UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
______________________

No. 01-1359
______________________

ETHEL LOUISE HILL,
Plaintiff-Appellant,

vs.

LOCKHEED MARTIN LOGISTICS MANAGEMENT, INC.,
Defendant-Appellee.

_____________________________________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA, Case No. 99-CV-2343
REHEARING EN BANC
_____________________________________________________ 

BRIEF OF U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
AS AMICUS CURIAE IN SUPPORT OF APPELLANT
_____________________________________________________

NICHOLAS M. INZEO
Acting Deputy General Counsel

PHILIP B. SKLOVER
Associate General Counsel

LORRAINE C. DAVIS
 Assistant General Counsel

SUSAN R. OXFORD
Attorney

EQUAL EMPLOYMENT OPPORTUNITY COMM.						
1801 L Street, N.W.
Washington, D.C.  20507
(202) 663-4791
TABLE OF CONTENTS

TABLE OF CONTENTS    i

TABLE OF AUTHORITIES  ii 

STATEMENT OF INTEREST   1

STATEMENT OF THE ISSUES  3

STATEMENT OF THE CASE  3

	A.  Statement of Facts  3

	B.  District Court Decision   7

	C.  Panel Decision    8

SUMMARY OF ARGUMENT  11

ARGUMENT

THE DISCRIMINATORY ANIMUS OF A SUBORDINATE WHO 
HAS NO FORMAL DECISIONMAKING AUTHORITY IS 
PROPERLY IMPUTED TO THE EMPLOYER WHEN THE BIASED 
SUBORDINATE SUBSTANTIALLY INFLUENCES THE EMPLOYMENT 
DECISION  12

CONCLUSION   23

CERTIFICATE OF COMPLIANCE   24

CERTIFICATE OF SERVICE 

APPENDIX (Panel Decision)

TABLE OF AUTHORITIES

FEDERAL CASES

Bergene v. Salt River Proj. Agricul.
	Improvement & Power Dist., 
	272 F.3d 1136 (9th Cir. 2001) 	 21

David v. Caterpillar, Inc., 
	324 F.3d 851 (7th Cir. 2003) 	 15

Dey v. Colt Constr. & Devel. Co., 
	28 F.3d 1446 (7th Cir.), 
	rehg en banc denied (1994)  18, 19

Griffin v. Washington Convention Ctr., 
	142 F.3d 1308 (D.C.Cir. 1998)  22

Hill v. Lockheed Martin, 
	314 F.3d 657 (4th Cir. 2003)  passim

Mateu-Anderegg v. School Dist. of Whitefish Bay, 
	304 F.3d 618 (7th Cir. 2002)   	 22
												
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)  9

OConnor v. Consolidated Coin Caterers Corp., 
	56 F.3d 542 (4th Cir. 1995), revd on other
	grounds, 517 U.S. 308 (1996)  	 12

Ostrowski v. Atlantic Mutual Ins. Cos., 
	968 F.2d 171 (2nd Cir. 1992)   21

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)   	 10

Reeves v. Sanderson Plumbing Prods., Inc., 
	530 U.S. 133 (2000) 	 20 

Russell v. McKinney Hosp. Venture, 
	235 F.3d 219 (5th Cir. 2000)  21 

Simpson v. Diversitech General, Inc., 
	945 F.2d 156 (6th Cir.), rehg den. (1991), 
	cert. dismissed 502 U.S. 1083 (1992)  21, 22

Stacks v. Southwestern Bell Yellow Pages, Inc., 
	27 F.3d 1316 (8th Cir. 1994)   21

Wallace v. SMC Pneumatcs, Inc., 
	103 F.3d 1394 (7th Cir. 1977)  15

FEDERAL STATUTES

29 U.S.C.  621 et seq    passim

29 U.S.C. 623(a)(1)    12, 22

29 U.S.C. 623(d)    12, 22

42 U.S.C.  2000e, et seq.   passim

42 U.S.C.  2000e-2(a)(1)    12, 22
  
42 U.S.C.  2000e-3(a)    12, 22

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
______________________

No. 01-1359
______________________

ETHEL LOUISE HILL,
Plaintiff-Appellant,

vs.

