Jones v. Robinson Property Group (5th Cir.)
Brief as amicus
Dec. 17, 2004                           No. 04-60688
           ____________________________________________
                              
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT
          _____________________________________________

RALPH JONES,

                    Plaintiff/Appellant,
v.

ROBINSON PROPERTY GROUP, L.P., d/b/a
HORSESHOE CASINO & HOTEL,

                    Defendant/Appellee.
         ________________________________________________

         On Appeal from the United States District Court
             For the Northern District of Mississippi
        _________________________________________________

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

     ERIC S. DREIBAND                U.S. EQUAL EMPLOYMENT
     General Counsel                    OPPORTUNITY COMMISSION
                                     Office of General Counsel
     LORRAINE C. DAVIS               1801 L Street, NW, Room 7014
     Acting Associate General Counsel        Washington, DC  20507
                                     (202) 663-4549
     VINCENT J. BLACKWOOD            
     Associate General Counsel          
                                        
     JASON M. MAYO
     Attorney


No. 04-60688, Jones v. Robinson Property Group, LP,                     Page C-1 of 1
     d/b/a Horseshoe Casino & Hotel, 
                                                               
       SUPPLEMENTAL CERTIFICATE OF INTERESTED PERSONS AND
                 CORPORATE DISCLOSURE STATEMENT

     The undersigned counsel of record certifies that the following listed persons
and entities as described in the fourth sentence of Rule 28.2.1 have an interest in
the outcome of this case. These representations are made in order that the judges of
this court may evaluate possible disqualification or recusal.

David A. Burns, Burns Law Firm,
     Attorney of record for Robinson Property Group, LP

R. Pepper Crutcher, Balch & Bingham, LLP,
     Attorney of record for Robinson Property Group, LP

Harrah's Entertainment, Inc.

Horseshoe Gaming Holding Corp.

Ralph Jones, Plaintiff-Appellant

Robinson Property Group, LP, d/b/a Horseshoe Casino & Hotel, Defendant-
     Appellee

Marc L. Schatten, Glankler Brown, PLLC,
     Attorney of record for Ralph Jones

     Pursuant to the Federal Rule of Appellate Procedure 26.1(a), the U.S. Equal
Employment Opportunity Commission, as a government agency, is not required to
file a corporate disclosure statement.

                         
                         Jason M. Mayo
                         Attorney of Record for the EEOC, Amicus Curiae
                                
                       TABLE OF CONTENTS

                                                                       Page

SUPPLEMENTAL CERTIFICATE OF INTERESTED PERSONS
     AND CORPORATE DISCLOSURE STATEMENT. . . . . . . . . . . . . . . . .C-1

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

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

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

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

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

STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

ARGUMENT

          A PLAINTIFF MAY MAKE OUT A PRIMA FACIE CASE OF RACE
          DISCRIMINATION IN HIRING EVEN IF SOME INDIVIDUALS OF 
     THE SAME RACE WERE HIRED BY THE DEFENDANT.  . . . . . . . . . . . . 11
     
CONCLUSION . . . . .19
     
CERTIFICATE OF COMPLIANCE  . . . . . . . . . . . . . . . . . . . . . . . 20

CERTIFICATE OF SERVICE


                                
                                
                                
                                
                                
                     TABLE OF AUTHORITIES 
                                
                         FEDERAL CASES 

                                                        Page(s)

Byers v. Dallas Morning News, Inc., 
     209 F.3d 419 (5th Cir. 2000)  . . . . . . . . . . . . . . . . . . .16

Dibidale of La., Inc. v. Am. Bank & Trust Co., 
     916 F.2d 300 (5th Cir. 1990)  . . . . . . . . . . . . . . . . . . . 17

Doe v. Cutter Biological, Inc., 
     971 F.2d 375 (9th Cir. 1992)  . . . . . . . . . . . . . . . . . . . 17

Fierros v. Texas Dep't of Health, 
     274 F.3d 187 (5th Cir. 2001)  . . . . . . . . . . . . . . . . . . .10

Furnco Constr. Corp. v. Waters, 
     438 U.S. 567 (1978) . . . . . . . . . . . . . . . . . . . . . . . .15

Gibson v. Atlantic Southeast Airlines, 
     No. 3:00cv2712, 2002 WL 24259 (N.D. Tex. Jan. 7, 2002)  . . . . . . 14
     
Hornsby v. Conoco, Inc., 
     777 F.2d 243 (5th Cir. 1985). . . . . . . . . . . . . . . . . . . .14

