Case No. 04-10322
    __________________________________________________________
                              
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT
    __________________________________________________________

BRENDA J. OWENS,

                    Plaintiff/Appellant,
v.

EXCEL MANAGEMENT SERVICES, INC.
and VARTEC TELECOM, INC.,

                    Defendants/Appellees.
     ________________________________________________________

         On Appeal from the United States District Court
       For the Northern District of Texas, No. 3:02CV0835L,
             The Honorable Sam A. Lindsay, Presiding
    _________________________________________________________

   Brief of the U.S. Equal Employment Opportunity Commission 
        as Amicus Curiae Supporting Plaintiff-Appellant
    _________________________________________________________
                         

ERIC S. DREIBAND
General Counsel                         U.S. EQUAL EMPLOYMENT
                                        OPPORTUNITY COMMISSION
CAROLYN L. WHEELER            		Office of General Counsel
Acting Associate General Counsel        1801 L Street, N.W., Room 7020   
                                   	Washington, DC  20507
JOSEPH A. SEINER                   	(202) 663-4772
Attorney                                
                                        

                        TABLE OF CONTENTS
                                                            Page

TABLE OF CONTENTS ................................................     i

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

STATEMENT OF INTEREST .........................................     1

STATEMENT OF RELATED CASES ..................................   1

STATEMENT OF ISSUE................................................ 2

STATEMENT OF FACTS AND PROCEEDINGS BELOW .....................   2

STANDARD OF REVIEW........................................   4

SUMMARY OF ARGUMENT.............................................   5

ARGUMENT................................................ 6

     PLAINTIFF IS NOT REQUIRED TO SHOW THAT A 
     SIMILARLY SITUATED EMPLOYEE OF A DIFFERENT
     RACE OR SEX WAS TREATED MORE FAVORABLY TO
     ESTABLISH A PRIMA FACIE CASE UNDER TITLE VII ..........     6
          
CONCLUSION .........................................................  17
     

CERTIFICATE OF COMPLIANCE               

CERTIFICATE OF SERVICE   

                     TABLE OF AUTHORITIES 

                         FEDERAL CASES 

Abdu-Brisson v. Delta Air Lines, Inc., 
     239 F.3d 456 (2d Cir. 2001) . . . . . . . . . . . . . . . . . . . .10

Amburgey v. Cohart Refractories, 
     936 F.2d 805 (5th Cir. 1991)  . . . . . . . . . . . . . . . . . . . 9

Barnes v. Yellow Freight Sys., Inc., 
     778 F.2d 1096 (5th Cir. 1985) . . . . . . . . . . . . . . . . . . . 8

Bauer v. Albermarle Corp., 
     169 F.3d 962 (5th Cir. 1999)  . . . . . . . . . . . . . . . . . 12-13

Benchmark Elecs. v. J.M. Huber Corp., 
     343 F.3d 719 (5th Cir. 2003)  . . . . . . . . . . . . . . . . . . . 4

Bodenheimer v. PPG Indus., Inc., 
     5 F.3d 955 (5th Cir. 1993)  . . . . . . . . . . . . . . . . . . . .12

Brown v. CSC Logic, Inc., 
     82 F.3d 651 (5th Cir. 1996) . . . . . . . . . . . . . . . . . . . .12

Byrd v. Roadway Express, Inc., 
     687 F.2d 85 (5th Cir. 1982) . . . . . . . . . . . . . . . . . . 7, 13

Conward v. Cambridge Sch. Comm., 
     171 F.3d 12, 19 (1st Cir. 1999) . . . . . . . . . . . . . . . . . .15

EEOC v. Horizon/CMS Healthcare Corp., 
     220 F.3d 1184 (10th Cir. 2000)  . . . . . . . . . . . . . . . . . .15

Elliott v. Group Med. & Surgical Serv., 
     714 F.2d 556 (5th Cir. 1983)  . . . . . . . . . . . . . . . . . . .14