LOCKHEED MARTIN LOGISTICS MANAGEMENT, INC.,
Defendant-Appellee.
____________________________________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
_____________________________________________________ 

BRIEF OF U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
AS AMICUS CURIAE IN SUPPORT OF APPELLANT
IN REHEARING EN BANC
_____________________________________________________

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission is the agency established
 by Congress to administer, interpret and enforce Title VII of the Civil 
Rights Act of 1964, 42 U.S.C.  2000e, et seq. (Title VII), the Age 
Discrimination in Employment Act, 29 U.S.C.  621 et seq. (ADEA), and 
other federal employment discrimination laws.  This case raises important 
questions concerning an employers liability under Title VII and the ADEA 
for the discriminatory acts of its employee where the biased employee, 
although not a formal decisionmaker, was effectively vested with substantial
 influence over employment decisions affecting a worker who is protected 
under anti-discrimination laws. 
Plaintiff Ethel Louise Hill alleges that she was subjected to discriminatory
 terms and conditions of employment because of her age and gender based, in 
large part, on the disparaging comments and negative reports of the safety 
inspector assigned to review her work.  She further alleges that the inspectors
 deficiency reports (following directly on the heels of her complaints) 
resulted in her termination.  The majority concluded that the biased safety 
inspectors statements were attributable to Lockheed as direct evidence of 
age and sex discrimination because the inspector substantially influenced 
Lockheeds decision to fire Hill.  As a result, the majority found that Hill 
raised disputed issues of fact concerning whether her termination was because 
of her sex or age or in retaliation for her complaints of discriminatory 
treatment based on sex and age.  The dissent, having concluded that Lockheed
terminated Hill only after her immediate supervisor independently verified
 the biased inspectors various performance deficiency reports, argued that 
the biased subordinate was not principally responsible for the decision
 and, therefore, that the inspectors discriminatory animus was not causally 
connected to Hills termination.
It is the Commissions position that the panel majority correctly held that
 a subordinates discriminatory motive should be imputed to the decisionmaker
 when the subordinate has substantially influenced the employment decision 
(i.e., whenever a subordinate has exerted sufficient influence to be considered 
a cause of the employment action), even if the formal decisionmaker cannot be
 said to have simply rubber stamped the biased subordinates recommendation.
  Because of the importance of this issue to the proper enforcement of the
statutes within EEOCs purview, we offer our views for the Courts consideration.

STATEMENT OF THE ISSUE

Whether the bias of the safety inspector in this case is properly imputable
 to Lockheed Martin because the biased inspector substantially influenced 
Lockheeds decision to terminate Hill.

