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
 _______________________________________________________
        REPLY BRIEF OF PLAINTIFF-APPELLANT
      EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
 _______________________________________________________
RONALD S. COOPER		     EQUAL EMPLOYMENT OPPORTUNITY
General Counsel	 		     COMMISSION
                                     Office of General Counsel
VINCENT J. BLACKWOOD		     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
TABLE OF AUTHORITIES ............... ........................................  	ii
ARGUMENT .....................................................................   1
1.	The Commission's discrimination claim as to Castron encompassed
	a separate claim for her transfer........................................4
2.	The Commission properly represented the record as to Charlton's and
Hobby's derogatory remarks about women, which, under this Court's
precedent, constitute direct evidence of discrimination and were
          sufficient to establish a prima facie case of sex discrimination and a
          factual question as to pretext........................................ 5
3.	Castron's transfer constituted an adverse action and the Commission
met its minimal burden of establishing a prima facie case that her transfer
was discriminatory............................................................  16
4.	Circumstantial evidence would allow a reasonable jury to conclude
that the reasons given for Castron's transfer and termination were
a pretext for sex discrimination.............................................   18
5.	The evidence would allow a reasonable jury to find that the transfer and
termination were retaliatory..................................................  24
6.	The evidence was sufficient to create a jury question as to whether
Wrede's layoff was due to sex discrimination. ................................  27
CONCLUSION ...................................................................  31
ADDENDUM
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
                          TABLE OF AUTHORITIES
Bahri v. Home Depot, USA, Inc., 242 F. Supp. 2d 922 (D. Or. 2002)............  15
Chuang v. Univ. of California Davis, 225 F.3d 1115 (9th Cir. 2000).........passim
Coghlan v. Am. Seafoods Co., 413 F.3d 1090 (9th Cir. 2005).....................12
Cordova v. State Farm Ins., 124 F.3d 1145 (9th Cir. 1997)................. 11, 13
Coward v. ADT Sec. Sys., 140 F.3d 271 (D.C. Cir. 1998)........................ 18
Davis v. Team, 580 F.3d 1080 (9th Cir. 2008)............................... 4, 19
Davis v. Widnall, No. 97-15313, 1998 WL 856505 (9th Cir. Nov. 19, 1998)....... 31
            Dominguez-Curry v. Nevada Transp. Dep't, 424 F.3d 1027
	(9th Cir. 2005).............................................   10, 12, 13
Ecological Rights Foundation v. Pacific Lumber Co., 230 F.3d 1141
      (9th Cir. 2000).......................................................... 4
Hernandez v. City of Vancouver, 2008 WL 1741492 (9th Cir. April 14, 2008)..... 30
Hilao v. Estate of Marcos, 103 F.2d 767 (9th Cir. 1996)....................... 25
Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000)................  29
Swenson v. Potter, 281 F.3d 1184 (9th Cir. 2001).............................  25
Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir. 2002)....28, 29, 30
Vincent v. Brewer Co., 514 F.3d 489 (6th Cir. 2007)........................30, 31
                                    ARGUMENT
	In its opening brief, the Commission argued that the district court erred in
granting summary judgment on the EEOC's claims of sex discrimination and
retaliation as to Antonia Castron and Renee Wrede.  As to Castron, the
Commission argued that it had established a prima facie case of discriminatory
transfer and that Charlton's derogatory comments about women and other
circumstantial evidence would support a jury's finding that the reasons given for
the transfer were pretextual.  The Commission also argued that a reasonable jury
could find that Castron's termination was the product of sex discrimination based
on Hobby's and Charlton's sexist remarks, which constituted direct evidence of
discrimination, and on other circumstantial evidence casting doubt on whether the
reasons given for Castron's layoff were pretextual.