Furnco Constr. Corp. v. Waters, 
     438 U.S. 567 (1978) . . . . . . . . . . . . . .7

Green v. Armstrong Rubber Co., 
     612 F.2d 967 (5th Cir. 1980) . . . . . . . . . . . 11
                                                               
Guthrie v. Tifco Indus., 
      941 F.2d 374 (5th Cir. 1991). . . . . . . . . . . . . . .14

Herrero v. St. Louis Univ. Hosp., 
     109 F.3d 481 (8th Cir. 1997)  . . . . . . . . . . . . . . . . . . .15

Jones v. W. Geophysical Co. of Am., 
     669 F.2d 280 (5th Cir. 1982)  . . . . . . . . . . . . . . . . . . . 8

Keelan v. Majesco Software, Inc., 
     Case No. 04-10317 (5th Cir.) . . . . . . . . . . 1

Kosereis v. Rhode Island, 
     331 F.3d 207 (1st Cir. 2003)  . . . . . . .15

Marzano v. Computer Sci. Corp., 
     91 F.3d 497 (3d Cir. 1996)  . . . . . . . . . . . . . . . . . . . .11

Mayberry v. Vought Aircraft Co., 
     55 F.3d 1086 (5th Cir. 1995)  . . . . . . . . . . . . . . . . . . .11

McCorstin v. U.S. Steel Corp., 
     621 F.2d 749 (5th Cir. 1980)  . . . . . . . . . . . . . . . . . .8, 9

McDonnell Douglas Corp. v. Green, 
     411 U.S. 792 (1973) . . . . . . . . . . . . . . . . . . . . . .passim

McGuinness v. Lincoln Hall, 
     263 F.3d 49 (2d Cir. 2001)  . . . . . . . . . . . . . . . . . . . .15

Nichols v. Loral Vought Syst. Corp., 
     81 F.3d 38 (5th Cir. 1996)  . . . . . . . . . . . . . . . . . . . . 9

Nieto v. L&H Packing Co., 
     108 F.3d 621 (5th Cir. 1997)  . . . . . . . . . . . . . . . . . . .12

Page v. U.S. Indus., Inc., 
     726 F.2d 1038 (5th Cir. 1984) . . . . . . . . . . . . . . . . . . . 7

Palasota v. Haggar Clothing Co., 
     342 F.3d 569 (5th Cir. 2003), 
     cert. denied, 124 S. Ct. 1441 (2004). . . . . . . . . . . 3, 6, 12-13

Peterson v. Hewlett-Packard Co., 
     358 F.3d 599 (9th Cir. 2004)  . . . . . . . . . . . . . . . . . . .16

Pivirotto v. Innovative Sys., Inc., 
     191 F.3d 344 (3d Cir. 1999) . . . . . . . . . . . . . . . . . . . .16

Ramirez v.  Sloss, 
     615 F.2d 163 (5th Cir. 1980)  . . . . . . . . . . . . . . . . . . . 9

Rose v. Wells Fargo & Co., 
     902 F.2d 1417 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . 9

Rutherford v. Harris County, 
     197 F.3d 173 (5th Cir. 1999)  . . . . . . . . . . . . . . . . . . . 8

Tex. Dep't of Comm. Affairs v. Burdine, 
     450 U.S. 248 (1981) . . . . . . . . . . . . . . . . . . . . . . . 6-7

Urbano v. Cont'l Airlines, 
     138 F.3d 204 (5th Cir. 1998)  . . . . . . . . . . . . . . . . . . . 8

White v. FCI USA, Inc., 
     319 F.3d 672 (5th Cir. 2003)  . . . . . . . . . . . . . . . . . . . 4

                                
                   FEDERAL STATUTES AND RULES

Age Discrimination in Employment Act, 
     29 U.S.C. 621 et seq. . . . . . . . . . . . . . . . . . 3, 5, 12-14

