] transforms the burden-shifting method of

proof into the more difficult direct method.” Id. At

worst, the court explained, “under this prima facie

proof formulation for RIF case, a _ victim of

discrimination no longer can prevail without producing

any evidence that age was a determining factor in the

employer’s motivation.” Jd. (original emphasis).

In a similar vein, in Coburn, while not directly

addressing Williams, the D.C. Circuit expressly

rejected the employer’s argument that an “ADEA

plaintiff [be required] to prove something extra to

make out a prima facie case in a reduction-in-force

situation.” Coburn, 711 F.2d at 343. The employer had

argued that in a RIF, the discharged employee will

virtually always be qualified and thus more evidence

* See 500 F.3d at 351.

" Oxman, 846 F.2d at 454.

was necessary at the prima facie stage to avoid

affording everyone in the protected age group a prima

facie case. Relying on precedent that “direct evidence

of discrimination is not required to prove a prima facie

case,” the court stated that “the exigencies of a

reduction-in-force can best be analyzed at the stage

where the employer puts on evidence of a

nondiscriminatory reason for the firing,” for “[i]n this

manner the employee always retains the burden of

proving discrimination while the employer’s situation

is analyzed on a case-by-case basis.” Coburn, 711 F.2d

at 343.

These criticisms of the Williams approach apply in

force to the decision below. By requiring the plaintiff

to muster his ultimate proof of discrimination in the

prima facie case (and in Berquist’s case, also by failing

to resolve all inferences in his favor and actually

weighing evidence against him, as discussed infra), the

court below required Berquist to rebut the Bank’s

alleged nondiscriminatory reason — elimination of his

job — in his prima facie case.

Likewise, it is difficult to reconcile the Fifth

Circuit’s approach — which requires the plaintiff to

produce evidence “from which a factfinder might

reasonably conclude that the employer intended to

discriminate” with the Second Circuit’s holding that

the plaintiffs minimal prima facie case “requires no

evidence of discrimination.” James, 233 F.3d at 153

(citing McDonnell Douglas); cf. Coburn, 711 F.2d at

" Williams, 656 F.2d at 129.

343 (direct evidence of discrimination is not required

in prima facie case).

Because the Fifth Circuit’s approach to the fourth

prong of the prima facie case imposes an onerous

burden on the plaintiff and requires the plaintiff to

rebut the employer’s stated rationale, this Court

should grant certiorari to resolve the conflicting

requirements among the circuits for the fourth prong

of the prima facie case. Cf. Abdu-Brisson v. Delta Air

Lines, Inc., 239 F.3d 456, 467 (2d Cir. 2001) (“Courts,

including our own, have struggled with this fourth

element of the prima facie case, as the language of the

element itself has ‘gone through various iterations in

the years since McDonnell Douglas was decided.”)

(citation omitted); Sullivan v. Liberty Mutual Ins. Co.,

444 Mass. 34, 825 N.E.2d 522 (Mass. 2005) (discussing

the many differences in formulations used to express

the fourth prong of the prima facie case in reduction in

force cases).

B. The Court of Appeals improperly required

Berquist to be “nearly identical” to younger

employees in order to be similarly situated to

them, and based on this faulty standard,

determined that Berquist did not establish a

prima facie case.

The court of appeals also differed from the other

courts of appeal and this Court’s authorities by

imposing an unnecessarily rigorous standard for

determining whether Berquist was similarly situated

to his younger co-workers who were retained, both in

the prima facie stage and in considering pretext.

Berquist’s evidence demonstrated that he was

performing the same work as the two significantly

younger employees in his department.

As discussed above, this evidence of disparate

treatment of younger and older employees performing

the same job function, coupled with ageist comments,

would have been sufficient to establish a prima facie

case — and indeed, to raise an issue of fact on the

ultimate issue — in most circuit courts. However, the

Fifth Circuit imposed an unjustified legal hurdle,

requiring Berquist to show at the prima facie stage

that his circumstances were “nearly identical” to those

of the younger men in order to be considered similarly

situated to them. 500 F.3d at 353 (citing Perez v. Tex.

Dep't of Criminal Justice, 395 F.3d 206, 210 (5th Cir.

2004)) (secondary citation omitted)).

The “nearly identical” standard utilized by the

court below, while also used by the Eleventh Circuit,”

is unnecessarily stringent and contrary to the

standards set by this court. This Court recently

emphasized the probative value of comparisons under

circumstances that are not “nearly identical.” In

Miller-El v. Dretke, 545 U.S. 231, 246-47 (2005), found

comparison between black jurors and nonblack ones

telling despite “some differences.” The court further

noted:

'? Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir.

2004) (plaintiff and comparator “must be similarly situated ‘in all

relevant respects,” and comparator “must be nearly identical to

the plaintiff to prevent courts from second-guessing a reasonable

decision by the employer”).

None of our cases announces a rule that no

comparison is probative unless the situation of

the individuals is identical in all respects, and

there is no reason to accept one. /d. at 247, n.6.

See also McDonald v. Santa Fe Trail Transp.

Co., 427 US. 273, 283 n. 11 (“precise

equivalence in culpability between employees is

not the ultimate question: as we indicated in

McDonnell Douglas, an allegation that other

‘employees involved in acts against (the

employer) of comparable seriousness ... were

nevertheless retained...’ is adequate....”).

The position of the other Circuits appears to be less

rigid than that of the Fifth and Eleventh Circuit. For

example, far from near identity, the Ninth Circuit has

held that “individuals are similarly situated when they

have similar jobs and display similar conduct.”

Vasquez v. County of Los Angeles, 349 F.3d 634, 641

(9th Cir. 2001); see also Smith v. Stratus Computer, 40

F.3d 11, 15 (1st Cir. 1994) Gn single discharge case,

fourth preng of prima facie case is “her employer

sought a replacement for her with roughly equivalent

qualifications”) (emphasis added), cert. denied, 514

U.S. 1108 (1995).

Thus, similarity, not identity, is the key. “The

standard for comparing conduct requires a reasonably

close resemblance of the facts and circumstances of the

plaintiffs and comparator’s cases, rather than a

showing that both cases are identical.” Graham uv.

Long Island Rail Road, 230 F.3d 34, 40 (2d Cir. 2000);

see also McGuinness v. Lincoln Hall, 263 F.3d 49, 53

(2d Cir. 2001) (plaintiff need not show disparate

treatment of an identically situated employee, rather

comparators “must have a situation sufficiently

similar to plaintiffs to support at least a minimal

inference that the difference of treatment may be

attributable to discrimination”); Aragon v. Republic

Silver State Disposal, Inc., 292 F.3d 654, 660 (9th Cir.

2002) (citing McGuinness as showing the “minimal

showing necessary to establish co-workers were

similarly situated”); Ercegovich v. Goodyear Tire &

Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998)

(“plaintiff need not demonstrate an exact correlation

with the employee receiving more favorable treatment

in order for the two to be considered similarly

situated....”); Conward v. Cambridge Sch. Committee,

171 F.3d 12, 20 (1st Cir. 1999) (““Reasonableness is the

touchstone: while the plaintiffs case and the

comparison cases that he advances need not be perfect

replicas, they must closely resemble one another in

respect to relevant facts and circumstances.”)

Also importantly, the type of heightened analysis

employed by the court below does not belong at the

prima facie stage. Rather, such an_ in-depth

consideration should not take place until the

consideration of the ultimate issue of discrimination.

See Conward, 171 F.3d at 19 (“the time to consider

comparative evidence in a disparate treatment case is

at the third step of the burden-shifting ritual”).

Moreover, even though the evidence showed

remarkable similarities'* — the men were all credit

review officers, they all worked in the same

'S Indeed, in Petitioner’s view the evidence mects the “nearly

identical” standard — but the standard nevertheless is incorrect.

department, and they all had performed the same job

function in the relevant time period — the court

nevertheless concluded that they were not sufficiently

identical to state a prima facie case. The court’s highly

technical analysis concluded (incorrectly) that the

requisite identity was missing because even though

Berquist worked on SFG files, the two younger men

were permanently assigned to SFG work and attended

a national SFG meeting that Berquist did not, and the

younger men regularly reported to Scott Frazee while

Berquist only sometimes reported to Frazee. App. A, p.

3a, 17a."

“ In fact almost all of Berquist’s communication was with Frazee,

not Granfelt. Granfelt conceded that Frazee was the primary

supervisor of Berquist; Granfelt never met Berquist, and only

talked to him “at most” three times. R. 884. Virtually all of the

written communication, similarly, was with Frazee not Granfelt.

R. 1007-10021.

Moreover, the court’s own opinion belies any material

differences in the men, as it acknowledges that Berquist and the

two younger employees all were performing SFG work at the time

Berquist was given his PIN - the first discriminatory action

directed to Berquist after Martinez made her ageist remarks in

late 2002. App. A, p. 17a-18a (“the PIN ‘pertained to [Berquist’s]

SFG work, not the CBG position that Appellee alleges [he] was

assigned after he was given his PIN.”). Obviously, to the extent

they were all performing SFG work, Berquist and the two younger

men were similarly situated.

The evidence that, after the PIN, Plaisance and Zatopek were

invited to a national meeting concerning their SFG duties (to give

them specific training in SFG) that Berquist and Yancis were not

invited to, seems to only underscore the younger employees’

favored status. This appears consistent with insuring that

These facts are a distinction without a difference.

Given the parties’ different views on whether the

employees in this case were similarly situated, the

court below at a minimum should have found an issue

of fact on that point. Furthermore, in citing Perez, the

court failed to note that in Perez the issue of “similarly

situated” arose not at the prima facie level but in the

jury instruction and on the issue of fact of whether

separate issues of misconduct by different employees

were sufficiently similar. Perez, 395 F.3d at 213.”

Ultimately, requiring similarity in circumstances

beyond that necessary to render the comparison

probative of discrimination is tantamount to making

Plaisance and Zatopek remain in the department while doing

nothing, training or otherwise, to address any alleged deficiencies

with respect to Yancis and Berquist.

** The court also states that Berquist failed to refute the

assertions in his PIN accurately demonstrated his inability to

perform SFG work. However, neither the PIN, nor Berquist’s

response mentions SFG. By that time it had not been delineated

as a separate area of assignment. Moreover, Frazee considered

SFG work much easier than CBG work. In fact, he referred to it

as a “slam dunk.” R. 762. Assigning Berquist more difficult work

when he allegedly cannot handle the easier SFG work makes little

sense.

Berquist did say, in his response to the PIN, that he did not

have specific expertise in credit review, but unfortunately these

remarks were taken out of context as Berquist was speaking only

relative to his lengthy experience in loan auditing. Relative to

Plaisance and Zatopek, however, he had plenty of experience in

credit review, and in fact had been given excellent evaluations in

credit review prior to Martinez arriving at the Bank.

credibility determinations and weighing the evidence.

See Graham, 230 F.3d at 42, 43 (noting that at prima

facie stage district court should not have considered

employer’s rebuttal evidence and finding district court

“unduly inflexible” in determining that plaintiff and

comparator were not similarly situated).

C. In deciding that Martinez’s ageist comments

did not support Berquist’s prima facie case,

the Court of Appeals improperly weighed and

assessed their credibility.

Finally, the court below dismissed ageist comments

by Melissa Martinez, Berquist’s manager, and entirely

disregarded other circumstantial evidence, particularly

that of suspicious timing. In doing so, it appears to

have merely chosen from various alternative

interpretations, and made credibility determinations.

First, Martinez’s denial of the statement is telling.

While she openly stated to the employees in her

department. that she wanted to “attract younger

talent,” Martinez nevertheless denies making it, and

claims not to remember Ed Groshens approaching her

about the comment. R. 676-77. Normally, this denial

might reflect negatively on her overall credibility in

the face of written, and contemporaneous,

contravening evidence.** See Reeves v. Sanderson

Plumbing Products, Inc., 530 U.S. 133, 147 (2000)

Even members of Washington Mutual’s management

acknowledged that this comment, if made, was inappropriate and

inconsistent with company policy against age discrimination. R.

884.

—

(noting general principal of evidence law that “the

factfinder is entitled to consider a party’s dishonesty

about a material fact as ‘affirmative evidence of

guilt.”). However, the Court of Appeals did not

consider Martinez’s credibility even to be an issue of

fact, much less the tone of her remarks and the

manner in which Berquist and Groshens perceived

them.

Instead, it appears that the court merely

constructed a possible innocent interpretation to what,

on its face, is an age based remark. Moreover, no one,

not Martinez, or any one who heard it, offered such an

explanation. Accordingly, the Court usurped the role

of the jury and placed a legal burden on plaintiff to

essentially disprove any possible innocent motivation

behind the comments, in contravention of longstanding

precedent concerning the evaluation of evidence. Cf.