Industrias Magromer Cueros y Pieles, S.A., v. Louisiana Bayou Furs Inc., 
     293 F.3d 912 (5th Cir. 2002) . . . . . . . 10

Johnson v. Louisiana, 
     351 F.3d 616 (5th Cir. 2003)  . . . . . . . . . . . . . . . . . . . 15

Jones v. Western Geophysical Co. of Am., 
     669 F.2d 280 (5th Cir. 1982)  . . . . . . . . . . . . . . . . . 14-16
McDonnell Douglas Corp. v. Green, 
     411 U.S. 792 (1973)  . . . . . . .8-9, 11, 15

Nat'l R.R. Passenger Corp. v. Morgan, 
     536 U.S. 101 (2002) . . . . . . . . . . . . . . . . . . . . . . . .12

Nieto v. L&H Packing Co., 
     108 F.3d 621 (5th Cir. 1997). . . . . . . . . . . . . . . . . .14, 16

Palasota v. Haggar Clothing Co., 
     342 F.3d 569 (5th Cir. 2003)  . . . . . . . . . . . . . . . . . . .16

Reeves v. Sanderson Plumbing Prods., Inc., 
     530 U.S. 133 (2000) . . . . . . . . . . . . . . . . . . . . . . . .10

Rivers-Frison v. Southeast Mo. Cmty. Treatment Ctr., 
     133 F.3d 616 (8th Cir. 1998)  . . . . . . . . . . . . . . . . . . .16

Rubinstein v. Adm'rs of Tulane, 
     58 F. Supp. 2d 702 (E.D. La. 1998), aff'd, Rubinstein v. Adm'rs 
     of the Tulane Educ. Fund, 218 F.3d 392 (5th Cir. 2000)  . . . . . . 14

Shager v. Upjohn Co., 
     913 F.2d 398 (7th Cir. 1990)  . . . . . . . . . . . . . . . . . . .18

Texas Dep't of Cmty. Affairs v. Burdine, 
     450 U.S. 248 (1981) . . . . . . . . . . . . . . . . . . . . . . . .15

Thornbrough v. Columbus & Greenville R.R. Co., 
     760 F.2d 633 (5th Cir. 1985)  . . . . . . . . . . . . . . . . . 9, 12

Waggoner v. City of Garland, 
     987 F.2d 1160 (5th Cir. 1993) . . . . . . . . . . . . . . . . . . .11

                                
                                
                   FEDERAL STATUTES AND RULES

                                                        Page(s)

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

     42 U.S.C. 2000e-2(a)(1) . . . . . . . . . . . . . . . . 11

     42 U.S.C. 2000e-5(e)(1) . . . . . . . . . . . . . . . . 12
               
Fed. R. App. P. 28(e)  . . . . . . . . . . . . . . . . . . . . . . . . . 2

Fed. R. App. P. 29(a)  . . . . . . . . . . . . . . . . . . . . . . . . . 2

Fed. R. Civ. P. 56(c)  . . . . . . . . . . . . . . . . . . . . . . . . .11



                                
                                
                                
                          No. 04-60688
          ____________________________________________
                                
             IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
         _____________________________________________

RALPH JONES,

                    Plaintiff/Appellant,
v.

ROBINSON PROPERTY GROUP, L.P., d/b/a
HORSESHOE CASINO & HOTEL,

                    Defendant/Appellee.
         ________________________________________________

         On Appeal from the United States District Court
             For the Northern District of Mississippi
        _________________________________________________

