IN THE UNITED STATES COURT OF APPEALS 
                      FOR THE FOURTH CIRCUIT
                      ______________________

                             03-1648
                      ______________________

EQUAL EMPLOYMENT OPPORTUNITY
 COMMISSION,

          Plaintiff-Appellant,
v.

WARFIELD-ROHR CASKET CO.,

          Defendant-Appellee.
       ____________________________________________________

         On Appeal From the United States District Court
                   For the District of Maryland
       ____________________________________________________

         REPLY BRIEF FOR THE EQUAL EMPLOYMENT OPPORTUNITY
                     COMMISSION AS APPELLANT
       ____________________________________________________
                                               
ERIC S. DREIBAND                        SUSAN L.P. STARR
General Counsel                                   Attorney  

VINCENT J. BLACKWOOD                    
Acting Associate General Counsel             

EQUAL EMPLOYMENT OPPORTUNITY                              
COMMISSION
1801 L Street, N.W.
Washington, D.C.  20507

202/663-4727
202/663-7090 (fax)

                        TABLE OF CONTENTS
                                                          Pages

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . .  1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . .  3

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CERTIFICATE OF COMPLIANCE 

CERTIFICATE OF SERVICE

                      TABLE OF AUTHORITIES 

FEDERAL CASES 

Conner v. Schrader-Bridgeport Intern., Inc.,  227 F.3d 179 (4th Cir. 2000)    4

Danzer v. Norden Systems, Inc., 151 F.3d 50 (2nd Cir. 1998)  .  4

FDIC v. Henderson, 940 F.2d 465 (9th Cir. 1991)  . . . . . . .  8

Kubicko v. Ogden Logistics Servs.,  181 F.3d 544 (4th Cir. 1999))  6-7

Palasota v. Haggar Clothing Co., 342 F.3d 569 (5th Cir. 2003)   6

Rowland v. American General Finance, Inc., 340 F.3d 187 (4th Cir. 2003)  6-7

Taylor v. Virginia Union University, 193 F.3d 219 (4th Cir.1999),
     cert. denied, 528 U.S. 1189 (2000)  . . . . . . . . . . .  5

FEDERAL STATUTES 

42 U.S.C. 1983 . . . . . . . . . . . . . . . . . . . . . . .  8

Fed. R. App. P. 29(d)  . . . . . . . . . . . . . . . . . . . . 14

Fed. R. App. P. 32(a)(5) . . . . . . . . . . . . . . . . . . . 14

              IN THE UNITED STATES COURT OF APPEALS 
                      FOR THE FOURTH CIRCUIT
                      ______________________

                             03-1648
                      ______________________

EQUAL EMPLOYMENT OPPORTUNITY
 COMMISSION,

          Plaintiff-Appellant,

v.

WARFIELD-ROHR CASKET CO.,

          Defendant-Appellee.
       ____________________________________________________

         On Appeal From the United States District Court
                   For the District of Maryland
       ____________________________________________________

         REPLY BRIEF FOR THE EQUAL EMPLOYMENT OPPORTUNITY
                     COMMISSION AS APPELLANT
       ____________________________________________________