Holland v. U.S., 348 U.S. 121, 137-38 (1954) (no

requirement for prosecution to dispel any alternative

theories regarding its evidence supporting conviction

of tax fraud).

The Court did, however, overlook the common sense

reactions of those who did hear the remark, and its

inflection and context. The implication of the court’s

holding is that courts are better suited to evaluating

whether comments such as these are probative of

discrimination than lay persons using their experience

and common sense. After all, two such lay people,

Berquist and Groshens, found such comments ominous

and reflective of age discrimination. The example of

Groshens is particularly compelling here. Groshens

has no claims against the Bank, and the Bank

provided no possible reason to distrust his testimony.

Yet, plainly, he knew what the comments meant when

he heard them. Obviously, he inferred age bias from

these remarks, and, if anything, as one who was there

at the time, heard the entire context of the remarks,

the inflection in Martinez’s voice, and knowing

Martinez himself, ought to be better suited to evaluate

the nature of the remarks. Cf. Ash v. Tyson Foods,

Inc., 546 U.S. 454, 456 (2006) (whether use of the term

“boy” is evidence of racial animus depends on “context,

inflection, tone of voice, local custom, and historical

usage”).

Nonetheless, the court held that the fact that the

comments came months before his termination and

were not directed at Berquist personally dispelled any

significant probative value. However, while these facts

might provide reason for an inference other than one

supporting Berquist’s claim that he was terminated

because of his age, it appears odd to conclude that,

contrary to the conclusions of two persons who know

the context and heard the entire remarks, that no

reasonable person could come to such conclusion.”

7 In criminal cases, where the prosecution’s burden is far more

than Berquist’s burden here, courts have seen fit to allow juries to

reach conclusions capable of potentially differing inferences. Lepez

v. Gonzalez, 127S.Ct. 625, 629 (2006) (noting a holding that intent

to distribute narcotics may be inferred from possession of an

amount too large to be used by one individual). In First

Amendment cases, also, courts have allowed government officials

to reach conclusions about comments much more cryptic than

Martinez’s. See Moore v. Frederick, 127 S.C. 2618, 2524-25 (2007)

(The message on Frederick’s banner is cryptic ... [b]ut Principal

Morse thought the banner would be interpreted by those viewing

Furthermore, the Fifth Circuit’s holding violates

this Court’s teachings to examine the entire record, as

a whole, using inferences based on common sense and

experience. For example, in Village of Arlington

Heights v. Metropolitan Housing Development Corp.,

429 U.S. 252, 266-67 (1977), this court noted that

determining whether invidious discrimination

motivated a decision “demands a sensitive inquiry”

into the available evidence. Jd. at 266. As the court

noted “the historical background for the decision is one

evidentiary source, particularly if it reveals a series of

official actions taken for invidious purposes.” Jd. at

267. Likewise, this court then emphasized that the

“specific sequence of events leading up to the

challenged decision may also shed some light on the

decisionmaker’s purposes.” Jd. Here, however, the

chain of events leading up to Berquist’s termination

(expressed preference for younger workers, reprimand

under suspicious circumstances, and then termination,

among others) were ignored, or worse yet, treated as

isolated happenstance.

The court also characterized Martinez’s references

to the “young guys” (Plaisance and Zatopek, who were

more than 10 years younger than Berquist and were

not discharged) as unrelated to unlawful

discriminatory animus. 500 F.3d at 352. Martinez

referred to Plaisance and Zatopek as “young guys”

when she advised Berquist of his PIN. Notably,

Martinez did not issue a PIN to Zatopek or Plaisance,

even though one of her complaints to Berquist was

it as promoting illegal drug use, and that interpretation is plainly

a reasonable one.)

that Zatopek and Plaisance did not have enough work

to do and that Berquist should have advised her of

that fact. R. 502-503."

Moreover, the comments are also significant

because they reflect that Martinez treated Berquist

differently from the younger employees. Even though

he had no supervisory authority over them, Berquist

was criticized for not specifically advising Martinez

that the younger employees did not have enough work

to do, but as younger employees they were not held

accountable for their own failure to advise her of their

inadequate work load. R. 502-503, 743.

Moreover, it did not appear important to Martinez

that the “senior people” also did not have enough to do.

And while Berquist was criticized for not having

enough experience in the non-operational side of credit

review, the younger employees lack of experience was

viewed as a failing of Berquist, but not as a weakness

of the younger employees themselves. Moreover, to

suggest that Berquist provided a “harmless

explanation” to these remarks as the court did, 500

F.3d at 352; is apparently an interpretation of

Berquist’s remarks; Berquist himself made no such

concession.

This is especially true when one considers the

timing and sequence of events, as the Court of Appeals

'® As noted above, Berquist responded in detail to Martinez’s PIN.

In that response, he stated that Martinez had referred to

Plaisance and Zatopek as the “young guys” and to him as the

“senior officer.” Martinez did not respond to these remarks.

neglected to do. First Martinez stated that she would

attract younger talent. R. 488, 633, 726-733, 897. Then

she issues PINs to employees over age 40. R. 743, 746.

Then unexpectedly Berquist, in contrast to younger

employees, was advised that his performance is

unsatisfactory and received a PIN. He was later told,

with no notification of what his specific problems were,

that his employment will be terminated if he does not

find another job within the Bank within forty-five

days. R. 633. His supervisor refuses to lift his PIN

even though he is ineligible to apply for other company

jobs while the PIN is in place. Soon after, he is given a

confidential separation proposal with a release, and

only after he refuses to sign it does the Bank tell him

that he is being laid off, not termiated. The timing of

these events within itself is sufficient to constitute

pretext, and much more so a prima facie case.

D. The Court of Appeals’ opinion appears to

equate “following procedures” with “signing

a release.”

After deciding that Berquist had failed to establish

a prima facie case, the court below nevertheless

assumed arguendo a prima facie case had been shown

and addressed whether Berquist had created a

material fact regarding Washington Mutual’s stated

reason for his termination.

In answering this question in the negative, the

court included the following description of events:

After announcing the decision to relocate the

CBG function, both [Berquist and Yancis] were

offered a severance package with the option to

be rehired in another department. This offer

required them to sign a release agreement. On

September 29, 2003, Yancis, age 58, started a

different position in Mortgage Banker Finance

with Washington Mutual, but Berquist chose not

to accept the severance package. Moreover,

similarly situated” employees willing to follow

procedures were re-hired within other

departments.

App. 25a, 500 F.3d at 357 (emphasis added). The

unmistakable implication from the court’s description

is that if only Berquist had “followed procedures” by

signing a release, he too, like Yancis, could have been

rehired.

E. The Court of Appeals ignored all of Berquist’s

evidence in support of his prima facie case

and held that he had “no evidence” to rebut

the Bank’s legitimate, nondiscriminatory

reason for his discharge.

1. The court below ignored Berquist’s

evidence, including that which supported

his prima facie case.

In concluding its opinion, the Court of Appeals

stated that “Berquist presented no evidence to

contradict Washington Mutual’s legitimate, non-

'’ The court does not explain how these unnamed employees were

similarly situated to Berquist but Plaisance and Zatopek, the

“young guys” whose jobs were not eliminated, were not.

discriminatory reason for his eliminating his position.”

App. A, p. 26a.

The court’s own opinion belies this statement.

Before reaching the issue of pretext, the court had

consumed six pages of opinion analyzing (and

ultimately rejecting, incorrectly) Berquist’s evidence of

a prima facie case and pretext. Of course, the same

evidence may be considered for both the prima facie

case and pretext. Reeves, 530 U.S. at 151; Coleman v.

Quaker Oats Co., 233 F.3d 1271, 1282 (9th Cir. 2000)

(plaintiff may rely on same evidence used to establish

prima facie case or may put forth additional evidence).

2. Berquist has substantial evidence of

pretext and discrimination, more than

sufficient to defeat summary judgment.

Berquist presented the courts below with ample

evidence to create, at a minimum, a material question

of fact whether Washington Mutual’s articulated

reason for Berquist’s discharge, that he was laid off in

an reorganization, is false. The “lay off’ came after

numerous attempts, for different reasons, to remove

Berquist from his position. First, he was told about his

performance and given a PIN. Berquist was later told,

without any notification of what the specific problems

were, that he would be terminated if he did not find

another position within the company in forty-five days.

Soon after, he was given a separation proposal and,

only after he refused to sign it, did Washington Mutual

state that Berquist was being laid off because his job

function was moving to California. Later, after

Berquist filed an EEOC charge, the Bank rehired

Yancis, who, unlike Berquist, had “followed

procedures” and signed a release, but did not file a

charge of age discrimination himself. App. 25a.

Berquist’s evidence, put simply, leads to the logical

conclusion that Martinez wanted Berquist out anyway

she could get him out. She originally tried justifying it

as a performance issue, but ultimately recanted on this

issue and claimed that it was really a lay-off. Even

that was transparently pretextual. If this were simply

a transfer of job functions to another locale, Berquist

could have been transferred to California, as Granfelt

testified. R. 890-892. Berquist obviously was not

transferred.

Moreover, Berquist, like the other credit review

officers including Plaisance and Zatopek, was doing

only SFG CRS work at the time he was removed from

the company. R. 634. In fact, Berquist had been doing

such work since March 2003. R. 850; R. 634.

Nonetheless, Berquist was not offered a job in

California, was not offered a job in Dallas (jobs which

were offered to Plaisance and Zatopek), nor was he

offered a job in Dallas when Cynthia Hart indicated

she had a position that he could have been considered

for. R. 862.

Given such evidence, the Court of Appeals erred in

concluding that Berquist had not raised a material

question of fact to defeat the Bank’s motion for

summary judgment.

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

Joseph Y. Ahmad

Counsel of Record

Ahmad, Zavitsanos & Anaipakos, P.C.

3460 One Houston Center

1221 McKinney Street

Houston, Texas 77010-2009

Telephone: (713) 655-1101

Telecopier: (713) 655-0062

Counsel for Petitioner Philip Berquist

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-20956

[Filed August 31, 2007]

PHILIP BERQUIST,

Plaintiff-Appellant,

WASHINGTON MUTUAL BANK,

Defendant-Appellee.

On Appeal from the United States District Court

for the Southern District of Texas

Before JONES, Chief Judge, and JOLLY and

STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

We denied Appellant’s petition for panel rehearing.

In response to the petition for rehearing, the opinion of

the court issued on July 12, 2007, at 492 F.3d 576,

2007 WL 2007333 (5th Cir. 2007), is withdrawn, and

the following is substituted.

This appeal arises from the district court’s grant of

summary judgment in favor of Washington Mutual

Bank (“Washington Mutual”) on Philip Berquist’s

claim of age discrimination. We affirm the district

court’s judgment.

I, FACTUAL AND PROCEDURAL

BACKGROUND

Berquist began his career working in the internal

audit department of United Savings Bank. In 1992,

Bank United acquired United Savings Bank, which

retained Berquist as an employee. Berquist received

several promotions during his tenure with United

Savings Bank and Bank United. In 2000, Bank United

merged with Washington Mutual. Washington Mutual

asked Berquist to stay an additional nine months after

the merger to help consolidate the risk rating grids

used in the two credit review departments. Berquist

accepted this offer.

Following this nine-month period, Washington

Mutual offered Berquist a permanent position.

Berquist held the position of “Senior Credit Examiner,

Loan Review Department, Corporate Credit Risk

Management.” Berquist alleges that he was qualified

for the new position, he received “exceeds

expectations” performance evaluations in 2001 and

early 2002, and he never received written or verbal

notices criticizing his job performance. In September

2002, Washington Mutual hired Melissa Martinez to

supervise the bank’s credit review function, and in

early 2003, promoted Martinez to Chief Credit Review

Officer. Martinez served as the corporate manager of

Berquist’s duties throughout the deterioration of his

employment relationship with the bank.

In November 2002, the bank decided to transfer

Berquist’s then-current job functions from Houston,

Texas, to Seattle, Washington. In light of this business

decision, Washington Mutual offered Berquist a

different job in the credit review department.

Washington Mutual contends that Berquist’s work

tasks, prior to November 2002, only involved

operational and administrative duties. After this date,

Berquist’s job duties required credit review skills.

Martinez asked Berquist to work on the “review and

approval” of unissued loan reports. Berquist accepted

this job position and exclusively focused on “review

and approval” work from early November 2002 to

February 6, 2003.

