No. 07-16903
________________________________________

 IN THE UNITED STATES COURT OF APPEALS
 FOR THE NINTH CIRCUIT
 __________________________________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

 Plaintiff-Appellant,
 v.

THE BOEING CO.,

     Defendant-Appellee.
 _______________________________________________________

On Appeal from the United States District Court 
for the District of Arizona, No. 05-03034
 _______________________________________________________

BRIEF OF PLAINTIFF-APPELLANT
 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
 _______________________________________________________

RONALD S. COOPER		 	EQUAL EMPLOYMENT OPPORTUNITY
General Counsel	 				COMMISSION
                               Office of General Counsel
CAROLYN L. WHEELER		1801 L Street, N.W., Room 7042
Acting Associate General Counsel	Washington, D.C. 20507
                               (202) 663-4724		
LORRAINE C. DAVIS
Assistant General Counsel

ANNE NOEL OCCHIALINO	
Attorney


TABLE OF CONTENTS

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

STATEMENT OF THE ISSUES................................................ 1

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

     A. Nature of the Case and Course of Proceedings....................2

     B. Statement of the Facts ....................................     3

     C. District Court Opinion.......................................  24

SUMMARY OF ARGUMENT .................................................  29

STANDARD OF REVIEW ....................................................32

ARGUMENT ............................................................. 33

THIS COURT SHOULD REVERSE THE DISTRICT COURT'S GRANT OF 
SUMMARY JUDGMENT ON THE EEOC'S CLAIMS THAT CASTRON'S 
TRANSFER AND LAYOFF WERE BASED ON SEX DISCRIMINATION 
AND/OR RETALIATION AND THAT WREDE'S LAYOFF WAS THE 
RESULT OF SEX DISCRIMINATION. ................... .....................33

A.	Antonia Castron............................................... 34

     1. Sex Discrimination        .................................... 34

        a.  Transfer ..................................................34

        b.  Layoff.....................................................41
	
     2. Retaliation ...................................................44 

        a.  Transfer...................................................44

        b.  Layoff.....................................................47

B.	Renee Wrede .................................................. 48

CONCLUSION ........................................................... 60

STATEMENT OF RELATED CASES.............................................62

CERTIFICATE OF COMPLIANCE 

CERTIFICATE OF SERVICE


                              TABLE OF AUTHORITIES

                                  FEDERAL CASES

Abuan v. Level 3 Comm'n, Inc., 353  F.3d 1158 (10th Cir. 2003). . 27, 28, 54, 56

Bahri v. Home Depot, USA, Inc., 242 F. Supp. 2d 922 (D. Or. 2002). . . . . .  42

Burlington N. & Santa Fe Ry. v. White, 126 S. Ct. 2405 (2006). .  24, 26, 34, 45

Casillas v. United States Navy, 735 F.2d 338 (9th Cir. 1984). . . . . .   28, 51

Chuang v. Univ. of California Davis, 225 F.3d 1115 (9th Cir. 2000). . . . passim

Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095 (9th Cir. 2005). . . . . .   49

Connecticut v. Teal, 457 U.S. 440 (1980). . . . . . . . . . . . . . . . . .   38

Cordova v. State Farm Ins., 124 F.3d 1145 (9th Cir. 1997). . . . . . . .  35, 36

Davis v. Widnall, No. 97-15313, 1998 WL 856505 (9th Cir. Nov. 19, 1998). . .  43

Dominguez-Curry v. Nevada Transp. Dep't, 424 F.3d 1027 
	(9th Cir. 2005). . . . . . . . . . . . . . . . . .    35, 37, 39, 41, 42

Johnson v. Boys & Girls Club, 191 Fed.Appx. 541, 545 (9th Cir. July 6, 2006) .39

Fielder v. UAL Corp., 218 F.3d 973 (9th Cir. 2000), cert. granted and judgment 
vacated on other grounds, 536 U.S. 919 (2002). . . . . . . . . . . . . . . .   45

Miller v. Fairchild Indus., Inc., 885 F.2d 498 (9th Cir. 1989). . . . . .  45, 48

Nesbit v. Pepsico, Inc., 994 F.2d 703 (9th Cir. 1993). . . . . . . . . . . .   36

Nidds v. Schindler Elevator Corp., 113 F.3d 912 (9th Cir. 1997). . . . . . . . 36

Peterson v. Hewlett-Packard Co., 358 F.3d 599 (9th Cir. 2004). . . . . . . . . 37

Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000). . . . . . . . . . . . . . 44, 47

Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000). . . . . .   42, 49

Reynaga v. Sun Studs, Inc., 27 Fed. Appx. 740, 742 (9th Cir. Oct. 11, 2001)34, 46

Rose v. Wells Fargo & Co., 902 F.2d 1417 (9th Cir. 1990). . . . . . . . . .    59

Schnidrig v. Columbia Machine, Inc., 80 F.3d 1406 (9th Cir. 1996). . . . . .   33

St. John v. Employment Development Dep't, 642 F.2d 273 (9th Cir. 1981). . . .  34

Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). . . . . . . . .  50

Tomasso v. Boeing Co., 445 F.3d 702 (3d Cir. 2006). . . . . . . . . .  51, 52, 57

Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir. 2002). . . . . . 44

Winarto v. Toshiba America Elec. Components, Inc., 274 F.3d 1276 
	(9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Xin Liu v. Amway Corp., 347 F.3d 1125, 1136 (9th Cir. 2003). . . . . . . . . . 52

Yartzoff v. Thomas, 809 F.2d 1371 (9th Cir. 1987). . . . . . . . . . . .   45, 47


                         FEDERAL STATUTES

28 U.S.C.  1291 . . . . . . . . . . . . . . . . 1

28 U.S.C.  1331, 1345. . . . . . . . . . . .   1

42 U.S.C.  2000e-2, -3. . . . . . . . . . . .  2

42 U.S.C.  2000e-5. . . . . . . . . . . . . .   2

                             FEDERAL RULES

Fed. R. App. P. 4(a)(1). . . . . . . . . . . . . . 1

Fed. R. App. P. 32(a)(7)(B)(i). . . . . . . . . . 63

Fed. R. Civ. P. 54(b). . . . . . . . . . . . . .   1



                      STATEMENT OF JURISDICTION

     a.	The district court had subject matter jurisdiction over this enforcement 
action pursuant to 28 U.S.C.  1331, 1345.
     b.        Pursuant to 28 U.S.C.  1291, this Court has jurisdiction over this 
appeal from the district court's entry of final judgment entered under Fed. R. Civ. 
P. 54(b), which disposed of all claims as to all parties.
     c.        On August 16, 2007, the district court entered final judgment in favor 
of Defendant-Appellee the Boeing Company ("Boeing") and against Plaintiff-
Appellant Equal Employment Opportunity Commission ("EEOC" or 
"Commission").  RE21.  The EEOC filed its timely notice of appeal on October 15, 
2007.  RE22.  See Fed. R. App. P. 4(a)(1).

                           STATEMENT OF THE ISSUES
     1.	Whether the district court erred in granting summary judgment on the 
EEOC's claim that Boeing discriminated based on sex when it transferred Antonia 
Castron and then laid her off in a reduction-in-force ("RIF") where the EEOC 
offered direct evidence of discrimination in the form of the decisionmaker's sexist 
comments and conduct and indirect evidence casting doubt on the veracity of the 
reasons given for the transfer and termination.
     
     2.	Whether the district court erred in granting summary judgment on the 
EEOC's claim that Antonia Castron's transfer and layoff in a RIF were retaliatory 
where the EEOC offered evidence that Castron engaged in protected conduct by 
complaining about sexual harassment and was transferred a few days later and laid 
off within ten weeks, and where the EEOC also offered evidence that Boeing knew 
the transfer made her more likely to be laid off and that the reason for her layoff 
was unworthy of belief.	
     3.	Whether the district court erred in granting summary judgment on the 
EEOC's claim that Boeing discriminated against Renee Wrede on the basis of her 
sex when it laid her off in a RIF where Boeing conceded a prima facie case of 
discrimination and the EEOC offered evidence from which a reasonable jury could 
conclude that the reason given for Wrede's layoff was unworthy of belief.