       Brief of the Equal Employment Opportunity Commission
  as Amicus Curiae Supporting Plaintiff-Appellant and Reversal
        __________________________________________________
                     STATEMENT OF INTEREST
     The Equal Employment Opportunity Commission is the agency established by
Congress to interpret, administer and enforce Title VII of the Civil Rights Act of
1964, 42 U.S.C. 2000e et seq., and other federal anti-discrimination laws.  In this
private Title VII action, the district court erred by summarily holding that Plaintiff
Ralph Jones could not establish a prima facie case of discrimination under the
McDonnell Douglas burden-shifting framework because the Defendant treated
other members of the Plaintiff's race more favorably.  Because of the importance of
this issue to enforcement of Title VII, we offer our views to the Court pursuant to
Fed. R. App. P. 29(a).
                     STATEMENT OF THE ISSUE
     Whether the district court erred in holding that, because the Defendant had
hired a few members of the Plaintiff's protected class, it was "impossible" for the
Plaintiff to establish a prima face case under the McDonnell Douglas test. 
            STATEMENT OF FACTS AND PROCEEDINGS BELOW
     Robinson Property Group, LP, ("RPG") first opened the Horseshoe Casino
and Hotel ("Horseshoe") in Tunica County, Mississippi, in 1995.  (R. 864).  Ken
Lambert has served as the Horseshoe's poker room manager from the time the
casino opened.  (R. 864).  In December 1994, Ralph Jones, an African-American
male and a casino-certified poker dealer, applied for a poker floor person position at
RPG and met with Lambert.  (R. 864; Plaintiff's Opposition to Defendant's Motions
for Summary Judgments ("Plaintiff's Opp."), Ex. 2, Declaration of Ralph Jones
("Jones Dec.")  5).  A poker floor person assists the poker room manager and
supervises a shift of poker dealers.  Lambert claims that, when he informed Jones
that the position was taken, Jones demanded that the incumbent employee be fired
and Jones hired in his place because of  Jones' superior qualifications.  (R. 559). 
According to Lambert, he denied Jones' request, but he claims he offered Jones a
position as a poker dealer which Jones declined.  (R. 559).  Jones stated in a sworn
declaration that he did not demand that a poker floor person be fired.  (Plaintiff's
Opp., Ex. 2, Jones Dec.  5).  He also denied that Lambert offered him a poker
dealer position.  (Plaintiff's Opp., Ex. 2, Jones Dec.  5).
     In May 1995, Jones again applied for a poker floor person and a poker dealer
position with RPG.  (Plaintiff's Opp., Ex. 2, Jones Dec.  6).  Two weeks later,
Jones returned to the casino and asked RPG's employment office if the casino had a
problem with hiring "blacks" as poker dealers since the casino employed no
African-American poker dealers at the time.  (R. 561-62; Plaintiff's Opp., Ex. 2,
Jones Dec. 7-8).  Lambert was called back to the casino's employment office to
respond to Jones' question.  (R. 561-62).  Lambert responded that there were no
qualified African-American poker dealers in the Tunica area.  (R. 864; Plaintiff's
Opp., Ex. 2, Jones Dec. 8).  Jones informed him that there were at least five
qualified African-American dealers in the area including himself.  (R. 864;
Plaintiff's Opp., Ex. 2, Jones Dec. 8).  Lambert confirmed that the May 1995
meeting occurred and that Jones raised an allegation of race discrimination.  (R.
561-62).  Lambert testified he became indignant at Jones' accusation and asked
Jones why he would accuse Lambert of racism since Lambert was new to the
Tunica area and Jones knew nothing about him.  (R. 561-62).  Nevertheless,
Lambert claimed he again offered Jones a poker dealer position at this meeting.  (R.
562).  When Jones refused and persisted in his racial allegations, Lambert testified
that his feelings became hurt and he ended the conversation.  (R. 562).  Jones denies
that he was offered a poker dealer position at this meeting.  (Plaintiff's Opp., Ex. 2,
Jones Dec. 5).
     Over the years between his initial application and the filing of his charge of
discrimination, Jones applied for a poker dealer position no less than 10 times. 
(Plaintiff's Opp., Ex. 2, Jones Dec.  2).  While RPG employed him in other
departments and on a temporary basis in the poker room when the need was
particularly acute, as for example during a high profile poker tournament, it never
hired him on a permanent basis in a poker dealer position.  (Plaintiff's Opp., Ex. 2
Jones Dec.  3).  Between 1995 and 2002, the Horseshoe employed no more than a
handful of African-American poker dealers on a permanent basis at any given time
out of the 40 to 45 poker dealers it regularly employed.  (R. 1363-68; Plaintiff's
Opp., Ex. 2, Jones Dec.  10).  Three of the African-American poker dealers
retained by the Horseshoe were among those named by Jones at his second
encounter with Lambert.  (R. 864).  From March 7, 2002, to the day Jones filed his
charge of discrimination with the EEOC on September 3, 2002, RPG hired four
permanent poker dealers none of whom was African-American.  (R. 1363-68).  In
the approximately nine months after Jones' charge was filed, RPG hired an
additional thirteen permanent poker dealers.  (R. 1363-68).  Of these thirteen, ten
were Caucasian, one was Asian-American, and the remaining two were African-
American.  (R. 1363-68).