In late 2002, the credit review department of the

Houston office was staffed by Berquist, age 54, Ron

Yancis, age 56, Donald Plaisance, age 39, and Karl

Zatopek, age 41. Berquist and Yancis worked in the

Commercial Banking Group (“CBG”) under the

management of Robert Granfelt. Plaisance and

Zatopek worked in the Specialty Finance Group

(“SFG”) under the management of Cynthia Hart, and

later under the immediate supervision of Scott Frazee.

Frazee’s counterpart position in CBG remained vacant,

and therefore, Frazee acted as the administrative

manager for both groups.

During a December 2002 conference call, Berquist

alleges that Martinez said, “Performance issues will be

promptly and aggressively dealt with. We will build

leaders internally and attract younger talent.” On

February 6, 2003, Martinez reported to Berquist that

she was “very unhappy” with the Houston office’s

production. Shortly thereafter, Martinez issued

Berquist a performance improvement notice (“PIN”),

criticizing Berquist’s allegedly negative attitude, poor

communication skills, and below standard work

product. The PIN also alleged that Berquist’s

“(tlechnical skills and proficiencies are ‘operational’ in

nature and not commensurate with the job function,

CCR [Corporate Credit Review] focus, or those

required for a Credit Review Officer.”

In response to the PIN, Berquist asked for specific

examples, which he never received from Martinez.

Berquist denied every allegation of poor work

performance in a written response. Berquist conceded

that his work experience before the merger was

“strictly in an administrative and operational role,”

and based on his understanding, Washington Mutual

asked him to remain with the bank to “continue in

[his] administrative and operational duties.” Further,

Berquist adds that “I have never at any time

represented to anyone that I have specific expertise in

credit review since my responsibilities at both Bank

United and [Washington Mutual] were solely of an

administrative and operational nature.”

On May 14, 2003, Martinez told Berquist that his

skills and proficiencies were no longer needed in the

credit review function. Martinez allowed Berquist

forty-five days to find a position in another department

of Washington Mutual. Berquist asserts that he asked

Martinez to downgrade his PIN so as to not prevent an

internal transfer to another position, but she denied

this request.

On June 9, Washington Mutual offered Berquist a

separation proposal, which he refused to accept.

Following this offer, on June 26, 2003, Martinez

conveyed to Berquist that he would be laid off in

conjunction with a reorganization of the CBG.

Washington Mutual contends that it decided for

business reasons to eliminate the CBG function in

Houston and transfer the group to Seattle or

California because the West Coast handled a greater

portion of the CBQ’s asset base. Based on this avowed

business decision, Berquist did not receive forty-five

days to secure another position.

Berquist filed suit against Washington Mutual

alleging violation of the Age Discrimination in

Employment Act of 1967, 29 U.S.C. §§ 621 et seq.

(“ADEA”), and Washington Mutual moved for

summary judgment. The district court granted

Washington Mutual’s motion. The court concluded that

Berquist failed to establish a prima facie case of

wrongful termination based on age discrimination

because the record lacked evidence of Berquist’s

qualifications for his position. Additionally, the court

concluded that Berquist failed to establish a prima

facie case of “reduction in force” based on unlawful age

discrimination because the record lacked evidence of

Berquist being qualified for another position in the

company. Berquist does not appeal the district court’s

holding on his claim of reduction in force based on

unlawful age discrimination; therefore, we address

whether the district court properly granted summary

judgment on his wrongful termination claim.

II. STANDARD OF REVIEW

We review a district court’s grant of summary

judgment de novo, applying the same legal standards

as the district court. Machinchick v. P.B. Power, Inc.,

398 F.3d 345, 350 (5th Cir. 2005). In deciding a motion

for summary judgment, the court must determine

whether the submissions 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); Hart v. Hairston, 343 F.3d 762, 764 (5th Cir.

2003). In deciding whether a fact issue has been

created, the facts and inferences tu be drawn from

them must be reviewed in the light most favorable to

the nonmoving party. Reaves Brokerage Co. v. Sunbelt

Fruit & Vegetable Co., 336 F.3d 410, 412 (5th Cir.

2003). “Even if we do not agree with the reasons given

by the district court to support summary judgment, we

may affirm the district court’s ruling on any grounds

supported by the record.” Lifecare Hospitals, Inc. v.

Health Plus of Louisiana, 418 F.3d 436, 439 (5th Cir.

2005) (citing Forsyth v. Barr, 19 F.3d 1527, 1534 n. 12

(5th Cir.1994)).

Ill. DISCUSSION

Under the ADEA, “ijt shall be unlawful for an

employer . . . to discharge any individual or otherwise

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of

employment, because of such individual’s age.” 29

U.S.C. § 623(a)(1). “A plaintiff can demonstrate age

discrimination in two ways, either through: direct

evidence or by an indirect or _ inferential

[circumstantial] method of proof.” Rachid v. Jack In

The Box, Inc., 376 F.3d 305, 309 (5th Cir. 2004). A

plaintiff relying on circumstantial evidence must put

forth a prima facie case, at which point the burden

shifts to the employer to provide a legitimate, non-

discriminatory reason for the employment decision.

Willis v. Coca Cola Enters., Inc., 445 F.3d 413, 420 (5th

Cir. 2006). If a plaintiff produces direct evidence of

discrimination, no further showing is required, and the

burden shifts to the employer.’ Trans World Airlines,

Inc. v. Thurston, 469 U.S. 111, 121-22, 105 S. Ct. 613,

83 L. Ed. 2d 523 (1985).

To establish a prima facie case of age

discrimination based on circumstantial evidence, “a

plaintiff must show that (1) he was discharged; (2) he

was qualified for the position; (3) he was within the

protected class at the time of discharge; and (4) he was

either i) replaced by someone outside the protected

class, ii) replaced by someone younger, or iii) otherwise

discharged because of his age.” Rachid, 376 F.3d at

309 (internal quotations and citations omitted);

Palasota v. Haggar Clothing Co., 342 F.3d 569, 575-76

(5th Cir. 2003). Berquist fulfills the first and third

elements of a prima facie case: he was terminated from

his position and he was a member of the protected

class at the time of discharge. With respect to the

remaining elements, we first determine whether

Berquist fulfilled the second component of a prima

' Berquist does not present direct evidence of discrimination.

facie case, demonstrating his qualifications for the

position of a credit review officer.

A. Whether Berquist was Qualified for the

Position

According to Berquist, he met the objective criteria

listed in a job posting for credit review officers and

held the title of “credit examiner” for two years after

the merger. Berquist contends that he has performed

the same job since 1994, which includes the

operational, audit, and administrative areas of credit

review. To the contrary, Washington Mutual argues

that absent the reorganization eliminating Berquist’s

job function, Berquist still could not have remained in

his position as a credit review officer. Washington

Mutual explains that Berquist lacked any background

and experience in credit process review; instead,

Berquist only held internal audit positions during his

seventeen years at United Savings Bank and Bank

United. Washington Mutual maintains that Berquist’s

prior work experience included cataloging the risk

grades of Bank United loans and preparing audit

committee reports.

The district court concluded that Berquist was not

qualified for his position at Washington Mutual

because “the fact that Berquist was given the position

of Credit Review Officer in the first place [does not]

constitute evidence that he was qualified. To hold

otherwise would be to eliminate the qualification

element in every case involving termination.” The

district court’s conclusion was error and expressly

foreclosed under Fifth Circuit precedent established in

Bienkowski v. American Airlines, Inc., 851 F.2d 1503

(5th Cir. 1988). The record does not reflect that the

district court considered Bienkowski in its analysis of

Berquist’s claim; similarly, Washington Mutual did not

address Bienkowshki in its brief to this court.

In Bienkowski, an employer alleged that the

plaintiff was not qualified for his job as a security

representative, even though his performance had been

satisfactory for ten years, “because his supervisors

became unsatisfied with his work.” Jd. at 1504-05. The

employer submitted two affidavits from the plaintiffs

supervisors documenting a decline in his performance.

Id. at 1505. The employer argued that under the

McDonnell Douglas test, the plaintiff must prove that

he performed his job to the standards of his employer.

Id. Thus, the plaintiff failed to establish a prima facie

case. Id. This court reasoned that

[A] plaintiff challenging his termination or

demotion . . . can ordinarily establish a prima

facie case of age discrimination by showing that

he continued to possess the necessary

qualifications for his job at the time of the

adverse action. ...

By this we mean that plaintiff had not suffered

physical disability or loss of a necessary

professional license or some other occurrence

that rendered him unfit for the position for

which he was hired.

10a

Id. at 1506 & n.3. The court established this rule in

order to simplify application of the McDonnell Douglas

paradigm in the context of termination and demotion

cases. The court concluded that in applying this

reasoning, “[t}he lines of battle may then be drawn

over the employer’s articulated reason for its action

and whether that reason is a pretext for age

discrimination.” Jd. at 1506.

After the merger, Berquist monitored the process of

conforming Bank United’s risk ratings to Washington

Mutual’s rating system. Once Berquist completed the

conversion, Washington Mutual assigned Berquist to

a credit process review position. Washington Mutual

interprets Berquist’s response to the PIN issued in

March 2003, reiterating his skills in the operational

and administrative side of credit review, as an

admission that he lacked qualifications in the credit

review arena. Washington Mutual characterizes his

statements as “undisputed evidence,” demonstrating

that “[Berquist] did not have the skills, experience and

background for credit review process work” at

Washington Mutual. More specifically, Washington

Mutual maintains that Berquist could not lead a credit

review examination through origination,

administration, and follow-up.

Similar to the plaintiff in Bienkowski, however,

Berquist possessed the same job qualifications when

Washington Mutual terminated him as when Martinez

assigned him to the credit review position.

Accordingly, Berquist need not show that his

performance met Washington Mutual’s expectations to

establish a prima facie case. Although Washington

lla

Mutual submitted evidence that Berquist’s supervisors

were not pleased with his performance, this evidence

does not prove a lack of qualifications at the prima

facie stage. See Medina v. Ramsey Steel Co., Inc., 238

F.3d 674, 681 (5th Cir. 2001) (holding that an

employer may not utilize wholly subjective standards

by which to judge its employees’ qualifications and

then plead lack of qualification when its promotion

process is challenged as discriminatory); Lindsey v.

Prive Corp., 987 F.2d 324, 327 (5th Cir. 1993) (holding

that it is not appropriate for the district court to

determine whether subjective criteria are bona fide, in

effect making dispositive determinations about the

employer’s credibility, on summary judgment). As

aptly stated in Bienkowski, “[pjlacing a plaintiffs

‘qualifications’ in issue at both the prima facie [] and

pretext stages of a termination case is an unnecessary

redundancy.” Jd. at 1505. Therefore, for the limited

purposes of establishing a prima facie case, Berquist

demonstrated that he was qualified for his position.

B. Whether Berquist was Otherwise Discharged

Because of His Age

The final prong of establishing a prima facie case of

age discrimination requires Berquist to show that he

was replaced by someone outside the protected class,

replaced by someone younger, or otherwise discharged

because of his age. Rachid, 376 F.3d at 309. The

district court did not reach this issue, but the parties

presented arguments on this final element before the

district court and this court on appeal.

12a

As a starting point, the record does not support a

finding that Berquist was replaced by someone either

outside the protected class or by someone younger than

himself. Berquist argues that Washington Mutual’s

decision to terminate him and Yancis, the two older

employees in the Houston office, while offering the

younger Plaisance and Zatopek the option of

transferring to the Dallas office proves age

discrimination. The undisputed facts surrounding

Berquist’s job function and Washington Mutual’s

reorganization, however, do not demonstrate that

Berquist was replaced by Plaisance and Zatopek. As

explained in greater detail below, Plaisance and

Zatopek, the SFG credit process reviewers, remained

in the Houston office for several months after

Berquist’s CBG functions were transferred to

California. Moreover, Berquist presented no evidence

to show who Washington Mutual hired to work in the

California office. Therefore, the only path available for

Berquist to establish a prima facie case is to show that

he was “otherwise discharged because of his age.” Id.

1. Martinez’s Remarks

Berquist asserts that Martinez’s comments

regarding the desire to “attract younger talent,” and

her reference to Plaisance and Zatopek as the

“younger” credit review officers, support his claim of

age discrimination. Statements evince unlawful

discrimination only if the comments “first,

demonstrate discriminatory animus and, second, [are]

made by a person primarily responsible for the adverse

employment action or by a person with influence or

leverage over the formal decisionmaker.” Laxton v.

l3a

Gap Inc., 333 F.3d 572, 583 (5th Cir. 2003) (citing

Russell v. McKinney Hosp. Venture, 235 F.3d 219, 225

(5th Cir. 2000)). Under this test, Martinez’s comments

do not constitute evidence of age discrimination.