                       STATEMENT OF THE CASE
     A.	Nature of the Case and Course of Proceedings 
     This is an enforcement action pursuant to Section 706 of Title VII of the 
Civil Rights Act of 1964 ("Title VII"), 42 U.S.C.  2000e-5, alleging sex 
discrimination and retaliation in violation of Sections 703 and 704 of Title VII, 42 
U.S.C.  2000e-2 to -3, on behalf of two charging parties.  RE338.  The district 
court entered summary judgment in Boeing's favor, and the EEOC appealed.
     B. 	Statement of Facts
     Antonia Castron
     In 1997, Antonia Castron, who had worked on and off for Boeing for several 
years, began working in the Electrical Engineering Department as a liaison 
engineer ("LE").  RE283-85(Castron Depo.29-30,43-44).  From 1998 until her 
termination in January of 2003, she worked under department manager Bill 
Charlton, and her skill code was 62E.  RE292(Charlton Depo.32).  As department 
manager, Charlton reviewed the performance evaluations given by the supervisors 
to the liaison engineers, but he never changed any scores on the evaluations.  
RE290-91(Charlton Depo.24,27-28).  
     Glen Foster, who was a manager at some point but is now a senior 
manufacturing engineer at Boeing, testified that over the years Charlton made "a 
lot" of negative comments about women.  RE95,RE105.  As far back as 1984, 
Charlton would say of his ex-wife, who was an employee, that she "should be at 
home, not working."  RE96.  Charlton said "several times" in meetings with other 
managers on unspecified dates that "he didn't have good luck with females and 
they hadn't been around long enough for his satisfaction."  RE100-01.  Charlton 
also said that he "just didn't have time" to train women.  RE103.  Charlton's 
negative comments about women were "repetitious . . . over the years."  RE104.  
Foster heard Charlton say things like "he [Charlton] didn't want any more women 
and that women were not worth a shit."  RE104-05. 
     Foster also testified that sometime between 1992 and 1994, Charlton had 
difficulty working with an unidentified female engineer who worked under 
Foster's supervision; Foster believed the difficulties were based on her gender, and 
he reported it to HR.  RE110.  Another time, a female employee named Christine 
Hunter was being considered for a position as a production engineer; Charlton 
scored her lower than the male applicants with less education, and, for that reason, 
she did not receive the position.  RE98-100.  With respect to filling the position, 
Charlton said he "didn't have the time [to train women]," "that they weren't up to 
speed because they didn't have the time in job," and "they [women] kind of should 
come to him all trained."  RE106.  Charlton never expressed these expectations 
with respect to men.  RE107.
     Castron initially worked in the electrical product center ("EPC") and Ron 
Bartlett was her supervisor. RE115. In late 2000,<1> Castron and several other LEs 
had to find other positions because of downsizing.  RE308(Hobby Depo.61).  
Castron and two others transferred into Pre-Shop Analysis ("PSA") while Donald 
Duff and Pete Quintus transferred to Structures-Mod.  RE114, RE308(Hobby 
Depo.61-62).  The LEs in PSA reviewed Apache aircraft to determine how to 
modify them into Longbow models.  RE288(Charlton Depo. 17).  The work in 
PSA involved some electrical work but primarily involved mechanical work.  
RE115; RE289(Charlton Depo. 20).
     In early 2001, Castron began to feel mistreated by her male co-workers.  
RE116-17, RE100.  Castron, the only female liaison engineer, complained to 
Bartlett that her male co-workers were being hostile to her.<2> RE118-19.  About 
once a week she asked Bartlett to transfer her, telling him that her co-workers did 
not want her around because she was a woman.  RE121-24.  Castron also 
complained to her subsequent manager, Sam Turk, that she was being harassed 
because she was a woman.  RE123-25.  She requested transfer to a workgroup 
called Final Assembly.  RE129.  In November 2001, Castron asked Charlton to 
transfer her.  RE 130.  At Turk's suggestion, she did not mention the harassment; 
instead, she told Charlton that she wanted to advance her career.  RE 131, RE143.  
Castron received a very positive 2001 evaluation; she received "meets 
expectations" or above for all twelve rating categories, and her written comments 
were uniformly laudatory.  RE187.  
     Turk asked Charlton four or five times to transfer Castron before sending a 
January 4, 2002, e-mail to Charlton asking again that Castron be transferred.  
RE175-76, RE132-33, RE185.  Turk relayed in the e-mail that Castron wanted to 
be transferred to Final Assembly.  RE177, RE185.  A week later, Castron asked 
Charlton to move her to Final Assembly, although she did not tell him of her 
problems with co-workers, and he said that he would look into it.<3> RE134-35, 
RE191,  13.  Castron wanted to transfer to Final Assembly because the work 
involved electrical engineering, which was her area of expertise and training.  Id.  
Instead of moving Castron to Final Assembly, however, Charlton transferred one 
of her male co-workers.  RE137-38.  When Castron asked Charlton why he had not 
transferred her instead, he became angry and said he would transfer her in three 
months.  RE138.  In July 2002, Castron requested a shift change so that she could 
avoid her co-workers.  RE140-41.  That month, she again asked Charlton to move 
without mentioning her co-workers.  RE142.  Before he transferred in July 2002, 
Sam Turk also asked Charlton several more times to approve Castron's transfer, 
RE178, but Charlton failed to do so. 
     On August 6, 2002, Castron had had enough of the harassment and told 
Charlton that she "was working in a hostile environment" and that "these guys 
were keeping her from performing her job."  RE144.  Charlton proposed 
transferring Castron to Structures-Mod, which was also referred to as "Pre-Mod."<4>
RE145.  The work in Structures-Mod is more difficult and complex than that in 
PSA because PSA addresses only component parts while Pre-Mod addresses the 
entire airframe.  RE306(Hobby Depo. 18-19).  While LEs in PSA needed only 
general knowledge of aircraft parts, LEs in Structures-Mod had to be familiar with 
airframe repairs, structural loads, and stress analysis; thus, Structures-Mod 
required a different skill set than that utilized in PSA.  RE150-152.  In the four 
years before Castron's transfer, not a single engineer had transferred from PSA to 
Structures-Mod.  RE153. 
     On August 7, 2002, Charlton called Castron into a meeting and told her that 
Rick Hobby, who was sitting there, would be her supervisor.  RE128, RE145.  
Although Castron was happy to be moved, Castron "was scared" when she saw 
Hobby because of her history with him.  RE145.  On approximately January 4, 
2001, Castron's hand had slipped off a door she was opening, and he said, "Oh, did 
the little girl break a nail?"  RE126.  Castron just stared at him.  Id.  A few weeks 
later, Castron walked by Hobby and he said, "Oh, there's a little girl."  RE126-27.  
When Castron replied, "I'm not a little girl," Hobby said, "Oh, yes, you are."  
RE120.  When Castron told him she was old enough to be his mother, he said he 
was kidding and "stormed off."  RE127-28.  From that point until he became 
Castron's manager, Hobby never spoke again to her.  RE128. 
     Castron was also concerned that the transfer would make her more 
vulnerable in an upcoming RIF.  RE146.  When Castron specifically asked 
Charlton, "is this going to affect me in the RIF," he said, "It will not affect you."  
Id.  While Charlton denies having said this or even being aware of the RIF at the 
time of the meeting, RE295-96(Charlton Depo.71-72), he admitted that as of early 
2002 he knew that there were no "new-build" aircrafts scheduled for 2003, so "we 
knew that there was going to be a reduction." RE297(Charlton Depo.94).  Castron 
also stated that it had already been announced as of August 2002 that there was 
going to be a RIF.  RE189, 1.
     At the meeting with Charlton and Hobby, Castron expressed frustration with 
her co-workers, including Joe Cottone.  RE224.  Charlton testified that he 
understood Castron and Cottone to be having a personality conflict.  
RE294(Charlton Depo.67).  Castron told Charlton that Cottone should be 
transferred instead of her, RE224, but Charlton went ahead and transferred Castron 
on August 12, 2002.  RE317.  In accepting the transfer, Castron relied on 
Charlton's assurance that she would not be adversely affected in the RIF.  RE190, 
 4.
     Charlton assigned a senior engineer named Leendert Hartoog to train 
Castron.  RE154.  Over the next two months, Hartoog acted as Castron's 
supervisor.  He was pleased with her progress and effort to learn, but, in his view, 
it would have taken five or six years of training for anyone, like Castron, who 
lacked an educational background in structures engineering to get up to speed.  
RE156.  In short, "she was set up to fail."  RE 171-72.  
     In October of 2002, Boeing declared an excess of five employees in skill 
code 62E and conducted a RIF.  Boeing assessed employees for a RIF based on: 
(1) attendance; (2) formal education; (3) service time; (4) ability to perform 
remaining work; and (5) performance (which was referred to as both "performance 
evaluation" and "past performance").  RE203.  The HR department assessed the 
first three factors (worth 50% of the total score) while management assessed the 
latter two factors (worth the other 50% of the total score).  Charlton, Hobby, and 
Bartlett created forms for the RIF to assess "ability to perform remaining work" 
and "performance," which looked at an employee's past performance.  RE293, 
RE299, RE302(Charlton Depo.49-50,110, 128-29).  The "past performance" form 
assessed ability in five general categories that each contained three sub-categories 
for which the ratings ranged from 1-3; the average scores for each of the five 
categories were then added together to come up with the final score.  RE323.  The 
"ability to perform remaining work" form similarly assessed employees in six 
categories containing multiple sub-categories for which the ratings ranged from 0-
5.  RE325.  The categories were weighted differently, so the average score from 
each category was multiplied by how much weight it was assigned, and then the 
totals were added together to come up with a final score.  Id.  Hobby prepared the 
scores.  RE298(Charlton Depo.97).   
     According to Hobby, he assessed Castron based on his personal interactions 
with her and the feedback he received from the senior engineers that Castron 
worked with, which was that she was struggling with the work.  RE307(Hobby 
Depo.34-35).  Castron, however, testified that Hobby, who worked in another 
building, came around only twice between August 12, 2002, and October 25, 2002, 
when she received her RIF notice.  RE146-A.  Similarly, Hartoog testified that he 
was the only person who trained Castron and the only person who had knowledge 
of Castron's performance but that Hobby never once asked him about her progress.  
Hartoog Depo. RE155, RE157, RE158-61. Nor did Charlton ever ask about 
Castron's performance.  RE158.  
     Hobby gave Castron low scores for "ability to perform remaining work," 
purportedly because she lacked experience or exposure to many of the systems and 
processes used in the Pre-Mod mechanical engineering environment.  RE311-14 
(Hobby Depo.117-129); RE231.  Hobby also gave Castron a low score for "past 
performance," giving her just 10 out of 15 possible points.  RE203, RE229.  
Castron's score for "past performance" was higher than only 4 of the 28 other LEs 
in skill code 62 that were assessed for the RIF.  RE203.  Although Sam Turk 
testified that in the past when he did RIF assessments as to the past performance of 
employees whom he had supervised for only a month, he looked at prior 
evaluations and that it would be "tough to evaluate a person without doing that," 
Hobby based Castron's score on only her two months in Structures-Mod.  RE182-
83, RE309-10(Hobby Depo.80,84).  Charlton also met with Hobby and Bartlett to 
review all of the assessments for consistency.  RE300(Charlton Depo.113-14). 
     According to Hartoog, it was difficult to assess the quality of Castron's work  
because she was a trainee.  RE165.  He agreed with all of Castron's scores for 
"past performance" except for the "1" she received for "performed quality work"; 
he felt that the score was unfair because she was just a trainee and that the category 
really did not apply to her.  RE164-67.  He also testified, however, that he would 
have given Castron a total of three more points on some of the sub-categories 
(adding an additional point to "SRP's", "writing tech engineering text," and 
"ability to perform insp. methods") for "ability to perform remaining work."  
RE168-70, RE326.  Hartoog testified that he had expected Chuck Green to be laid-
off because he was "not a real go-getter."  RE162.  Hartoog knew this based on his 
previous experience working with Green and on Green's general reputation.  
RE163. 
     Castron was identified for the RIF on October 25, 2002, and then terminated.  
Four other employees were also identified for layoff and then terminated, including 
Lathrop, Duff, and Quintus.  RE203, RE303(Charlton Depo.155).  When Castron 
asked Hobby why she was being laid off, he said he could not tell her.  RE147.  He 
did help her with her resume and gave her a positive recommendation for another 
job.  RE328.  
     The EEOC offered evidence that Castron likely would have been retained 
had she remained in PSA.  Castron's RIF assessment score of "10" for past 
performance - the fourth lowest score out of the 28 LEs subject to the RIF 
assessment - was based solely on her two months in Pre-Mod.  RE203.  In 
contrast, Castron's 2001 evaluation from when she worked in PSA was very 
positive and, in fact, was slightly more positive than the 2001 evaluations of two 
LEs who were still working in PSA at the time of the RIF assessment - Bobbie 
Klement and Ron Newell - who received, respectively, scores of "13" and "11" for 
past performance and were retained.  RE187,RE203,RE232,RE236.  Because 
Castron received a total score of 66 on the RIF assessment and employees who 
scored 68 were not laid off, an increase of just two points for "past performance" 
would have ensured her retention.  RE203.  Sam Turk, Castron's former PSA 
supervisor, also stated that Castron's work product was better than that of Chuck 
Green and Terry Weir, two LEs who were not laid off, and he said that he 
definitely would have laid off Green, and possibly Weir, before laying off Castron.  
RE179-81.  Finally, Castron's score of 14.7 for "ability to perform remaining 
work" was the lowest score out of the 28 engineers assessed for the RIF (most 
scored in the upper twenties to low thirties).  RE203.    
     Although Charlton reneged on his promise to exclude Castron from any 
future RIFs while she was a Structures-Mod trainee, three engineers in the D32 
skill code were excluded from the RIF assessment, which is permissible under 
Boeing's policy.  RE227; RE92.  The three individuals were excluded because they 
had only been assigned to the D32 skill code for two weeks prior to the RIF, 
although it appears that they were doing D32 work for several months prior to the 
RIF.  RE227.  Additionally, the decision was made to exclude one of the 
employees, a woman named "Lorraine," because Wright "implied" at the time of 
her transfer that she would not be assessed for RIF as a D32.  Id.
     Renee Wrede
     Wrede began working for Boeing in 1989.   RE36.  In 1991, she transferred 
to the Manufacturing Engineering Division and became a "Manufacturing 
Engineer" ("ME").  Id.  She was assigned skill code D32, which was for MEs 
performing assembly and installation work.  RE254(Wright Depo.16); RE263.   
MEs took engineering designs and created instructions for manufacturing 
employees to use to build an item, such as an Apache helicopter.  RE253(Wright 
Depo.9-10).  Usually, one or two MEs supported a manufacturing team.  MEs 
reported directly to an engineering manager called the "hard-line manager."  
RE199,  25.  MEs also reported, indirectly, to the manufacturing manager who 
supervised the manufacturing team, also called the "dotted-line manager." Id.  A 
significant part of an ME's job was how well the ME supported the team.  
RE262(Feuerstein Depo.19).  
     In 1999, after Boeing substantiated Wrede's complaint of sexual harassment 
by her direct supervisor, Wrede was transferred to the Apache manufacturing 
assembly installation support group and Bruce Wright became her hard-line 
manager.  RERE37-40, RE41.  Wright reported to Rob Feuerstein, the department 
manager for the Manufacturing Engineering Division; Feuerstein's duties included 
reviewing performance evaluations.  RE260(Feuerstein Depo.6), RE261(Feuerstein 
Depo.14).  Wright gave Wrede a positive 2001 evaluation, rating her "meets 
expectations" in eight categories, between "below expectations" and "meets 
expectations" for two other categories, and higher than "meets expectations" for 
two categories.  RE55.  Wright also included several written comments, including 
that "Renee had a good year working with the military assembly area in 520" and 
had continued her "personal development" with "UG v 16 [Unigraphics version 
16], product vision, IMAN, and ESIS."  Id.  He noted one "positive flaw," which 
was that Wrede saw herself as "Miss Fix-It" and needed to share her 
responsibilities rather than do everything herself.  Id.  While Wright testified that 
Wrede was on a "performance improvement plan," he admitted that all he meant 
by that was that he and Wrede had discussed during her review that she needed to 
improve the two areas for which she received below "meets expectations" and how 