     Lambert testified that his refusal to hire Jones rested on his conclusion that
"Ralph Jones is not a well-liked person."  (R. 569).  Denying that he personally
disliked Jones, Lambert claimed he relied on the opinion of other casino staff
members, including past and present RPG supervisors Terry Bargy and Brooks
Bradley.  (R. 566-67, 569).  However, both Bargy and Bradley denied ever giving a
negative opinion of Jones to Lambert.  (Plaintiff's Opp., Ex. 7, Deposition of Terry
Bargy ("Bargy Depo.") p. 34:14-20; Plaintiff's Opp., Ex. 16, Deposition of Brooks
Bradley ("Bradley Depo.") p. 40:9-21).  To the contrary, Bargy testified he liked
Jones, and Bradley stated that Jones was a "nice guy."  (Plaintiff's Opp., Ex. 7,
Bargy Depo. p. 34:14-17; Plaintiff's Opp., Ex. 16, Bradley Depo. p. 38:19-21).
     Lambert also testified that his decision not to hire Jones was based in part on
his own assessment of Jones' "pushiness" exhibited at their first encounter when
Jones allegedly requested a floor person be fired and Jones hired in his place.  (R.
567).  Additionally, Lambert testified that he had doubts about Jones' integrity
based on the fact that Jones "misjudged" Lambert by accusing him of race
discrimination in May 1995.  (R. 562, 569-70).
     Lesley Mims who had worked at the Horseshoe since 1994 testified that
either Lambert or Jim Presley, a poker floor person and Lambert's assistant poker
room manager, had stated at least once that "good old white boys don't want blacks
touching their cards."  (Declaration of Lesley Mims ("Mims Dec.")  16; Plaintiff's
Opp., Ex. 10, Deposition of Lesley Mims ("Mims Depo.") pp. 32:16-20, 34:8-11;
R. 963-64, Mims Depo. pp. 54:4-55:8).  During Mims' deposition she could not be
more precise as to who made the comment and when.  (R. 963-64, Mims Depo. p
54:4-15).  Mims also stated in her declaration that Lambert "would also use the
word 'nigger' very often."  (Mims Dec.  16; R. 963-64, Mims Depo p. 54:20-21). 
At her deposition, Mims stated that she was "sure [Lambert] used the word with no
qualms whatsoever, but I wouldn't say very often."  (R. 963-64, Mims Depo. p.
54:23-24).  She also could not recall when the statement was made and conceded
that her memory concerning the matter was "vague."  (R. 963-64; Mims Depo. pp.
54:16-55:8).  Sam Thomas, another employee at the Horseshoe, testified that
Lambert stated in 1994 or 1995, "Maybe I've been told not to hire too many blacks
in the poker room."  (Plaintiff's Opp., Ex. 13, Declaration of Sam Thomas
("Thomas Dec.")  5).
     On September 3, 2002, Jones filed a charge of discrimination with the EEOC
alleging that RPG refused to hire him as a poker dealer because of his race. 
(Plaintiff's Opp., Ex. 1, Complaint, Charge of Discrimination of Ralph Jones). 
After obtaining a notice of right to sue, he filed suit on January 6, 2003, alleging
race discrimination under, inter alia, Title VII and 42 U.S.C. 1981.  (Plaintiff's
Opp., Ex. 1, Complaint p. 1).  The complaint also alleged race discrimination
against another plaintiff, Nathaniel Allen.  (Plaintiff's Opp., Ex. 1, Complaint p. 1). 
On January 28, 2004, Jones petitioned the court for leave to amend his complaint to
include an allegation that RPG refused to hire him in retaliation for his complaints of
race discrimination.  (R. 501).  On February 18, 2004, the court denied the
plaintiff's motion for leave to amend as not "well taken."  (R. 1096-97).  On July 6,
2004, the district court granted the defendant's motions for summary judgment
with respect to both plaintiffs.  (R. 2189). 
     The district court initially held that "a rational jury" could not find that
Mims' testimony regarding statements by Lambert or Presley was "direct
evidence" that Jones was not hired because of his race.  (R. 2183).  The court first
concluded that Mims' "testimony requires too many inferences to stand as direct
evidence that Jones was rejected [for] employment on the basis of race."  (R.
2183).   Secondly, the court found that "Mims, in effect, recanted these statements
at a later date."  (R. 2183).  Accordingly, the court ruled, the plaintiffs could not
survive summary judgment under a direct evidence approach.  (R. 2183).  
     The court then analyzed Jones' claim under the McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), burden-shifting framework.  (R. 2184.)   The court
stated that:
          [u]nder the McDonnell Douglas formulation, the plaintiff
          must first show: (1) that he belongs to a protected class;
          (2) that he applied and was qualified for a job for which
          the employer was seeking applicants; (3) that, despite his
          qualifications, he was rejected; and (4) that after his
          rejection, the position remained open and the employer
          continued to seek applications from persons with the
          plaintiff's qualifications.
(R. 2181 (citing McDonnell Douglas, 411 U.S. at 802)).  The court also noted "[a]
plaintiff may present a prima facie case of race discrimination by showing that he
was within the protected class, that he was qualified for the position, and that
employees outside the protected class were more favorably treated."  (R. 2181
(citing Thornbrough v. Columbus & Greenville R.R. Co., 760 F.2d 633, 639 (5th
Cir. 1985)).
     The court concluded that Jones met the first and third elements of the prima
facie case, i.e., he was a member of a protected class and he was rejected for
