J. R. Ridgley Wyvill and Gerald W. Waldrop v. United Companies Life Insurance
Company
 98-30287


 IN THE UNITED STATES COURT OF APPEALS
 FOR THE FIFTH CIRCUIT
 _________________________________________

 No. 98-30287
 _________________________________________

 J.R. RIDGLEY WYVILL and
   GERALD W. WALDROP,
   Plaintiffs-Appellees-Cross-Appellants,

 v.

 UNITED COMPANIES LIFE
   INSURANCE COMPANY, et al.,
   Defendants-Appellants-Cross-Appellees.
 _________________________________________

 On Appeal from the United States District Court
 for the Middle District of Louisiana
 _________________________________________

 Brief of the Equal Employment Opportunity Commission
 as Amicus Curiae in Support of Petition for Rehearing En Banc
 _________________________________________


 C. GREGORY STEWART   DORI K. BERNSTEIN
 General Counsel     Attorney

 PHILIP B. SKLOVER    EQUAL EMPLOYMENT
 Associate General Counsel     OPPORTUNITY COMMISSION
        Office of General Counsel
 CAROLYN L. WHEELER   1801 L Street, N.W. - Room 7046
 Assistant General Counsel   Washington, D.C.  20507
        (202)663-4734
 FED. R. APP. P. 35(b)(1)

 STATEMENT

  Pursuant to Fed. R. App. P. 35(b)(1)(A), I express a belief, based on a
  reasoned and studied professional judgment, that the panel decision is
  contrary to the following decision of the Supreme Court of the United
  States, and that consideration by the full Court is therefore necessary
  to secure and maintain uniformity of decisions in this Court:
 Reeves v. Sanderson Plumbing Products, Inc., 2000 WL 743663 (June 12,
 2000).

        _____________________________
        Dori K. Bernstein
        Attorney
        Equal Employment Opportunity
          Commission       TABLE OF CONTENTS
 Page

 FED. R. APP. P. 35(b)(1) STATEMENT i

 TABLE OF CONTENTS ii

 TABLE OF AUTHORITIES iii

 STATEMENT OF INTEREST 1

 STATEMENT OF THE ISSUE 2

 STATEMENT OF FACTS 2

 PANEL OPINION 9

 ARGUMENT 12

 THE PLAINTIFFS' PRIMA FACIE CASE, COUPLED WITH EVIDENCE DISCREDITING
 UNITED COMPANIES' PROFFERED EXPLANATIONS FOR FIRING THEM, IS SUFFICIENT
 TO
  SUSTAIN THE JURY'S VERDICT OF AGE DISCRIMINATION. 12

 CONCLUSION 21

 CERTIFICATE OF COMPLIANCE 22

 CERTIFICATE OF SERVICE 23

 TABLE OF AUTHORITIES
 Page
 Cases

 Furnco Construction Corp. v. Waters,
   438 U.S. 567 (1978) 19

 Hazen Paper v. Biggins,
   507 U.S. 604 (1993) 17

 McDonnell Douglas Corp. v. Green,
   411 U.S. 792 (1973) 18, 19, 20

 O'Connor v. Consolidated Coin Caterers Corp.,
   517 U.S. 308 (1996) 16

 Patterson v. McLean Credit Union,
   491 U.S. 164 (1989) 18

 Reeves v. Sanderson Plumbing Products, Inc.
   2000 WL 743663 (June 12, 2000) passim

 Texas Dept. of Community Affairs v. Burdine,
   450 U.S. 248 (1981) 19

 U.S. Postal Service Bd. of Govs. v. Aikens,
   460 U.S. 711 (1983) 19, 20

 Wyvill v. United Companies Life Insurance Co.,
   2000 WL 621305 (5th Cir., May 31, 2000) passim