she would do this. RE49-51. 
     In March 2002, Boeing declared an excess of two MEs in skill code 32.  
RE269.  In April 2002, Boeing conducted a RIF assessment.  Wright assessed 
Wrede for "ability to perform remaining work" and either he and/or Feuerstein 
assessed Wrede for "performance evaluation."  RE46-48, RE27.  A RIF 
assessment roster ranking the 38 MEs in skill category D32 was prepared; Wrede 
scored higher than seven of the MEs.  RE92.  The RIF was never finalized, 
however, because some MEs transferred or left the company, eliminating the 
excess of D32 employees.  RE272.  
     In July 2002, Boeing declared a surplus of four MEs in skill code 32.  
RE271.  The scores from the April RIF assessment were utilized for the July 
assessment.  RE92(listing April RIF scores); RE70(listing raw and "normalized" 
"ability to perform" scores); RE74(listing scores for July RIF).<5> Wrede was ranked 
26th out of the 38 MEs in skill code 32 assessed for the RIF.  RE74.  The four 
lowest-ranking MEs were given RIF notices, but none were actually laid off.  
RE74, RE81.<6>
     In October 2002, Boeing determined that it had seven excess MEs in skill 
code D32 and again conducted a RIF assessment.  RE77.  Although Wright had 
recently transferred and Sean Warner had become Wrede's supervisor, Wright 
performed the assessments for his former group of MEs.  RE53.  He assessed the 
"ability to perform remaining work" scores, which had four categories, by looking 
at the April 2002 RIF assessment scores and updating them based on training 
records.<7> RE53-54.  As before, the rankings for the sub-categories was on a 0-5 
scale with a "0" indicating "no background/experience" and a "5" indicating 
"breakthrough skills and abilities."  RE79.  The final "ability to perform remaining 
work" score was tallied by adding up the average scores from each of the four 
categories.  Id.  Wrede's total score for "ability to perform remaining work" was 
21.1, which was rounded down to 21; the score was a 1.5 point drop from her April 
RIF assessment.  RE80; RE77.  The drop was primarily due to a drop from 3.2 to 
2.3 for the category "communication/leadership," which encompassed the sub-
categories "team skills " (Wrede's score dropped from a "4" to a "2"), 
"communication skills," (her score dropped from a "3" to a "2"), and "leadership 
skills" (her score dropped from a "3" to a "1").  RE80, RE68.
     Wright testified that the lower "communication/leadership" score were 
justified by Wrede's increasing issues with team interface and the decline of 
Wrede's communication and leadership skills, but he admits that he does not recall 
any specific individuals complaining about her and that there is no written record 
of any communication problems.  RE55, RE56-58.  When pressed about Wrede's 
allegedly deteriorating communication skills, Wright cited Wrede's failure to 
timely complete her weekly status reports.  RE56.  Wrede testified, however, that 
although she did not always turn in her reports on time, other MEs also failed to 
turn in their reports on time or failed to turn them in at all, and that Wright never 
spoke to her individually about it but only to the group at staff meetings.  RE250 
(Wrede Depo.144-45).  
     As for her technical scores, Wrede received a "0" for the categories of 
"wiring system," indicating absolutely no background or experience, although she 
testified that she had wiring experience on C17, Apache, and a commercial 
helicopter.  RE80; RE201,  33.  She also received a "0" for "UG," which stood for 
"Unigraphics," a computer-aided design system, although in the April/July RIF 
assessment she had received a "1."  RE80, RE68, RE214.  Additionally, Wrede 
testified that she had been trained in Unigraphics 15 and had multiple Unigraphics 
certificates, which her training records should have reflected.  RE35, RE43-43A, 
RE201, 35.  Wrede's 2001 evaluation, which Wright completed, even notes that 
she had had some training on Unigraphics version 16.<8> RE65.  While Wrede 
received a score of "3" for "CCAR [cause and corrective action],"she testified that 
she had "a lot of experience" with that system.  RE80, RE43.
     Wright also assessed Wrede's "past performance," giving her a "9."  RE77.  
The "past performance" scores were not based on the 2001 evaluations of the MEs, 
but on the MEs' performance in the last nine to ten months.  RE59-60.  
Accordingly, Wright used a newly-devised form comprised of five categories to 
assess Wright's "past performance" score.  RE220.  Wright does not recall how he 
assigned Wrede's scores for this category.  RE257(Wright Depo.148, 150).  Out of 
the 32 MEs evaluated for the RIF, Wrede's "past performance" score of "9" out of 
15 points was tied for the second lowest; all but three MEs scored a "10" or above.  
RE77. 
     Feuerstein met at least once with Wright and the other managers who 
assessed the MEs in skill code 32 for the October 2002 RIF assessment to ensure 
that their scoring was uniform.  RE61.  At the conclusion of the RIF, Wrede - the 
only woman in the entire group of MEs in skill code 32 - and six other men were 
given 60-day RIF notices.  RE77; RE31.  Of the six men, one (James Early) had 
his notice canceled after he expressed concerns about his assessment process.  
RE32.  The remaining five men avoided being laid off by transferring to other 
Boeing positions.  RE81.  One of them, Donald York, stated in an EEOC interview 
that he obtained his new position after Feuerstein called and told him of the 
opening.  RE242.  Another of the men slated for the RIF, Darrell Johnson, stated 
that Feuerstein "called [him] one time and said they had some potential openings 
over in another building," although Johnson found the position he took on his own.  
RE64; RE280(Johnson Aff.  6).  Wrede testified that Feuerstein never told her 
about any job openings.  RE199,   21, 22.  
     The Commission also offered evidence from David Eroh, another ME in 
skill code 32 who was also assessed for the RIF, about Wrede's abilities.  Eroh was 
one of the highest-scoring MEs for "past performance" and "ability to perform 
remaining work."  RE77.  He worked in the ME Department for over twenty years 
and had regular and continuous contact with Wrede beginning in 1989.  RE205-09, 
 1, 16.  He sometimes worked as a "lead," meaning that he had four to five MEs 
reporting to him as they worked on a project, and at various times beginning in 
1989 he assigned tasks to Wrede.  RE206-07,  7-8, 12.  According to Eroh, 
Wrede "excelled where other colleagues" failed, handled numerous jobs without 
assistance, took on her own "lead" responsibilities from management, became the 
first ME to be called for assistance, successfully handled multiple assignments to 
different areas at the same time, produced "stellar" work, and was "a very 
accomplished and competent employee."  RE206-10,  8, 12, 16, 17, 19, 23.  In 
his view, Wrede was a better worker than "many of the other MEs" he had worked 
with and should have earned scores in the October 2002 RIF assessment that were 
comparable to his.  RE211-12,  27, 28.  
     Eroh also reviewed Wrede's scores for "ability to perform remaining work" 
and gave detailed explanations for why her score should have been 27.61 instead 
of 21.1.  RE212-15, RE218.  According to Eroh, Wrede's scores for lean tools, 
DTI processes, company procedures, eng. Chg. Process, spec. knowledge, 
AMAPS, MEPLAN, CCAR SFCG, teams skills, communication skills, leadership 
skills, and Unigraphics all should have been increased, and he gave detailed 
explanations as to why.  Id.  For instance, he explained that her Unigraphics score 
should have been a 3 instead of a 0 because Wrede's skills "were better than that of 
the average ME at the time," and that her score for "leadership skills" should have 
been a 3 instead of a 1 because she "took on many independent tasks and provided 
information and direction not only to other MEs but also to other disciplines."   
RE214,  30(m).  
     Eroh offered similarly detailed explanations as to why Wrede's "past 
performance" score should have been a 13 instead of a 9.  RE215-16,  32-34; 
RE219-22.  He would have raised her score for "organization of assignments" from 
a 1 to a 2 (on a 3-point scale) because a 1 was for those "unable to maintain" their 
workload or "just sleeping at [their] desk."  RE215,  32(a).  He would have 
increased Wrede's score from a 2 to a 3 for "effectively used resources" because of 
her use of her knowledge and skills to implement changes, and he would have 
raised her "readily accepted assignment" score from a 2 to a 3 because he had 
never known her to refuse an assignment.  RE215,  32(b),(c).  He called Wrede's 
score of "1" for "cooperated and supported team decisions" "extremely odd" and 
unsupportable because Wrede had always been receptive to group/team decisions.  
Id.  RE215,  32(d).  Therefore, he would have given her at least a 2, for a total 
score of 13.  Id.
     The EEOC also submitted evidence that a number of managers whose teams 
Wrede was currently supporting at the time of the RIF held her in high regard.  
RE195-98.  At the time of her layoff, Wrede was formally supporting both the sub-
assembly and the Longbow Apache Production Remanufacturing ("LAPPAR") 
group, which upgraded and retrofitted Apache helicopters returning from the field.  
RE195,  1,2.  Wrede had been supporting the LAPPAR group for approximately 
six months.  Id.  2.  The LAPPAR Program Manager, Dave Stallings, told Wrede 
that it was a poor decision to lay her off because she had helped improve the 
LAPPAR review process and engineering support.  Id.  3.  In November 2002, 
Stallings even sent an e-mail to Warner and Feuerstein stating that Wrede "has 
done an admirable job" on the PSA team and had really excelled there.  RE244.  
     Similarly, John Houseman, a manager in Final Assembly whom Wrede had 
supported since 1997 and was supporting at the time of the RIF when his assigned 
MEs were out of the area, told her that he was going to suggest to Feuerstein that 
other MEs be moved out (including Wayne Christian, who had survived the RIF) 
and that Wrede be "hard-lined" to his group because she was a reliable performer 
and his crew depended on her.  RE196,  8, 9.  Houseman's second-shift 
counterpart, John Kivler, whom Wrede had supported for several years, also said 
that laying her off was a poor decision and that Earl Bartley should have been laid 
off instead.  RE197,  10.  Dean Johnson and Frank Goodrich, the Tool Design and 
Liaison Mangers, whom Wrede had known and supported since 1997 and 1989 
respectively, told her that they had asked Feuerstein about moving her to the Tool 
Engineering Department.  RE197,  11.  Ted Hall, a manager Wrede had supported 
since 1991, also told Wrede her selection for layoff was unfair and that other MEs 
should have been laid off first, and managers Bill Sheppard and Bobby 
DiBartolomeo told Wrede that she should not have been laid off.  RE197,  13, 
14.  Stallings, Houseman, Johnson, and Goodrich also told Wrede that they had 
talked to Feuerstein about assigning Wrede to work in their areas, but that he had 
refused.  RE199,  20-21.  Finally, Tom Reilly, a manager Wrede had supported 
from 1998-2000, told her that Earl Bartley and George Willard should have been 
laid off instead of her.  RE196,  5. 
	C. 	District Court Opinion
     The district court granted summary judgment on the EEOC's claim that 
Castron's transfer from PSA to Structures-Mod constituted sex discrimination.  
RE12.  The court agreed with the EEOC that the transfer constituted an adverse 
action under Burlington N. & Santa Fe Ry. v. White, 126 S. Ct. 2405, 2415 (2006).  
The court nevertheless found that the claim failed because the EEOC had failed to 
show that similarly situated men were treated more favorably.  The court found 
that Castron had transferred into Structures-Mod "around the same time" as a male 
employee in her skill code, Donald Duff, and that Duff was also evaluated for the 
RIF and laid off despite his lack of mechanical engineering experience.  RE13.
     The court went on to consider the EEOC's argument that "Lorraine's" 
exclusion from the October RIF because of her recent transfer showed that 
Castron, as a trainee, also could have been excluded from the RIF.  RE13.  
Although the EEOC had made this point regarding its argument that Castron's 
termination was pretextual, the court determined that this "evidence defeats 
[EEOC's] prima facie case" of discriminatory transfer, reasoning that comparator 
evidence must be "of a similarly situated male employee treated more favorably," 
and that "Lorraine" was not similarly situated because she was female, in a 
different skill code, and had transferred into that skill code just two weeks before 
the RIF assessment.  RE13-14.  "Even if Lorraine was similarly situated," the court 
said, "this fact . . . would be evidence that Castron's transfer had nothing to do 
with her sex."  RE14.
     Next, the court rejected the EEOC's claim that Castron's termination was 
due to her sex.  The court acknowledged that Boeing had conceded the 
establishment of a prima facie case but concluded that the EEOC had failed to 
show that Boeing's asserted legitimate non-discriminatory reason - her low scores 
in the RIF assessment - was a pretext for sex discrimination.  RE14.  The court 
noted that the EEOC had pointed to sexist remarks made by Castron's supervisors, 
including some who were involved in her RIF evaluations, but concluded that they 
were unrelated to Castron's termination and therefore failed to constitute direct 
evidence of discrimination.  RE14.
     The court also rejected the EEOC's argument that Hobby's assessment 
scores of Castron were baseless because he had supervised Castron for just two and 
a half months and had failed to review or consult her prior evaluations.  RE15.  
Although the EEOC offered evidence that the person most qualified to evaluate 
Castron's performance would have told Hobby that Castron was "doing ok," the 
court concluded that this failed to show that Hobby's evaluations were inaccurate.  
Id.  The court also rejected the EEOC's argument that it had established a factual 
question of pretext by offering evidence that Castron was transferred and then 
compared to more experienced employees; other employees were also transferred 
before the RIF, the court found, and were also assessed against more experienced 
employees.  Id.  
     Finally, the court turned to the retaliation claim.  The court assumed without 
deciding that Castron's complaints to Charlton about her male co-workers and the 
"hostile work environment" constituted protected activity.  RE16.  The court also 
assumed that Castron's transfer constituted an adverse action.  RE17.  The court 
again found, however, that the EEOC had failed to offer evidence that Boeing's 
legitimate non-discriminatory reason for the transfer - that Castron had repeatedly 
requested it - was a pretext for retaliation.  The court rejected the EEOC's 
argument that it had established pretext by showing that Charlton reneged on his 
promise to give Castron sufficient time to train before evaluating her against other 
Structures-Mod engineers in making any RIF assessment.  Id.  Even if Charlton 
had made this promise, the court found, Boeing was entitled to evaluate Castron's 
ability to perform in Structures-Mod.  Id.
     As for Castron's layoff, the court concluded that Castron had engaged in 
protected activity when she confronted Hobby about his "little girl comment" and 
assumed that the EEOC had established a prima facie case.  RE18.  But the court 
concluded that the EEOC had failed to establish Boeing's proffered non-
discriminatory reason for the termination was a pretext for retaliation.  The court 
did not consider the EEOC's argument that the termination was the result of 
Castron's complaint to Charlton about the hostile work environment.  Doc.111, 
pg.17.
     The district court also granted summary judgment on the EEOC's claim that 
Wrede's termination was the result of sex discrimination.<9> The court noted that 
Boeing had conceded that the EEOC had established a prima facie case.  RE2.  The 
court therefore considered only whether the EEOC had established that Boeing's 
legitimate non-discriminatory reason for the layoff - a departmental RIF 
necessitated by a downturn in work and budgetary constraints - was a pretext for 
sex discrimination.  The court rejected the EEOC's argument that it had offered 
sufficient circumstantial evidence of pretext to overcome summary judgment.  The 
court disagreed with the EEOC that under Abuan v. Level 3 Comm'n, Inc., 353 
F.3d 1158, 1170 (10th Cir. 2003), Eroh's testimony that Wrede's assessment 
scores should have been higher was probative of pretext.  RE7.  The court also 
reasoned that Eroh's assessment was "meaningless in isolation" because Wrede 
was "not singled out for termination but was evaluated against others Eroh did not 
assess," and because "Eroh might be an unusually soft grader who inflates 
everyone's scores."  RE8.  Similarly, the court found unpersuasive evidence that 
other manufacturing managers thought Wrede did good work, stating that the 
EEOC had failed to allege these managers supervised other MEs subject to the 
RIF.  Id.  The court also found that the fact that Wrede was not on a formal 
performance improvement plan at the time of her RIF did not establish pretext and 
that Boeing's use of subjective criteria in the RIF had no "talismanic 
significance.'"  RE8-9 (quoting Casillas v. United States Navy, 735 F.2d 338, 345 
(9th Cir. 1984)).  Finally, the court reasoned that the EEOC's argument that 
discrimination was evidenced by the fact that Feuerstein helped two of the six male 
employees identified for the RIF to find other positions was unpersuasive because 
four male employees were not helped.<10> RE9.  
     