	As for Castron's retaliatory transfer and termination, the Commission first
argued that the district court properly held that the transfer constituted an adverse
action because it made her more vulnerable to layoff.  The Commission also
argued that the six-day gap between Castron's complaint to Charlton about
working in a hostile work environment and her transfer to Structures Mod was
sufficient to establish causation and was also probative of whether the reasons
given for her transfer were a pretext for retaliation.  The Commission further
contended that other circumstantial evidence would allow a reasonable jury to find
that the reasons given for Castron's transfer and layoff were pretextual.
	As to Wrede, the Commission argued that the court erred in concluding that
no reasonable jury could find that the reasons given for her layoff were a pretext
for sex discrimination.  Specifically, the Commission pointed to circumstantial
evidence, including testimony from Wrede, Wright, Dave Eroh (Wrede's co-
worker), and statements from Wrede's former and then-current managers, from
which a jury could find that her scores were not credible and therefore infer
discrimination.  The Commission also pointed to evidence that Feuerstein helped
two men identified for layoff, but not Wrede, find new positions.
	Boeing argues that the Commission never claimed that Castron's transfer
was based on unlawful sex discrimination.  Boeing also argues that the
Commission misrepresented the record as to Charlton's and Hobby's derogatory
statements about women and, notwithstanding its concession that this Circuit's
precedent is to the contrary, insists that the comments do not amount to direct
evidence of discrimination because they did not relate to Castron or the decision-
making process.  Boeing also argues that the evidence was insufficient to allow a
jury to find that Castron's transfer or termination was discriminatory.  Boeing
similarly argues that the evidence was insufficient to allow a jury to infer that the
reasons given for either Castron's transfer or termination, which occurred,
respectively, within six days and two months of her protected activity, were a
pretext for retaliation.  Boeing further argues that the Commission failed to
establish a factual question as to whether the reasons given for Wrede's layoff
were a pretext for sex discrimination, dismissing as irrelevant evidence from
Wrede's co-worker and then-current and former managers that would allow a
reasonable jury to find that her RIF assessment scores were unworthy of belief.
	Contrary to Boeing's assertions, the district court properly recognized that
the Commission's discrimination claim as to Castron encompassed separate claims
for her discriminatory transfer and termination; in any event, the transfer was an
integral part of the Commission's discriminatory termination claim.  The
Commission also accurately represented the record as to the content and quantity
of Charlton's and Hobby's sexist remarks, which, under the law of this Circuit,
constituted direct evidence.  The Commission also pointed to evidence in the
record that, when viewed as a whole and in the light most favorable to the
Commission, as it must be, was more than sufficient to overcome Boeing's motion
for summary judgment.  See, e.g., Chuang v. Univ. of California Davis, 225 F.3d
1115, 1124 (9th Cir. 2000) ("As a general matter, the plaintiff in an employment
discrimination action need produce very little evidence . . . to overcome an
employer's motion for summary judgment.").  Even if this case could be construed
as a "close case," which the Commission disputes, this Court has repeatedly said
that "uncertainty at the summary judgment stage must be resolved in favor of the
plaintiff."  Davis v. Team Elec. Co., 520 F.3d 1080, -- , 2008 WL 819885, at *9
(9th Cir. March 28, 2008) (internal quotations and citation omitted).  Therefore,
this case should be be remanded for trial.
	1.	The Commission's discrimination claim as to Castron encompassed a
separate claim for her transfer.