employment.  (R. 2184).  The court concluded that it was unnecessary to consider
whether Jones was qualified for the positions he sought because "Jones has failed
to show that RPG was seeking applicants for the position he sought; that the
position, if one existed, remained open after Jones applied; or that a person outside
the protected class was hired instead or otherwise treated more favorably."  (R.
2184).  According to the court, even if Jones' testimony that Lambert did not offer
him a job as a poker dealer is accepted, Jones cannot establish a prima facie case of
race discrimination "because it is uncontested that, subsequent to his refusal to hire
Jones, Lambert hired as poker dealers at least three African-Americans who were
referred to him by Jones."  (R. 2184).  Thus, the court stated, since "Jones has
failed to show that non-members of the protected class were treated more favorably
than members of the protected class," it was "impossible" for Jones to "establish a
prima facie case under the McDonnell Douglas test."  (R. 2184).  Since his initial
burden had not been met, the court considered it unnecessary to examine whether
RPG's stated reasons for not hiring Jones were pretext for discrimination or
whether RPG was acting under mixed motives.  (R. 2184).
                       STANDARD OF REVIEW
     This Court reviews "a district court's grant of summary judgment de novo,
applying the same Rule 56 standard as the district court."  Fierros v. Texas Dep't of
Health, 274 F.3d 187, 190 (5th Cir. 2001).  Thus, in considering a district court's
grant of summary judgment, this Court must consider all evidence in the light most
favorable to the non-movant  and "'disregard all evidence favorable to the moving
party that the jury is not required to believe.'" Industrias Magromer Cueros y Pieles,
S.A., v. Louisiana Bayou Furs Inc., 293 F.3d 912, 918 (5th Cir. 2002) (quoting
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000)).  "Although
summary judgment is not favored in claims of employment discrimination, it is
nonetheless proper when 'there is no genuine issue as to any material fact and . . .
the moving party is entitled to a judgment as a matter of law.'"  Waggoner v. City of
Garland, 987 F.2d 1160, 1164 (5th Cir. 1993) (quoting Fed. R. Civ. P. 56(c)).
                            ARGUMENT
     A PLAINTIFF MAY MAKE OUT A PRIMA FACIE CASE OF RACE
     DISCRIMINATION IN HIRING EVEN IF SOME INDIVIDUALS OF THE
     SAME RACE WERE HIRED BY THE DEFENDANT.
     Title VII makes it unlawful for an employer to refuse to hire any individual
because of such individual's race.  42 U.S.C. 2000e-2(a)(1).  In McDonnell
Douglas, the Supreme Court created a burden-shifting framework as a general tool
for the lower courts to use in analyzing Title VII cases where a plaintiff is
attempting to use circumstantial evidence as proof of discrimination.  McDonnell
Douglas, 411 U.S. at 802-805.  As the Court noted, a plaintiff must first establish a
prima facie case of discrimination.  Id. at 802.  If a prima facie case is established,
the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason
for its decision.  Id.  Once such a reason is proffered, the court must give the
plaintiff a "fair opportunity" to demonstrate by a preponderance of the evidence that
the defendant's reason is pretext for the true discriminatory reason.  Id. at 804.
     The district court correctly noted the plaintiff's prima facie burden as it is
articulated in McDonnell Douglas.  (R. 2181).  The court below also noted that
"[t]he necessary elements of a prima facie case are not inflexible."  (R. 2181). These
will "vary depending upon the facts of the particular case."  (R. 2181 (citing
Thornbrough, 760 F.2d at 641)).  Although it recognized this fact, the district court
nevertheless applied the prima facie case in an overly rigid, formalistic and
erroneous manner.
     The district court erred in holding that Jones could not establish a prima facie
case of race discrimination based on RPG's repeated refusals to hire him as a poker
dealer simply because the company hired two or three African-American poker
dealers after he initially applied for employment nearly ten years ago.  This ruling is
wrong for two fundamental reasons.  First, the court mistakenly focused exclusively
on hiring decisions that were made in the years immediately after Jones first applied
for a job in 1995, and years before Jones filed his charge of discrimination.  (R.
2184).  Jones does not challenge those decisions, and any claim based on these
hiring decisions was likely time-barred years before Jones filed his charge of
discrimination with the EEOC.  See 42 U.S.C. 2000e-5(e)(1) ("A charge under
this section shall be filed within one hundred and eighty days after the alleged
unlawful employment action occurred . . . ."); Nat'l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 113 (2002) (holding that, although an employee may use
prior acts as relevant background evidence in support of a timely claim, "discrete
discriminatory acts are not actionable if time barred, even when they are related to
acts alleged in timely filed charges").  It is undisputed that the vast majority of the
poker dealers hired to permanent positions within the applicable limitations period
for this lawsuit were white.  (R. 1363-68).  All four of the dealers hired in the 180