Title VII of the Civil Rights Act of 1964, 
     42 U.S.C. 2000e et seq.  . . . . . . . . . . . . . . . . . . .passim

Fed. R. App. P. 29(a)  . . . . . .1
                                
       
                                                              
                                
                     STATEMENT OF INTEREST
                                
     The U.S. Equal Employment Opportunity Commission (EEOC or
Commission) is the federal agency charged with administering, interpreting, and
enforcing Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e
et seq., and other federal laws barring employment discrimination.  In this case, 
the district court erroneously ruled that the plaintiff failed to prove a prima
 facie case of discrimination under Title VII because she had not shown that a
 similarly situated individual of a different race or sex was treated more
 favorably.  Because of the importance of this issue to enforcement of Title
 VII, we offer our views to the Court in accordance with Fed. R. App. P. 29(a),
 which authorizes a government agency to file an amicus curiae brief "without
 the consent of the parties or leave of court."

                   STATEMENT OF RELATED CASES
     The Commission is aware of another appeal pending in this Court, Keelan v.
Majesco Software, Inc., Case No. 04-10317, which addresses the same issue raised
in this case, of whether a plaintiff must show that similarly situated employees
were treated more favorably to establish a prima facie case of discrimination. 

                     STATEMENT OF THE ISSUE
     Did the district court err in requiring a Title VII plaintiff to show that a
similarly situated individual of a different race or sex was treated more favorably
 to establish a prima facie case of discrimination?

             STATEMENT OF FACTS AND PROCEEDINGS BELOW
     Brenda Owens, a 52-year-old African-American female, worked for Excel as
the Director of Corporate Tax from March 13, 1995, until her termination on
October 19, 2001.  Owens v. Excel Mgmt. Servs., 2004 WL 358153 (N.D. Tex.
Feb. 13, 2004) at *1.  In October 2001, the company instituted a reduction in force. 
Id.  Owens' supervisor eliminated two positions as part of the workforce reduction: 
Owens' job and the Revenue Specialist position occupied by a 32-year-old white
male.  Id.  Owens then applied for the open position of Director of Corporate Tax
at a company that was being acquired by Excel, but she was rejected in favor of a
35-year-old white male.  Id.  Owens claimed that she was terminated (and
subsequently not rehired) because of her race, sex, and age, and that the reduction 
in force was pretextual.  Id. at *4, *6.  Owens further alleged that the failure to
 hire was in retaliation for exercising her rights under Title VII and the ADEA.  
Id. at *10.  
     The district court granted summary judgment to the company on all of
plaintiff's claims.  Applying the framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), the court determined that Owens' race and sex discharge
claims failed because she had not satisfied all of the elements of a prima 
facie case of discrimination.  Id. at *5.  More specifically, Owens did not
 demonstrate that the company treated her differently from similarly situated 
employees of a different race or sex.  Id. at *5.  In reaching this determination, 
the court rejected plaintiff's argument that she could bypass this requirement by
 presenting other evidence that Excel fired her for discriminatory reasons.  Id.
 at *4.  Although this Court held in Palasota v. Haggar Clothing Co., 342 F.3d 569 
(5th Cir. 2003), cert. denied, 124 S.
Ct. 1441 (2004), that a plaintiff need not show that similarly situated workers 
were treated differently if there is other evidence of discrimination, the district 
court distinguished that case as applying only to age   rather than Title VII   
claims.  Id. at *5.  In the alternative, the court concluded that Owens had not 
overcome Excel's legitimate, nondiscriminatory reason for termination  
 a reduction in force.  Id. at *5 n.6.  
     The district court also granted summary judgment on Owens' age-
discrimination claim, concluding that there was no evidence of pretext to overcome
the employer's stated reason for the discharge.  Id. at *6-7.  The court further
granted summary judgment on Owens' remaining hiring and retaliation claims.  Id.
at *8-*11.