Martinez made the first comment regarding

younger talent in December 2002, six months before

Washington Mutual terminated Berquist, and the

comment does not at all relate to this employment

decision. According to Berquist’s contemporaneous

transcription of the comment, Martinez stated that

“Performance issues will be promptly and aggressively

dealt with. We will build leaders internally and attract

younger talent.” Washington Mutual contends that

regardless of whether Martinez expressed an intention

to attract younger talent, this remark was too vague

and remote in time to show any discriminatory animus

on the part of Washington Mutual in terminating

Berquist.

Martinez made no mention of replacing older

employees with younger recruits or directly hiring

younger employees into leadership positions. Unlike

other cases in which we have considered remarks as

evidence of discriminatory intent, this comment was a

broad statement not directed to any particular

employee about her management goals and remote in

time from Berquist’s firing. See Machinchick v. PB

Power, Inc., 398 F.3d at 345, 353 (5th Cir. 2005)

(supervisor sent e-mail, just weeks before terminating

plaintiff, discussing plans to “strategically hire some

younger engineers and designers”; supervisor said

plaintiff was “inflexible” and “not adaptable”); Rachid,

376 F.3d at 313, 315 (holding that employer’s ageist

l4a

comments “to and about” employee constituted

evidence of age discrimination); Bienkowski, 851 F.2d

at 1507 n.4 (holding that comments requiring the

employee to look “sharp” and criticizing an inability to

adapt to new procedures constituted evidence of age

discrimination); Palasota, 342 F.3d at 576 (supervisor

sent a memorandum, two months before plaintiffs

termination, recommending severance packages for

fourteen named employees, all of whom were

specifically identified as over fifty years of age, to

create “the flexibility to bring on some new players”).

Accordingly, in this context, we conclude that this

statement is not evidence of age discrimination.

As to Martinez’s reference to Plaisance and Zatopek

as “younger” employees, Washington Mutual asserts,

and Berquist offers no alternative interpretation, that

Martinez made this comment to contrast Plaisance

and Zatopek with Berquist, the “senior employee” in

the department. In his role as the senior employee,

Martinez expected Berquist to provide leadership for

the inexperienced members of the group. Berquist

provides a similarly harmless interpretation of this

statement in his response to the PIN, which was

written prior to this litigation. Berquist’s writes that

The criticism mentioned repeatedly on March 4

from Ms. Martinez and Ms. Hart was that I did

not notify them of the lack of desk reviews being

sent to Houston to be performed “by the young

guys” in the Houston office. I responded that

since J reported directly to Ron Yancis at the

time, it was not in my work experience to “go

over my boss’s head” directly to Credit Review

l5a

management. ... Ms. Martinez told me that I

was a “senior officer” in this office and that

other two employees in the department besides

former Regional Manager Ron Yancis and

myself were inexperienced young men who

needed leadership.

Based on Berquist’s personal impressions of the

statement, we decline to characterize this comment as

anything more than a comment unrelated to an

unlawful discriminatory animus. Both statements are

consistent with Washington Mutual’s stated

commitment to build leaders internally based on

available resources within the _ corporation.

Accordingly, Martinez’s comments are not sufficient

evidence of age discrimination.

2. Other Circumstantial Evidence

In addition to the above remarks, as stated supra,

Berquist contends that Washington Mutual’s decision

to terminate him and Yancis, the two older Houston

employees, while offering the younger Plaisance and

Zatopek the option of transferring to the Dallas office

further supports his claim of age discrimination.

According to Berquist, all four employees were

performing the same SFG work at the time of his

termination. Berquist also maintains that Washington

Mutual’s age bias prompted Martinez to issue only the

olger employees a PIN. Berquist contends that

Washington Mutual then suggested an internal

transfer to resolve his employment issues but refused

to facilitate this action because Martinez would not

downgrade his PIN.

16a

Washington Mutual contends that the disparate

treatment of Berquist and the younger employees,

Plaisance and Zatopek, was based on the differing job

functions performed by the two sets of employees.

Washington Mutual argues that, although Berquist

performed overflow work from SFG, everyone in

Houston pitched in to work on SFG’s reports during

downtime. Plaisance and Zatopek were the only two

employees, however, with years of experience in this

specialty area.

In disparate treatment cases, the plaintiff-

employee must show “nearly identical” circumstances

for employees to be considered similarly situated.

Perez v. Tex. Dep’t of Criminal Justice, 395 F.3d 206,

210 (5th Cir. 2004) (quoting Little v. Republic Ref. Co.,

924 F.2d 93, 97 (5th Cir. 1991)). Berquist performed an

array of jobs after the Bank United-Washington

Mutual merger. Berquist initially stayed with the

bank, at the request of Don Dahrens, for the specific

purpose of assisting with the conversion of Bank

United’s risk grading system for loans to Washington

Mutual’s system. In late October 2002, Washington

Mutual moved this function to Seattle, Washington,

and Berquist no longer worked with converting the

risk rating grids.

Martinez then assigned Berquist toa national team

reviewing a residential construction portfolio. After the

group’s first meeting, Martinez removed Berquist from

the residential construction portfolio and asked him to

assist with the review and approval of credit reports.

This assignment involved clearing a large backlog of

unissued loan review reports. At some point in early

17a

March, Berquist began working on change request

summaries (“CRS”). CRS’s require a determination of

whether to increase or decrease a customer’s credit

rating based on a credit review. In her deposition,

Martinez explained that the CRS process was

segmented into two teams, the SFG and CBG. SFG

handled a different business line from CBG, CBG

involved a larger work load and larger assets under

management. Martinez also stated that “[i]f there was

overflow from SFG then that would be allocated, and

then Mr. Berquist may have been assigned those.”

Martinez’s explanation comports with Berquist’s

account of the work distribution. Berquist testified

that during slow periods, after receiving a stack of

CRS’s in the mail, someone simply grabbed a stack of

CRS’s without any regard to whether the files dealt

with SFG or CBG loans. Berquist also testified in his

deposition that after receiving his PIN, the Houston

group received an email from either Martinez or

Cynthia Hart, the SFG manager, announcing that

Zatopek and Plaisance were being permanently

assigned to the SFG function. In this capacity, Zatopek

and Plaisance attended a national meeting concerning

their duties in the SFG position. Berquist and Yancis

did not attend this meeting. Moreover, Berquist and

Yancis directly reported to Bob Granfelt, and only in

the event of a workflow issue did these two employees

report to Frazee as their administrative supervisor.

Frazee managed the tracking system of work

assignments for the Houston office. Finally, to this

court, Berquist represented that he was initially

assigned SFG work and then assigned to the CBG

position. Thus, the PIN and Berquist’s response to the

18a

PIN “pertained to [his] SFG work, not the CBG

position that Appellee alleges [he] was assigned after

he was given his PIN.”

The explanations provided by Martinez and

Berquist regarding the division of labor in the Houston

office demonstrate that Berquist was not similarly

situated with Zatopek and Plaisance; therefore, the

employment decisions applied to Zatopek and

Plaisance cannot be used to support Berquist’s claim

of age discrimination. Accordingly, based on the

uncontroverted evidence, Berquist cannot argue that

Zatopek and Plaisance were similarly situated

employees treated differently from himself based on

unlawful age discrimination.

Berquist also argues that the PIN from Martinez

accounts for one additional peg in the series of

discriminatory events leading to his termination.

Berquist asserts that the PIN supports his claim of age

discrimination because it directly conflicts with verbal

conversations between himself and Martinez, and only

the two older employees, himself and Yancis, received

a notice. Berquist also maintains that Frazee refused

to participate in the PIN because he did not agree with

Martinez’s performance assessment.

In early 2003, the Corporate Credit Review

department of Washington Mutual consisted of

seventy-one percent of employees over 40, and thirty-

seven percent of employees over 50. During the

reorganization, Martinez issued PIN’s to only five

employees under her management. Based on

Berquist’s admission that he lacked skills in SFG

19a

review, his then-current position, it is difficult to

interpret the negative evaluation as motivated by age

discrimination. On February 27, 2003, Berquist sent

an email to Martinez attempting to carve out a

position better suited for his operational and

administrative skill sets. In the message, Berquist

listed his prior work experience and states the

following:

As you know, my overall background has been

in auditing and operational review... .

In our initial meeting last year, I told you that

I really love doing operational reviews. I believe

that this is where my greatest strengths are.

This is where I believe that I can be of best

value to you and the entire Corporate Credit

Review organization of Washington Mutual. ...

As you are aware and can see from the above,

there are extensive operations and credit

activities located and headquartered in the

Phoenix Tower {in Houston, TX]. I would like to

volunteer to dedicate my activities to these

critical operational and credit areas in Houston

and their respective field offices. In addition to

documenting and reviewing all of the above

operational activities as they relate to Credit

Review, I also could attend regular meetings of

these groups as they relate to credit issues as

not only your representative, but for the team

leaders as well.

20a

Prior to the reorganization, and in response to his PIN

dated March 4, Berquist wrote the following:

I have never at any time represented to anyone

that I have specific expertise in credit review

since my responsibilities at both Bank United

and Washington Mutual were solely of an

administrative and operational nature. At no

time prior to March 4, 2003, was I ever advised

that my lack of experience in credit review was

an impediment to my continued employment

and certainly not that it was grounds for

termination.

In his deposition, Berquist once again confirmed that

he has no specific expertise in credit review.

To reconcile the admissions in his PIN response

and deposition, Berquist proffered that in his opinion,

“the skills involved in financial and operational

auditing involve some of the same skills that are

needed for corporate credit review. I believe that []

inquiries-requires an intuitiveness, a curiosity, and an

ability to read and understand financial statements

and documents.” Berquist never presents evidence to

refute the fact that the PIN accurately pinpoints his

deficiencies in the credit review skills necessary to be

a SFG credit process reviewer.

Berquist also insinuates that Scott Frazee refused

to participate in the March 2003 PIN because he had

no problems with Berquist’s work. To the contrary,

Frazee explained in his deposition that he didn’t

participate in Martinez’s evaluation of Berquist

2la

because he didn’t have firsthand knowledge for the

basis of her concerns and needed time to specifically

assess Berquist’s work. Frazee described that a process

reviewer leads the credit review and a file reviewer

conducts the necessary supporting file work. A process

reviewer position typically requires at least four to five

years of file review experience. Based on Berquist’s

work product, Frazee assessed that Berquist

understood the basic concepts of credit review but

lacked the capability and background to provide an

appropriate assessment of more complex files.

Ironically, Martinez attempted to use the PIN asa

gateway for securing Berquist’s long-term employment

at Washington Mutual in a department better suited

for his self-identified skill sets. Martinez and Julie

Aydelotte, an employee relations manager, called

Berquist to discuss a transfer to another department

within Washington Mutual. Berquist recorded and

transcribed many of these telephone conversations. In

the initial discussion, on May 13, 2003, Martinez told

Berquist that, |

What we want to discuss with you today and

what we want you to think about is really

working with you to find, to see if we can find

you another position within the company. You

know, your skill sets and the contribution that

you could provide Washington Mutual from a

global! basis, I definitely think there is some

contribution there. The issue really becomes are

those skill sets what are needed in the Credit

Review function and I think at this point in

time the answer is no. But I think we also want

22a

to recognize the historical performance as far as

your contribution to the department and see

what we can do to help you.

Also in this conversation, Martinez discussed with

Berquist a 45-day period to find another position and

her willingness to discuss the PIN with any interested

managers within the company. Berquist requested to

receive his severance package offered during the

acquisition period, but Aydelotte explained that

Berquist’s working for two years had negated the

original severance plan.

Over the next several weeks, Aydelotte and

Berquist communicated regarding his search for a new

position and the severance package. Berquist resisted

applying for another position because (1) Martinez did

not completely fill-out his transfer form, and (2)

Berquist questioned his ability to transfer in light of

the company’s policy regarding employees with a

negative performance evaluation on file being

ineligible for a transfer. Aydelotte advised Berquist

that “[w]hat you need to do is to apply on-line if you

find something that you are interested in and then we

can work through this part with the recruiters.”

Aydelotte testified in her deposition that, “in the

conversation Melissa had with Phil on the May 13th,

was that she would authorize a transfer, that it was

okay for him to look internally for a position that

better suited his experience, and that if he found

something I would work with a recruiter and that she

would approve him to transfer.” On June 10, 2003,

Aydelotte offered Berquist the requested 38-weeks

severance package in the form of a separation

23a

agreement. Berquist refused the offer because the

paperwork included a confidential settlement and

release agreement.

Based on this evidence, confirmed and undisputed

by Berquist on the pertinent points, the PIN

highlighted his self-acknowledged lack of experience

with credit review. Washington Mutual documented

this skill deficiency, yet at the same time, attempted to

retain Berquist in another position. When Berquist

refused to look for another position, Washington

Mutual offered Berquist a severance package identical

to the amount offered at the time of the merger.