                           INTRODUCTION

     The Commission alleges that Warfield-Rohr violated the ADEA by
terminating Frederick Kuehnl because of his age.  The district court granted
summary judgment notwithstanding evidence that, when he fired Kuehnl, the
company president told Kuehnl that he was firing him because he was "too
fucking old" and that he was retaining Kuehnl's younger co-worker instead of
Kuehnl because he "could get more years out of him."  In our opening brief, we
argued that the district court, in ruling on Warfield-Rohr's motion for summary
judgment, correctly recognized that it must credit this direct evidence that
Kuehnl's age was a factor in the decision to fire him.  We argued that the court
erred, however, in ruling that Warfield-Rohr was entitled to summary judgment on
the ground that the evidence compelled the conclusion that it would have fired
Kuehnl even if his age had not been a factor.  We argued that, while it is possible
 that Warfield-Rohr felt it was necessary to fire its only experienced casket trimmer
 in light of the company's financial difficulties, the evidence does not compel that
 conclusion particularly when Kuehnl offered to take a pay cut.  Given the evidence 
that defendant's president rejected that offer because, in his words, the younger
 casket trimmer could "give him more years," a reasonable jury could find that 
Warfield-Rohr would not have fired Kuehnl if he had been younger.
     Warfield-Rohr's response to the Commission's opening brief is an exercise
in avoidance and distraction.  The company offers no plausible rationale for
upholding  the award of summary judgment in light of the direct evidence of age
discrimination.  Instead, Warfield-Rohr's strategy is to present a one-sided 
version of the facts   as if its version of the facts were already endorsed by 
a jury and to ignore evidence that does not support its arguments.  For example,
 defendant's brief contains no mention of the evidence that the company president
 in rejecting Kuehnl's offer to take a pay cut said that the younger casket trimmer
 could "give him more years."  The defendant also attempts to minimize the evidence
 that the owner said Kuehnl was too old by characterizing it as "uncorroborated," a
characterization that is factually inaccurate and legally irrelevant.  Finally, to
bolster its argument that a reasonable jury would be compelled to find that Kuehnl
would have been fired even if his age were not a consideration, the defendant
describes at length all of Kuehnl's faults and omits any reference to the evidence
that he was a highly skilled and productive employee.  We submit this short reply
brief to correct the company's distorted recital of the evidence and to refocus this 
appeal on the issue presented.
                             ARGUMENT
     1.  Warfield-Rohr first argues that the district court erred in applying a
mixed motive analysis to this case.  According to Warfield-Rohr, the district
court's conclusion was based entirely on Kuehnl's testimony that Ayres told him
that he was being fired because he was too old.  Def.'s Br. at 9.  The company
argues that this testimony is insufficient to trigger a mixed motive analysis
because "there is no evidence corroborating Mr. Kuehnl's claim of
discrimination."  Id. at 10.  Whether Warfield-Rohr is arguing that the evidence is 
insufficient because there was no other witness to Ayres's statements to Kuehnl or
 because there are no other circumstances from which a jury could infer that age
motivated Ayres's decision to fire Kuehnl, Warfield-Rohr's position is both
legally and factually untenable.
     Contrary to the suggestion in the defendant's brief, there is no requirement
that a statement of discriminatory motive be witnessed by a party other than the
victim of discrimination before it can trigger a mixed motive analysis. 
Corroboration of testimony   or the lack thereof   goes to its credibility. 
However, the credibility of a witness's testimony is the quintessential province 
of the fact-finder.   See Danzer v. Norden Sys., Inc.,  151 F.3d 50, 57 (2nd Cir.
 1998) ("Since the defendant will rarely admit to having said or done what is alleged,
 and since third-party witnesses are by no means always available, the issue [in 
discrimination cases involving direct evidence] frequently becomes one of assessing 
the credibility of the parties.  At summary judgment, however, that issue is 
necessarily resolved in favor of the nonmovant.") .  It is for the jury, not
 the court, to say what evidence it will believe and what inferences or conclusions 
it will draw.  See Conner v. Schrader-Bridgeport Intern., Inc.,  227 F.3d 179,
 199-200 (4th Cir. 2000) (issue of plaintiff's credibility is a jury issue). 
 Accordingly, in ruling on defendant's motion for summary judgment, the district 
court was required to assume that Kuehnl's testimony is credible, and that Ayres
 made the statements attributed to him.
     Assuming Kuehnl's testimony to be true, Ayres's statement that he was
firing Kuehnl because he was "too fucking old" is sufficient by itself to support
 a finding that Kuehnl's age was a factor in the decision to fire him since it was
 made by the decision maker, expressly reflects a discriminatory animus, bears
 directly on the contested employment decision, and occurred at the time of the 
discharge. 
Taylor v. Virginia Union Univ., 193 F.3d 219, 232 (4th Cir.1999) (en banc). 
     Furthermore, contrary to the implication in defendant's brief, Kuehnl's
testimony that Ayres said he was firing Kuehnl because he was too old is not the
only evidence that Ayres's decision was motivated by age.  As noted, Kuehnl also
testified that Ayres rejected his offer to take a pay cut by saying that the company 
could get "more years" out of Kuehnl's younger co-worker.  In addition, Kuehnl also 
testified that Ayres asked him 
how old he was and whether he was planning to retire.  Notably, Kuehnl's testimony 
regarding all three of these statements was corroborated by his contemporary journal 
entries.  A. 31, 32.
     Warfield-Rohr argues that Ayres's questions about Kuehnl's age and his
retirement plans, standing alone, are insufficient to establish age discrimination. 
Warfield-Rohr Br. at 19, n.8.  However, the Commission does not present this evidence 
in isolation.   Rather, we pointed out that the questions about retirement and age were 
made by the same decision maker who said he was firing Kuehnl because he was too old and
because his younger co-worker could give the company more years.  When viewed in conjunction 
with this direct evidence of
age bias, the questions about age and retirement are probative of the employer's
intent to discriminate based on age. See, e.g., Palasota v. Haggar Clothing Co.,
342 F.3d 569 (5th Cir. 2003) (although "the offer of a severance package is not, by itself, 
evidence of age discrimination," when coupled with evidence that the
individuals were targeted because of their age, this evidence is appropriately taken into 
account as proof of age discrimination).  Thus, contrary to Warfield-Rohr's assertion, 
Kuehnl's testimony that Ayres said he was firing Kuehnl because he was too old does not
 stand in isolation.
     Warfield-Rohr takes issue with the Commission's reliance on two cases
from this Court, and suggests that those cases support its novel theory that the
mixed motive analysis does not apply where direct evidence is "uncorroborated." 
Warfield-Rohr Br. at 9-10 (citing Rowland v. Am. Gen. Fin., Inc., 340 F.3d 187
(4th Cir. 2003); Kubicko v. Ogden Logistics Servs., 181 F.3d 544 (4th Cir. 1999)). 
The company misses the point.  As we argued in our opening brief, these cases
stand for the proposition that a plaintiff may trigger the mixed motive analysis by 
presenting evidence that reflects a discriminatory animus of the decision maker
and is directly connected to the challenged decision.  EEOC Br. at 15.  Neither of
these cases states that evidence which satisfies this standard must somehow be
"corroborated."  In Rowland, this Court held that the district court erred in
rejecting plaintiff's request for a mixed motive jury instruction where the decision