     
SUMMARY OF ARGUMENT
	The court erred in granting summary judgment on the EEOC's claim that 
Castron's transfer and termination were the result of sex discrimination.  As to the 
discriminatory transfer, the court properly found that the transfer constituted an 
adverse action but erred in concluding that the EEOC had failed to establish a 
prima facie case because it had not shown that similarly-situated men were treated 
differently.  The EEOC offered evidence that although Charlton, the 
decisionmaker, testified that he believed Castron and Cottone were having 
personality issues in PSA, he transferred Castron to Structures-Mod.  Thus, this 
evidence shows that a similarly-situated male was treated differently.  Moreover, 
the EEOC offered direct evidence of discrimination in the form of Charlton's 
numerous sexist comments about women, difficulty working with women, and his 
refusal to select a woman for a promotion, which was sufficient to establish a 
prima facie case.  This evidence was also sufficient, by itself or in conjunction with 
other circumstantial evidence, to allow a reasonable jury to find that the reason 
given for Castron's transfer was a pretext for sex discrimination.  
	Similarly, the court erred in concluding that the EEOC's evidence was 
insufficient to allow a reasonable jury to find that Castron's termination was the 
product of sex discrimination.  Although the district court reasoned that Hobby and 
Charlton's sexist remarks did not constitute direct evidence because they were 
"unrelated to Castron's termination," it is well established in this circuit that 
discriminatory comments need not be related to the plaintiff's adverse action (and 
need not even be about the plaintiff) in order to constitute direct evidence.  Thus, 
the EEOC's direct evidence was enough to establish a factual question as to 
pretext.  Moreover, the EEOC offered additional circumstantial evidence of pretext 
in the form of evidence casting doubt on whether Castron's low assessment scores 
accurately reflected her abilities.  This additional evidence would also allow a 
reasonable jury to infer that Castron's termination was the result of sex 
discrimination.
	Finally, the court erred in granting summary judgment on the EEOC's claim 
that Castron's transfer and termination were retaliatory.  The court correctly 
assumed that the EEOC had established a prima facie case of retaliatory transfer 
but erred in concluding that the evidence did not establish pretext.  To the contrary, 
a reasonable jury could infer from the six-day gap between Castron's complaint to 
Charlton about working in a hostile work environment and her transfer to 
Structures-Mod, where the work was more complex and Castron would take years 
to catch up, that the transfer was retaliatory.  Additionally, the jury could reach this 
conclusion based on evidence that Castron and her supervisors had been requesting 
her transfer to Final Assembly for at least seven months, but that Charlton did 
nothing about these requests until Castron complained of discrimination - at which 
point he transferred her to Structures-Mod, knowing that a RIF was likely and that 
Castron had no background in structural engineering.  Lastly, evidence that 
Charlton promised Castron that she would be excluded from any RIF because she 
was a trainee, but then reneged on that promise, would support a finding of 
retaliation.
	Similarly, the court erred in concluding that the EEOC's retaliatory 
termination claim failed because the EEOC did not establish a jury question as to 
pretext.  While the court focused on whether Hobby had retaliated against Castron, 
the court ignored the EEOC's argument that Charlton retaliated against Castron by 
approving her RIF just two months after she complained of sex discrimination.  
The evidence of pretext discussed above was more than sufficient to allow a 
reasonable jury to conclude that Castron's layoff in the RIF was the result of 
Charlton's retaliation against her for having complained.
	The district court also erred in granting summary judgment on the EEOC's 
claim that Boeing discriminated against Wrede based on her sex when it laid her 
off in a RIF.  Boeing conceded below that the EEOC had established a prima facie 
case of discrimination but asserted that her termination was the result of a RIF 
necessitated by a downturn in work and Wrede's low RIF assessment scores.  
Contrary to the district court's conclusion, the EEOC offered sufficient 
circumstantial evidence of pretext to overcome Boeing's motion for summary 
judgment.  
	Specifically, the following evidence would allow a reasonable jury to find 
that Wrede's low assessment scores were not credible and that sex discrimination 
was the real reason for her termination: Wrede's long-time co-worker, who was 
also subject to the RIF, testified in detail as to why her scores should have been 
higher; Wrede testified that some of her scores inaccurately reflected her abilities; 
Wright was unable to fully explain all of Wrede's low scores, including scores for 
such subjective categories as "leadership" and "communication"; current and 
former managers that Wrede was supporting stated that she should not have been 
laid off; and the ultimate decisionmaker for the RIF, Rob Feuerstein, offered 
assistance to two of the other male employees identified for layoff, but not to 
Wrede.
STANDARD OF REVIEW
	The district court's grant of Boeing's motion for summary judgment is 
reviewed de novo, looking at the facts in the light most favorable to the EEOC.  
Chuang v. Univ. of California Davis, 225 F.3d 1115, 1120 n.3 (9th Cir. 2000).  
"This Court has set a high standard for the granting of summary judgment in 
employment discrimination cases." Schnidrig v. Columbia Mach., Inc., 80 F.3d 
1406, 1410 (9th Cir. 1996).  Because "the ultimate question is one that can only be 
resolved through a searching inquiry - one that is most appropriately conducted by 
a factfinder, upon a full record," "very little evidence" is needed to survive 
summary judgment in an employment discrimination case.  Id. (internal quotations 
and citation omitted).  
ARGUMENT
	THIS COURT SHOULD REVERSE THE DISTRICT COURT'S GRANT 
OF SUMMARY JUDGMENT ON THE EEOC'S CLAIMS THAT 
CASTRON'S TRANSFER AND LAYOFF WERE BASED ON SEX 
DISCRIMINATION AND/OR RETALIATION AND THAT WREDE'S 
LAYOFF WAS THE RESULT OF SEX DISCRIMINATION.