Berquist then declined this offer. Berquist provides no

evidence to diminish the veracity of Washington

Mutual’s position or to show a causal connection

between Washington Mutual’s adverse employment

action and his age. To the contrary, Berquist readily

admits through inconsistent statements that he was

not working in the SFG position at the time of his

termination, he lacked the skills necessary to perform

the work assigned to Plaisance and Zatopek, and he

refused to cooperate with Martinez’s and Aydelotte’s

attempts to accommodate his requests. Based on this

evidence, a reasonable trier of fact could not determine

that Washington Mutual otherwise discharged

Berquist based on his age.

C. Legitimate, Non-discriminatory Reason for

Discharge

If the plaintiff establishes a prima facie case, “the

defendant then must articulate a legitimate, non-

discriminatory reason for its decision to terminate the

24a

plaintiff; and, if the defendant meets its burden of

production, the plaintiff must then offer sufficient

evidence to create a genuine issue of material fact

either (1) that the defendant’s reason is not true, but

is instead a pretext for discrimination (pretext

alternative); or (2) that the defendant’s reason, while

true, is only one of the reasons for its conduct, and

another “motivating factor” is the plaintiffs protected

characteristic (mixed-motivels] alternative).” Rachid,

376 F.3d at 312 (internal quotations omitted).

Assuming arguendo that Berquist established a

prima facie case of age discrimination, the undisputed

summary judgment evidence demonstrates that

Washington Mutual undertook a major reorganization

in the Corporate Credit Review department, which

eliminated Berquist’s position. Berquist fails to raise

a genuine issue of material fact regarding the evidence

presented to support Washington Mutual’s legitimate,

non-discriminatory reason for his termination.

Martinez came to Washington Mutual on

September 30, 2003, charged with the responsibility of

regenerating an underperforming group-develop a

strategy and implement the appropriate methodologies

to execute the process. Washington Mutual hired

Martinez after the acquisition of Bank United and

other banks across the country for the sole purpose of

reorganizing the credit department. In a memo

entitled “Corporate Credit Review: Organizational

Realignment,” dated December 3, 2002, Washington

Mutual provided an overview of the planned

organization of the credit review department,

including the closing of certain offices and the creation

25a

of new positions. In the December 9 meeting, Berquist

recalls Martinez giving notice about a “formal

[departmental] reorganization that was going to take

several months to complete.” In a second undated

document, entitled “Corporate Credit Review Business

Objective, Houston Commercial Banking Team,”

Washington Mutual states that

[Wle have determined that the size of the

commercial portfolio in Houston does not justify

placement of resources in the local market.

Additionally, Commercial Banking business

objectives have not identified the Houston

market as a high growth area. As a result, we

have [made] the business decision to disengage

Corporate Credit Review in Houston and build

up capabilities in California and New York to

support existing and planned growth within the

Commercial Banking group.

On June 25, 2003, Berquist and Yancis, both

employees of Corporate Credit Review focusing on

commercial portfolios in Houston, were notified that

their positions would be eliminated. After announcing

the decision to relocate the CBG function, both men

were offered a severance package with the option to be

re-hired in another department. This offer required

them to sign a release agreement. On September 29,

2003, Yancis, age 58, started a different position in

Mortgage Banker Finance with Washington Mutual,

but Berquist chose not to accept the severance

package. Moreover, similarly situated employees

willing to follow procedures were re-hired within other

departments. Shortly thereafter, in July 2003, the

26a

Corporate Credit Risk Management team in Seattle

also consolidated, and three positions were eliminated

from this department. Two of the employees over the

age of forty, Phil Stanley, age 51, and Leone, age 58,

accepted different positions with Washington Mutual.

Berquist presented no evidence to contradict

Washington Mutual’s legitimate, non-discriminatory

reason for eliminating his position.

IV. CONCLUSION

For the foregoing reasons, we affirm the district

court’s grant of summary judgment.

AFFIRMED.

27a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

Civil Action No. H-04-376

[Decided September 7, 2005]

PHILIP BERQUIST,

Plaintiff,

¥.

WASHINGTON MUTUAL BANK, F.A.,

Defendant.

ee ee a

MEMORANDUM AND ORDER

This case arises under the Age Discrimination in

Employment Act of 1967, 29 U.S.C. §§ 621 et seq.

(ADEA). Plaintiff Philip Berquist alleges that

Defendant Washington Mutual Bank’s (WAMU)

termination of his employment was motivated by his

age. WAMU has moved for summary judgment.

Having considered the parties’ filings, the Court

hereby GRANTS summary judgment for Defendant.

28a

I BACKGROUND

The undisputed facts are as follows. Berquist began

working for United Savings Bank as an internal audit

supervisor in Houston in 1984. In 1992, when United

Savings was acquired by Bank United, Berquist stayed

on as an internal audit manager. In 2001, when Bank

United in turn became part of WAMU, Berquist was

offered a separation package but ultimately chose to

remain with the company, assisting with the

conversion from the Bank United risk rating system to

the new WAMU system. He performed this work until

late 2002, when Melissa Martinez joined WAMU as

head of Corporate Credit Review and reassigned

Berquist to the position of Credit Review Officer, a job

requiring him to review and approve (R&A) unissued

loan review reports. Berquist claims that, during a

conference call on December 9, 2002, Martinez

remarked that she planned to “attract younger talent”

to WAMU.

In February 2003, Martinez visited WAMU’s

Houston office and criticized the work of each of the

employees in Berquist’s department, including

Berquist himself. During this visit, Martinez

reassigned Berquist and others from R&A, instructing

them instead to begin preparing Change Request

Summaries for loans that had been assigned

inaccurate risk levels. One month later, Martinez and

another WAMU manager traveled to Houston to give

Berquist a Performance Improvement Notice (PIN), a

formal written warning that his work was not meeting

WAMU’s standards. The PIN stated, inter alia, that

Berquist’s “technical skills and proficiencies are

29a

operational’ in nature and not commensurate with the

job function . . . or those required for a Credit Review

Officer.” Berquist responded to this criticism by noting

that all of his prior experience, both at WAMU and

with previous employers, had been operational and

administrative in nature. He pointed out that “I have

never at any time represented to anyone that I have

specific expertise in credit review since my

responsibilities at both Bank United and Washington

Mutual were solely of an administrative and

operational nature.” The PIN also stated that Berquist

displayed a negative attitude and did not complete

assignments in a timely fashion. Berquist responded

by requesting detailed descriptions of any incidents

giving rise to these criticisms. Despite his repeated

inquiries, he never received any additional

information.

On May 13 or 14, 2003, Martinez and Human

Resources employee Julie Aydelotte conducted a

telephone conference with Berquist, during which

Martinez advised Berquist to try to find a position

within WAMU that was more appropriate to his skills.

Martinez warned Berquist that, if he was unable to

find such a position within 45 days, he would be

terminated. Berquist objected that the PIN made him

ineligible to transfer within the company and asked

that the PIN be downgraded to a less severe warning.

Martinez and Aydelotte repeatedly assured Berquist

that he had authorization to seek a transfer within

WAMU, but they did not downgrade the PIN. Berquist

never identified a more suitable job within WAMU,

and he and Aydelotte began discussing severance. On

June 26, 2003, however, Berquist was informed that

30a

his position was being eliminated and his function

moved to California. Berquist’s employment with

WAMU terminated on August 1, 2003. He and WAMU

were unable to reach a severance agreement.

II. ANALYSIS

A. Summary Judgment Standard

A motion for summary judgment requires the Court

to determine whether the moving party is entitled to

judgment as a matter of law based on the evidence

thus far presented. See FED. R. CIV. P. 56(c).

“Summary judgment is proper 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.” Kee v. City of Rowlett, 247 F.3d

206, 210 (5th Cir.), cert. denied, 534 U.S. 892, 122 S.

Ct. 210, 151 L. Ed. 2d 149 (2001) (internal quotation

marks and citation omitted). A genuine issue of

material fact exists “if the evidence is such that a

reasonable jury could enter a verdict for the non-

moving party.” Crawford v. Formosa Plastics Corp.,

234 F.3d 899, 902 (5th Cir. 2000). This Court must

view all evidence in the light most favorable to the

non-moving party and draw all reasonable inferences

in that party’s favor. Jd.

To survive a motion for summary judgment, an

ADEA plaintiff must first establish a prima facie case

of discrimination. Bauer v. Albemarle Corp. , 169 F.3d

962, 966 (5th Cir. 1999). Once a plaintiff has

3la

established a prima facie case, the burden shifts to the

defendant to present a legitimate, non-discriminatory

reason for the challenged action. Jd. If the defendant

can make such a showing, the burden shifts back to

the plaintiff to prove that the legitimate reason is a

mere pretext for discrimination. Jd. at 966-67.

B. Berquist Cannot Establish a Prima Facie

Case of Age Discrimination

It is unclear whether Berquist is claiming that

WAMU discriminated against him by eliminating his

position (a wrongful termination claim) or by failing to

find another position for him (a reduction in force

claim). Accordingly, the Court considers each possible

claim, concluding that neither can survive summary

judgment.

1. Wrongful termination.

To make a prima facie case of age discrimination,

a plaintiff must ordinarily prove that (1) he is a

member of a protected class (i.e., he is more than forty «

years old); (2) he was qualified for his position; (3) he

was discharged; and (4) he was replaced by a non-

member of the protected class or by someone younger,

or was terminated because of his age. Jd. at 966.

Berquist’s claim must be dismissed because he has not

advanced any support for the claim that he was

qualified for his position.

Berquist’s Second Amended Complaint states that

“Plaintiff was qualified for the positions he held for the

Defendant, and specifically for the position he held at

32a

the time of his termination.” (P1l.’s 3d Am. Compl. at

10.) At the summary judgment stage, however, once

the movant has identified portions of the record that

support its position, the non-movant must “go beyond

the pleadings and . . . designate specific facts showing

that there is a genuine issue for trial.” Celotex Corp. v.

Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed.

2d 265 (1986) (internal quotation marks omitted).

Here, WAMU (the movant) points to Berquist’s PIN

response, in which he stated, “I have never at any time

represented to anyone that I have specific expertise in

credit review since my responsibilities at both Bank

United and Washington Mutual were solely of an

administrative and operational nature.” (Ex. A, Def.’s

Mot. for Summ. J., at 77-78.) WAMU also points out

that Berquist admitted during his deposition that he

had no specific expertise in credit review and had

never led a credit review. (/d. at 60-61.)

In his response to WAMU’s motion for summary

judgment, Berquist does not provide any evidence that

he was qualified for the position of Credit Review

Officer. He merely argues that he was qualified for his

previous position, that of Senior Credit Examiner, and

points to positive reviews of his performance in that

position. (Pl.’s Resp. to Def.’s Mot. for Summ. J. at 4.)

Even if true, however, his contention that he was

qualified for his previous position does nothing to

rebut Defendant’s allegations and evidence that he

was unqualified for the position that he held

immediately prior to his termination. While it is not

appropriate, at the summary judgment stage, to make

factual findings concerning a plaintiffs compliance

with subjective standards, summary judgment may be

33a

granted where a plaintiff has, as here, failed to offer

any evidence at all that he was qualified for the

position from which he was terminated.

Berquist insists that WAMU failed to response to

his requests for detailed descriptions of his

professional shortcomings. (P1.’s Resp. at 4-9, 12.) Even

if Berquist is correct, however, and WAMU should

have provided more information about his performance

problems, its failure to do so does not prove that

Berquist was qualified for his job. Nor does the fact

that Berquist was given the position of Credit Review

Officer in the first place constitute evidence that he

was qualified. (See Pl.’s Resp. at 18.) To hold otherwise

would be to eliminate the qualification element of

every case involving termination. Therefore, because

Berquist has failed to meet his burden of providing

factual support for this element of his prima facie case,

he cannot make a claim of wrongful termination

sufficient to survive summary judgment.

2. Reduction in force.

Berquist concedes that his position was eliminated

when his department moved to California. (See P1.’s

Response to Def.’s Mot. for Summ. J. at 11.) He does

not appear to contend that he was replaced by another

employee. It appears, then, that his termination was

part of a reduction in force (RIF).

In aln}] RIF case, a prima facie case is

established by evidence that (1) the plaintiff is

within the protected age group under the

ADEA; (2) he or she was adversely affected by

34a

the employer’s decision; (3) he or she was

qualified te :ssume another position at the time

of the discharge or demotion; and (4) evidence,

either circumstantial or direct, from which a

factfinder might reasonably conclude that the

employer intended to discriminate in reaching

its decision.