	As Boeing acknowledges, the district court understood the EEOC's
discrimination claim on behalf of Castron to include a claim that her transfer was
due to sex discrimination.  Resp. at 29.  Relying on Ecological Rights Foundation
v. Pacific Lumber, 230 F.3d 1141, 1154 (9th Cir. 2000), Boeing contends that the
district court's "unilateral discussion of the issue does not permit EEOC to raise
the issue for the first time on appeal."  Resp. at 29.  That case, however, does not
support Boeing's argument because there this Court declined to consider an
argument made on appeal for the first time where the district court had not
considered it.  Here, in contrast, Boeing concedes that the district court considered
whether Castron's transfer was the result of sex discrimination.  The EEOC's
response to Boeing's motion for summary judgment also supports the district
court's belief that the EEOC had raised a claim of discriminatory transfer.  See
Resp. at 12 (criticizing Boeing for "ignor[ing] glaring direct evidence that
unequivocally shows that . . . Charlton . . . [the] ultimate decision-maker about
Castron's transfer and subsequent termination, harbored discriminatory animus")
(emphasis added) (attached).  In any event, because a jury could find that the
transfer caused Castron's termination, all of the evidence surrounding the transfer
should be considered when evaluating the Commission's termination claim.
2.	The Commission properly represented the record as to Charlton's and
Hobby's derogatory remarks about women, which, under this Court's
precedent, constitute direct evidence of discrimination and were
sufficient to establish a prima facie case of sex discrimination and a
factual question as to pretext.
	Boeing accuses the Commission of making a number of factual
misrepresentations concerning the content and quantity of Charlton's derogatory
comments about women.  In every instance, however, a review of the record pages
cited by the Commission - and by Boeing - supports the Commission's
representation of the record.
	Boeing first contends that the Commission misrepresented the record by
asserting that Charlton's comments that women lacked sufficient training and that
he did not have time to train women were made with respect to the consideration of
Christine Hunter's application to be a production engineer.  Resp. at 8; Br. at 4
(citing RE106, RE107).  According to Boeing, "Foster specifically testified" that
these statements "were not made by Charlton in connection with Hunter's
evaluation."  Resp. at 8 (citing RE98-99, RE104-07) (emphasis added).  A review
of the pages cited by Boeing and the Commission, however, shows exactly the
opposite.  At pages 57-58 and 66 of his deposition, Foster testified that Charlton
did not make any sexist comments at the management meeting in which they
discussed Hunter's application because manager "Debbie Burns was in the room."
RE98-99, RE106.  In response to a question asking Foster whether he recalled
Charlton "saying anything about the value of women with respect to that
production engineering position," however, Foster testified, "Back to the earlier
comment . . . that [Charlton] didn't have the time, felt like [women] weren't up to
speed because they didn't have the time in job and . . . they kind of should come to
him all trained . . ."  RE106 (emphasis added).
	Boeing also asserts that "there is no evidence to support Foster's assumption
that" Charlton's comments about lacking time to train employees concerned
women, as the Commission represented.  Resp. at 9 (citing RE103-04).  This is
meritless because Foster's testimony is evidence of this.  Br. at 4 (citing RE106,
RE107).  When Foster was asked whether Charlton said "anything about the value
of women with respect to the production engineering position," Foster said "yes"
and detailed Charlton's comments about women lacking sufficient training.
RE106 (emphasis added).  When Foster was asked whether he had ever heard
Charlton "express the same expectation with respect to men," he testified "no."
RE107.  Additionally, when Foster was asked what he recalled about "Charlton
and females and whether they need to be trained," Foster said he heard Charlton
say, "he just didn't have time [to train them]."  RE103 (emphasis added).  When
asked whether the comment was made about a specific woman, Foster testified that
he did not recall if "it was one particular woman" but agreed that he perceived
Charlton as saying that he did not "have time to train women."  RE103-04
(emphasis added).  Finally, when Foster was asked whether he heard Charlton state
in any meetings, "I'm not training a fucking woman," Foster responded, "I've
heard that he said that.  He's said similar things, but not that exact verbiage."
RE102 (emphasis added).  Thus, a reasonable jury could find that although Foster
did not hear Charlton say "I'm not training a fucking woman," Foster heard
Charlton make "similar" comments, which would certainly support a jury's
conclusion that Charlton's training comments pertained to women.
	Next, Boeing contends that the Commission's assertion that Charlton said
"things like 'he [Charlton] didn't want any more women and that women were not
worth a shit'" was misleading because Foster really said only that Charlton made
comments "similar" to "women were not worth a shit."  Resp. at 8; Br. at 4.