	This Court has repeatedly stated that "[a]s a general matter, the plaintiff in 
an employment discrimination action need produce very little evidence in order to 
overcome an employer's motion for summary judgment."  Chuang, 225 F.3d at 
1124.  In ruling that the EEOC had failed to make this minimal showing, the 
district court contravened the requirements of Federal Rule of Civil Procedure 56 
by failing to view the facts in the light most favorable to the EEOC, resolving 
disputed factual issues in Boeing's favor, and disregarding other significant 
evidence.  Additionally, the court made a legal error by relying on cases outside 
the Ninth Circuit to determine that comments evincing discriminatory animus do 
not constitute direct evidence unless they pertain to the plaintiff's adverse action.
Accordingly, this Court should reverse the district court's grant of summary 
judgment as to the EEOC's claims that Castron's transfer and termination were 
discriminatory and retaliatory and that Wrede's termination was discriminatory.

A. Antonia Castron

   1. Sex Discrimination

      a. Transfer

     The district court properly held that Castron's transfer from PSA to 
Structures-Mod constituted an adverse employment action for purposes of the 
EEOC's prima facie case.   RE13 (citing Burlington N. & Santa Fe Ry. v. White, 
126 S.Ct. 2405, 2415 (2006)); see also St. John v. Employment Dev. Dep't, 642 
F.2d 273, 274 (9th Cir. 1981) (retaliatory transfer may be adverse action); Reynaga 
v. Sun Studs, Inc., 27 Fed. Appx. 740, 742 (9th Cir. Oct. 11, 2001) (in 
discrimination case, holding that transfer to position with less overtime and 
incentive pay constituted adverse action).  The court erred, however, in concluding 
that the EEOC had failed to establish a prima facie case because it had not shown 
that similarly-situated men were treated more favorably than Castron.  RE13.  
     This Court has held that "a plaintiff can . . . establish a prima facie case of 
disparate treatment without satisfying the McDonnell Douglas test, if she provides 
evidence suggesting that the 'employment decision was based on a discriminatory 
criterion illegal under'" Title VII.  Cordova v. State Farm Ins., 124 F.3d 1145, 
1148-49 (9th Cir. 1997) (concluding that reference to another employee as a 
"dumb Mexican" who was hired only because he was a minority constituted direct 
evidence and establish a prima facie case) (citation omitted).  Here, the EEOC 
offered direct evidence of discriminatory animus in the form of Foster's testimony 
as to Charlton's numerous derogatory comments about women, including 
comments like "he [Charlton] didn't want any more women and that women were 
not worth a shit," he "just didn't have time" to train women, and "he didn't have 
good luck with females and they hadn't been around long enough for his 
satisfaction."  RE100-01, RE103-05.  Additionally, Foster testified that Charlton 
had so much trouble working with a female subordinate that Foster reported him to 
HR, and that Charlton negatively evaluated Christine Hunter, preventing her 
promotion, despite the fact her education was superior to other male applicants.  
RE110, RE98-100.  While these comments and conduct were not directed at 
Castron, they constituted direct evidence of discrimination.  See Cordova, 124 F.3d 
at 1149; see also Dominguez-Curry v. Nevada Transp. Dep't, 424 F.3d 1027, 1038 
(9th Cir. 2005) (decisionmaker's comments that he "wished he could get men to do 
[women employees'] jobs," "women have no business in construction," and "if you 
girls were men, you would know that" constituted direct evidence, "even if" they 
were "directed . . . to other women"); Chuang, 225 F.3d at 1128 (decisionmaker's 
comment that "two Chinks" in the department were "more than enough" 
constituted direct evidence of discrimination, even though the comment referred to 
another individual's employment).  Because Charlton's comments expressed his 
unambivalent animus toward women, they fall outside the ambit of stray remarks 
that have been held insufficient to constitute direct evidence.  Cf. Nesbit v. Pepsico, 
Inc., 994 F.2d 703, 705 (9th Cir. 1993) (concluding that comment that "[w]e don't 
necessarily like grey hair," which was uttered in an "ambivalent manner" and was 
unrelated to the plaintiff's termination, provided only weak circumstantial 
evidence of discriminatory animus); Nidds v. Schindler Elevator Corp., 113 F.3d 
912, 918-19 (9th Cir. 1997) (concluding that "old timers" comment failed to 
establish pretext because it was ambiguous and unrelated to layoff).  Moreover, the 
fact that Foster, not Castron, recounted Charlton's sexist comments lends 
"credibility to [the EEOC's] offer of proof."  Cordova, 124 F.3d at 1149 n.5.  
     Even if the EEOC did have to establish a prima facie case under McDonnell 
Douglas, the court erred in concluding that the EEOC failed to do so because it did 
not show that "similarly situated men were [ ] treated more favorably than 
Castron."  RE13.  Although Charlton testified that he thought Castron and her PSA 
co-worker Joe Cottone had a "personality conflict," making Cottone a similarly-
situated male, Charlton transferred Castron - not Cottone - to Structures-Mod.  
RE295(Charlton Depo.70).  Additionally, the EEOC offered evidence that 
although Charlton ignored Castron's multiple requests to transfer to Final 
Assembly, Charlton transferred a male to Final Assembly.  RE137-38.  Moreover, 
this Court has held that in lieu of pointing to similarly-situated individuals, a 
plaintiff can establish a prima facie case by showing that the adverse action 
occurred under circumstances giving rise to an inference of discrimination.  
Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004).  The direct 
evidence discussed above is more than enough to satisfy this showing.  See 
Dominguez-Curry, 424 F.3d at 1036 ("At summary judgment, the degree of proof 
necessary to establish a prima facie case is 'minimal and does not even need to rise 
to the level of a preponderance of the evidence.'") (citation omitted). 
     The court also erred in reasoning that the EEOC's prima facie case was 
defeated by the fact that Donald Duff was also transferred from electrical work to 
Structures-Mod at the same time as Castron and then evaluated in the RIF and laid 
off.  Contrary to the court's finding, the evidence shows that Duff was transferred 
from EPC to Structures-Mod at the end of 2000 (at the same time Castron 
transferred to PSA) to avoid layoff, which was nearly two years before the October 
RIF assessment; in contrast, Castron was transferred from PSA, because she had 
complained of problems with her co-workers, only two months before the RIF 
assessment.  See supra at 4-5.  Accordingly, Duff was not similarly situated in 
terms of either the reason for his transfer or the number of months he was in 
Structures-Mod before the October RIF assessment.  Finally, to the extent that the 
district court reasoned that the EEOC could not establish a prima facie case 
because there was evidence that a female employee in another department was 
excused from the RIF where her transfer occurred just two weeks beforehand,  
RE13, this reasoning was incorrect because "a plaintiff must show that an 
employer treated similarly situated individuals outside the plaintiff's protective 
class more favorably, not that the employer treated all other members within the 
class less favorably."  Chuang, 225 F.3d at 1124 n.8 (emphasis in original) 
(holding that district court erred in holding that Asian plaintiff had failed to 
establish prima facie case of discriminatory failure-to-promote because employer 
had promoted seven Asian professors); see also Connecticut v. Teal, 457 U.S. 440, 
453-54 (1980) (rejecting the "bottom line" defense in disparate impact case and 
emphasizing that Title VII protects individuals, not groups, against unlawful 
discrimination).  
     The EEOC's evidence was also more than sufficient to allow a jury to find 
that Boeing's proffered reason for the transfer - Castron had requested it - was 
pretextual.<11> Pretext can be proved either "directly, by showing that unlawful 
discrimination more likely motivated the employer," or "indirectly, by showing 
that the employer's proffered explanation is 'unworthy of credence,'" or by a 
combination of direct and indirect evidence.  Chuang, 225 F.3d at 1127 (citation 
omitted).  "Very little" direct evidence is needed to overcome summary judgment, 
id. at 1128, and Charlton's numerous derogatory comments about women, and his 
difficulty working with them, easily satisfy this threshold.  See Dominguez-Curry, 
424 F.3d at 1038 (holding that decisionmaker's comments that "he wished he 
could get men to do [women employees'] jobs," that "women have no business in 
construction," he "would never work for a woman," and "if you girls were men, 
you would know that," constituted direct evidence and established pretext); 
Chuang, 225 F.3d at 1128-29 (holding that the plaintiffs' direct evidence 
established pretext where decisionmaker said "two Chinks" were "more than 
enough" and another decisionmaker laughed at comment; also holding that advice 
of high-ranking official that plaintiffs "pray to [their] Buddha for help" in avoiding 
relocation was "sufficient evidence of discriminatory motive for purposes of 
McDonnell Douglas pretext analysis").  
     In addition to presenting direct evidence, which was sufficient by itself to 
establish a factual question as to pretext, the EEOC offered circumstantial evidence 
of pretext.  Castron and her supervisors had repeatedly requested that she be 
transferred, and Castron specifically requested transfer to Final Assembly, which 
matched her skill set, but Charlton repeatedly denied the requests and instead 
transferred another male to Final Assembly.  See supra at 6.  He then transferred 
Castron to Structures-Mod, despite knowing that there were no "new-build" 
aircrafts for 2003 and that "there was going to be a reduction," and despite 
evidence showing that it would have taken years for Castron to catch up in 
Structures-Mod and that in the last four years not a single LE had transferred from 
PSA to Structures-Mod.  RE297, RE156, RE153.  Therefore, the court erred in 
granting summary judgment.
     