 maker stated in a meeting with Rowland that he would not promote her because he did
 not "need another woman in this position."  340 F.3d at 193.  The only other evidence
 presented was a statement made by someone with no involvement in the decision-making
 process, and at a time after the promotion was denied, that "men run the company." 
 Id.  Despite other evidence suggesting non-discriminatory
reasons for the failure to promote, this Court held that "a reasonable jury, properly 
instructed, could have decided the matter in [Rowland's] favor."  Id. at 193. Similarly, 
in Kubicko, this Court held that a mixed motive analysis applied
because there was evidence which "both reflects directly the alleged retaliatory
attitude against [plaintiff] and bears directly on [defendant's] decision to terminate
 [plaintiff]."  181 F.3d at 553.  There is nothing in the Court's decision to support
 Warfield-Rohr's argument that evidence which meets this standard is insufficient to
 invoke the mixed motive analysis unless it is "corroborated."
     2.  Warfield-Rohr also argues that, even assuming that Kuehnl's age was a
factor in Ayres's decision to fire him, the district court correctly ruled that the 
company is still entitled to summary judgment.  As we pointed out in our opening
 brief, the defendant is not entitled to summary judgment on this issue "unless 
undisputed evidence compels the conclusion that it would have made the same decision 
  to fire Kuehnl and retain Moore   if Kuehnl had not been more than 20 years older
 than Moore."  EEOC Br. at 16.  Warfield-Rohr initially states the
correct legal standard on this point.  In its argument heading, Warfield-Rohr
correctly assumes that it would be entitled to summary judgment only if "the
undisputed evidence establishes overwhelmingly that Warfield-Rohr would have
terminated Mr. Kuehnl in the absence of any purported discriminatory motive." 
Def.'s Br. at 12.  In the discussion that follows, however, the company argues 
only that there is undisputed evidence that nondiscriminatory considerations 
entered into Ayres's decision to fire Kuehnl.  The company does not present a
 plausible argument that the evidence conclusively establishes that Ayres would
 have made the same decision if Kuehnl had not been considerably older than Moore.
     Nowhere is this clearer than in the discussion of the role that cost
considerations played in the decision to fire Kuehnl.  As we noted in our opening
brief, the evidence of the company's financial circumstances may support a
finding that it needed to cut costs, but it does not compel the conclusion that
 the cost-cutting measure had to be Kuehnl's termination.  We pointed out that 
this is particularly true given Kuehnl's immediate offer to work for less money to meet
the company's financial concerns and keep his job.  In response Warfield-Rohr
cites a string of cases for the proposition that the law permits an employer to
 fire a higher-salaried employee to cut costs.  Warfield-Rohr Br. at 14-15.  This
 misses the point.  These cases stand for the unremarkable proposition that a 
plaintiff cannot establish an ADEA claim based on evidence that an adverse
 employment action was taken against an older employee based wholly on a
 factor other than age, such as cost, even if the employer could have taken 
other measures to avoid adversely affecting the plaintiff.  The issue in this
 case is whether, assuming Kuehnl's age was a factor in Ayres's decision, would
 he have made a different decision if Kuehnl had been younger.  Ayres's refusal 
of Kuehnl's offer to work for less is relevant because there is evidence that
 Ayres rejected this offer precisely because Kuehnl was older than Moore.  
Accordingly, a jury could find that, notwithstanding the company's financial 
situation, Ayres would have
permitted Kuehnl to keep his job if he were younger.
     The district court also alluded to evidence that two other nondiscriminatory
factors may have affected Ayres's decision to fire Kuehnl: Kuehnl's
unwillingness, two years before he was fired, to work in a two-person trimming
room; and Kuehnl's difficulties getting along with other employees in the
trimming room. We argued in our opening brief that this evidence falls far short 
of compelling a finding that Kuehnl would have been fired if he were younger. 
Warfield-Rohr does not directly respond to this argument.  Instead the company
presents a distorted picture of Kuehnl as an employee by describing in detail every
 negative aspect of his personality and omitting any mention of the abundant
evidence that Kuehnl was a highly skilled and productive employee who was
consistently praised and rewarded for his performance.  Warfield-Rohr's approach,
which reads more like a closing argument to a jury than an argument to an
appellate court, serves only to reinforce the Commission's argument that summary
judgment was inappropriate in this case.  There are two sides to the story of
Kuehnl's discharge, and a trier of fact should decide which side is true.
     With respect to the evidence that Kuehnl previously expressed the view that
the trimming room was not a two-person operation, we pointed out in our opening
brief that "[t]here is no evidence that Kuehnl retained that view at the time of 
his discharge when, according to the company, the workload in the casket trimming
room had significantly declined.  On the contrary, by suggesting that Ayres
terminate Moore instead of himself, Kuehnl demonstrated his willingness to work
as the sole casket trimmer."  EEOC Br. at 19-20.   Warfield-Rohr makes no
response to this argument, instead erroneously stating that the Commission
"completely ignores" its argument that "Kuehnl had refused to work in the casket
trimming room with only one other person."  Warfield-Rohr Br. at 16.
       With respect to the evidence of Kuehnl's difficulties with other employees,
we noted a number of factors which suggest that this would not have caused Ayres
to fire Kuehnl if his age had not been a factor.  First, we noted, Ayres failed to
mention this reason in his notes, which he testified included all of his reasons 
for terminating Kuehnl.  EEOC Br. at 19.  Furthermore, we pointed out that,
 although the evidence suggested that Kuehnl's interpersonal problems had been 
occurring for at least 15 years, "there is nothing to suggest that these
 personality problems were ever a subject of serious concern for the company." 
 Id.  We noted that, "[n]otwithstanding the evidence that other employees had 
left Warfield-Rohr because of conflicts with Kuehnl, Kuehnl was never disciplined 
or even reprimanded for his conduct.  On the contrary, he was consistently praised 
for his work and he continued to run the trimming room with minimal oversight."  Id.
     The company's only response to this argument is to note that there is
evidence that Kuehnl "began experiencing problems with management" in the
years immediately preceding his discharge.  Def.'s Br. at 17.  While this evidence
could support a finding that Warfield-Rohr would have terminated Kuehnl even if
his age had not been a factor based on the personality problems it had tolerated
 for many years, it surely does not compel that conclusion.  As we noted in our
opening brief, although it is possible that a jury would accept Warfield-Rohr's
contention that it "decided to fire a highly skilled and experienced casket trimmer
 and leave that operation in the hands of Moore, a younger employee with
relatively little experience who needed help performing some of the functions of
the job," a reasonable jury could instead conclude that "the company would not
have made the same decision if Kuehnl was not substantially older than Moore." 
EEOC Br. at 20.
                           CONCLUSION
     For the foregoing reasons and for the reasons stated in our opening brief, the 
judgment of the district court should be reversed and this case remanded to the 
district court for further proceedings.
                              Respectfully submitted,
                              ERIC S. DREIBAND
                              General Counsel