 Statutes

 Age Discrimination in Employment Act,
   29 U.S.C.  621 et seq. 1


 Rules

 Fed. R. App. P. 29(a) 1

 Fed. R. App. P. 29(d) 22

 Fed. R. App. P. 32(a)(5) 22

 Fed. R. App. P. 32(a)(7)(B) 22

 Fed. R. App. P. 35(b)(1)(A) i

 Fed. R. Civ. P. 50 1, 12, 13, 14, 18

 Fifth Cir. Rule 32.1 22

 STATEMENT OF INTEREST

  The Equal Employment Opportunity Commission ("EEOC") is the federal
  agency charged with interpreting and enforcing the Age Discrimination
  in Employment Act ("ADEA"), 29 U.S.C.  621 et seq., and other federal
  laws barring employment discrimination.  As a United States government
  agency, the EEOC is authorized to file an amicus curiae brief "without
  the consent of the parties or leave of court."  Fed. R. App. P. 29(a).
  In these consolidated ADEA suits, a panel of this Court reversed
  the jury's verdict holding United Companies<1> liable for willful age
  discrimination in firing Gerald Waldrop and Ridgley Wyvill.  See Wyvill
  v. United Companies Life Insurance Co., 2000 WL 621305 (5th Cir., May
  31, 2000).  In ruling that the evidence was insufficient to support
  the verdict, the panel applied the same flawed analysis that the
  Supreme Court has since unanimously disapproved in Reeves v. Sanderson
  Plumbing Products, Inc., 2000 WL 743663 (June 12, 2000).  The Supreme
  Court in Reeves clarified the nature of proof required to sustain a
  jury's finding of age discrimination, and the standard of review under
  Fed. R. Civ. P. 50 for judgment as a matter of law.  Because the full
  Court's application of this recent Supreme Court precedent will have
  a significant impact on the EEOC's enforcement efforts, we offer our
  views to the Court.

 STATEMENT OF THE ISSUE

  Whether plaintiffs' prima facie proof of age discrimination, coupled
  with evidence discrediting United Companies' proffered explanations
  for firing them, is sufficient to sustain the jury's verdict of willful
  age discrimination?