                        STANDARD OF REVIEW        
     This Court reviews a district court's summary judgment ruling de novo.  See
Benchmark Elecs. v. J.M. Huber Corp., 343 F.3d 719, 730 n.9 (5th Cir. 2003).
Summary judgment should be granted only when "the record, viewed in the light
most favorable to the non-moving party, shows that there is no genuine issue of
material fact and that the moving party is entitled to judgment as a matter of law." 
Id.  Thus, a "factual dispute precludes a grant of summary judgment if the evidence 
would permit a reasonable jury to return a verdict for the nonmoving party." White
 v. FCI USA, Inc., 319 F.3d 672, 674 (5th Cir. 2003) (citation omitted).

                       SUMMARY OF ARGUMENT
     The district court's decision is erroneous in that the court strictly adhered 
to a rigid formulation of the prima facie case which required that the plaintiff 
show that a similarly situated individual of a different race or sex was treated
 more favorably.  Neither the Supreme Court nor this Court has ever required this
showing to establish a prima facie case of discrimination.  Rather, both Courts
have acknowledged that the prima facie showing is a flexible standard and that
there are various ways to establish claims of discrimination.  
     This Court has explicitly recognized that a plaintiff need not show that a
similarly situated younger employee was given preferential treatment to establish 
a prima facie case of age discrimination, and the district court's attempt to limit
 this holding to ADEA, rather than Title VII cases, is unpersuasive.  Additionally,
 the district court failed even to address the Title VII cases in which this Court 
has not required a showing that similarly situated employees were treated differently.
 Moreover, other circuits have applied the same flexible standard that the Commission 
urges here.  For these reasons, the district court's holding that a Title VII plaintiff 
must show that a similarly situated employee was given preferential treatment to establish 
a prima facie case of discrimination should be rejected by this Court.

                             ARGUMENT
            PLAINTIFF IS NOT REQUIRED TO SHOW THAT A
        SIMILARLY SITUATED EMPLOYEE OF A DIFFERENT RACE 
         OR SEX WAS TREATED MORE FAVORABLY TO ESTABLISH
               A PRIMA FACIE CASE UNDER TITLE VII
     