days before Jones filed his charge were white.  (R. 1363-68).  Furthermore, of the
thirteen positions filled after he filed his charge, ten were filled by whites and one
by an Asian-American.  (R. 1363-68).  Accordingly, fifteen of seventeen hiring
decisions made within the limitations period favored applicants who were not
African-American.  Insofar as Jones' complaint challenges RPG's decision to deny
him any of these fifteen positions, there is evidence that the positions were filled by
persons of a different race.   Accordingly, the district court erred in holding that
Jones could not establish a prima facie case with respect to these employment
decisions.
     Even with respect to the two positions at issue which were given to African-
Americans, that fact does not foreclose Jones from establishing a prima facie case
of race discrimination.  See Nieto v. L&H Packing Co., 108 F.3d 621, 624 n.7 (5th
Cir. 1997) (noting that, notwithstanding statements in more recent decisions, the
law in the Fifth Circuit is "'that the single fact that a plaintiff is replaced by
someone within the protected class does not negate the possibility that the discharge
was motivated [by] discriminatory reasons'" (quoting Hornsby v. Conoco, Inc., 777
F.2d 243, 246-47 (5th Cir. 1985)); see also Jones v. Western Geophysical Co. of
Am., 669 F.2d 280, 284 (5th Cir. 1982) (even if plaintiff was replaced by person of
the same race, "this need not mean that the plaintiff failed to establish a prima facie
case [of race discrimination] under McDonnell Douglas").  The Supreme Court never
intended the McDonnell Douglas prima facie burden to be applied in all cases in a
rigid or inflexible manner.  Furnco Constr. Corp. v. Waters, 438 U.S. 567, 575-76
(1978) (citing McDonnell Douglas, 411 U.S. at 802 n.13); Johnson v. Louisiana, 351
F.3d 616, 622 (5th Cir. 2003) (noting that "the prima facie case method established
in McDonnell Douglas was 'never intended to be rigid, mechanized, or ritualistic'"). 
As this Court has noted, a Title VII plaintiff satisfies the fourth prong of the
McDonnell Douglas prima face case by demonstrating "'circumstances which give
rise to an inference of unlawful discrimination.'"  Jones, 669 F.2d at 284 (quoting
Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).  Showing that a
non-member of the protected class was treated more favorably is merely one way of
raising this inference of unlawful discrimination.  Jones, 669 F.3d at 284.  However,
it is not the only way to create such an inference.  Id.  Evidence that an employer has
hired members of the protected class after the plaintiff complained of race
discrimination may be relevant to the ultimate question of whether the employer
discriminated, but it does not foreclose the plaintiff from establishing a prima facie
case of race discrimination.  Nieto, 108 F.3d at 624; Jones, 669 F.2d at 284 (noting
that the fact the employer hired a member of the same protected class as the
plaintiff could be a 
"pretextual device, specifically designed by [the employer] to disguise its act of
discrimination").
     Under Fifth Circuit law, Jones can establish an inference of discrimination
with respect to positions filled by other African-Americans if there is additional
evidence, beyond Jones' subjective belief, that Lambert's refusal to hire him was
based on his race.  See Byers v. Dallas Morning News, Inc., 209 F.3d 419, 426-27
(5th Cir. 2000).  There is sufficient additional evidence in this case.  The evidence
that Lambert and his assistant Presley made racially derogatory remarks constitutes
admissible evidence of racial animus by RPG's management, whether or not this
Court concludes that it is direct evidence of discrimination against Jones personally. 
See Palasota v. Haggar Co., 342 F.3d 569, 577 (5th Cir. 2003) (noting that, under
the ADEA, "so long as remarks [indicating animus] are not the only evidence of
pretext, they are probative of discriminatory intent"); Rivers-Frison v. Southeast
Mo. Cmty. Treatment Ctr., 133 F.3d 616, 621 (8th Cir. 1998) (noting that
statements suggesting a backdrop of racial animus, though falling short of direct
evidence of discrimination, "tend to prove that any pretextual reasons for discharge
were proffered to hide intentional race discrimination").
     The district court also improperly disregarded the sworn testimony and sworn
statements of Jones, Bargy, Bradley and Mims.  Jones denies Lambert's claim that
Lambert offered him a job as a poker dealer, and Jones also denies Lambert's claim
that he demanded that Lambert fire a poker floor person.  (Plaintiff's Opp., Ex. 2,
Jones Dec.  5).  Bargy and Bradley both contradict, indeed they both deny,
Lambert's claim that Lambert relied on their negative opinion for the proposition
that Jones was "not a well-liked person."  (Plaintiff's Opp., Ex. 7, Bargy Depo. p.
34:14-20; Plaintiff's Opp., Ex. 16, Bradley Depo. pp. 38:19-21, 40:9-21; R. 566-67,
569).  Mims stated under oath that Lambert used the word "nigger" and that he used
the word "with no qualms whatsoever."  (Mims Dec.  16; R. 963-64, Mims Depo
p. 54:20-24).  If a jury believes these witnesses and at summary judgment their
statements must be taken as true then it could find that Lambert is both a liar and a
racist.  The jury could find that Lambert rejected Jones because of his race and then
invented legitimate reasons for not hiring Jones to cover up discriminatory motives. 