 STATEMENT OF FACTS<2>

  Ridgley Wyvill and Gerald Waldrop worked as managers for subsidiaries
  of United Companies.  Waldrop was branch manager of United Companies
  Lending Corporation in Dalton, Georgia from 1983 until he was fired
  in January 1993, at age 47.  Wyvill was hired by United Companies
  in 1978, and managed the credit life department of United Companies
  Life Insurance Company in Baton Rouge, Louisiana from 1980 until his
  dismissal in February 1993, at age 53.  See Wyvill v. United Companies
  Life Insurance Co., 2000 WL 621305, *1-*3 (5th Cir., May 31, 2000).
  Waldrop was replaced by assistant manager Sandy Stafford, who was
  under 40.  T.Vol.I, p114.  Wyvill's supervisory duties were assumed by
  his younger assistant, Margaret Moon, then 33 years old.  See T.Vol.II,
  p242.
  Wyvill and Waldrop sued United Companies, claiming they were discharged
  because of age in violation of the ADEA.  United Companies denied that
  age was a factor in either termination, and asserted that Waldrop was
  fired for abusive treatment of employees and customers, and Wyvill was
  fired because he had made disruptive phone calls.  See RE, Ex.I, p2.
  At trial, Waldrop and Wyvill sought to discredit the proffered reasons
  for their terminations, and presented "extensive evidence that they
  were well-qualified for their respective jobs and that they had achieved
  considerable success" at United Companies.  Wyvill, at *9.
  According to Wyvill, the phone calls that purportedly led to his
  discharge were made at the behest of  Tee Brown, Jr., son of Terrell
  Brown, Sr., the CEO of United Companies.  See id. at *2.  Wyvill
  testified that Tee Brown asked him to investigate an underground
  company newspaper (the "Unlink"), which was critical of management.
  Wyvill's testimony was corroborated to some extent by the testimony of
  Tee Brown, who "admitted that, in a conversation with Wyvill, he had
  made a passing reference to a situation in the Tennessee office that
  was reported in the . . . 'Unlink,' but denied ever having asked Wyvill
  to investigate the matter."  RE, Ex.I, p7.  Following his conversation
  with Tee Brown about the "Unlink," Wyvill called Carl Scott, branch
  manager of United Companies' Nashville office, and Sandy Stafford,
  Waldrop's assistant manager.  Id., pp7-8; Wyvill, at *2.
  Scott and Stafford complained to upper management about the calls. Senior
  managers learned from office telephone records that Wyvill had also
  called several disgruntled former employees.  Id. at *2-*3.  Management
  met with Wyvill on February 1, 1993, and asked for an explanation.
  Wyvill testified that, out of loyalty to Tee Brown, he did not mention to
  his superiors Brown's request to investigate the "Unlink."  Wyvill was
  fired on the spot, ending 15 years of previously successful employment
  with United Companies.  Id. at *3; RE, Ex.I, p8.
  Prior to his discharge, Wyvill had received positive performance
  evaluations from his supervisors.  Id.  Wyvill presented evidence that
  following his termination, CEO Brown, Sr. discovered that his son had
  induced Wyvill to make the calls, and paid Wyvill $5,000 to "leave
  quietly."  Wyvill, at *3; RE, Ex.I, p8.  Although United Companies
  asserted that Wyvill's position was eliminated shortly after he was
  fired, Wyvill's evidence showed that his former assistant, twenty years
  his junior, effectively replaced him.  Id.
  With respect to Waldrop, who was purportedly fired for abusive conduct,
  United Companies presented the testimony of employees and customers
  who described Waldrop's foul language and temperamental personality.
  Four employees who worked under Waldrop's supervision (Stafford,
  Pam McMilllan, Cheryl Welch, and Pat Little) testified that he "used
  foul language in the office and could be temperamental," and Welch
  and McMillan cited his behavior in post-resignation letters.  RE,
  Ex.I, p8.  Three former customers testified that Waldrop "used foul
  language in discussing their accounts."  Id.  There was also evidence
  that Waldrop had a long-running contentious relationship with his
  immediate supervisor, D.C. Brantley, and that Brantley had complained
  to management of Waldrop's insubordination.  See Wyvill, at *1-*2.
  Although such conduct and complaints certainly could have furnished
  ample justification to fire Waldrop, other evidence indicated that
  Waldrop's foul language and difficult personality were not the true
  reasons for his discharge.  See RE, Ex.I, pp8-9.  Under Waldrop's
  management, his "office had an exemplary record of performance and low
  employee turnover."  Id., p8.  In fact, Waldrop was often called upon
  to train new employees, and "several of his assistant branch managers
  became successful managers of their own branches."  Wyvill, at *2.
  Waldrop and "his branch were consistently among the top ten performers
  in the Lending Company, in terms of quantity and profitability of the
  loans produced."  Id.
  D.C. Brantley, Waldrop's immediate supervisor, testified that none
  of Waldrop's staff had ever complained to him about Waldrop's verbal
  abuse or inappropriate language, and "he had no idea that Waldrop was
  being fired for such conduct."  RE, Ex.I, p8.  Furthermore, two of the