     b.	Layoff
     As the court acknowledged, Boeing conceded that the EEOC had established 
a prima facie case of discriminatory termination.  RE14.  The court erroneously 
concluded, however, that although the sexist comments of "Castron's supervisors . 
. . and co-workers" "might make women feel unwelcome," they did not constitute 
direct evidence because they were unrelated to Castron's termination.  RE14.  This 
conclusion misstates the law of this Court.  Earlier in its opinion, the court cited to 
a number of cases outside this Circuit holding that unless comments are tied to the 
adverse action, they do not constitute direct evidence.  RE4.  As discussed above, 
however, this Court has consistently held that comments evidencing discriminatory 
animus constitute direct evidence regardless of whether they are about the plaintiff.  
See Dominguez-Curry, 424 F.3d at 1038; Chuang, 225 F.3d at 1128.  Accordingly, 
as discussed, supra in Section B.1.a, Charlton's sexist and derogatory comments 
and conduct constituted direct evidence of sex discrimination and were therefore 
probative of pretext.  Because he was the ultimate decisionmaker for the RIF (he 
signed off on Hobby's RIF assessment for Castron), a reasonable jury could find 
that Castron's termination was the result of Charlton's discriminatory animus.  
     The EEOC also offered direct evidence of discrimination in the form of 
Hobby's discriminatory comments.  In January 2001, he twice called her "little 
girl," once mocking her by saying, "Oh, did the little girl break a nail?" RE126-27.  
A reasonable jury could find that these comments "overtly exhibit[ed] [Hobby's] 
hostility to women in the workplace."  Dominguez, 424 F.3d at 1038; see Bahri v. 
Home Depot, USA, Inc., 242 F. Supp. 2d 922, 956 (D. Or. 2002) (stating that 
"girl[]" is a "demeaning comment[] which clearly ha[s] a gender component").  
Although Hobby was not the ultimate decisionmaker, this Court has recognized 
that "[w]here, as here, the person who exhibited discriminatory animus influenced 
or participated in the decisionmaking process, a reasonable factfinder could 
conclude that the animus affected the employment decision." Dominguez-Curry, 
424 F.3d at 1039-40.
     In addition to this direct evidence, which was independently sufficient to 
establish pretext, the EEOC came forward with circumstantial evidence that would 
allow a jury to find discrimination.  First, although Hobby testified that he assessed 
Castron based on his interaction with her and on feedback from the senior 
engineers she worked with, Castron testified that he only checked on her twice, and 
Hartoog testified that he was Castron's only trainer and that Hobby never once 
asked about her progress.  RE146-A, RE155, RE157, RE158-61; see Reeves v. 
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) ("Proof that the 
defendant's explanation is unworthy of credence is . . . one form of circumstantial 
evidence that is probative of intentional discrimination, and it may be quite 
persuasive.").  Second, Hartoog testified that he would have increased several of 
Castron's sub-category scores for "ability to perform remaining work."  RE168-11, 
RE170.  Although the scores he would have given Castron would not have 
insulated her from termination, a reasonable jury could find that his testimony 
further undermined the legitimacy of Castron's scores.  Third, Hobby based 
Castron's "past performance" score solely on her performance during the two 
months he had supervised her, but Turk testified that in similar situations in past 
RIFs, he had looked at the employee's past performance evaluations and that it 
would "be tough to evaluate a person without doing that," suggesting that Hobby 
ought to have done the same.  RE182-83.  Fourth, Turk testified that Castron's 
work product was better than that of Terry Weir's and Chuck Green's - two other 
PSA engineers who were assessed for the RIF but not laid off - and that he would 
have definitely laid off Chuck Green, and possibly Terry Weir, before laying off 
Castron.  RE179, RE180-81.  Similarly, Hartoog testified that he expected Green 
to be laid off because he was not a go-getter.  RE162.  See Davis v. Widnall, No. 
97-15313, 1998 WL 856505, at *1 (9th Cir. Nov. 19, 1998) (concluding that the 
plaintiff had established pretext where he "offered testimony of prior supervising 
officers who testified that he was a good to excellent engineer").  This additional 
circumstantial evidence would allow a jury to infer that the real reason given for 
Castron's termination was merely a pretext for sex discrimination.  Thus, the court 
erred in granting summary judgment on the EEOC's discriminatory termination 
claim.

   2. Retaliation

      a. Transfer

     To establish a prima facie case, the EEOC had to show that 1) Castron 
engaged in protected activity; 2) she suffered an adverse action; and 3) there was a 
causal connection.  Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th 
Cir. 2002).  The district court correctly assumed that Castron engaged in protected 
activity when she complained to Charlton on August 5, 2002, that she was 
experiencing a "hostile work environment."  Order at 16; see Ray v. Henderson, 
217 F.3d 1234, 1240 n.3 (9th Cir. 2000) ("[A]n informal complaint to a supervisor 
is [] a protected activity.").  The court also correctly held that Castron's transfer 
constituted an adverse action because the transfer made her more vulnerable to 
being laid off.  RE17.  Although Castron had requested to be transferred into Final 
Assembly, which matched her skill set, Charlton gave her two options: either 
remain in PSA and continue to be harassed, or transfer to Structures-Mod, which 
involved more difficult work and where it would take Castron years of training to 
become efficient because her background was in electrical, not mechanical, 
engineering.  Under these circumstances, "a reasonable employee would have 
found the [transfer] materially adverse."  Burlington N. & Santa Fe Ry. v. White, 
126 S.Ct. 2405, 2415 (2006); see also Fielder v. UAL Corp., 218 F.3d 973, 984 
(9th Cir. 2000) (stating that adverse employment actions include disadvantageous 
transfers), cert. granted and judgment vacated on other grounds, 536 U.S. 919 
(2002).  Although the district court did not address it, the close temporal proximity 
between Castron's protected activity and her transfer - a mere six days - was 
sufficient to establish causation.  See Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th 
Cir. 1987) (causation established where adverse actions occurred within three 
months of complaint).  Therefore, the EEOC established a prima facie case.  
     The court erred, however, in concluding that the evidence was insufficient to 
show that Boeing's articulated non-discriminatory reason for the transfer - that 
Castron had requested it - was a pretext for retaliation.  A reasonable jury could 
find that this proffered reason was pretextual based on the mere six days between 
Castron's protected activity and her transfer.  See Miller v. Fairchild Indus., Inc., 
885 F.2d 498, 505 (9th Cir. 1989) (pretext established by showing discharges 
occurred 42 and 59 days after EEOC hearings).  Additionally, a jury could infer 
pretext from the fact that Castron and her supervisors had repeatedly requested - 
and had been repeatedly denied - her transfer to Final Assembly, which shows that 
Boeing's proffered reason for her transfer to Structures-Mod (that she had 
requested it) was untrue.
     A jury could additionally find pretext based on Castron's testimony that 
Charlton had assured her that the transfer would not make her more vulnerable to a 
RIF but then identified her for layoff just two months later.  While Boeing argued 
below that there was no evidence that Charlton knew of the upcoming RIF, a 
reasonable jury could find otherwise.  Charlton testified that although he did not 
know what the ultimate result would be, as of early 2002 he knew that there were 
no "new-build" aircrafts scheduled for 2003, so "there was going to be a 
reduction."  RE297(Charlton Depo.94).  Additionally, Castron testified that it had 
been announced as of August 2002 that a RIF was upcoming.  RE189,  1.  Based 
on this evidence, and Castron's testimony that Charlton assured her that she would 
not be more vulnerable to a RIF (suggesting that he knew one was upcoming), a 
jury could conclude that Charlton knew a RIF was likely.  Based on Hartoog's 
testimony that it would have taken years for Castron to get up to speed in 
Structures-Mod, and based on undisputed evidence that the work there was more 
complex than in PSA, see supra at 7-8, a jury could conclude that Charlton 
transferred Castron to Structures-Mod to get rid of her after she complained.  See, 
e.g., Reynaga, 27 Fed. Appx. at 742-43 (where employer purportedly transferred 
plaintiff because of an economic downturn without knowing that transfer would 
result in less overtime and incentive pay, concluding that the plaintiff had 
established pretext by offering evidence that it was widely known that transfer 
entailed less overtime and incentive pay).  This conclusion would also be 
supported by evidence that Feuerstein and Wright excluded recently transferred 
employees from RIF assessment, RE227, suggesting that Charlton could have done 
the same for Castron, as Castron said he had promised.  Accordingly, summary 
judgment on this claim was inappropriate.

     b. Layoff

     The EEOC established a prima facie case of retaliatory termination by 
showing that Castron engaged in protected conduct by complaining to Charlton 
about the hostile work environment in PSA, that she suffered an adverse action 
when she was laid off, and that there was a causal connection between her 
protected activity on August 6, 2002, and her termination two months later.<12> See 
Ray, 217 F.3d at 1240 n.3 (informal complaint to supervisor constitutes protected 
activity); Yartzoff, 809 F.2d at 1376 (causation established where adverse actions 
occurred within three months of complaint).
     The EEOC also provided evidence from which a reasonable jury could find 
that Boeing's proffered reason for Castron's layoff was a pretext for retaliation.  
First, the evidence shows a close proximity between Castron's complaint to 
Charlton on August 6, 2002, about the hostile work environment and her layoff, 
which Charlton approved, just two months later.  See Miller, 885 F.2d at 505 (lags 
of less than two months between protected activity and layoffs were probative of 
pretext).  Second, a jury could infer pretext based on evidence that Charlton 
reneged on his promise to Castron that, as a trainee, she would not be affected by 
any upcoming RIF, and on evidence that other employees were exempted from the 
RIF, as Boeing's policy permitted.  Third, as outlined above in Section B.2.a., a 
jury could find that Charlton transferred Castron to Structures-Mod knowing that a 
RIF was coming up and that the complex work there, coupled with her lack of 
structural engineering experience, would make her layoff likely.  Finally, a jury 
could find, based on evidence discussed, supra at 42-43, that the evidence cast 
doubt on whether the scores Castron received in the RIF assessment were credible.  
Thus, the Commission should have been allowed to go to trial on this claim.