     In addition, Lambert's admission that his decision not to hire Jones was
influenced by his subjective view that Jones was too "pushy" and lacked integrity
could support an inference that Jones was rejected because he was an outspoken
African-American, and, in particular, that Jones was outspoken about race
discrimination.  See Shager v. Upjohn Co., 913 F.2d 398, 403 (7th Cir. 1990)
(noting, under the ADEA, "if the employer would not fire an uppity worker unless he
was also an old worker if it admired high spirits and an independent attitude only in
the young then age would be a causal factor in the worker's termination").

                           CONCLUSION
     For the foregoing reasons, this Court should reverse the judgment and remand
this case to the district court for further proceedings.  
                                        Respectfully submitted,

                                   ERIC S. DREIBAND
                                   General Counsel     
                                        
                                   LORRAINE C. DAVIS
                                   Acting Associate General Counsel   
                                         
                                   VINCENT J. BLACKWOOD     
                                   Assistant General Counsel     
                                        
                                   
                                   JASON M. MAYO
                                   Attorney                 
                                   U.S. Equal Employment Opportunity
                                        Commission          
                                   Office of General Counsel     
                                   1801 L Street, NW, Rm. 7014
                                   Washington, DC  20507
                                   (202) 663-4549











                    CERTIFICATE OF COMPLIANCE
     I certify that this brief complies with the type-volume limitation set forth in
Fed. R. App. P. 32(a)(7)(B).  This brief contains 4,253 words.  See Fed. R. App. P.
32(a)(7)(B)(i).  The brief was prepared using the WordPerfect 9 processing system,
in 14-point proportionally spaced type for text and 14-point type for footnotes.  See
Fed. R. App. P. 32(a)(5).
                                   
                                   Jason M. Mayo
               
December 17, 2004


                     CERTIFICATE OF SERVICE
     I, Jason M. Mayo, hereby certify that on the 17th day of December, 2004, I
caused:  (1) two copies of the attached brief; and (2) a diskette containing the brief in
an Adobe Acrobat PDF format to be sent via U.S. First-Class mail postage prepaid
to the following counsel of record:
Marc L. Schatten, Attorney for Appellant
Glankler Brown, PLLC
One Commerce Square, 17th Floor
Memphis, TN  38103  

R. Pepper Crutcher, Esq., Attorney for Appellee
Balch & Bingham, LLP
401 E. Capitol Street, Ste. 200
Jackson, MS  39201

David A. Burns, Attorney for Appellee
The Burns Law Firm
40 S. Main St.
Water Valley, MS  38965

                                        
                              
                                   JASON M. MAYO  
                                   Attorney                 
                                   U.S. Equal Employment Opportunity Commission     
                                   Office of General Counsel
                                   1801 L Street, NW, Rm. 7014
                                   Washington, D.C. 20507
                                   (202) 663-4549      
                                   
December 17, 2004

__________________________________________________________

1 We take no position on any other issue raised in this appeal.

2 As the Commission will not have access to the full paginated record
 on appeal prior to the deadline for filing its amicus brief, citations
 are to the original documents as submitted to the district court below 
and to documents contained in the Record Excerpt in Support of Brief of 
Appellant (R.) where appropriate.  See Fed. R. App. P. 28(e).  