Boeing's criticism on this point seems to be designed to distract from the
derogatory nature of the comment itself.  The Commission's use of the term
"things like" instead of "similar to" cannot be construed as misleading; the
dictionary itself lists "like" as a synonym for "similar."  American Heritage
Dictionary 1622 (Houghton Mifflin Co.) (4th ed. 2000).
	Boeing further argues that the Commission misrepresented the record by
asserting that "Foster believed the difficulties" Charlton was having with a female
engineer, which Foster reported to HR, "were based on her gender."  Br. at 4;
Resp. at 9 (citing RE108-10).  The record again supports the Commission's
representation of it.  Foster was explicitly asked whether "he perceived those
difficulties as [being] based on her gender, female," to which he responded, "yes."
RE110.  Thus, a jury could find based on Foster's testimony that Charlton had
trouble with the engineer because of her gender.
	Next, Boeing contends that Charlton's negative comments about women
were made no more than five times over twenty-four years and were all made
"many years before Castron was either transferred . . . or selected for RIF."  Resp.
at 9 (citing RE101-02).  On the cited deposition pages, Foster testified that
Charlton's comments "about not having good luck with females, and [women] not
being around long enough to his satisfaction" were made between one and five
times over the course of twenty-four years.  RE101-02 (emphasis added).
Nothing on the cited pages supports Boeing's assertion that the comments were
made "many years before" Castron's transfer or termination.  To the contrary,
although Foster said he did not "remember the dates," RE101, his testimony
suggests that Charlton's anti-female comments were made in temporal proximity
to Castron's termination.  Foster testified that in a "recent discussion" with
Boeing's HR department about being subpoenaed in relation to Castron's
termination, he brought up some of Charlton's comments about women because he
"pinpointed that [the subpoena] was probably because of Bill."  RE107-08.  As for
the quantity of comments, the Commission cited in its opening brief to Foster's
testimony that he heard Charlton make "a lot" of negative comments about women
"over the years going back to his ex-wife."  Br. at 3.  Thus, a reasonable jury could
find that although Charlton made fewer than five comments about his luck with
women and training, he made additional negative comments about women.
	In its opening brief, the Commission argued that the district court erred by
relying on out-of-circuit cases to conclude that these comments were not direct
evidence because they were unrelated to Castron's adverse actions.  Br. at 41.
While Boeing calls this argument "frivolous[ ]," Resp. at 23, n.6, Boeing itself
concedes that this Court has held that comments evincing discriminatory animus
can constitute direct evidence, even if those comments were "not made in
connection with any decision directly relating to the plaintiffs."  Resp. at 27 (citing
Chuang, 225 F.3d 1115).  Boeing nevertheless insists that "Charlton's comments
. . . do not amount to direct evidence of discrimination" because they do not
"relate[] to any decision-making process, let alone any decision that implicated
Castron," and because his comments "do not amount to an admission that he
decided to transfer or terminate Castron because of her gender."  Resp. at 29.  This
argument is meritless.
	In Chuang, the plaintiffs claimed they had been discriminated against based
on their race and national origin by being denied a tenured position and by having
their laboratory forcibly relocated.  This Court held that a decisionmaker's
comment that "'two Chinks'" in the pharmacology department were "'more than
enough'" "establishes discriminatory intent even though" the comment "was
uttered during consideration of a different Asian-American's potential
employment."  Chuang, 225 F.3d at 1128 (emphasis added); see also Dominguez-
Curry v. Nevada Transp. Dep't, 424 F.3d 1027, 1038 (9th Cir. 2005) ("Stacey's
sexist remarks are probative of his discriminatory intent even if he directed them to
other women . . . .") (emphasis added).  While Boeing argues that the "two
Chinks" comment in Chuang "implicated the plaintiffs and future decisions that
the department would take relating to their employment," nothing in the opinion
suggests that this was the basis for this Court's reasoning, and other decisions of
this Court refute Boeing's argument.