     B.	Renee Wrede
     The court also erred in granting summary judgment on the EEOC's claim 
that Wrede's layoff was the result of sex discrimination.  As the district court 
acknowledged, Boeing conceded below that the EEOC had established a prima 
facie case.  RE2.  Boeing asserted, however, that Wrede's termination was the 
result of a RIF necessitated by a downturn in work and Wrede's low scores in the 
October RIF assessment.  Doc.103, pgs. 4, 5-8.  Because Boeing proffered a 
legitimate non-discriminatory reason for Wrede's layoff, the EEOC bore the 
burden of coming forward with "specific and substantial" evidence of 
discrimination.  Coghlan v. American Seafoods Co., 413 F.3d 1090, 1095 (9th Cir. 
2005).  Although the EEOC's burden as to this claim was heightened, the district 
court erred in finding that the EEOC had failed to satisfy it.  Id. at 1098 (applying 
the same-actor inference and holding that it gives rise to a "strong inference," but 
not a "mandatory presumption").<13> Accordingly, this Court should reverse that 
finding and remand the claim for trial.
     The EEOC produced more than sufficient evidence to allow a reasonable 
jury to conclude that Wrede's low scores in the RIF assessment were not credible 
and to infer that the real reason for her layoff was sex discrimination.  See Reeves, 
520 U.S. at 148 ("[A] plaintiff's prima facie case, combined with sufficient 
evidence to find that the employer's asserted justification is false, may permit the 
trier of fact to conclude that the employer unlawfully discriminated."); see also 
Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981) (stating that an 
employer's misjudgment of an applicant's qualifications may be probative of 
pretext); Winarto v. Toshiba Am. Elec. Components, Inc., 274 F.3d 1276, 1285 (9th 
Cir. 2001) (affirming jury verdict where plaintiff offered evidence of retaliation 
and "sufficiently rebutted as pretext defendants' explanations for the low scores" 
leading to her layoff).  Both Wrede's declaration and Wright's 2001 evaluation of 
her refute several of her low "ability to perform remaining work" scores.  During 
the October RIF assessment, Wright assigned Wrede a "0" for "Unigraphics," 
indicating that she had "no background or experience."  RE80.  In the April/July 
RIF assessments, however, Wright had assigned Wrede a "1."  RE68.  Boeing has 
failed to offer any plausible explanation for why Wright downgraded Wrede's 
score in October, since, by his own admission, Wrede had at least some 
background or experience with Unigraphics just three months earlier.  The 
credibility of Wrede's score of "0" is further undermined by the fact that her 2001 
evaluation - which Wright performed - states specifically that Wrede "continues 
her personal development" with training in "UG v. 16 [Unigraphics version 16]," a 
predecessor version of Unigraphics 15.  RE65, RE35-36.  Finally, Wrede stated 
that she had been trained on Unigraphics.  RE201,  35.  All of this evidence casts 
doubt on whether her "0" was a credible score.  
     The EEOC's evidence also casts doubt on whether the "0" Wrede received 
for "product vision" - indicating no background or experience -  was credible.  
Wright testified that this score was warranted because Wrede lacked experience 
with "product vision," but on her 2001 evaluation he wrote that Wrede "continues 
her personal development this year with . . . product vision."  RE65.  Wright also 
gave Wrede a "0" for "wiring systems," but Wrede had some wiring experience.  
RE200-01,  33.  Wright also gave Wrede only a "3" for CCAR ("cause and 
corrective action reports"), but Wrede testified that she had "a lot of experience" 
with that system because she responded to "conditions requiring corrective action 
on a daily" basis.  RE201,  34.  Hence, a jury could find from Wrede's declaration 
and her 2001 evaluation that the reasons given for her low scores for Unigraphics, 
product vision, wiring, and CCAR were not just mistaken but were so implausible 
as to be unworthy of belief.  See Tomasso v. Boeing Co., 445 F.3d 702, 708 (3d 
Cir. 2006) (stating that the plaintiff's affidavit refuting the stated reasons for his 
low RIF assessment scores "does not merely suggest that the low score assigned by 
[his supervisor] was 'wrong or mistaken,'" but that there were "'such weaknesses, 
implausibilities, inconsistencies, incoherencies, or contradictions' in Boeing's 
explanation as to deem it 'unworthy of credence'") (internal citations omitted).
     Although Title VII does not prohibit the use of subjective criteria, Casillas v. 
United States Navy, 735 F.2d 338, 345 (9th Cir. 1984), this Court has explained 
that "[w]here termination decisions rely on subjective evaluations, careful analysis 
of possible impermissible motivations is warranted because such evaluations are 
particularly 'susceptible of abuse and more likely to mask pretext.'" Xin Liu v. 
Amway Corp., 347 F.3d 1125, 1136 (9th Cir. 2003) (holding that under the 
circumstances, a jury could find that the plaintiff's low scores in such "soft skills" 
as "being upbeat" were "vague enough to be suspect") (citation omitted); see also 
Tomasso, 445 F.3d at 706, 709-10 ("low evaluation scores may be a pretext for 
discrimination, especially where, as here, an employer uses subjective criteria such 
as 'attitude' and 'teamwork'"; holding that the jury could infer pretext from 
Boeing's failure to explain these and other low scores).  Here, Wright gave Wrede 
low scores on a number of subjective sub-categories for "ability to perform 
remaining work," making her evaluation "particularly susceptible of abuse and 
more likely to mask pretext."  Xin Liu, 347 F.3d at 1136 (internal quotations and 
citation omitted).  Wrede scored only 2.3 for the category 
"Communication/Leadership," which consisted of such subjective subcategories as 
"team skills," "communication skills," and "leadership skills."  RE80.  Wrede's 
score of 2.3 was 1.2 points lower than her April/July RIF assessment score; 
Wrede's "team skills" score dropped from a 4 to a 2, her "communication skills" 
dropped from a 4 to a 2, and her "leadership skills" dropped from a 3 to a 1.  RE68, 
RE80.   
     Despite the dramatic drop, Wright provided little explanation for the low 
scores.  He offered the conclusory assertion that "her communication [and] 
leadership skills had declined," but he was unable to recall any specific individual 
who complained about Wrede's communication skills, or about anything else, and 
Wright admitted that there was no written record of any communication problems.  
RE58.  When pressed specifically about Wrede's "communication skills," Wright 
asserted that she had trouble communicating with "the teams, her managers, her 
dotted-line managers," and himself, but he could not even recall who was Wrede's 
dotted-line manager, and the only specific problem he related was that Wright 
failed to turn in her weekly reports on time.  RE56.  Wrede, however, testified that 
other MEs also failed to timely hand in their reports, or failed to complete them 
altogether, and that Wright never spoke to her individually about it.  RE250 
(Wrede Depo.144-45).  While Wright asserted that Wrede's "team skills" had 
"continued not to improve" and she was "having more issues with her team 
interface," he offered no specific explanation of what he meant.  RE55.  Wrede's 
low "communication/leadership" score was particularly suspect because Wrede, 
the only woman, was the second-lowest ranking ME for this subjective category; 
eleven men scored at least a point higher than she did.  RE77.  Finally, Wright also 
failed to offer any explanation whatsoever for Wrede's low scores on two of the 
subjective categories comprising "past performance" -  "cooperated and supported 
team decisions" and "readily accepted assignments" - which would permit a 
reasonable jury to infer that Wrede's scores for these categories were also a pretext 
for sex discrimination.  RE59 (testifying that he did not know how he assigned 
points for past performance).    
     A reasonable jury could further discredit Wrede's low scores for the non-
subjective categories of "ability to perform remaining work" and "past 
performance" based on Dave Eroh's testimony that Wrede's scores should have 
been significantly higher.  Although the district court concluded that co-employee 
evaluations are not probative of pretext,  RE7-8, other courts have held that a co-
worker's assessment of a plaintiff's work "is clearly probative of pretext" where an 
adverse action was taken based on managers' assessment of the plaintiff's work.  
Abuan v. Level 3 Commc'n, Inc., 353 F.3d 1158, 1174 (10th Cir. 2003).  The court 
also erred in reasoning that Eroh's evaluation was "meaningless in isolation" 
because "Eroh might be an unusually soft grader who inflates everyone's scores."  
RE8.  Eroh testified that he was often a "lead" who assigned Wrede tasks 
beginning in 1989, that he was himself assessed in the RIF, that Wrede's 
"capacities, skills and abilities were comparable to [his] own," and that her "scores 
should have been comparable to [his.]"  RE206-12,  7-8, 12, 28.  Accordingly, 
Eroh did not evaluate Wrede "in isolation" but against his own RIF assessment 
scores, and his long history of working with Wrede and assigning her tasks made 
him qualified to do this.
     Eroh's evaluation, which the district court failed to consider because the 
court found it irrelevant, provided significant circumstantial evidence of pretext.  
According to Eroh, Wrede's scores for a number of categories for "ability to 
perform remaining work" should have been significantly higher.  RE212,  30.  For 
instance, he testified that because Wrede's "skills at Unigraphics were better than 
that of the average ME at the time," her Unigraphics score should have been a "3" 
instead of a "0." RE214,  30(m).  Consistent with Wrede's own testimony, Eroh 
would have changed Wrede's CCAR score from a 3 to a 5 because she "ha[d] the 
ability to navigate all of the screens better than the majority of her counterparts."  
RE214,  30(h).  Eroh also offered detailed statements as to why Wrede deserved 
higher scores, and what those scores should have been, in seven other technical 
sub-categories, including lean tools, DTI Processes, Company Procedures, 
Engineering Change Process, Specification Knowledge, AMAPS, MEPLAN.  
RE212-14,  30.  Eroh also testified that Wrede should have received higher scores 
in three subjective sub-categories: she deserved a 3 instead of a 2 for "team skills," 
a 4 instead of a 2 for "communication skills," and a 3 instead of a 1 for "leadership 
skills." RE214,  30(j)-(l).  Eroh provided detailed explanations for why this was 
so.  Id.  Based on his scores, Wrede should have received 27.61 instead of 21.1 for 
"ability to perform remaining work," which would have prevented her from being 
laid off.  RE218, RE77(showing that 6 points separated Wrede from those retained 
in the RIF).
     Eroh also offered testimony that Wrede's "past performance" score should 
have been a 13 instead of a 9.  As he had for her "ability to perform remaining 
work" scores, Eroh offered detailed statements about why Wrede's scores for each 
of the five "past performance" categories were inaccurate and why they should 
have been higher.  RE215,  32.  Significantly, Eroh gave lengthy and explicit 
reasons for why Wrede should have earned higher scores for the subjective 
categories "readily accepts assignments" and "cooperated and supported team 
decisions," stating that, to his knowledge, Wrede never refused any assignments 
and that she "was always receptive to group/team decisions."<14> RE215, 
 32(c)&(d).  Eroh's assessment of Wrede's "past performance" is particularly 
probative of pretext because Wright offered no explanation at all in his deposition 
for why Wrede scored only a "9" for past performance, which was the second-
lowest score any ME in skill code 32 received.  RE59, RE77.  See Tomasso, 445 
F.3d at 709-10 (reversing summary judgment where some of the plaintiff's "low 
scores remain unexplained," and, if he "had received higher scores in these or other 
areas, he would have been ranked high enough to avoid being laid off").  Based on 
Eroh's assessment of Wrede's "ability to perform remaining work" and "past 
performance," Wrede would have received a total RIF assessment score of 73, not 
62, which was well above the cut-off for the RIF.<15> RE77.  Accordingly, a 
reasonable jury could find - based on Wright's vague testimony, Wrede's 
testimony, Wrede's 2001 evaluation, and Eroh's testimony - that her low scores 
were not credible and, therefore, infer that her layoff was a pretext for sex 
discrimination.  
     In reaching this determination, a reasonable jury could also rely on evidence 
that a number of managers Wrede was supporting at the time of her layoff, or had 
supported in the past, offered laudatory comments about her performance, and that 
a few of them even singled out other MEs who should have been laid off instead of 
Wrede.  See Davis, 1998 WL 856505, at *1 (concluding that the plaintiff had 
established pretext where he "offered testimony of prior supervising officers who 
testified that he was a good to excellent engineer").  Specifically, Dave Stallings, 
the LAPPAR Program Manager, whom Wrede had been supporting for six months, 
said that Wrede's layoff was a poor decision, and he even e-mailed Warner and 
Feuerstein after the RIF to say that Wrede had "done an admirable job" and really 
excelled in PSA.  RE195,  3; RE244.  Similarly, John Houseman, a manager in 
Final Assembly whom Wrede had supported since 1997 and was supporting at the 
time of the RIF when his assigned MEs were out of the area, told Wrede that he 
was going to suggest to Feuerstein that other MEs be moved out (including Wayne 
Christian, who had survived the RIF) and that Wrede be "hard-lined" to his group 
because she was a reliable performer and his crew depended on her.  RE196,  9.  
Houseman's second-shift counterpart, John Kivler, whom Wrede had supported for 
several years, also said that laying her off was a poor decision and that Earl Bartley 
should have been laid off instead.  RE197,  10.  Dean Johnson and Frank 
Goodrich, two managers Wrede had known and supported since 1997 and 1989, 
respectively, told her that they had also asked Feuerstein about moving her to the 
Tool Engineering Department.  RE197,  11.  Stallings, Houseman, Johnson, and 
Goodrich told Wrede that they had talked to Feuerstein about assigning Wrede to 
work in their areas, but that he had refused.  RE199,  20-21.  Ted Hall, a 
manager Wrede had supported since 1991, also told Wrede her selection for layoff 
was unfair and that other MEs should have been laid off first.  RE197,  14.  
Similarly, former managers Bill Sheppard and Bobby DiBartolomeo told Wrede 
that she should not have been laid off, RE197,  13, and Tom Reilly, a manager 
Wrede had supported from 1998-2000, told her that Earl Bartley and George 
Willard should have been laid off instead of her.  RE196,  5.  
     Finally, a reasonable jury could infer pretext based on evidence that 
Feuerstein offered assistance to at least two of the men identified for RIF but not to 
Wrede, who was the only woman identified for layoff.  See Rose v. Wells Fargo & 
Co., 902 F.2d 1417, 1422-23 (9th Cir. 1990) (where plaintiffs challenged their 
layoffs in RIF, stating that an "inference of discrimination is raised where" an 
employer voluntarily assumes a duty to transfer employees to other positions and 
the plaintiff shows that non-protected employees were treated more favorably).  
Both York and Johnson stated that Feuerstein had called them and told them of job 
openings, but Wrede stated that Feuerstein never told her of any job openings.  
RE242, RE64.  Although the district court concluded that this evidence was 
irrelevant because Feuerstein failed to offer assistance to the other men, it was up 
to the jury to weigh this evidence.