     The district court erred in requiring the plaintiff to show that similarly
situated male or non-African-American employees were treated more favorably as
part of her prima facie case.  In the Commission's view, the plaintiff may bypass
this requirement by showing other evidence that suggests discrimination.
     Under the traditional McDonnell Douglas framework applied by the district
court, a fired employee can establish a prima facie case of discrimination by
submitting evidence that: (1) she was discharged; (2) she was qualified for the
position; (3) she was within a protected class at the time of discharge; and (4) 
she was i) replaced by someone outside the protected class, ii) treated less 
favorably than a similarly situated employee outside the protected class, or 
iii) discharged because of her protected characteristic.  See, e.g., McDonnell 
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Tex. Dep't of Comm. Affairs v. 
Burdine, 450 U.S. 248, 253 (1981) (Title VII prima facie case satisfied where applicant for
available job was qualified but "rejected under circumstances which give rise to
 an inference of unlawful discrimination."); Palasota, 342 F.3d at 575-76 (setting 
forth prima facie case in age discrimination case). Establishing a "prima facie
 case merely 'raises an inference of discrimination . . . because we presume 
[that the alleged discriminatory] acts, if otherwise unexplained, are more 
likely than not based on the consideration of impermissible factors.'" Page 
v. U.S. Indus., Inc., 726 F.2d 1038, 1052 (5th Cir. 1984) (quoting Furnco 
Constr. Corp. v. Waters, 438 U.S. 567 (1978)).  If the employee satisfies 
this prima facie standard, the burden then shifts to the employer to articulate
 a legitimate non-discriminatory reason for the termination.  See, e.g., Burdine,
 450 U.S. at 253.   Finally, the burden shifts back to the employee to show that 
the employer's proffered reason was pretextual. Id. 
     The district court's conclusion that the plaintiff's Title VII case fails 
because she did not show that similarly situated males or non-African-Americans 
were treated more favorably ignores the flexible approach to the prima facie case
advocated by the Supreme Court and the Fifth Circuit.  This Court has observed
that it and the Supreme Court have "repeatedly pointed out" that "no single
formulation of the prima facie evidence test may fairly be expected to capture the
many guises in which discrimination may appear."  Byrd v. Roadway Express,
Inc., 687 F.2d 85, 86 (5th Cir. 1982) (citations omitted).  "The focus of the
 inquiry may not be obscured by the blindered recitation of a litany."  Id.  
     While this Court has recognized that the fourth element of the prima facie
case may be satisfied by showing that similarly situated employees without the
protected characteristic were treated more favorably, see, e.g., Rutherford v.
 Harris County, 197 F.3d 173, 184 (5th Cir. 1999) (including as element of prima 
facie case that similarly situated employees treated differently); Urbano v. 
Cont'l Airlines, 138 F.3d 204, 206 (5th Cir. 1998) (same), neither the Supreme
 Court nor this Court has ever found this showing to be indispensable for 
establishing a prima facie case of discrimination under Title VII.  To the 
contrary, both Courts have explicitly recognized that there are varied approaches
 to establishing claims of discrimination, because discrimination "exists in forms 
as myriad as the creative perverseness of human beings can provide."  McCorstin v.
 U.S. Steel Corp., 621 F.2d 749, 753-54 (5th Cir. 1980); see also Barnes v. Yellow
 Freight Sys., Inc., 778 F.2d 1096, 1100 (5th Cir. 1985) ("The Supreme Court has 
recognized that the facts of Title VII cases necessarily vary, so the specific prima
 facie proof that was demanded of the McDonnell Douglas plaintiff 'is not necessarily
 applicable in every respect to differing factual situations.'" (quoting McDonnell 
Douglas, 411 U.S. at 802 n.13)); Jones v. W. Geophysical Co. of Am., 669 F.2d 280, 
284 (5th Cir. 1982) ("The underlying purpose of the fourth element in the McDonnell 
Douglas formulation is precisely to establish this unlawful inference of 
discrimination."); Ramirez v. Sloss, 615 F.2d 163, 168 (5th Cir. 1980) 
("Courts must not allow the mechanical formula to blind them to the real 
issue of whether the defendant illegally discriminated against the plaintiff. 
 McDonnell Douglas is only one way to establish a prima facie case of employment
 discrimination."); Amburgey v. Cohart Refractories, 936 F.2d 805, 812 (5th Cir. 1991)
 (stating in an age case that "[t]he necessary elements of a prima facie employment
 discrimination case are not Platonic forms, pure and unchanging; rather, they vary
 depending on the facts of a particular case" (quotation omitted)); McCorstin, 621
 F.2d at 753 ("[t]his circuit has also recognized that the McDonnell test is not 
the alpha and omega of possible tests" in age discrimination cases).
     This need for flexibility is particularly heightened when the discrimination
occurs in the context of a reduction in force, where there often are no similarly
situated employees.  See Nichols v. Loral Vought Syst. Corp., 81 F.3d 38, 41 (5th
Cir. 1996) (in reduction in force cases, the fourth prong can be proven by showing
"'evidence, circumstantial or direct, from which a factfinder might reasonably
conclude that the employer intended to discriminate in reaching the decision at
issue'" (quoting Amburgey, 936 F.2d at 812)).   See generally Rose v. Wells Fargo
& Co., 902 F.2d 1417 (9th Cir. 1990) (where discharge occurs in the context of a
reduction in force, replacement need not be shown, and "[m]ost circuits are in
accord and require instead that the plaintiff show through circumstantial,
 statistical, or direct evidence that the discharge occurred under circumstances
 giving rise to an inference of age discrimination" (citing cases)).  
     The need for flexibility in the prima facie showing is well illustrated by 
this case.  As the district court acknowledged, 
     Excel contends that [plaintiff] cannot establish that white males
     remained in similar positions because there were no employees who
     were similarly situated to her or in nearly identical circumstances to
     hers.  In other words, Excel contends that because Owens was the only
     director-level employee, or 'Grade-12' employee, in the tax department,
     she did not have a 'nearly identical' comparator, and therefore cannot
     establish a Title VII prima facie case.