Woodhouse v. Magnolia Hosp., 92 F.3d 248, 252 (5th

Cir. 1996).

Berquist has put forward no evidence that he was

qualified for another position at WAMU. Instead, he

accuses Martinez and Aydelotte of obstructing his

efforts to transfer by refusing to downgrade the PIN.

Even if true, however, Berquist’s contention that he

was prevented from actually transferring does not

support a finding that he was qualified for a position

at WAMU. Again, Berquist bears the burden of

pleading and supporting, at the summary judgment

stage, this element of a prima facie claim of RIF

discrimination. He has not done so. Since he has failed

to establish a prima facie case for either of his possible

claims, Berquist’s Complaint is hereby DISMISSED,

and summary judgment is GRANTED for Defendant.

IT IS SO ORDERED.

SIGNED THIS 7TH DAY OF SEPTEMBER, 2005.

/s/

Keith P. Ellison

United States District Judge

35a

FINAL JUDGMENT

Pursuant to FED. R. CIV. P. 58(a), and for the

reasons stated in the accompanying Memorandum and

Order, JUDGMENT is ENTERED for Defendant.

IT IS SO ORDERED.

SIGNED THIS 7TH DAY OF SEPTEMBER, 2005.

Keith P. Ellison

United States District Judge

36a

APPENDIX C

United States Court of Appeals

FIFTH CIRCUIT

OFFICE OF THE CLERK

CHARLES R. FULBRUDGE III TEL. 504-310-7700

CLERK 600 S. MEASTRI PLACE

NEW ORLEANS, LA 70130

August 13, 2007

MEMORANDUM TO COUNSEL OR PARTIES

LISTED BELOW:

No. 05-20956 Berquist v. Washington Mutual Bk

USDC No. 4:04-CV-376

Enclosed is an order entered in this case.

Sincerely,

CHARLES R. FULBRUGE UI, Clerk

By: /s/ Laura Miles

Laura Miles, Deputy Clerk

504-310-7807

Mr Joseph Y Ahmad

Mr Jeffrey C Londa

37a

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-202956

[Filed August 13, 2007]

PHILIP BERQUIST,

Plaintiff-Appellant,

¥.

WASHINGTON MUTUAL BANK,

Defendant-Appeliee.

Nee eee eee ee”

Appeal from the United States District Court

for the Southern District of Texas, Houston

ON PETITION FOR REHEARING

Before JONES, Chief Judge, JOLLY, and STEWART,

Circuit Judges.

PER CURIAM:

The petition for rehearing is out of time. The court has

allowed the filing of the late petition for rehearing. The

petition for rehearing is _DENIED

ENTERED FOR THE COURT:

/s/

United States Circuit Judge

38a

APPENDIX D

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

No. 05-20956

[Filed July 12, 2007]

PHILIP BERQUIST,

Plaintiff-Appellant,

Vv.

WASHINGTON MUTUAL BANK,

' Defendant-Appellee.

ee ee ee ee a

On Appeal from the United States District Court

for the Southern District of Texas.

Before JONES, Chief Judge, and JOLLY and

STEWART, Circuit Judges.

JUDGMENT

This cause was considered on the record on appeal

and was argued by counsel.

It is ordered and adjudged that the judgment of the

District Court is affirmed.

39a

IT IS FURTHER ORDERED that plaintiff-

appellant pay to defendant-appellee the costs on

appeal to be taxed by the Clerk of this Court.

ISSUED AS A MANDATE: AUG 21 2007

A True Copy

Attest

Clerk, U.S. Court of Appeals, Fifth Circuit

By: /s/

Deputy

New Orleans, Louisiana AUG 21 2007

40a

APPENDIX E

The Age Discrimination in Employment Act

[29 U.S.C. §§ 621-634]

TITLE 29

LABOR

CHAPTER 14 -- AGE DISCRIMINATION IN

EMPLOYMENT

§ 621. Congressional statement of findings and

purpose

§622.Education and_ research program;

recommendation to Congress

§ 623. Prohibition of age discrimination

§ 624.Study by Secretary of Labor; reports to

President and Congress; scope of study;

implementation of study; transmittal date of

reports

§ 625. Administration

§ 626. Recordkeeping, investigation, and enforcement

§ 627. Notices to be posted

§ 628. Rules and regulations; exemptions

§ 629. Criminal penalties

§ 630. Definitions

§ 631. Age limits

§ 632. Omitted

§ 633. Federal-State relationship

4la

§ 633a. Nondiscrimination on account of age in

Federal Government employment

§ 634. Authorization of appropriations

§ 621. Congressional statement of findings and

purpose

(a) The Congress hereby finds and declares that—

(1)in the face of rising productivity and

affluence, older workers find themselves

disadvantaged in their efforts to retain

employment, and especially to regain

employment when displaced from jobs;

(2) the setting of arbitrary age limits regardless

of potential for job performance has become

a common practice, and certain otherwise

desirable practices may work to the

disadvantage of older persons;

(3) the incidence of unemployment, especially

long-term unemployment with resultant

deterioration of skill, morale, and employer

acceptability is, relative to the younger ages,

high among older workers; their numbers

are great and growing; and _ their

employment problems grave;

(4) the existence in industries affecting

commerce, of arbitrary discrimination in

employment because of age, burdens

42a

commerce and the free flow of goods in

commerce.

(b) It is therefore the purpose of this chapter to

promote employment of older persons based on

their ability rather than age; to prohibit

arbitrary age discrimination in employment; to

help employers and workers find ways of

meeting problems arising from the impact of

age on employment.

§622.Education and_ research program;

recommendation to Congress

(a) The Secretary of Labor shall undertake studies

and provide information to labor unions,

management, and the general public concerning

the needs and abilities of older workers, and

their potentials for continued employment and

contribution to the economy. In order to achieve

the purposes of this chapter, the Secretary of

Labor shall carry on a continuing program of

education and information, under which he

may, among other measures—

(1) undertake research, and promote research,

with a view to reducing barriers to the

employment of older persons, and the

promotion of measures for utilizing their

skills;

(2) publish and otherwise make available to

employers, professional societies, the various

43a

media of communication, and other

interested persons the findings of studies

and other materials for the promotion of

employment;

(3) foster through the public employment

service system and through cooperative

effort the development of facilities of public

and private agencies for expanding the

opportunities and potentials of older

persons;

(4) sponsor and assist State and community

informational and educational programs.

(b) Not later than six months after the effective

date of this chapter, the Secretary shall

recommend to the Congress any measures he

may deem desirable to change the lower or

upper age limits set forth in section 631 of this

title.

§ 623. Prohibition of age discrimination

(a) Employer practices

It shall be unlawful for an employer—

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

individual or otherwise discriminate against

any individual with respect to his

compensation, terms, conditions, or

44a

privileges of employment, because of such

individual’s age;

(2) to limit, segregate, or classify his employees

in any way which would deprive or tend to

deprive any individual of employment

opportunities or otherwise adversely affect

his status as an employee, because of such

individual’s age; or

(3) to reduce the wage rate of any employee in

order to comply with this chapter.

(b) Employment agency practices

It shall be unlawful for an employment agency

to fail or refuse to refer for employment, or

otherwise to discriminate against, any

individual because of such individual’s age, or to

classify or refer for employment any individual

on the basis of such individual’s age.

It shall be unlawful for a labor organization—

(1) to exclude or to expel from its membership,

or otherwise to discriminate against, any

individual because of his age;

(2)to limit, segregate, or classify its

membership, or to classify or fail or refuse to

refer for employment any individual, in any

way which would deprive or tend to deprive

45a

any individual of employment opportunities,

or would limit such employment

opportunities or otherwise adversely affect

his status as an employee or as an applicant

for employment, because of such individual’s

age;

(3) to cause or attempt to cause an employer to

discriminate against an individual in

violation of this section.

(d) Opposition to unlawful practices; participation

in investigations, proceedings, or litigation

It shall be unlawful for an employer to

discriminate against any of his employees or

applicants for employment, for an employment

agency to discriminate against any individual,

or for a labor organization to discriminate

against any member thereof or applicant for

membership, because such individual, member

or applicant for membership has opposed any

practice made unlawful by this section, or

because such individual, member or applicant

for membership has made a charge, testified,

assisted, or participated in any manner in an

investigation, proceeding, or litigation under

this chapter.

(e) Printing or _ publication of notice or

advertisement indicating preference, limitation,

etc.

46a

It shall be unlawful for an employer, labor

organization, or employment agency to print or

publish, or cause to be printed or published, any

notice or advertisement relating to employment

by such an employer or membership in or any

classification or referral for employment by such

a labor organization, or relating to any

classification or referral for employment by such

an employment agency, indicating any

preference, limitation, specification, or

discrimination, based on age.

(f) Lawful practices; age an _ occupational

qualification; other reasonable factors; laws of

foreign workplace; seniority system; employee

benefit plans; discharge or discipline for good

cause

It shall not be unlawful for an employer,

employment agency, or labor organization—

(1)to take any action otherwise prohibited

under subsections (a), (b), (c), or (e) of this

section where age is a bona fide occupational

qualification reasonably necessary to the

normal operation of the particular business,

or where the differentiation is based on

reasonable factors other than age, or where

such practices involve an employee in a

workplace in a foreign country, and

compliance with such subsections would

cause such employer, or a _ corporation

controlled by such employer, to violate the

47a

laws of the country in which such workplace

is located;

(2) to take any action otherwise prohibited

under subsection (a), (b), (c), or (e) of this

section—

(A)to observe the terms of a bona fide

seniority system that is not intended to

evade the purposes of this chapter,

except that no such seniority system

shall require or permit the involuntary

retirement of any individual specified by

section 631 (a) of this title because of the

age of such individual; or

(B)to observe the terms of a bona fide

employee benefit plan—

(i) where, for each benefit or benefit

package, the actual amount of

payment made or cost incurred on

behalf of an older worker is no less

than that made or incurred on behalf

of a younger worker, as permissible

under section 1625.10, Title 29, Code

of Federal Regulations (as in effect on

June 22, 1989); or

(ii) that is a voluntary early retirement

incentive plan consistent with the

relevant purpose or purposes of this

chapter.

48a

Notwithstanding clause (i) or (ii) of

subparagraph (B), no such employee

benefit plan or voluntary early

retirement incentive plan shall excuse

the failure to hire any individual, and no

such employee benefit plan shall require

or permit the involuntary retirement of

any individual specified by section 631

(a) of this title, because of the age of such

individual. An employer, employment

agency, or labor organization acting

under subparagraph (A), or under clause

(i) or (ii) of subparagraph (B), shall have

the burden of proving that such actions

are lawful in any civil enforcement

proceeding brought under this chapter; or

(3) to discharge or otherwise discipline an

individual for good cause.

(g) Repealed. Pub. L. 101-239, Title VI, §

6202(b)(3C)(G), Dec. 19, 1989, 103 Stat. 2233

(h) Practices of foreign corporations controlled by

American employers; foreign employers not

controlled by American employers; factors

determining control

(1) If an employer controls a corporation whose

place of incorporation is in a foreign country,

any practice by such corporation prohibited

under this section shall be presumed to be

such practice by such employer.

49a

(2) The prohibitions of this section shall not

apply where the employer is a foreign person

not controlled by an American employer.

(3) For the purpose of this subsection the

determination of whether an employer

controls a corporation shall be based upon

the—

(A)interrelation of operations,

(B)common management,

(D)common ownership or financial control,

of the employer and the corporation.

(i) Employee pension benefit plans; cessation or

reduction of benefit accrual or of allocation to

employee account; distribution of benefits after

attainment of normal retirement age;

compliance; highly compensated employees

(1) Except as otherwise provided in this

subsection, it shall be unlawful for an

employer, an employment agency, a labor

organization, or any combination thereof to

establish or maintain an employee pension

benefit plan which requires or permits—

(A)in the case of a defined benefit plan, the

cessation of an employee’s benefit

50a

accrual, or the reduction of the rate of an

employee’s benefit accrual, because of

age, or

(B)in the case of a defined contribution plan,

the cessation of allocations to an

employee’s account, or the reduction of

the rate at which amounts are allocated

to an employee’s account, because of age.

(2) Nothing in this section shall be construed to

prohibit an employer, employment agency,

or labor organization from observing any

provision of an employee pension benefit

plan to the extent that such provision

imposes (without regard to age) a limitation

on the amount of benefits that the plan

provides or a limitation on the number of

years of service or years of participation

which are taken into account for purposes of

determining benefit accrual under the plan.