	In Cordova v. State Farm Insurance Companies, 124 F.3d 1145 (9th Cir.
1997), which the Commission cited, this Court held that the decisionmaker's
comments that another employee was a "dumb Mexican" and hired only because
he was a minority constituted direct evidence of discrimination as to the plaintiff's
promotion claim.  While Boeing argues that the "dumb Mexican" remark "related
to the supervisor's dislike of a minority focus in hiring decisions," a review of this
Court's opinion shows that these were two separate comments that each, on their
own, constituted direct evidence.  Id. at 1147 (recounting evidence that employee
heard supervisor make "dumb Mexican" remark and "also recalls [the supervisor]
stating that he" had to hire him because he was a minority) (emphasis added), at
1149 (explaining that "calling someone a 'dumb Mexican' is an egregious and
bigoted insult, one that constitutes strong evidence of discriminatory animus").
Thus, the law of this Circuit simply does not support Boeing's contention that to be
considered direct evidence, discriminatory comments must implicate the plaintiffs
and future decisions relating to them.  Resp. at 27.
	Boeing similarly asserts that Charlton's comments "do not amount to direct
evidence of discrimination" because substantial inference is needed to infer
discrimination since Charlton's comments were not about women, infrequent, and
unrelated to Castron or her transfer or termination.  Resp. at 26.  As already
discussed, Charlton's comments were about women and they need not have been
related (even impliedly) to Castron or any decisionmaking process related to her.
As this Court has explained, "[w]here a decisionmaker makes a discriminatory
remark against a member of the plaintiff's class, a reasonable factfinder may
conclude that discriminatory animus played a role in the challenged decision."
Dominguez-Curry, 424 F.3d at 1038; see also Coghlan v. Am. Seafoods., 413 F.3d
at 1090, 1095 n.6 (9th Cir. 2005) (stating that "when the evidence in question is of
an employer's statements that do not directly concern the plaintiff, it is true that
some inference is necessary to establish discrimination with regard to the plaintiff,"
but holding that "when evidence establishes the employer's animus toward the
class to which the plaintiff belongs, the inference to the fact of discrimination
against the plaintiff is sufficiently small that we have treated the evidence as
direct").
	Here, a reasonable jury could conclude that Charlton's comments "similar"
to "women were not worth a shit" and "I'm not training a fucking woman," women
lacked sufficient training, and he did not have luck with women and they had not
been around long enough "overtly exhibit[ed] his hostility to women in the
workplace" and therefore constituted direct evidence.  Dominguez-Curry, 424 F.3d
at 1038 (holding that sexist comments including "if you girls were men, you would
know that," constituted direct evidence); see also Cordova, 124 F.3d at 1149
(holding that "dumb Mexican" comment constituted direct evidence and that if the
decisionmaker "has any animus towards Mexicans, it likely would have affected
his trainee agent decision as well").  As for the timing and quantity of Charlton's
remarks, this Court has held that "a plaintiff need not recite precise dates of an
employer's discriminatory conduct . . . . While a factfinder is free to conclude at
trial that the plaintiff's account is insufficiently detailed to be believable, the
district court must refrain from making such credibility assessments on summary
judgment."  Dominguez-Curry, 424 F.3d at 1039.
	Boeing also argues that the same-actor inference applies here and precludes
the EEOC from establishing its claims because Charlton approved Castron's
positive annual evaluations and nominated her for the Rotary Club.  Resp. at 32-
33.  Boeing has failed to address, however, the Commission's argument that this
Court has held that the same-actor inference does not even apply where, as here,
there is direct evidence of discrimination.  Br. at 39, n.11.  Accordingly, even if
Charlton's prior treatment of Castron can be characterized as favorable and
relevant, the inference does not operate in this case, much less warrant granting
summary judgment.