  employees who complained of Waldrop's mistreatment at trial (Stafford
  and McMillan) visited him at home after his discharge, "Stafford to ask
  for his blessing in succeeding him as branch manager, and McMillan to
  show him her grandchild." Wyvill, at *2.  According to Waldrop, "these
  visits were not the actions of employees afraid of or antagonized by an
  abusive and rude boss."  Id.   Waldrop also provided evidence that United
  Companies did not fire Dwayne Burks, a branch manager in his thirties,
  who was "abusive and rude" to his subordinates and had "significant
  employee turnover" in the offices he supervised.  Id. at *7.
  Conflicting evidence about a six-week paid leave of absence Waldrop
  took in 1991 cast further doubt on the veracity of United Companies'
  proffered explanation for his discharge.  Waldrop maintained that
  he required medical leave to treat health problems associated with
  diabetes.  Id. at *1. Waldrop's personnel file corroborates that he
  took leave for health reasons.  RE, Ex.I, p9.  Both the two supervisors
  who approved the leave (Brantley and Joe Phillips), and the employees
  Waldrop supervised (Stafford and McMillan), likewise recalled that the
  six-week paid leave was health-related and not a disciplinary action.
  See id.  Only Bill Spann, United Companies' Human Resources ("HR")
  Representative, testified in support of the company's contention that
  "the leave was necessitated by Waldrop's problems in the office and
  with his supervisor."  Wyvill, at *1; see RE, Ex.I, p9.
  In addition to the evidence tending to discredit United Companies'
  proffered explanations for firing Wyvill and Waldrop, three former
  managers (Joe Phillips, Gerald Cooke, and Jim Davis) provided "damning
  testimony" that CEO Terrell Brown "instituted a policy of ridding United
  Companies of its older employees."  Id.  Davis testified that Brown, Sr
  "`felt that . . . the world had passed [some of the older employees]
  by, that [the older employees] were just too old to get the job done,
  and that we should either find another position for them or terminate
  them.'"  Wyvill, at *7.  Phillips testified that in the early 1990s,
  Brown, Sr. "`told me that he wanted the company to be mean and lean,
  and he wanted to go to a young, aggressive group of people,'" and
  that Brown, Sr. "generally wanted to 'get rid of the people that were
  [currently employed at United Companies] so that we can make more money,
  be more aggressive, more productive.'"  Id.  According to Cooke, Brown,
  Sr. "wished [the older men in corporate headquarters] would go away so
  that [Brown, Sr.] could get some new blood in the company."  Id.
  Phillips further testified that "he and [HR Representative] Bill Spann
  discussed a plan to carry out Terrell Brown's policy."  RE, Ex.I, p9.
  Both Spann and Phillips were directly involved in the decisions to
  fire Wyvill and Waldrop, as well as the terminations of other former
  employees who presented anecdotal evidence of age discrimination.
  See Wyvill, at *2 (Spann and Phillips "decided to terminate Waldrop");
  id. at *3 (Phillips and Spann participated in firing Wyvill at February
  1, 1993 meeting); id. at *5-*6 (noting Spann's and Phillips' involvement
  in terminations of other older managers).  Evidence that "a number of
  middle management employees over the age of forty had been terminated
  during the relevant time period" supported plaintiffs' theory that
  "Wyvill and Waldrop were terminated as a result of an age-based policy
  emanating from top management."  RE, Ex.I, pp9-10.
  At the close of evidence, the district court denied United Companies'
  motion for judgment as a matter of law and submitted the case to
  the jury.  See id., p7.  The court instructed the jury that in order
  to prevail, each plaintiff was required to prove that "age was a
  determinative factor in [United Companies'] decision to terminate
  him." See id., p6 and n.3. The jury found that United Companies had
  willfully discriminated against Waldrop and Wyvill because of age,
  and awarded backpay.  Wyvill, at *3.
  The district court denied United Companies' renewed motion for judgment
  as a matter of law.  Upon review of the "key evidence that the jury
  evaluated reaching its verdict," see RE, Ex.I, pp7-10, the court
  concluded that "there was a sound evidentiary basis supporting each
  plaintiff's claim for willful discrimination."  Id., p10.  Viewing the
  evidence most favorably to Waldrop and Wyvill, as required under
  Fed. R. Civ. P. 50, see id., pp5-6, the court stated:
 A reasonable jury could have concluded that Terrell Brown desired to
 rid United Companies of its older employees based on the testimony
 of a number of older, former employees.  A reasonable jury could have
 concluded that Wyvill's transgressions were too minor to form the basis of
 a termination, especially in light of his positive reviews.  A reasonable
 jury could have concluded that Waldrop's difficult personality was not
 the genuine reason for his termination, when considered in view of the
 other evidence relating to his job performance and his leave of absence.
 In sum, the jury could have believed that Defendants concocted reasons
 for terminating these two individuals in order to disguise an age-based
 discriminatory motive.