2004 WL 358153 at *4.  Under this reasoning, then, the plaintiff in this case could
 never avail herself of the McDonnell Douglas framework to establish
discrimination, regardless of the weight of the evidence.  In essence, then, Title
VII's protections would arguably no longer exist in cases such as this where there
is no "'nearly identical' comparator."  Thus, by ensuring that a particular position
 did not have a "nearly identical" comparator, employers could attempt to insulate 
themselves from claims of discrimination, no matter how suspicious the
circumstances might otherwise seem.  See also Abdu-Brisson v. Delta Air Lines,
Inc., 239 F.3d 456, 468 (2d Cir. 2001) (refusing to encourage "the grotesque
scenario where an employer can effectively immunize itself from suit if it is so
thorough in its discrimination that all similarly situated employees are
victimized"); Marzano v. Computer Sci. Corp., 91 F.3d 497, 511 (3d Cir. 1996)
("Under [the similarly situated] scheme, any employee whose employer can for
some reason or other classify him or her as 'unique' would no longer be allowed to
demonstrate discrimination inferentially, but would be in the oft-impossible
situation of having to offer direct proof of discrimination. We see no value in,
 and no mandate in our jurisprudence for, such a requirement.").  This Court 
should not create a rule that could have these perverse effects.
     Such flexibility is consistent with the approach this Court has taken in other
 contexts.  This Court has recognized that a plaintiff need not establish that a 
similarly situated individual was treated differently where the employer's
legitimate non-discriminatory reason can be shown to be false.  See Mayberry v.
Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995) ("In work-rule violation
cases, a Title VII plaintiff may establish a prima facie case by showing 'either 
that he did not violate the rule or that, if he did, white employees who engaged 
in similar acts were not punished similarly.'" (emphasis added) (quoting Green v.
Armstrong Rubber Co., 612 F.2d 967, 968 (5th Cir. 1980))).  Moreover, in a
discharge case, this Court has indicated that "the fact that one's replacement is 
of another national origin 'may help to raise an inference of discrimination, [but]
 it is neither a sufficient nor a necessary condition.'"  Nieto v. L&H Packing Co.,
 108 F.3d 621, 624 n.7 (5th Cir. 1997) (citation omitted). 
     Similarly, in the context of the ADEA, this Court has explicitly held that a
plaintiff need not show that a similarly situated younger employee was given
preferential treatment if she can offer other evidence of discriminatory motivation. 
See Palasota, 342 F.3d at 575 ("Our reading of the record and the district court's
opinions convinces us that it erred by . . . holding that [plaintiff] was required 
to show that a younger employee was given preferential treatment."); Brown v. CSC
Logic, Inc., 82 F.3d 651, 656-57 (5th Cir. 1996) (plaintiff, whose position was
terminated and who was unable to show that younger employees were treated more
favorably, established prima facie case through age-related comments).  All that 
is required is some showing that gives rise to an inference of discrimination. 
 See, e.g., Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993) 
(fourth element of prima facie case can be satisfied by showing plaintiff was 
"otherwise discharged because of his age").  
     The district court minimized the applicability of this Court's holdings in 
age discrimination cases by stating that the prima facie elements of Title VII 
differ from those under the ADEA.  The district court relied on Bauer v. Albermarle
 Corp., 169 F.3d 962, 966 (5th Cir. 1999), for the proposition that the elements of
 a prima facie case under Title VII and the ADEA differ.  While this decision does 
set forth a different prima facie case for the ADEA and Title VII, nothing in that 
case suggests that the elements set forth are the only way to prove discrimination 
under those statutes.  Thus, nothing in Bauer contradicts the premise that there 
are many ways for a plaintiff to establish a prima facie case of discrimination 
under both Title VII and the ADEA.  Indeed, as shown earlier, this Court has 
emphasized that the prima facie case is flexible and should be adapted to the
 facts of the case at hand under both Title VII and the ADEA.  
     This Court should take this opportunity to reaffirm the principle of
flexibility in Title VII cases and explicitly apply the reasoning of Palasota to 
Title VII.  In Title VII as in ADEA cases, the purpose of the fourth element of 
the prima facie case is simply "to identify actions taken by the employer from 
which one can infer, if such actions remain unexplained, that it is more likely 
than not that such actions were based on a discriminatory criterion illegal under 
the Act." Byrd v. Roadway Express, Inc., 687 F.2d 85, 86 (5th Cir. 1982) (citations
 and internal quotations omitted).  Title VII and the ADEA prohibit disparate 
treatment in identical terms.  Compare 42 U.S.C. 2000e-2(a) (it is unlawful for
 an employer "to fail or refuse to hire or to discharge any individual, or 
otherwise to discriminate against any individual with respect to his compensation,
 terms, conditions, or privileges of employment, because of such individual's 
race, color, religion, sex, or national origin") with 29 U.S.C. 623(a) (it is
 unlawful for an employer "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 privileges of employment, because of 
such individual's age").  Therefore, the requirements for establishing a prima
 facie case should be the same under both statutes.  See, e.g., Guthrie v. Tifco 
Indus., 941 F.2d 374, 376 (5th Cir. 1991) ("The elements of a Title VII case, as
 set forth in McDonnell-Douglas . . . apply to suits arising under the ADEA."); 
Elliott v. Group Med. & Surgical Serv., 714 F.2d 556, 565 n.11 (5th Cir. 1983) 
("We recognize that McDonnell Douglas, supra, involves a Title VII action.
However, the analysis of Title VII cases has been applied to ADEA cases given the
common purpose of the statutes and their nearly identical substantive provisions."). 
The district court offered no reason for creating different evidentiary standards 
to establish an inference of discrimination under the two statutes.
     Other circuits have specifically concluded that a plaintiff need not
 establish that a similarly situated employee was treated differently to 
satisfy the requirements of a Title VII prima facie case.  In a recent First
 Circuit opinion, the court explained why such a requirement collapses the
 McDonnell Douglas burden-shifting framework:
     We [have] explicitly rejected the notion that plaintiffs in disparate
     treatment cases are required to demonstrate that they were treated
     differently as part of their prima facie case. . . . Rather, we [have] held
     that '[T]he time to consider comparative evidence in a disparate
     treatment case is at the third step of the burden-shifting ritual, when the
     need arises to test the pretextuality vel non of the employer's articulated
     reason for having acted adversely to the plaintiff's interests.'