	Boeing further contends that Hobby's "little girl" comments do not
constitute direct evidence because they were unconnected to Castron's layoff.
Resp. at 13, 36.  As discussed above, this is incorrect.  Boeing also argues that the
Commission "mischaracterize[d]" Hobby's comments, which "were both
admittedly made in jest," and asserts that "there is no evidence that Hobby refused
to speak to" Castron after she confronted him about them.  Resp. at 13 (citing
SER146; SER223); see also RE19, n.11 (slip opinion) (seeming to discount
Hobby's comments because he intended them to be humorous).  This evidence is
disputed.  Castron testified that the comments were offensive and that Hobby
"stormed off" when she confronted him and never spoke to her again until he
became her boss.  RE126-28.  When confronted with conflicting evidence on a
motion for summary judgment, it is inappropriate for "a court to spin such
evidence in an employer's favor . . . . To the contrary, all inferences must be drawn
in favor of the non-moving party."  Chuang, 225 F.3d at 1129 (holding that the
district court erred in concluding that comment to plaintiffs that they "should pray
to [their] Buddha for help" was intended to be humorous, and holding that this
evidence was probative of pretext).
	Citing Bahri v. Home Depot USA., 242 F. Supp. 2d 922, 951 (D. Or. 2002),
Boeing also contends that "girl" is not an overtly sex-based comment and therefore
is not probative of whether Castron's layoff was discriminatory.  Boeing's
argument is unpersuasive.  On the cited page of Bahri, the court was analyzing the
plaintiff's hostile work environment claim and in this context stated that "missy"
and "girl" were not "overtly sex-based comments" and concluded that the
harassment was not actionable. Id.<1> As the Commission's opening brief states,
however, the Bahri court also stated that "girl" is a "demeaning comment[] which
clearly ha[s] a gender component."  Br. at 42 (citing Bahri, 242 F. Supp. 2d at
956).  Accordingly, a reasonable jury could find that Hobby's comments, which
were directed at Castron, exhibited his animus towards women.  Finally, while
Hobby's comments were made two years before Castron's layoff, this is just
another piece of evidence for a jury to weigh.
	Thus, contrary to Boeing's arguments, Charlton's and Hobby's comments
constitute direct evidence of discrimination and therefore were sufficient to
establish a prima facie case of discriminatory transfer and to establish a jury
question as to whether Castron's transfer and layoff were discriminatory.  Br. at
34-35, 39-42.<2>
3.	Castron's transfer constituted an adverse action and the Commission met
its minimal burden of establishing a prima facie case that her transfer was
discriminatory.
	The Commission argued that the district court properly held that Castron's
transfer constituted an adverse action.  Br. at 34.  Although Boeing acknowledges
that a lateral transfer can constitute an adverse action, Boeing contends that
Castron's transfer did not because "it is undisputed that . . . Charlton did not know
that there was an upcoming RIF in [Castron's] skill code." Resp. at 54; see also id.
at 57 (asserting that the Commission failed to establish pretext as to its retaliation
claim because the "EEOC has presented no evidence disputing that Charlton did
not know" of the RIF until September 2002).  As discussed in the Commission's
opening brief, however, this point is disputed since Charlton himself testified that
he knew as of early 2002 that "there was going to be a reduction," Castron stated
that it had been announced as of August 2002 a RIF was coming, and Charlton
assured Castron when he transferred her that she would not be affected by any
upcoming RIF, suggesting that he knew one was coming.  Br. at 46.
	Boeing's argument that the transfer was not adverse also fails to address the
Commission's argument, which the district court agreed with, that the transfer was
adverse because Structures Mod did not match Castron's skill set and made her
more vulnerable to layoff.  Br. at 44-45.  Although Boeing contends that no
evidence shows that Castron would have avoided layoff by staying in PSA, Resp.
at 54, n.17, the Commission's opening brief pointed to contrary evidence.  Br. at
12.  Finally, Boeing argues that the transfer was not adverse because Castron had
requested a transfer from PSA and was happy working with Hartoog.  But Castron
had repeatedly requested a transfer to Final Assembly and was undeniably unhappy
with the consequence of her transfer to Structures Mod - her termination.