STATEMENT OF THE CASE

Statement of Facts

Plaintiff-Respondent Ethel Louise Hill was terminated by Defendant-Petitioner
 Lockheed Martin Logistics Management, Inc., in May of 1998 at the age of 58,
 after having worked for Lockheed as a sheet metal mechanic for over 11 years.
  Hill v. Lockheed Martin, 314 F.3d 657, 660 (4th Cir. 2003).1  Hill worked at
 various Lockheed sites during her tenure, the last being Lockheeds Fort Drum,
 New York, operation.  Id.  At the time of her termination, Hill was the oldest
 person and the only female on her team of eight workers.  At each location, 
Hills work was checked by a safety inspector who submitted reports to Hills 
immediate supervisor.  Id. at 662.Hills Fort Drum assignment began in January 
1998 and proceeded without incident for the first month.  Starting in February 
1998, Fultz was assigned to inspect Hills work.  Fultz had served as Hills 
safety inspector during a Fort Drum assignment three years earlier, at which time 
Hill overheard Fultz say that he did not like to have women working under him. 
 Id. at 660.  During the next three months, Fultz made a number of derogatory 
comments about Hills age and gender, and commented to Hill that she was too old
 for this kind of work.  Id.  After Hill complained to Dixon the first time about
 Fultzs treatment, Fultz reported Hill for misplacing one of her tools under
 circumstances which led Dixon to suspend Hill for three days.  Id. at 661.  Although
 tool accountability is important to Lockheed, Dixon later explained that he did
 not suspend Hill because she misplaced her tool, but because he believed, based 
on Fultzs statements, that Hill had lied about the misplaced tool.  
Lockheeds tool control policy requires employees to account for their tools at 
all times and to report any missing tools to their immediate supervisor.  To
 facilitate compliance, all tools contain a label identifying their owner, and
 toolboxes are shadowed so that missing tools can be easily spotted.  Id. at
 661, 686.  Hill had three identical pairs of four-inch cutters; in April 1998,
 an Army employee found one of them on a maintenance stand and gave it to Fultz.
  Id. at 661.  Fultz then gave the tool to Dixon, stating that he [Fultz] had 
checked Hills toolbox at the end of her shift and asked her where her missing 
cutters were, to which Hill replied (according to Fultz), I told Richard [Dixon]
 I took [them] home.  The conversation made Dixon believe that Hill had lied to
 Fultz about the missing tools, since she had not said anything to Dixon.  Id.  	
The next morning, Dixon showed the tool to Hill and asked if it was hers.  Hill
 acknowledged that the cutters had her number on them, but she was otherwise 
unaware that a pair of her cutters was missing, because (according to Hill) 
Fultz never said anything to her about it.  Hill was also unaware that Fultz
 had falsely told Dixon that Hill said she reported to Dixon that she had taken
 the cutters home.  Therefore, Hill said nothing to correct Dixons belief that
 she had lied to Fultz the day before.  As a result, Dixon was left with the 
impression not only that Hill had lied to Fultz the day before (claiming she 
had reported the missing cutters to Dixon when she hadnt), but also that Hill
 was less than forthcoming with Dixon in his conversation with her about the
 missing tool the next morning.  According to Hills evidence, Fultz manufactured 
the information that led Dixon to believe Hill had lied about the tools whereabouts.
  Id.   
When Hill returned from her suspension, she again complained to Dixon about Fultzs
 discriminatory treatment.  Dixon raised the issue with Fultz, and Fultz reacted with 
noticeable anger towards Hill.  Id.  Starting the next day, Fultz submitted a flurry
 of discrepancy reports concerning Hills performance (six separate reports in three 
consecutive work days, all for performance deficiencies that Fultz designated as minor).
  Id. at 661-62, 677.  After refusing to endorse one of the reports that Fultz issued 
against Hill, Dixon gave Hill a written reprimand (her third since September 1997).  
Id. at 662. 
Lockheeds Standard Operating Procedure (SOP) permitted, but did not require, termination
 of an employee who received three written reprimands in twelve months where at least one
 of the reprimands resulted in a suspension.  Id. at 660.  The decision to discharge Hill
 was formally made by Archie Griffin, Lockheeds east coast senior site representative who
 was located in Georgia, and Thomas Prickett, Lockheeds program manager in charge of contract
 field teams who was located in Texas.  Id. at 662.  Neither Griffin nor Prickett ever talked
 to Hill during this time or personally examined her work.  Id. at 662, 671.  It is unclear
 whether Griffin ever talked with Dixon about Hill, but he talked with Fultz several times,
 and Fultz provided Griffin a written statement of Fultzs observations about Hills work
 performance.  Prickett, who said the decision to fire Hill was based entirely on information
 ... gathered from people that work[ed] at the [Fort Drum] site, talked about Hill with Fultz
 but did not remember any conversations with Dixon.  Id. at 662, 672.2  Griffin and Prickett
 relied on Fultz to write and sign Hills termination statement listing the reasons why 
Hill was fired, all of which were based on Fultzs observations of, and dissatisfaction 
with, Hills job performance.  Id. at 662, 672.  District Court DecisionThe district court
 granted Lockheeds motion for summary judgment.  The court concluded that Hill presented 
no direct evidence of sex or age discrimination (discounting Fultzs derogatory comments 
because Fultz did not make the final decision to fire Hill), and found Hills circumstantial
 evidence insufficient to withstand summary judgment.  The court further concluded that Hill
 established a prima facie case of retaliatory discharge, but did not establish that Lockheeds
 assertion that it discharged Hill for poor job performance was a pretext for retaliation.  
Id. at 662.  

Panel Decision

A divided panel of this Court reversed.  The panel majority rejected the district 
courts conclusion that Fultzs derogatory statements did not constitute direct evidence
 of discrimination because he was not the final decisionmaker.  The majority stated:

[A] biased subordinate who does not make the final or formal employment decision may 
still count as a decisionmaker in a Price Waterhouse mixed-motive case .... if he has 
a substantial influence on the employment decision.  Consequently, evidence of the 
subordinates discriminatory animus may constitute direct evidence in a mixed-motive 
case.

Id. at 670.3  The majority concluded that because Hill had proffered considerable
 evidence that Fultz had a substantial influence on Lockheeds decision to fire her,
 Lockheed must be denied summary judgment on Hills claim of discrimination based on 
sex and age.  Id. at 671-76.4  
Since Hill did not allege any direct evidence of retaliation, the majority analyzed 
Hills retaliatory discharge claim under the framework established in McDonnell Douglas
 Corp. v. Green, 411 U.S. 792 (1973), and concluded that Hill had presented sufficient 
evidence to create a material issue of fact concerning her claim that Fultz acted with a
 retaliatory motive in issuing the flurry of discrepancy reports that led to her discharge.
  314 F.3d at 677-80.  The majority explained: 
[T]he question is not whether Fultz could have written up Hills mistakes.  The question
 is whether Hill creates a genuine issue as to whether Fultz would have written the reports
 absent a retaliatory animus. ... Hill has offered sufficient evidence to allow a reasonable
 factfinder to conclude that had Fultz not been gunning for her, he would not have written
 a discrepancy report on every minor mistake that she made [during her last three days].