Kosereis v. Rhode Island, 331 F.3d 207, 213 (1st Cir. 2003) (quoting Conward v.
Cambridge Sch. Comm., 171 F.3d 12, 19 (1st Cir. 1999)).  
     The Tenth Circuit has also concluded that a Title VII plaintiff "can satisfy
the fourth element of her prima facie case in a number of ways."  EEOC v.
Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1194 n.6 (10th Cir. 2000).  That
Court made clear that "[n]othing in the case law in this circuit requires a 
plaintiff to compare herself to similarly-situated co-workers to satisfy the 
fourth element of her prima facie case."  Id. Other appellate courts have reached 
the same conclusion.  See McGuinness v. Lincoln Hall, 263 F.3d 49, 54 n.2 (2d Cir.
 2001) ("a Title VII plaintiff may establish a prima facie case of discrimination
 in a number of different ways depending on the specific facts of a given case" 
and the case law "does not require that a plaintiff always be able to show disparate
treatment of an otherwise similarly situated employee as a necessary prerequisite 
to a prima facie case under Title VII"); Herrero v. St. Louis Univ. Hosp., 109 F.3d
 481, 483-84 (8th Cir. 1997) (stating that fourth element of prima facie case requires
 plaintiff to "produce some additional evidence that a prohibited criterion such as 
age, race, or ethnic origin was a factor in [plaintiff's] termination"); Peterson v.
 Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004) (stating that fourth element 
of prima facie case requires showing that "similarly situated individuals outside his 
protected class were treated more favorably, or other circumstances surrounding the 
adverse employment action give rise to an inference of discrimination" (emphasis added)); 
see also Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 357 (3d Cir. 1999) ("We 
[have] held [in an ADA case] that a plaintiff could make out a prima facie case even 
without demonstrating that employees outside of the relevant class were treated more
 favorably, let alone that the plaintiff herself was replaced by someone outside of 
the relevant class.").
     The district court erred, then, in requiring the plaintiff to show that similarly 
situated employees were treated more favorably.  This Court's precedent makes it clear
 that such an offer of proof is one of the ways in which a plaintiff can demonstrate a
 prima facie case of discrimination.  The law is equally clear,
however, that it is not the only way to show discrimination. 