 Id.  The court entered judgment on the verdict, and awarded liquidated
 damages, front pay (to Wyvill), interest, and attorneys' fees.
 See Wyvill, at *3.

 PANEL OPINION

   A panel of this Court reversed the jury's verdict and held that United
   Companies was entitled to judgment as a matter of law.  Wyvill, at *9.
   In deciding the "critical issue" of "whether Waldrop and Wyvill
   produced sufficient evidence that United Companies' explanation for
   their discharges was merely a pretext for age discrimination," the
   panel acknowledged that "plaintiffs' evidence may have cast doubt on
   the proffered explanations for their firing or on the soundness of the
   company's business decision," but held such evidence "insufficient to
   show that the real reason was age discrimination."  Id. at *4.  The
   panel rejected plaintiffs' other evidence as irrelevant, insufficiently
   probative, or unduly prejudicial, and concluded that "[s]horn of  this
   . . . irrelevant evidence, the judgment cannot stand."  Id. at *1.
  In the panel's view, the district court had abused its discretion in
  admitting "anecdotal testimony from and about other employees" who were
  terminated by United Companies under circumstances suggesting a pattern
  of age discrimination because these individuals "held different jobs than
  [Waldrop or Wyvill], executed different duties, and were accountable
  to different supervisors," and their "unrelated contention[s] of age
  discrimination . . . substantially prejudiced United Companies.  Id. at
  *5-*6.  The panel held that United Companies' more favorable treatment
  of Dwayne Burks, the younger supervisor whose abusive treatment of his
  employees was comparable to the conduct for which Waldrop was supposedly
  fired, was not evidence of age discrimination because the circumstances
  surrounding Burks and Waldrop were not "nearly identical." Id. at *7.
  In the panel's view, evidence that "United Companies supervisors violated
  their own standard employee disciplinary procedures" in an effort to
  "`build a file' on older workers," which was then "used as a fig-leaf to
  cover any illegal employment actions," was irrelevant absent "any nexus
  between plaintiffs' allegation of file-building and their ages."  Id.
  The panel also discounted the probative value of testimony by three
  former managers (Phillips, Davis, and Cooke) that CEO Terrell Brown,
  Sr. had indicated on several occasions that he favored replacing
  older employees with a younger workforce.  Despite evidence that
  Brown, Sr., as well as Phillips, had participated in the decisions to
  terminate Waldrop and Wyvill, the panel characterized his comments as
  "stray remarks" that were "insufficient to create an inference of age
  discrimination." Id. at *7. "In order for an age-based comment to be
  probative of an employer's discriminatory intent," the panel ruled, "it
  must be direct and unambiguous, allowing a reasonable jury to conclude
  without any inferences or presumptions that age was a determinative
  factor in the decision to terminate the employee."  Id.
  Finally, the panel concluded, "[t]he remaining evidence introduced by
  plaintiffs might have been sufficient to cast doubt on United Companies'
  proffered explanations for plaintiffs' discharges, but it did nothing to
  raise an inference that the real reasons for the discharges were related
  to age. . . . [E]ven assuming the truth of [plaintiffs'] allegations,
  they allow at best an inference that United Companies' proffered
  explanations for the discharges were false."  Id. at *9.  The panel
  further reasoned that "[t]his evidence notably fails to connect the
  plaintiffs' discharges to their ages, and it therefore does not permit
  an inference that age was a motivating factor in the terminations."  Id.

 ARGUMENT

 THE PLAINTIFFS' PRIMA FACIE CASE, COUPLED WITH EVIDENCE DISCREDITING
 UNITED COMPANIES' PROFFERED EXPLANATIONS FOR FIRING THEM, IS SUFFICIENT
 TO SUSTAIN THE JURY'S VERDICT OF AGE DISCRIMINATION.