Id. at 678 [emphasis in original].  Finding that, under Lockheeds SOP, Fultzs discrepancy
 reports were the basis for Hills discharge and that Hill had created a genuine issue concerning
 whether these discrepancy reports were generated in retaliation for Hills discrimination complaints,
 the majority held that Lockheed was not entitled to summary judgment on Hills retaliation claim.
  Id. at 679-80.
In the dissents view, the majoritys decision expands the scope of the discrimination statutes
 and Price Waterhouse[v. Hopkins, 490 U.S. 228 (1989),] beyond their intended limits.  Id. at 680.
  In order to impute the discriminatory motives of a subordinate employee to the formal decisionmakers
 of an employer, the dissent said it would require a plaintiff to establish that the subordinate was
 the actual decisionmaker because the formal decisionmakers merely rubber-stamped or acted as a
 cats paw for the subordinates report, decision, or recommendation.

Id.; see also at id. 685 (aggrieved employee should be required to make threshold showing that 
subordinate was either actual decisionmaker or principally responsible for decision because
 [formal] decisionmaker followed the biased recommendation [of a subordinate] without independently
 investigating the complaint against the employee and making his own determination as to the propriety 
of the employment action).  Applying this narrower standard, the dissent concluded that Hill did not
 present sufficient evidence that the actions of the formal decisionmakers were tainted by Fultzs bias
 because, in the dissents view, Dixon had investigated and independently corroborated Fultzs reports
 of Hills misconduct or performance deficiencies.  Id. at 686-97.

SUMMARY OF ARGUMENT

A plaintiff alleging intentional discrimination based on sex under Title VII and based on age under
 the ADEA establishes a statutory violation by proving that gender or age were motivating factors in
 an employment decision.  In response to a defendants motion for summary judgment, a plaintiff must
 present sufficient evidence to demonstrate the existence of genuine issues of disputed fact with 
regard to her claim that the reason(s) proffered by the employer are unworthy of credence or that 
the employers decision was motivated by unlawful discrimination. In this case, Plaintiff Hill 
demonstrated the requisite disputed material facts with evidence that (a) Fultz, the safety inspector
 assigned to review Hills work, exhibited discriminatory animus toward Hill at the workplace based
 on her gender and age, and (b) Fultz substantially influenced the decision to fire Hill through his
 involvement in the misplaced tool incident, the discrepancy reports he generated concerning the 
quality of Hills work, and his discussions with Prickett and Griffin preceding their decision to 
terminate Hill.  In reversing the district courts grant of summary judgment, the panel majority 
correctly held that Fultzs discriminatory animus should be imputed to Lockheed because Fultz substantially influenced Lockheeds decision to terminate Hill. 

ARGUMENT
	
THE DISCRIMINATORY ANIMUS OF A SUBORDINATE WHO HAS NO FORMAL DECISIONMAKING AUTHORITY IS PROPERLY
 IMPUTED TO THE EMPLOYER WHEN THE BIASED SUBORDINATE SUBSTANTIALLY INFLUENCES THE EMPLOYMENT DECISION.

The panel majority correctly held that the district court erred in declining to take Fultzs bias into
 account.  In determining whether Lockheed disciplined and then terminated Hill because of her sex, 
42 U.S.C.  2000e-2(a)(1), because of her age, 29 U.S.C. 623(a)(1), or in retaliation for having 
complained of sex and age discrimination, 42 U.S.C.  2000e-3(a); 29 U.S.C. 623(d), Fultzs bias is
 appropriately considered because (a) Fultzs derogatory comments about Hills gender and age clearly
 demonstrate that Fultz had a discriminatory attitude towards Hill at the workplace, 314 F.3d at 665,5 
and (b) Fultzs bias bore directly on Hills termination because Fultz exercised substantial influence
 on the employment decisions that resulted in Hills discipline and then termination.  Id. at 666-73.6 
 