(3) In the case of any employee who, as of the

end of any plan year under a defined benefit

plan, has attained normal retirement age

under such plan—

(A) if distribution of benefits under such plan

with respect to such employee has

commenced as of the end of such plan

year, then any requirement of this

subsection for continued accrual of

benefits under such plan with respect to

such employee during such plan year

5la

shall be treated as satisfied to the extent

of the actuarial equivalent of in-service

distribution of benefits, and

(B)if distribution of benefits under such plan

with respect to such employee has not

commenced as of the end of such year in

accordance with section 1056 (a)(3) of

this title and section 401 (a)(14)(C) of

Title 26, and the payment of benefits

under such plan with respect to such

employee is not suspended during such

plan year pursuant to section 1053

(aX(3)(B) of this title or section 411

(a)(3)(B) of Title 26, then any

requirement of this subsection for

continued accrual of benefits under such

plan with respect to such employee

during such plan year shall be treated as

satisfied to the extent of any adjustment

in the benefit payable under the plan

during such plan year attributable to the

delay in the distribution of benefits after

the attainment of normal retirement age.

The provisions of this paragraph shall apply

in accordance with regulations of the

Secretary of the Treasury. Such regulations

shall provide for the application of the

preceding provisions of this paragraph to all

employee pension benefit plans subject to

this subsection and may provide for the

application of such provisions, in the case of

52a

any such employee, with respect to any

period of time within a plan year.

(4) Compliance with the requirements of this

subsection with respect to an employee

pension benefit plan shall constitute

compliance with the requirements of this

section relating to benefit accrual under

such plan.

(5) Paragraph (1) shall not apply with respect to

any employee who is a highly compensated

employee (within the meaning of section 414

(q) of Title 26) to the extent provided in

regulations prescribed by the Secretary of

the Treasury for purposes of precluding

discrimination in favor of highly

compensated employees within the meaning

of subchapter D of chapter 1 of Title 26.

(6) A plan shall not be treated as failing to meet

the requirements of paragraph (1) solely

because the subsidized portion of any early

retirement benefit is disregarded in

determining benefit accruals or it is a plan

permitted by subsection (m) of this section.’

(7) Any regulations prescribed by the Secretary

of the Treasury pursuant to clause (v) of

section 411 (b)(1)(H) of Title 26 and

' So in original.

53a

subparagraphs (C) and (D)’ of section 411

(b)(2) of Title 26 shall apply with respect to

the requirements of this subsection in the

same manner and to the same extent as such

regulations apply with respect to the

requirements of such sections 411 (b)(1)(H)

and 411 (b)(2).

(8) A plan shall not be treated as failing to meet

the requirements of this section solely

because such plan provides a normal

retirement age described in section 1002

(24)(B) of this title and section 411 (a)(8)(B)

of Title 26.

(9) For purposes of this subsection—

(A)The terms “employee pension benefit

plan”, “defined benefit plan”, “defined

contribution plan”, and “normal

retirement age” have the meanings

provided such terms in sectien 1002 of

this title.

(B)The term “compensation” has_ the

meaning provided by section 414 (s) of

Title 26.

(j) Employment as firefighter or law enforcement

officer

2 See References in Text note below.

54a

It shall not be unlawful for an employer which

is a State, a political subdivision of a State, an

agency or instrumentality of a State or a

political subdivision of a State, or an interstate

agency to fail or refuse to hire or to discharge

any individual because of such individual’s age

if such action is taken—

(1) with respect to the employment of an

individual as a firefighter or as a law

enforcement officer, the employer has

complied with section 3(d)(2) of the Age

Discrimination in Employment Amendments

of 1996° if the individual was discharged

after the date described in such section, and

the individual has attained—

(A)the age of hiring or retirement,

respectively, in effect under applicable

State or local law on March 3, 1983; or

(B)

(i) if the individual was not hired, the

age of hiring in effect on the date of

such failure or refusal to hire under

applicable State or local law enacted

after September 30, 1996; or

Gii)if applicable State or local law was

enacted after September 30, 1996,

3 See References in Text note below.

55a

and the individual was discharged,

the higher of—

(I) the age of retirement in effect on

the date of such discharge under

such law; and

(IDage 55; and

(2) pursuant to a bona fide hiring or retirement

plan that is not a subterfuge to evade the

purposes of this chapter.

(k) Seniority system or employee benefit plan;

compliance

A seniority system or employee benefit plan

shall comply with this chapter regardless of the

date of adoption of such system or plan.

(1) Lawful practices; minimum age as condition of

eligibility for retirement benefits; deductions

from severance pay; reduction of long-term

disability benefits

Notwithstanding clause (i) or (ii) of subsection

(f)(2)(B) of this section—

(1) It shall not be a violation of subsection (a),

(b), (c), or (e) of this section solely because—

(A)an employee pension benefit plan (as

defined in section 1002 (2) of this title)

provides for the attainment of a

56a

minimum age as a condition of eligibility

for normal or early retirement benefits;

(B)a defined benefit plan (as defined in

section 1002 (35) of this title) provides

for—

(i) payments that constitute the

subsidized portion of an _ early

retirement benefit; or

(ii) social security supplements for plan

participants that commence before

the age and terminate at the age

(specified by the plan) when

participants are eligible to receive

reduced or unreduced old-age

insurance benefits under Title II of

the Social Security Act (42 U.S.C. 401

et seq.), and that do not exceed such

old-age insurance benefits.

(2)

(A)Iit shall not be a violation of subsection

(a), (b), (c), or (e) of this section solely

because following a contingent event

unrelated to age—

(i) the value of any retiree health

benefits received by an individual

eligible for an immediate pension;

57a

(ii) the value of any additional pension

benefits that are made available

solely as a result of the contingent

event unrelated to age and following

which the individual is eligible for not

less than an immediate and

unreduced pension; or

(iii) the values described in both clauses

(i) and (ii);

are deducted from severance pay made

available as a result of the contingent event

unrelated to age.

(B)For an_ individual who receives

immediate pension benefits that are

actuarially reduced under subparagraph

(A)i), the amount of the deduction

available pursuant to subparagraph (A)(i)

shall be reduced by the same percentage

as the reduction in the pension benefits.

(C)For purposes of this paragraph,

severance pay shall include that portion

of supplemental unemployment

compensation benefits (as described in

section 501 (c)(17) of Title 26) that—

(i) constitutes additional benefits of up to

52 weeks;

(ii) has the primary purpose and effect of

continuing benefits until an

58a

individual becomes eligible for an

immediate and unreduced pension;

and

(iii) is discontinued once the individual

becomes eligible for an immediate and

unreduced pension.

(D)For purposes of this paragraph and solely

in order to make the deduction

authorized under this paragraph, the

term “retiree health benefits” means

benefits provided pursuant to a group

health plan covering retirees, for which

(determined as of the contingent event

unrelated to age)—

(i) the package of benefits provided by

the employer for the retirees who are

below age 65 is at least comparable to

benefits provided under Title XVIII of

the Social Security Act (42 U.S.C.

1395 et seq.);

(ii) the package of benefits provided by

the employer for the retirees who are

age 65 and above is at least

comparable to that offered under a

plan that provides a benefit package

with one-fourth the value of benefits

provided under Title XVIII of such

Act; or

59a

(iii) the package of benefits provided by

the employer is as described in

clauses (1) and (11).

(E)

(i) If the obligation of the employer to

provide retiree health benefits is of

limited duration, the value for each

individual shall be calculated at a

rate of $3,000 per year for benefit

years before age 65, and $750 per

year for benefit years beginning at

age 65 and above.

(ii) If the obligation of the employer to

provide retiree health benefits is of

unlimited duration, the value for each

individual shall be calculated at a

rate of $48,000 for individuals below

age 65, and $24,000 for individuals

age 65 and above.

(iii) The values described in clauses (i)

and (ii) shall be calculated based on

the age of the individual as of the date

of the contingent event unrelated to

age. The values are effective on

October 16, 1990, and shall be

adjusted on an annual basis, with

respect to a contingent event that

occurs subsequent to the first year

after October 16, 1990, based on the

medical component of the Consumer

60a

Price Index for all-urban consumers

published by the Department of

Labor.

(iv) If an individual is required to pay a

premium for retiree health benefits,

the value calculated pursuant to this

subparagraph shall be reduced by

whatever percentage of the overall

premium the individual is required to

pay.

(F) If an employer that has implemented a

deduction pursuant to subparagraph (A)

fails to fulfill the obligation described in

subparagraph (E), any aggrieved

individual may bring an action for

specific performance of the obligation

described in subparagraph (E). The relief

shall be in addition to any other remedies

provided under Federal or State law.

(3) It shall not be a violation of subsection (a),

(b), (c), or (e) of this section solely because an

employer provides a bona fide employee

benefit plan or plans under which long-term

disability benefits received by an individual

are reduced by any pension benefits (other

than those attributable to employee

contributions)—

(A) paid to the individual that the individual

voluntarily elects to receive; or

61la

(B) for which an individual who has attained

the later of age 62 or normal retirement

age is eligible.

(m) Voluntary retirement incentive plans

Notwithstanding subsection (f)(2)(B) of this

section, it shall not be a violation of subsection

(a), (b), (c), or (e) of this section solely because a

plan of an institution of higher education (as

defined in section 1001 of Title 20) offers

employees who are serving under a contract of

unlimited tenure (or similar arrangement

providing for unlimited tenure) supplemental

benefits upon voluntary retirement that are

reduced or eliminated on the basis of age, if—

(1) such institution does not implement with

respect to such employees any age-based

reduction or cessation of benefits that are

not such supplemental benefits, except as

permitted by other provisions of this

chapter;

(2) such supplemental benefits are in addition

to any retirement or severance benefits

which have been offered generally to

employees serving under a contract of

unlimited tenure (or similar arrangement

providing for unlimited tenure), independent

of any early retirement or exit-incentive

plan, within the preceding 365 days; and

62a

(3) any employee who attains the minimum age

and satisfies all non-age-based conditions for

receiving a benefit under the plan has an

opportunity lasting not less than 180 days to

elect to retire and to receive the maximum

benefit that could then be elected by a

younger but otherwise similarly situated

employee, and the plan does not require

retirement to occur sooner than 180 days

after such election.

§ 624.Study by Secretary of Labor; reports to

President and Congress; scope of study;

implementation of study; transmittal date

of reports

(a)

(1)The Secretary of Labor is directed to

undertake an appropriate study of

institutional and other arrangements giving

rise to involuntary retirement, and report

his findings and any appropriate legislative

recommendations to the President and to the

Congress. Such study shall include—

(A)an examination of the effect of the

amendment made by section 3(a) of the

Age Discrimination in Employment Act

Amendments of 1978 in raising the upper

age limitation established by section 631

(a) of this title to 70 years of age;

63a

(B)a determination of the feasibility of

eliminating such limitation;

(C)a determination of the feasibility of

raising such limitation above 70 years of

age; and

(D)an examination of the effect of the

exemption contained in section 631 (c) of

this title, relating to certain executive

employees, and the exemption contained

in section 631 (d) of this title, relating to

tenured teaching personnel.

(2) The Secretary may undertake the study

required by paragraph (1) of this subsection

directly or by contract or other arrangement.

(b) The report required by subsection (a) of this

section shall be transmitted to the President

and to the Congress as an interim report not

later than January 1, 1981, and in final form

not later than January 1, 1982.

§ 625. Administration

The Secretary shall have the power—

(a) Delegation of functions; appointment of

personnel; technical assistance to make

delegations, to appoint such agents and

employees, and to pay for technical assistance

on a fee for service basis, as he deems necessary

64a

to assist him in the performance of his functions

under this chapter;

(b) Cooperation with other agencies, employers,

labor organizations, and employment agencies

to cooperate with regional, State, local, and

other agencies, and to cooperate with and

furnish technical assistance to employers, labor

organizations, and employment agencies to aid

in effectuating the purposes of this chapter.

§ 626. Recordkeeping, investigation, and

enforcement

(a) Attendance of witnesses; investigations,

inspections, records, and homework regulations

- The Equal Employment Opportunity

Commission shall have the power to make

investigations and require the keeping of

records necessary or appropriate for the

administration of this chapter in accordance

with the powers and procedures provided in

sections 209 and 211 of this title.