3 These poker dealers and respective hire dates are:  Lemin Lester (04/05/02);
 Myron Cullum (04/15/02); Jason Tate (08/02/02); and Huicha Quintana (08/27/02).
  (R. 1363-68).

4 These poker dealers, in order of date of hire, are:  Todd Tucker (10/22/02);
 Jimmy Sommerfield (10/30/02); Jacqueline Eddins (11/26/02), Joseph Tankersley
 (12/16/02); Dock Coleman (12/17/02); Clarence Fisher (12/23/02); Brian Taylor
 (12/30/02); Shaun Johnston (03/06/03); Nathan Forrest (04/03/03); Jessica 
Barratt-Smith (04/08/03); Dennis Jones (05/20/03); Jay Macken (05/27/03), and
 Rhonda Roberts (06/23/03).  (R. 1363-68).

5 There is sufficient evidence to support a finding that Jones established the
 other three elements of a prima facie case. It is undisputed that Jones was a
 member of a protected class; Jones race is African-American.  (R. 2184).  Jones
 applied for poker dealer positions consistently during the entire relevant time
 period.  (Plaintiffs Opp., Ex. 2, Jones Dec.  2).  Although the district court
 did not reach the question, there is also sufficient evidence that Jones was
 qualified to be a poker dealer.  He became a casino-certified poker dealer and
 served in that capacity during the course of a three-year period from 1993 to 1997.
  (Plaintiffs Opp., Ex. 2, Jones Dec.  3).  In addition, RPG itself employed Jones
 as a temporary poker dealer during tournaments when additional poker dealers were
 required, RPG conceded his technical skill as a poker dealer, and Lambert conceded
 that Jones was a good dealer.  (R. 568, 866.)  RPG argued before the district court
 that Jones did not establish a prima facie case because he was unable to identify
 a non-black individual who was hired under circumstances substantially similar to
 those under which Jones was not hired, i.e., Jones had not identified a white applicant
 who was hired after aggressively demanding another persons job from Lambert in an
 in-your-face manner.  Defendants Brief Supporting Motion for Summary Judgment Dismissing
 All Claims of Plaintiff Ralph Jones (Def. Brief) at 5 (citing Gibson v. Atlantic 
Southeast Airlines, No. 3:00cv2712, 2002 WL 24259 (N.D. Tex. Jan. 7, 2002)).  However,
 Jones was not required, as part of his prima facie case, to disprove every reason RPG
 advanced for refusing to employ him.  To show that he was qualified, Jones need only 
establish that he possessed the basic qualifications for the position in question.  
Rubinstein v. Admrs of Tulane, 58 F. Supp. 2d 702, 711-12 (E.D. La. 1998) (noting that
 a jury could find that the plaintiff was minimally qualified for the position he sought),
 affd, Rubinstein v. Admrs of the Tulane Educ. Fund, 218 F.3d 392 (5th Cir. 2000).  He
 has clearly done that.  In any event, Jones denies Lamberts assertion that he demanded
 another persons job from Lambert in 1994.  (Plaintiffs Opp, Ex. 2 Jones Dec.  5).  
For purposes of summary judgment, Jones denial must be taken as true.

6 Read in the light most favorable to Jones, Mims deposition testimony merely explained
 and qualified her declaration and does not render her statements recanted or inadmissible.
  See Doe v. Cutter Biological, Inc., 971 F.2d 375, 386 (9th Cir. 1992) (holding that the
 district court erred by excluding a witness affidavit because the affidavit and the witness
 deposition testimony were not in direct conflict with each other).  Even if this Court were
 to conclude that Mims declaration conflicts with her deposition testimony, this Court must
 assume that the statements in Mims declaration are true.  Dibidale of La., Inc. v. Am. Bank
 & Trust Co., 916 F.2d 300, 307 (5th Cir. 1990) (In reviewing a motion for summary judgment
 the court must consider all of the evidence before it, including affidavits that conflict with 
deposition testimony.).  To the extent they exist, discrepancies in those averments present 
credibility issues properly put to the trier-of-fact.  Id.