                                   CONCLUSION

	For the reasons discussed above, the Commission respectfully requests that 
this Court reverse the entry of summary judgment on the EEOC's claims of sex 
discrimination as to Wrede and the claims of sex discrimination and retaliation as 
to Castron.







			Respectfully submitted,

			RONALD S. COOPER
			General Counsel

			CAROLYN L. WHEELER 
			Acting Associate General Counsel

			LORRAINE C. DAVIS
			Assistant General Counsel

			 
			
			___________________________
			ANNE NOEL OCCHIALINO
			Attorney
                        EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
			Office of General Counsel
			1801 L Street, N.W., Rm. 7042
			Washington, D.C. 20507
			(202) 663-4724


 			February 28, 2008









                       STATEMENT OF RELATED CASES

     This appeal is not related to any other known case pending in this Court.


                       CERTIFICATE OF COMPLIANCE

     I hereby certify that this brief complies with the type-volume limitations of 
Fed. R. App. P. 32(a)(7)(B)(i).  The brief contains 13,435 words.

______________________________
Anne Noel Occhialino
     
     


                     

                            CERTIFICATE OF SERVICE
     
      I, Anne Noel Occhialino, hereby certify that I served two copies of the 
foregoing brief and one copy of the excerpts of record this 28th day of February, 
2008, by overnight mail, postage pre-paid, to the following:


Counsel for Defendant-Appellee

Tibor Nagy
Erika K. Rocush
OGLETREE DEAKINS 
6760 N. Oracle Rd., Ste. 200
Tucson, AZ 
85704-5608
(520) 544-0300

_____________________
Anne Noel Occhialino
Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 
Office of General Counsel
1801 L Street, N.W., Room 7042
Washington, D.C. 20507
(P)(202) 663-4724
(F)(202) 663-7090


***********************************************************************
<<FOOTNOTES>>

<1>  Although there was some evidence offered that the transfer occurred in 2002, 
Boeing asserted in its statement of facts that the transfers occurred in late 2000.  
RE247.

<2> Castron testified that Bartlett stepped in as a PSA supervisor when another 
supervisor was ill.  RE121. 

<3> Castron specifically requested transfer to "building 520," which housed Final 
Assembly.  RE134, RE177.  

<4> Although many of the witnesses used the terms interchangeably below, 
"Structures-Mod" and "Pre-Mod" technically refer to different parts of the 
modification process.  RE308(Hobby Depo.61-62).  Castron joined "Structures-
Mod."  RE308(Hobby Depo.62).

<5> For the July RIF, Feuerstein "normalized" the raw scores for "ability to perform 
remaining work" scores by using a multiplier; this was intended to better spread 
the scores across the 35 points allotted for this category.  RE70, RE74, RE30.  This 
process was abandoned for the October 2002 RIF.  RE30.

<6> One of the four employees, William Eidsmore, avoided layoff because he was 
redeployed to another division.  RE81, RE28-29.  Christian Johnson's RIF was 
"cancelled" on 9/6/02 when he took an ME job in Texas.  RE81, RE256(Wright 
Depo.127).  Jeffrey Schultz's RIF notice was also "cancelled" on 8/15/02, but he 
was not listed an ME in skill code D32 for the 10/25/02 RIF assessment, 
suggesting that he transferred to another position.  RE81, RE77.  The fourth 
employee identified for the RIF, Eric Schulke, also had his RIF notice cancelled on 
8/15/02 and apparently remained as an ME in skill code 32.  RE81, RE77.

<7> The "ability to perform remaining work" form was modified slightly from the 
earlier form; some categories were added and others deleted.  RE80.

<8> Unigraphics 15 was a more recent version of Unigraphics 16; essentially, version 
15 was an upgrade.  RE35-36. 

<9> The court also granted summary judgment on the EEOC's claim of retaliatory 
discharge as to Wrede, but the Commission is not appealing that ruling.

<10> The court mistakenly believed that the EEOC was arguing that the failure to 
transfer Wrede to another position after she was identified for layoff constituted a 
separate adverse action.  RE9.  What the EEOC actually argued was that 
"additional evidence of pretext" regarding her layoff "arises from the difference 
between the assistance Boeing provided the males identified for RIF" and what it 
provided to Wrede.  Doc.111, pg.9. 

<11> Boeing argued below that the same-actor inference applied to the EEOC's 
discriminatory transfer claim because Charlton had treated Castron fairly in the 
past.  Doc.116, pg.9.  Even if Charlton's prior treatment of Castron could be 
characterized as favorable, which the Commission does not concede, the same-
actor inference is inapplicable here because the EEOC offered direct evidence of 
Charlton's discriminatory animus.  Johnson v. Boys & Girls Club, 191 Fed.Appx. 
541, 545 (9th Cir. July 6, 2006) (concluding that the same-actor inference does not 
apply where the plaintiff offers evidence that her supervisor harbored 
discriminatory animus).

<12> The district court did not consider this argument; it considered only the argument 
that Castron's termination was the result of Hobby's retaliatory animus.  The 
Commission is not pursuing that argument on appeal.

<13> The Commission acknowledges that the same-actor inference applies in this case 
because Feuerstein and Wright were the decisionmakers during the July 2002 RIF 
assessment, when Wrede was not targeted for layoff.

<14> Eroh would have rated Wrede a 3 instead of a 2 for "readily accepts 
assignments" (on a 1-3 scale), and a 2 instead of a 1 for "cooperated and supported 
team decisions" (on a 1-3 scale).

<15> Because Wrede's score of 21.1 for "ability to perform remaining work" was 
rounded down to 21, this calculation is based on the presumption that the score of 
27.61 that Eroh would have given her for "ability to perform remaining work" 
would have been rounded up to 28.