The majoritys analysis properly takes into account two important principles recognized by the dissent,
 as well:  that an employer, on the one hand, should not be unfairly tagg[ed] ... with the discriminatory motives of subordinate employees who have not been entrusted with formal decision-making authority and,
 on the other hand, should not be able to insulate itself from liability by hiding behind a formal decisionmaker.  Compare id. at 670-71 with id. at 684 (Traxler, J., dissenting).  In our view, the
 standard set forth by the majority fulfills these principles and, at the same time, fully reflects 
Congresss goal to make the workplace free from discrimination.  The dissents narrower proposed standard
would leave much actual discrimination unabated. The majority in Hill concluded that Fultzs derogatory 
comments toward Hill  referring to her, among other things, as a damn woman, troubled old lady, and
a useless old lady who needed to go home and retire  constitute direct evidence of a discriminatory 
attitude at the workplace.  314 F.3d at 665-66.  The majority therefore proceeded to consider whether 
the requisite nexus exists between Fultzs discriminatory attitude and the contested employment decision,
 and properly determined that it did.  Id. at 666, 671-73.  We agree that on these facts, a reasonable jury
could conclude that Fultzs actions directly and substantially influenced not just the process that led 
to Hills termination, but Lockheeds decision to fire Hill, as well.  Indeed, Fultzs involvement meets
 this standard in at least three separate and distinct points, each of which, standing alone, warrant 
imputation of Fultzs bias to Lockheed.

Lockheeds SOP permitted (but did not require) termination of an employee who has had three written 
reprimands in a twelve-month period, one of which resulted in a suspension.  The second and third 
reprimands were, therefore, both necessary predicates for termination under Lockheeds SOP,7 and both 
are tied directly to Fultzs actions.  Hill received reprimand #2 for misplacing one of her tools.  
This is not a case, however, where a particular consequence was mandated as soon as the supervisor 
learned of this infraction.  Rather, Dixon had the discretion to impose a range of consequences for a
 misplaced tool, id. at 675, and he testified in his deposition that he suspended Hill solely because 
he believed Hill was being untruthful when asked about the tool - a belief based entirely on statements
 made by Fultz that Hill says were untrue.  Id. at 661.  As the majority explained, construing the facts
 in the light most favorable to Hill, as is appropriate in a summary judgment context, this incident
 would have never resulted in a suspension (or, indeed, any form of discipline) if Fultz had not lied 
to Dixon about his conversation with Hill concerning the missing tool.  Without this suspension, Hill 
would not have met the criteria for termination in Lockheeds SOP.  Under these circumstances, Fultzs
 bias is properly imputed to Lockheed.  See David v. Caterpillar, Inc., 324 F.3d 851, 861 (7th Cir. 2003)(discriminatory motive of nominative nondecisionmaker may be imputed to company where 
nondecisionmaker influenced the employment decision by ... feeding false information to[] the
 ultimate decisionmaker.)(citing Wallace v. SMC Pneumatcs, Inc., 103 F.3d 1394, 1400 (7th Cir. 1977)). 

Even with the suspension, however, Hill did not meet the criteria for termination under Lockheeds SOP 
until the third written reprimand which, in this instance, was also caused directly by Fultzs actions. 
 Reprimand #3 was based solely on the flurry of discrepancy reports that Fultz issued over a three-day
 period.  Fultz had been inspecting Hills work for almost three months prior to that point, and had not
 yet issued a single discrepancy report concerning her work.  These six minor discrepancy reports were
 issued over a very short period of time that began the day after Dixon told Fultz that Hill had again 
complained about Fultzs discriminatory treatment.  Given the evidence that Fultz was extremely angry
 toward Hill when Dixon told him of Hills complaint, a reasonable jury could conclude that Fultz was
 motivated by retaliation in issuing these six minor discrepancy reports, and that the reports would
 never have been issued by Fultz (and, therefore, would never have resulted in a third written reprimand)
 if it were not for the fact that Fultz wanted to retaliate against Hill.  The fact that Dixon may have
 independently verified five of the six discrepancy reports8 is immaterial if, as a jury could conclude
 on these facts, these minor performance deficiencies would never have been written up and submitted to 
Dixon but for Fultzs discriminatory and retaliatory animus.  Since the discrepancy reports were all
 admittedly minor, the actions for which Hill was being criticized were not the kind of performance
 deficiencies that would inevitably result in a written reprimand if Fultz had not chosen to write them
 up.  See 314 F.3d at 676, 678-79 (Lockheed inspectors have discretion on whether to write up minor 
mistakes).9