  Less than two weeks after the panel issued its opinion in this case,
  the Supreme Court, in a unanimous decision, clarified the nature of
  proof required to sustain a jury's finding of age discrimination, and
  the standard of review under Fed. R. Civ. P. 50 for granting judgment
  as a matter of law.  Reeves v. Sanderson Plumbing Products, Inc., 2000
  WL 743663 (June 12, 2000).  The Supreme Court in Reeves held that "a
  plaintiff's prima facie case, combined with sufficient evidence to find
  that the employer's asserted justification" for a challenged employment
  action "is false, may permit the trier of fact to conclude that the
  employer unlawfully discriminated."  Id. at *9.  A panel of this Court,
  the Supreme Court ruled, had incorrectly "proceeded from the assumption
  that a prima facie case of discrimination, combined with sufficient
  evidence for the trier of fact to disbelieve the defendant's legitimate,
  nondiscriminatory reason for its decision, is insufficient as a matter of
  law to sustain a jury's finding of intentional discrimination," and thus
  "misconceived the evidentiary burden borne by plaintiffs who attempt to
  prove intentional discrimination through indirect evidence."  Id. at *8.
  Contrary to this Court's reasoning, the Supreme Court recognized that
  "[p]roof that the defendant's explanation" for a challenged employment
  action "is unworthy of credence is simply one form of circumstantial
  evidence that is probative of intentional discrimination, and it may
  be quite persuasive."  Id. at *9. Consistent with general principles of
  evidence law, the trier of fact in "appropriate circumstances . . . can
  reasonably infer from the falsity of the explanation that the employer
  is dissembling to cover up a discriminatory purpose."  Id.  "[O]nce the
  employer's justification has been eliminated," the Court explained,
  "discrimination may well be the most likely alternative explanation,
  especially since the employer is in the best position to put forth
  the actual reason for its decision."  Id. "[B]ecause a prima facie
  case and sufficient evidence to reject the employer's explanation
  may permit a finding of liability," the Supreme Court reasoned,
  "the Court of Appeals erred in proceeding from the premise that a
  plaintiff must always introduce additional, independent evidence of
  discrimination." Id. at *10.
  The Supreme Court further held that in reversing the jury's verdict,
  this Court had "misapplied the standard of review" for judgment
  as a matter of law under Fed. R. Civ. P. 50; "disregarded critical
  evidence favorable to [Reeves] - namely, the evidence supporting [his]
  prima facie case and undermining [his employer's] nondiscriminatory
  explanation"; improperly "failed to draw all reasonable inferences
  in favor of [Reeves]"; and "impermissibly substituted its judgment
  concerning the weight of the evidence for the jury's."  Id. at *12.
  The Supreme Court concluded that because Reeves had "established a
  prima facie case of discrimination, introduced enough evidence for
  the jury to reject [Sanderson's] explanation, and produced additional
  evidence of age-based animus, there was sufficient evidence for the
  jury to find that [Sanderson] had intentionally discriminated."<3>
  Id. at *13.  The case was therefore properly submitted to the jury,
  and this Court had "erred in overturning its verdict."  Id.
  The Supreme Court in Reeves thus unanimously reaffirmed the probative
  value of circumstantial evidence in proving intentional discrimination,
  the critical role of the jury in deciding whether such evidence
  demonstrates unlawful discrimination, and the limited nature of judicial
  review under Rule 50 in assessing evidentiary sufficiency.  The panel's
  decision in this case is premised on the same erroneous legal analysis
  and improper standard of review that led a unanimous Supreme Court
  to reverse in Reeves.  In this case, as in Reeves, a panel of this
  Court held that evidence casting doubt on the veracity of an employer's
  explanation for a challenged discharge, together with evidence supporting
  a prima facie case, was insufficient to support a reasonable inference
  that the firing was impermissibly motivated by age.<4>  In each case,
  moreover, the panel, based on its own view of the evidence, reversed a
  jury verdict of willful age discrimination and ruled that the employer
  was entitled to judgment as a matter of law.  Given the similarity in
  the legal analysis, standard of evidentiary review, and result reached
  by this Court in both Reeves and Wyvill, the Supreme Court's unanimous
  reversal in Reeves requires this Court to vacate the panel opinion and
  reinstate the judgment sustaining the jury's verdict.
  Wyvill and Waldrop each presented a prima facie case of age
  discrimination:  Both men were in the statutorily protected age group
  (Wyvill was 53; Waldrop was 47) when they were fired; both presented
  "extensive evidence that they were well-qualified for their respective
  jobs and that they had achieved considerable success," Wyvill, at *9; and
  each presented evidence that he was replaced by a significantly younger
  employee.  See Reeves, at *5 (summarizing prima facie evidence); see also
  O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 313 (1996)
  (evidence that "replacement is substantially younger than the plaintiff"
  is a "reliable indicator of age discrimination").  As the panel (and
  the trial court) recognized, Wyvill and Waldrop also presented evidence
  "sufficient to cast doubt on United Companies' proffered explanations
  for [their] discharges" and to "allow . . . an inference that United
  Companies' proffered explanations for the discharges were false."
  Wyvill, at *9; see also RE, Ex.I, pp7-8 (summarizing evidence from
  which reasonable jury could have concluded that "explanation for
  [Wyvill's] termination was pretextual and manufactured by United
  Companies to conceal that it terminated [him] because of his age");
  id., pp9-10 (evidence of Waldrop's performance and conflicting accounts
  concerning leave of absence would permit reasonable jury to conclude
  "that Waldrop's difficult personality was not the genuine reason for
  his termination"). Yet the panel held that this evidence "did nothing
  to raise an inference that the real reasons for the discharges were
  related to age."  Wyvill, at *9.