               

                            CONCLUSION            
     The district court erred in requiring a Title VII plaintiff to show that a
similarly situated individual of a different race or sex was treated more favorably
 to establish a prima facie case of discrimination.  The similarly situated requirement
 has been rejected by the Supreme Court and this Court in many
contexts, and should be rejected in this case as well.  
                                        Respectfully submitted,
     
                                   ERIC S. DREIBAND         
                                   General Counsel                         
                                         
                                   CAROLYN L. WHEELER  
                                   Acting Associate General Counsel
                                        
                                   _________________________
                                   JOSEPH A. SEINER    
                                   Attorney                 
                                   Equal Employment         
                                        Opportunity Commission   
                                   Office of General Counsel     
                                   1801 L Street, N.W., Room 7020
                                   Washington, D.C. 20507
                                   (202) 663-4772
                    

                              

                              
                    CERTIFICATE OF COMPLIANCE
     I certify that this brief complies with the type-volume limitation set forth 
in Fed. R. App. P. 29(d) and 32(a)(7)(B).  This brief contains 3839 words.  See 
Fed. R. App. P. 29(d) and 32(a)(7)(B)(i).  The brief was prepared using the
 WordPerfect 9 processing system, in 14-point proportionally spaced Times New
Roman type for text and 14-point Times New Roman type for footnotes.  See Fed. 
R. App. P. 32(a)(5).
                                        
                                        _____________________
                                            JOSEPH A. SEINER
               
May 27, 2004

                         

                                        

                     CERTIFICATE OF SERVICE
     I, Joseph A. Seiner, hereby certify that on the 27th day of May, 2004, I
caused: (1)  copies of the attached brief; (2) a diskette containing the brief in an 
Adobe Acrobat PDF format; and (3) a copy of my appearance form to be sent via
first-class U.S. mail to:

Clerk of Court         Susan Motley                    Ann Marie Painter   
U.S. Court of Appeals       Gillespie, Rozen, Watsky   Littler Mendelson 
for the Fifth Circuit         & Motley            2001 Ross Avenue
600 Camp Street              3402 Oak Grove Avenue     Suite 2600
New Orleans, LA 70130        Suite 200                 Dallas, TX 75201
                        Dallas, TX 75204          Attorneys for Appellee
                        Attorneys for Appellant
                                                                        
                                                  
                                                       

                              __________________________
                              JOSEPH A. SEINER    
                              Attorney                 
                              Equal Employment              
                                   Opportunity Commission        
                              Office of General Counsel     
                              1801 L Street, N.W., Room 7020
                              Washington, D.C. 20507
                              (202) 663-4772      
                                   

May 27, 2004