Most significantly and, again, construing the facts in the light most favorable to Hill, once Dixon
 forwarded the three disciplinary actions to Griffin and Prickett, Dixons involvement ceased as a
 practical matter and the formal decisionmakers looked exclusively to Fultz for additional information
 as they determined how to proceed.  Lockheeds SOP permitted, but did not require, termination under 
these circumstances.  In deciding how to proceed, Prickett and Griffin did not speak directly to Hill 
or observe her work personally.  Indeed, it is questionable whether either decisionmaker ever conferred
 with Dixon.10  Both decisionmakers, however, solicited Fultzs views, and Fultz not only discussed the 
matter with Griffin and Prickett, but provided an additional written statement of his observations of
 Hills work.  After conferring with Fultz, Griffin and Prickett decided to terminate Hill, and then 
relied on Fultz to write and sign Hills termination statement listing the reasons for termination, all
 of which were based on Fultzs dissatisfaction with Hills job performance.  Thus, in deciding how to
 proceed under the SOP, Prickett and Griffin turned to Fultz, and not Dixon, for additional information 
and then relied on Fultz, not Dixon, to draft and sign the notice terminating Hills employment.  See 
Dey v. Colt Constr. & Devel. Co., 28 F.3d 1446, 1459 (7th Cir.), rehg en banc denied (1994)(summary
 judgment improper where plaintiffs sexual harassment claim may have affected alleged harassers
 unflattering assessment of [plaintiffs] job performance) (collecting cases).11

As the majority observed, on these facts a reasonable jury could conclude that Fultz was principally
 responsible for Hills termination because Griffin and Prickett simply rubber-stamped Fultzs 
recommendations.  Thus, Fultzs discriminatory actions are properly imputed to Lockheed even under 
the more restrictive standard advocated by the dissent.  314 F.3d at 672-73.  It is the Commissions
 position that the standard advanced by the dissent is, nevertheless, improperly narrow and could result,
 in other cases, in unlawful discrimination remaining unaddressed where a subordinates discriminatory 
bias substantially influenced the employment decision.12Under the dissents standard, an employer would 
be liable for the discriminatory actions of a subordinate only where the subordinate was the actual 
decisonmaker because the formal decisionmakers merely rubber-stamped or acted as a cats paw for 
the subordinates report, decision, or recommendation.  Id. at 680.  The dissent relies on Reeves v. 
Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000), for the proposition that liability should be 
limited to those situations where the subordinate was principally responsible for the adverse employment
 action.  See 314 F.3d at 683, citing Reeves, 530 U.S. at 151-52.  As the majority properly noted, however,
 the Supreme Court was not purporting, in Reeves, to set forth the full extent of situations in which a 
subordinates actions can be imputed to the employer.  314 F.3d at 671.  Thus, although a subordinates 
discriminatory bias can be imputed to an employer where the subordinate is principally responsible for 
an adverse action, that does not describe the full scope of such liability, and this Court should likewise
 reject the dissents proposed standard. 

A number of other circuits have reached the same result as the panel majority in Hill.  See, e.g., 
Ostrowski v. Atlantic Mutual Ins. Cos., 968 F.2d 171, 182 (2nd Cir. 1992)(statements of a person involved
 in the decisionmaking process that reflect a discriminatory or retaliatory animus of the type complained 
of in the suit are relevant to establish employment action was discriminatorily motivated); Simpson v. 
Diversitech General, Inc., 945 F.2d 156, 160 (6th Cir.)(where race more likely than not played a role in 
actions of intermediate supervisor that led substantially to plaintiffs termination, fact that intermediate
 supervisor was not final decisionmaker was insufficient to establish employers Price Waterhouse defense), rehg den. (1991), cert. dismissed 502 U.S. 1083 (1992); Stacks v. Southwestern Bell Yellow Pages, Inc., 27 
F.3d 1316, 1323 (8th Cir. 1994)(evidence that gender was a motivating factor includes evidence of [c]omments 
which demonstrate a discriminatory animus ... uttered by individuals closely involved in employment 
decisions); Bergene v. Salt River Proj. Agricul. Improvement & Power Dist., 272 F.3d 1136, 1141 (9th Cir.
 2001)(former supervisors statement to plaintiff that pursuit of her pregnancy discrimination claim would 
impede her chances of promotion was direct evidence of retaliation because former supervisor played an
 influential role in the selection process).  See also Russell v. McKinney Hosp. Venture, 235 F.3d 219,
 227 (5th Cir. 2000)(it is appropriate to tag the employer with an employees age-based animus if the 
evidence indicates that the worker possessed leverage, or exerted influence, over the titular 
decisionmaker.); Mateu-Anderegg v. School Dist. of Whitefish Bay, 304 F.3d 618, 627 (7th Cir. 2002)
(Ripple, J., concurring)([s]ummary judgment is generally improper where the plaintiff can show that 
an employee with discriminatory animus provided factual information or other input that may have affected
 the adverse employment action.)(citation omitted); Griffin v. Washington Convention Ctr., 142 F.3d 1308,
 1312 (D.C.Cir. 1998)(Thus do we join at least four other circuits in holding that evidence of a 
subordinates bias is relevant where the ultimate decision maker is not insulated from the subordinates 
influence.).13  