  The decision in Reeves establishes that the panel's holding is
  manifestly incorrect.  Under the Supreme Court's ruling, "[p]roof that
  [United Companies'] explanation [for firing Waldrop and Wyvill] is
  unworthy of credence . . . is probative of intentional discrimination,
  and it may be quite persuasive."  Reeves, at *9.  As the Supreme Court
  recognized, "once [United Companies'] justification has been eliminated,
  discrimination may well be the most likely alternative explanation,
  especially since [United Companies] is in the best position to put forth
  the actual reason for its decision[s]."  Id.  The jury was properly
  instructed that in order to prevail, Wyvill and Waldrop were required
  to show that age was a determinative factor in their terminations,
  see Hazen Paper v. Biggins, 507 U.S. 604, 610 (1993), and reached a
  verdict of willful age discrimination on both claims.  The verdicts
  of willful age discrimination thus suggests that the jury found the
  pretext evidence "quite persuasive," and elected to draw an inference
  that the law plainly allows.
  In evaluating the sufficiency of the evidence to support these verdicts,
  the panel was required to "draw all reasonable inferences in favor
  of [Waldrop and Wyvill]," and was not entitled to "make credibility
  determinations or weigh the evidence."  Reeves, at *11.  As in Reeves,
  the panel in this case "disregarded critical evidence favorable
  to [Waldrop and Wyvill] -- namely, the evidence supporting [their]
  prima facie case and undermining [United Companies'] nondiscriminatory
  explanation," improperly "failed to draw all reasonable inferences in
  favor of [Wyvill and Waldrop]," and thus "misapplied the standard of
  review dictated by Rule 50."  Id. at *12.
  In rejecting each category of evidence Waldrop and Wyvill offered
  to demonstrate age discrimination, moreover, the panel impermissibly
  weighed the evidence and effectively denied them any opportunity to prove
  discrimination circumstantially.  The Supreme Court has consistently made
  clear that a plaintiff seeking to demonstrate unlawful discrimination
  "is not limited to presenting evidence of a certain type," because proof
  of pretext "may take a variety of forms."  Patterson v. McLean Credit
  Union, 491 U.S. 164, 187 (1989).  "Especially relevant to such a showing"
  is evidence that the rule or criterion cited by the employer to explain
  its decision was applied in a discriminatory manner.  McDonnell Douglas
  Corp. v. Green, 411 U.S. 792, 804 (1973).  "Other evidence that may be
  relevant to any showing of pretext includes facts as to the [employer's]
  treatment of [the plaintiff] during his . . . term of employment," id.,
  including discriminatory remarks or instances of harassment or abuse
  by individuals responsible for the challenged employment decision.
  See Patterson, 491 U.S. at 188; see also U.S. Postal Service Bd. of
  Govs. v. Aikens, 460 U.S. 711, 713-14 n.2 (1983) (citing "numerous
  derogatory comments about blacks in general and Aikens in particular"
  as evidence that would support finding of race discrimination).
  Proof of the employer's "general policy and practice" with respect to
  employment of older individuals (in an ADEA case), including statistical
  evidence, "may be helpful" in demonstrating pretext, but statistics
  "may not be in and of themselves controlling as to an individualized
  [employment] decision."  McDonnell Douglas, 411 U.S. at 804-05 & n.19;
  see also Furnco Construction Corp. v. Waters, 438 U.S. 567, 579-80
  (1978) (statistical proof of racially balanced work force "is not
  wholly irrelevant on the issue of intent," but cannot "conclusively
  demonstrate" absence of discriminatory motive).  Evidence challenging
  the factual accuracy of the proffered explanation, such as proof that
  the employer "misjudged the qualifications" of competing candidates
  or was otherwise mistaken in its decision, also "may be probative
  of whether the employer's reasons are pretexts for discrimination."
  Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981).
  The evidence rejected by the panel as "irrelevant" or not "probative"
  of age discrimination falls squarely into the categories approved
  by the Supreme Court.  The "anecdotal evidence" of discrimination
  offered by other older managers, and the testimony recounting CEO
  Brown's remarks regarding older employees, is probative of United
  Companies' "general policy and practice" with respect to older workers.
  See McDonnell Douglas, 411 U.S. at 804-05.  Brown's comments are also
  probative of discriminatory bias on the part of an individual with
  ultimate authority to establish company personnel policy, and who
  participated in the termination decisions.  See Aikens, 460 U.S. at
  713-14 n.2.  Waldrop's evidence that a younger branch manager who was
  similarly abusive to employees was disciplined less harshly demonstrates
  discriminatory application of the very criterion cited to explain his
  discharge, and is thus "[e]specially relevant" to show pretext. See
  McDonnell Douglas, 411 U.S. at 804.
  Finally, while "there will be instances where, although the plaintiff
  has established a prima facie case and set forth sufficient evidence
  to reject the defendant's explanation, no rational factfinder could
  conclude that the action was discriminatory," Reeves, at *9, the Supreme
  Court's illustrative examples clearly indicate such cases will be rare:
  "For instance, an employer would be entitled to judgment as a matter of
  law if the record conclusively revealed some other, nondiscriminatory
  reason for the employer's decision, or if the plaintiff created only
  a weak issue of fact as to whether the employer's reason was untrue
  and there was abundant and uncontroverted independent evidence that no
  discrimination had occurred."  Id. Neither the district court nor the
  panel identified any "other, nondiscriminatory reason" for firing Waldrop
  or Wyvill that was even suggested, let alone "conclusively revealed," by
  the trial record.  Nor did the record contain "uncontroverted independent
  evidence that no discrimination had occurred."  Id.  To the contrary,
  the anecdotal evidence that other older managers were subjected to
  discriminatory treatment, and the remarks made by CEO Terrell Brown, Sr.,
  strongly suggest, as the jury found, that discrimination had occurred.