(b) Enforcement; prohibition of age discrimination

under fair labor standards; unpaid minimum

wages and unpaid overtime compensation;

liquidated damages; judicial relief; conciliation,

conference, and persuasion

The provisions of this chapter shall be enforced

in accordance with the powers, remedies, and

65a

procedures provided in sections 211 (b), 216

(except for subsection (a) thereof), and 217 of

this title, and subsection (c) of this section. Any

act prohibited under section 623 of this title

shall be deemed to be a prohibited act under

section 215 of this title. Amounts owing to a

person as a resuls of a violation of this chapter

shall be deemed to be unpaid minimum wages

or unpaid overtime compensation for purposes

of sections 216 and 217 of this title: Provided,

That liquidated damages shall be payable only

in cases of willful violations of this chapter. In

any action brought to enforce this chapter the

court shall have jurisdiction to grant such legal

or equitable relief as may be appropriate to

effectuate the purposes of this chapter,

including without limitation judgments

compelling employment, reinstatement or

promotion, or enforcing the liability for amounts

deemed to be unpaid minimum wages or unpaid

overtime compensation under this section.

Before instituting any action under this section,

the Equal Employment Opportunity

Commission shall attempt to eliminate the

discriminatory practice or practices alleged, and

to effect voluntary compliance with the

requirements of this chapter through informal

methods of conciliation, conference, and

persuasion.

judicial relief; termination of individual action

upon commencement of action by Commission;

jury trial

66a

(1) Any person aggrieved may bring a civil

action in any court of competent jurisdiction

for such legal or equitable relief as will

effectuate the purposes of this chapter:

Provided, That the right of any person to

bring such action shall terminate upon the

commencement of an action by the Equal

Employment Opportunity Commission to

enforce the right of such employee under

this chapter.

(2) In an action brought under paragraph (1), a

person shall be entitled to a trial by jury of

any issue of fact in any such action for

recovery of amounts owing as a result of a

violation of this chapter, regardless of

whether equitable relief is sought by any

party in such action.

(d) Filing of charge with Commission; timeliness;

conciliation, conference, and persuasion

No civil action may be commenced by an

individual under this section until 60 days after

a charge alleging unlawful discrimination has

been filed with the Equal Employment

Opportunity Commission. Such a charge shall

be filed—

(1) within 180 days after the alleged unlawful

practice occurred; or

(2) in a case to which section 633 (b) of this title

applies, within 300 days after the alleged

67a

unlawful practice occurred, or within 30

days after receipt by the individual of notice

of termination of proceedings under State

law, whichever is earlier.

Upon receiving such a charge, the Commission

shall promptly notify all persons named in such

charge as prospective defendants in the action

and shall promptly seek to eliminate any

alleged unlawful practice by informal methods

of conciliation, conference, and persuasion.

(e) Reliance on administrative rulings; notice of

dismissal or termination; civil action after

<receipt of notice

Section 259 of this title shall apply to actions

under this chapter. If a charge filed with the

Commission under this chapter is dismissed or

the proceedings of the Commission are

otherwise terminated by the Commission, the

Commission shall notify the person aggrieved.

A civil action may be brought under this section

by a person defined in section 630 (a) of this

title against the respondent named in the

charge within 90 days after the date of the

receipt of such notice.

(f) Waiver

(1) An individual may not waive any right or

claim under this chapter unless the waiver

is knowing and voluntary. Except as

provided in paragraph (2), a waiver may not

68a

be considered knowing and voluntary unless

at a minimum—

(A)the waiver is part of an agreement

between the individual and the employer

that is written in a manner calculated to

be understood by such individual, or by

the average individual eligible to

participate;

(B)the waiver specifically refers to rights or

claims arising under this chapter;

(C)the individual does not waive rights or

claims that may arise after the date the

waiver is executed;

(D)the individual waives rights or claims

only in exchange for consideration in

addition to anything of value to which

the individual already is entitled;

(E)the individual is advised in writing to

consult with an attorney prior to

executing the agreement;

(F)

(i) the individual is given a period of at

least 21 days within which to consider

the agreement; or

(11) if a waiver is requested in connection

with an exit incentive or other

69a

employment termination program

offered to a group or class of

employees, the individual is given a

period of at least 45 days within

which to consider the agreement;

(G)the agreement provides that for a period

(A)

of at least 7 days following the execution

of such agreement, the individual may

revoke the agreement, and_ the

agreement shall not become effective or

enforceable until the revocation period

has expired;

if a waiver is requested in connection

with an exit incentive or other

employment termination program offered

to a group or class of employees, the

employer (at the commencement of the

period specified in subparagraph (F))

informs the individual in writing in a

manner calculated to be understood by

the average individual eligible to

participate, as to—

(i) any class, unit, or group of individuals

covered by such program, any

eligibility factors for such program,

and any time limits applicable to such

program; and

(ii)the job titles and ages of all

individuals eligible or selected for the

program, and the ages of all

70a

individuals in the same _ job

classification or organizational unit

who are not eligible or selected for the

program.

(2) A waiver in settlement of a charge filed with

the Equal Employment Opportunity

Commission, or an action filed in court by

the individual or the_ individual’s

representative, alleging age discrimination

of a kind prohibited under section 623 or

633a of this title may not be considered

knowing and voluntary unless at a

minimum—

(A)subparagraphs (A) through (E) of

paragraph (1) have been met; and

(B)the individual is given a reasonable

period of time within which to consider

the settlement agreement.

(3) In any dispute that may arise over whether

any of the requirements, conditions, and

circumstances set forth in subparagraph (A),

(B), (C), (D), (E), (F), (G), or (A) of paragraph

(1), or subparagraph (A) or (B) of paragraph

(2), have been met, the party asserting the

validity of a waiver shall have the burden of

proving in a court of competent jurisdiction

that a waiver was knowing and voluntary

pursuant to paragraph (1) or (2).

T7la

(4) No waiver agreement may affect the

Commission’s rights and responsibilities to

enforce this chapter. No waiver may be used

to justify interfering with the protected right

of an employee to file a charge or participate

in an investigation or proceeding conducted

by the Commission.

§ 627. Notices to be posted

Every employer, employment agency, and labor

organization shall post and keep posted in conspicuous

places upon its premises a notice to be prepared or

approved by the Equal Employment Opportunity

Commission setting forth information as_ the

Commission deems appropriate to effectuate the

purposes of this chapter.

§ 628. Rules and regulations; exemptions

In accordance with the provisions of subchapter II of

chapter 5 of Title 5, the Equal Employment

Opportunity Commission may issue such rules and

regulations as it may consider necessary or

appropriate for carrying out this chapter, and may

establish such reasonable exemptions to and from any

or all provisions of this chapter as it may find

necessary and proper in the public interest.

72a

§ 629. Criminal penalties

Whoever shall forcibly resist, oppose, impede,

intimidate or interfere with a duly authorized

representative of the Equal Employment Opportunity

Commission while it is engaged in the performance of

duties under this chapter shall be punished by a fine

of not more than $500 or by imprisonment for not more

than one year, or by both: Provided, however, That no

person shall be imprisoned under this section except

when there has been a prior conviction here-under.

§ 630. Definitions

For the purposes of this chapter—

(a) The term “person” means one or more

individuals, partnerships, associations, labor

organizations, corporations, business trusts,

legal representatives, or any organized groups

of persons.

(b) The term “employer” means a person engaged in

an industry affecting commerce who has twenty

or more employees for each working day in each

of twenty or more calendar weeks in the current

or preceding calendar year: Provided, That prior

to June 30, 1968, employers having fewer than

fifty employees shall not be considered

employers. The term also means

(1) any agent of such a person, and

73a

(2) a State or political subdivision of a State and

any agency or instrumentality of a State or

a political subdivision of a State, and any

interstate agency, but such term does not

include the United States, or a corporation

wholly owned by the Government of the

United States.

person regularly undertaking with or without

compensation to procure employees for an

employer and includes an agent of such a

person; but shall not include an agency of the

United States.

(d) The term “labor organization” means a labor

organization engaged in an industry affecting

commerce, and any agent of such an

organization, and includes any orgenization of

any kind, any agency, or employee

representation committee, group, association, or

plan so engaged in which employees participate

and which exists for the purpose, in whole or in

part, of dealing with employers concerning

grievances, labor disputes, wages, rates of pay,

hours, or other terms or conditions of

employment, and any conference, general

committee, joint or system board, or joint

council so engaged which is subordinate to a

national or international labor organization.

(e) A labor organization shall be deemed to be

engaged in an industry affecting commerce if

74a

(1) it maintains or operates a hiring hall or

hiring office which procures employees for

an employer or procures for employees

opportunities to work for an employer, or

(2) the number of its members (or, where it is a

labor organization composed of other labor

organizations or their representatives, if the

aggregate number of the members of such

other labor organization) is fifty or more

prior to July 1, 1968, or twenty-five or more

on or after July 1, 1968, and such labor

organization—

(1)is the certified representative of

employees under the provisions of the

National Labor Relations Act, as

amended [29 U.S.C. 151 et seq.J, or the

Railway Labor Act, as amended [45

U.S.C. 151 et seq.]; or

(2) although not certified, is a national or

international labor organization or a local

labor organization recognized or acting as

the representative of employees of an

employer or employers engaged in an

industry affecting commerce; or

(3) has chartered a local labor organization

or subsidiary body which is representing

or actively seeking to represent

employees of employers within the

meaning of paragraph (1) or (2); or

75a

(4)has been chartered by a_ labor

organization representing or actively

seeking to represent employees within

the meaning of paragraph (1) or (2) as

the local or subordinate body through

which such employees may _ enjoy

membership or become affiliated with

such labor organization; or

(5) is a conference, general committee, joint

or system board, or joint council

subordinate to a national or international

labor organization, which includes a

labor organization engaged in an

industry affecting commerce within the

meaning of any of the preceding

paragraphs of this subsection.

(f) The term “employee” means an individual

employed by any employer except that the term

“employee” shall not include any person elected

to public office in any State or political

subdivision of any State by the qualified voters

thereof, or any person chosen by such officer to

be on such officer’s personal staff, or an

appointee on the policymaking level or an

immediate adviser with respect to the exercise

of the constitutional or legal powers of the

office. The exemption set forth in the preceding

sentence shall not include employees subject to

the civil service laws of a State government,

governmental agency, or political subdivision.

The term “employee” includes any individual

who is a citizen of the United States employed

76a

by an employer in a workplace in a foreign

country.

(g) The term “commerce” means trade, traffic,

commerce, transportation, transmission, or

communication among the several States; or

between a State and any place outside thereof;

or within the District of Columbia, or a

possession of the United States; or between

points in the same State but through a point

outside thereof. |

(h) The term “industry affecting commerce” means

any activity, business, or industry in commerce

or in which a labor dispute would hinder or

obstruct commerce or the free flow of commerce

and includes any activity or industry “affecting

commerce” within the meaning of the

Labor-Management Reporting and Disclosure

Act of 1959 [29 U.S.C. 401 et seq.].

(i) The term “State” includes a State of the United

States, the District of Columbia, Puerto Rico,

the Virgin Islands, American Samoa, Guam,

Wake Island, the Canal Zone, and Outer

Continental Shelf lands defined in the Outer

Continental Shelf Lands Act [43 U.S.C. 1331 et

seq. |.

(j) The term “firefighter” means an employee, the

duties of whose position are primarily to

perform work directly connected with the

control and extinguishment of fires or the

maintenance and use of firefighting apparatus

T7la

and equipment, including an employee engaged

in this activity who is transferred to a

supervisory or administrative position.

(k) The term “law enforcement officer” means an

employee, the duties of whose position are

primarily the investigation, apprehension, or

detention of individuals suspected or convicted

of offenses against the criminal laws of a State,

including an employee engaged in this activity

who is transferred to a _ supervisory or

administrative position. For the purpose of this

subsection, “detention” includes the duties of

employees assigned to guard individuals

incarcerated in any penal institution.

(1) The term “compensation, terms, conditions, or

privileges of employment” encompasses all

employee benefits, including such benefits

provided pursuant to a bona fide employee

benefit plan.

§ 631. Age limits

(a) Individuals at least 40 years of age

The prohibitions in this chapter shall be limited

to individuals who are at least 40 years of age.

(b) Employees or applicants for employment in

Federal Government

78a

In the case of any personnel action affecting

employees or applicants for employment which

is subject to the provisions of section 633a of

this title, the prohibitions established in section

633a of this title shall be limited to individuals

who are at least 40 years of age.

(1) Nothing in this chapter shall be construed to

prohibit compulsory retirement of any

employee who has attained 65 years of age

and who, for the 2-year period immediately

before retirement, is employed in a bona fide

executive or a high policymaking position, if

such employee is entitled to an immediate

nonforfeitable annual retirement benefit

from a pension, profit-sharing, savings, or

deferred compensation plan, or any

combination of such plans, of the employer of

such employee, which equals, in the

aggregate, at least $44,000.

(2) In applying the retirement benefit test of

paragraph (1) of this subsection, if any such

retirement benefit is in a form other than a

straight life annuity (with no ancillary

benefits), or if employees contribute to any

such plan or make rollover contributions,

suc

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