These courts have recognized, like the majority in this case, that the fact that the biased subordinate 
did not pull the trigger is of little consequence.  Simpson, 945 F.2d at 160.  What matters in employment 
discrimination claims like this is causation, i.e., whether the adverse employment action was because of
 gender, age or retaliation.  42 U.S.C.  2000e-2(a)(1), 2000e-3(a); 29 U.S.C.  623(a)(1), 623(d).  Where,
 as here, the biased subordinate had a substantial influence on the decision, causation is clearly satisfied 
and Lockheeds motion for summary judgment should have been denied, as the panel majority properly concluded.

CONCLUSION 

For the foregoing reasons, we urge this Court to affirm the majoritys holding that, under these facts,
 the discriminatory animus of Safety Inspector Fultz is properly imputed to Lockheed Martin and that, as
 a result, Hill has presented sufficient evidence, in response to Lockheeds summary judgment motion, to
 permit her claims of gender and age discrimination and retaliatory discharge to go to trial.

Respectfully submitted,

NICHOLAS M. INZEO
Acting Deputy General Counsel
					
PHILIP B. SKLOVER
Associate General Counsel

LORRAINE C. DAVIS
Assistant General Counsel

________________________________
SUSAN R. OXFORD
Attorney
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
1801 L Street, N.W.
Washington, D.C.   20507
(202) 663-4791

DATED: May 6, 2003			

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SUSAN R. OXFORD

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 Clerk of the Court for the Fourth Circuit Court of Appeals and an original and 20 copies of the within
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 to the Commonwealth Park Suites Hotel in Richmond, Virginia.

Ronald A. Rayson, Esq.		
BURKHALTER, RAYSON &		
 ASSOCIATES, P.C.			
111 S. Central Street		
Knoxville, Tennessee 37902
fax # (865) 524-0172		
				
Andreas N. Satterfield, Jr., Esq.
HAYNSWORTH, BALDWIN, JOHNSON & GREAVES, LLC
918 South Pleasantburg Drive
Greenville, South Carolina 29607
fax # (864) 241-1861

________________________________
Susan R. Oxford, Esq.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMM.
1801 L Street, N.W.
Washington, D.C.   20507

1  EEOCs factual statement is drawn exclusively from the panels opinion, and we have not conducted 
any independent review of the factual record in this case.

2  Thus, apart from the fact that Dixon forwarded the disciplinary actions against Hill to Griffin and 
Prickett, it is unclear to what extent Dixon was involved in Griffins and Pricketts decision to terminate
 Hill pursuant to the SOP.  Prickett did not remember having any conversations with Dixon, and Dixon told 
inconsistent stories about his conversations with Griffin.  Although at one point Dixon attested that he told 
Griffin he did not think Hill could do the job, at another point he attested that he submitted Hills file 
without any recommendation and, when Griffin asked for a recommendation, responded, Thats up to you.  314
 F.3d at 672.  The panel majority concluded that [w]hen the facts are taken in the light most favorable to
 Hill, Dixons role was limited to the two reprimands he issued.  But these reprimands, which led to Hills 
termination, were based on information (some of it false, according to Hill) provided by Fultz.  Id. 

3  The majority noted that its standard focused on a subordinates influence on the decision, not his or 
her influence on the process that led to the employment decision.  See 314 F.3d at 671 & n.10.  The majority
 explained that this distinction reflects its agreement with the dissents concern that employers [should] 
not be unfairly tagg[ed] ... with the discriminatory motives of subordinate employees who have not been 
entrusted with formal decision-making authority. Id. at 671, quoting id. at 684 (Traxler, J., dissenting).  

4  The court expressly declined to consider whether Hill could also proceed under a pretext theory.  314 
F.3d at 676 n.13.

5  The court noted that Fultz, on various occasions, called Hill useless, a useless old lady, a 
troubled old lady and a damn woman and, on other occasions, said that Hill was useless and they need
 to retire her and that she needed to go home and retire.  314 F.3d at 665.  The court said that these 
comments could not be construed as humorous, jocular, or general commentary on the fact that all people
 age, citing OConnor v. Consolidated Coin Caterers Corp., 56 F.3d 542, 549-50 (4th Cir. 1995), revd on
 other grounds, 517 U.S. 308 (1996), nor could they be discounted as not sufficiently connected to Hill,
 since they were specifically directed at her while she was on the job.  314 F.3d at 665-66.