 CONCLUSION

  Because the evidence was clearly sufficient to support the jury's
  finding that United Companies willfully discriminated against Wyvill
  and Waldrop because of age, the EEOC urges the full Court to vacate the
  panel opinion and reinstate the judgment entered on the jury verdict.
  Respectfully submitted,

  C. GREGORY STEWART  DORI K. BERNSTEIN
  General Counsel    Attorney

  PHILIP B. SKLOVER   EQUAL EMPLOYMENT
  Associate General Counsel    OPPORTUNITY COMMISSION
        Office of General Counsel
  CAROLYN L. WHEELER  1801 L Street, N.W. - Room 7046
  Assistant General Counsel  Washington, D.C.  20507
        (202)663-4734

 CERTIFICATE OF COMPLIANCE

  I certify that this brief complies with the type-volume limitation set
  forth in Fed. R. App. P. 32(a)(7)(B).  This brief contains 4,828 words.
  See Fed. R. App. P. 29(d).  The brief was prepared using the WordPerfect
  8 word-processing system, in 14-point proportionally spaced type for
  text and 12-point type for footnotes.  See Fed. R. App. P. 32(a)(5);
  Fifth Cir. Rule 32.1.
        __________________________
        DORI K. BERNSTEIN


 June 28, 2000

  CERTIFICATE OF SERVICE

  I, Dori K. Bernstein, certify that two copies of this Brief and a copy
  of the brief on a computer diskette were mailed, first class, postage
  prepaid, on this 28th day of June, to the following counsel of record:
      Mr. Donald W. Stewart
      1131 Leighton Avenue
      Anniston, Alabama  36207

      Mr. Ralph J. Zatzkis
      Mr. Timothy H. Scott
      Fisher & Phillips
      201 St. Charles Avenue - Suite 3710
      New Orleans, Louisiana  70170


        ___________________________
        DORI K. BERNSTEIN
        Attorney

        EQUAL EMPLOYMENT
          OPPORTUNITY COMMISSION
        Office of General Counsel
        1801 L Street, N.W., Room 7046


 1 Defendants United Companies Financial Corporation, and its
 subsidiaries United Companies Life Insurance Company and United
 Companies Lending Corporation, will be collectively referred to as
 "United Companies."

 2 The EEOC has not had an opportunity to review the full trial record.
 This factual statement is based primarily on the panel opinion and the
 district court's decision denying United Companies' post-trial motion
 for judgment as a matter of law.  See Record Excerpts of Appellants
 ("RE"), Exhibit ("Ex.") I.

 3 To support his claim of age discrimination, Reeves presented evidence
 that Sanderson's asserted reason for firing him - alleged inaccuracies
 in timekeeping records of employees under Reeves' supervision - were
 pretextual, see Reeves, at *6-*7, and that a manager who recommended
 Reeves' termination (and who was married to the company president)
 had treated Reeves worse than a younger supervisor, subjected him to
 increased scrutiny and harsher discipline, and directed age-related
 insults at him two months before his discharge.  Id. at *12.

 4 Compare Wyvill, at *4 ("while plaintiffs' evidence may have cast doubt
 on the proffered explanations for their firing or on the soundness of the
 company's business decision, it was insufficient to show that the real
 reason was age discrimination"); id. at *9 (evidence "might have been
 sufficient to cast doubt on United Companies' proffered explanations for
 plaintiffs' discharges, but it did nothing to raise an inference that the
 real reasons for the discharges were related to age"; evidence "allow[s]
 at best an inference that United Companies' proffered explanations for
 the discharges were false" but "notably fails to connect the plaintiffs'
 discharges to their ages and it therefore does not permit an inference
 that age was a motivating factor in the terminations"), with Reeves,
 at *4 (Court of Appeals "acknowledged that [Reeves] 'very well may' have
 offered sufficient evidence for 'a reasonable jury [to] have found that
 [Sanderson's] explanation for its employment decision was pretextual,"
 but nonetheless held evidence insufficient to sustain finding of age
 discrimination).