                              VINCENT J. BLACKWOOD
                              Acting Associate General Counsel

                                              
                              
                              _______________________
                              SUSAN L.P. STARR
                              Attorney

                              EQUAL EMPLOYMENT OPPORTUNITY 
                                COMMISSION
                              1801 L Street, N.W.
                              Washington, D.C. 20507
                              (202) 663-4727

                    CERTIFICATE OF COMPLIANCE

     I certify that this brief complies with the type-volume limitation set forth 
in F.R.A.P. 32(a)(7)(B).  This brief contains 2,669 words.  See Fed. R. App. P. 29(d). 
The brief was prepared using the WordPerfect 9 processing system, in 14-point
proportionally spaced type for text and 14-point type for footnotes, both in Times
New Roman.  See Fed. R. App. P. 32(a)(5).

                                   _________________________
                                       Susan L.P. Starr, Esq.

October 31, 2003
     

                      CERTIFICATE OF SERVICE
     I hereby certify that two copies of the foregoing brief have been sent via
first class mail, postage prepaid, to the following counsel of record:
                                                  

COUNSEL FOR DEFENDANT-APPELLEE WARFIELD-ROHR CASKET CO.

Charles S. Hirsch, Esq.                                
BALLARD SPAHR ANDREWS & INGERSOLL, LLP
300 East Lombard Street, 18th Floor
Baltimore, MD 21201

                              

________________________
Susan L.P. Starr, Esq.

EQUAL EMPLOYMENT OPPORTUNITY 
 COMMISSION                                  
1801 L Street, N.W., Room 7042
Washington, D.C.  20507

October 31, 2003