6  Having first concluded that Fultz was an actual decisionmaker in this case because of his extensive
 influence on the contested decision, 314 F.3d at 671-73, the court then found a sufficient nexus between 
Fultzs negative attitude and the employment action taken against Hill.  The court noted that Fultzs remarks
 disparaged Hills professional abilities and reflected Fultzs harsh judgment that such a useless old lady
 should not be allowed to remain at Lockheed.  Id. at 673.  The court concluded that because these remarks
 were contemporaneous with the reprimands that triggered Hills termination, they reflect Fultzs state of
 mind at the time he took the steps that led directly to the adverse employment action against Hill.  Id. 

7  Hill received reprimand #1 several months before she was assigned to Fort Drum, and she did not contest
 that reprimand in this litigation.

8  The extent to which Dixon exercised any independent review over the six discrepancy reports is unclear.
  The dissent states that Dixon, in accordance with his job duties, personally investigated the discrepancy 
records and checked each before it was corrected.  314 F.3d at 691.  The majority, on the other hand, found
 that [t]he summary judgment record does not permit th[e] conclusion that Dixon ... reviewed the facts 
and decided independently to issue the [third] reprimand[].  Id. at 672.

9  Thus, we agree with the panel majority that the minor performance deficiencies reported by Fultz are 
very different from the employee wrongdoing in the majoritys theft example.  314 F.3d at 673 n.11.  For
 this reason, the dissent is wrong when it asserts that the majoritys standard for imputing a subordinates
 bias to an employer would hamstring employers from taking appropriate disciplinary action.  Id. at 694.  If 
a biased subordinate reports a colleague for wrongdoing, such as theft, out of a discriminatory motivation,
 the subordinates bias would not be imputable to the employer where unbiased decisionmakers independently 
investigate and verify the violation, ... the employer has a preexisting policy of taking the precise
 employment action as a consequence of the reported violation, and there is no evidence that the employer 
enforces that policy in a discriminatory fashion.  See id.  Under those circumstances, the cause of the 
discipline would be the employees wrongdoing, as established by the companys independent investigation or 
the employees admission, not the subordinates bias.  That is clearly not the case here, however.  Lockheed 
inspectors have discretion on whether to write up minor mistakes, id. at 678, so it cannot be said, in the 
terminology of the dissent, that Lockheed had a preexisting policy of taking the precise employment action 
as a consequence of the reported violation, id., with respect to the third reprimand that Dixon issued to
Hill following Fultzs six discrepancy reports. 

10  Dixon provided inconsistent statements about his involvement with Griffin.  He attested, at one point,
 that he told Griffin he did not think Hill could do the job.  At another point, he attested that he submitted
 Hills file without any recommendation and, when asked for a recommendation by Griffin, responded, Thats up
 to you.  314 F.3d at 672. 

11  In Dey, the Seventh Circuit reversed a district courts grant of summary judgment where the formal 
decisionmaker had an independent familiarity with the plaintiffs job performance and claimed he decided 
independently to terminate the plaintiff for performance deficiencies, but admitted having solicited the 
opinionof a subordinate against whom the plaintiff had lodged a complaint of sexual harassment.  28 F.3d at 
1451.  The court of appeals concluded that even if the decisionmaker was unaware of the pending harassment complaint and thus could not have harbored any retaliatory animus, [s]ummary judgment is generally improper 
where the plaintiff can show that an employee with discriminatory animus provided factual information or 
other input that may have affected the adverse employment action.  Id. at 1459.  Summary judgment is even
 more improper here, where Griffin and Prickett not only spoke to Fultz, but admit that Fultz provided the
 primary source of information on which they based the termination decision.

12  See, e.g., the majoritys explanation that, taken literally, cats paw would cover only the situation
 when a biased subordinate dupes a formal decisionmaker into taking adverse action against another employee,
 and rubber stamp would apply only to the situation when the formal decisionmaker automatically endorses
 the biased subordinates recommendation without exercising independent judgment.  314 F.3d at 669 n.6.  
Even though some courts that use these terms do not appear to apply them literally, id., the potential
 ambiguity based on the literal meaning renders these terms an inappropriate standard for imputing a 
subordinates bias to an employer. 

13  We agree with the majority that it is immaterial whether these decisions address the issue in the 
context of a pretext or a mixed motive analysis, as the question of who counts as a relevant 
decisionmaker is the same in both circumstances.  314 F.3d at 668.