Additionally, Charlton himself stated that Castron was initially reluctant to accept
the transfer and asked why Cottone could not be moved instead.  RE224.
	In its opening brief, the Commission also argued that even if Charlton's
comments did not constitute direct evidence, the court erred in concluding that the
Commission had failed to establish the fourth prong of the prima facie case
because Charlton's comments gave rise to an inference of discrimination.  Br. at
37.  Significantly, Boeing failed to respond to this argument. The Commission also
argued that it had established the fourth prong by pointing to evidence that Joe
Cottone was similarly situated to Castron because Charlton believed that he and
Castron had a "personality conflict" and that Charlton treated him more favorably
by transferring Castron to Structures Mod, where she was more vulnerable to
layoff.  Br. at 36-37.  Boeing admits that Cottone was not transferred, but argues,
without citation to any authority, that he was not similarly situated or treated more
favorably because "shortly before Castron was transferred, Charlton transferred a
male employee out of PSA."  Resp. at 30.  Boeing's argument is legally
unsupportable; the Commission "need not show that all similarly situated [male]
employees receive better treatment.  Identifying some similarly situated employees
- even one - establishes a prima facie case."  Coward v. ADT Sec. Sys., 140 F.3d
271, 276 (D.C. Cir. 1998).  Boeing's argument is also factually unsupportable, as
the Commission pointed to evidence that the male who was transferred out of PSA
was transferred to Final Assembly, where Castron had repeatedly asked to be
transferred, not Structures Mod, which was a poor match for her and made her
vulnerable to layoff.
4.	Circumstantial evidence would allow a reasonable jury to conclude that
the reasons given for Castron's transfer and termination were a pretext
for sex discrimination.
	Boeing argues not only that Charlton's and Hobby's comments were
insufficient to constitute direct evidence of discrimination but also that they
provided "at most[,] weak circumstantial evidence."  Resp. at 32.  Even assuming,
arguendo, that the comments and conduct were not "direct" evidence, and that the
Commission therefore had to show that its circumstantial evidence was sufficiently
"specific and substantial" to defeat Boeing's motion for summary judgment, both
the comments and the other circumstantial evidence the Commission pointed to in
its opening brief satisfied this burden.  See Br. at 40, 42-43.
	Boeing argues to the contrary, first contending that both Charlton's approval
of Castron's annual evaluations and his nomination of her to the Rotary Club and
Hobby's "welcome" note to Castron when she transferred to Structures Mod defeat
a finding of discrimination.  Resp. at 32, 37.  As discussed supra at 13-14, the
same-actor inference does not apply here because the Commission had direct
evidence of discrimination.  But assuming, once again, that the Commission's
evidence was only circumstantial, Boeing's argument still fails because this Court
has held that an employer's favorable treatment of an employee is an insufficient
basis for granting summary judgment.  Davis, 520 F.3d at -- , 2008 WL 819885, at
*9 (noting that the employer had done "a number of helpful things" for the plaintiff
and had responded to many of her grievances, but concluding that "even if we were
to take [these] responses . . . as counterweights to [plaintiff's] proffer of specific
and substantial evidence of discriminatory motive, a counterweight is not enough
to eliminate the need for a fact-finder to weigh the facts on both sides").
	Boeing also calls it "undisputed" that Charlton transferred Castron at her
request and because he thought it would be better for her to start with a new group
of people.  Resp. at 31.  Charlton's derogatory comments about women, as well as
evidence surrounding Castron's transfer, make this a disputed question for a jury to
resolve.  Br. at 40.  Specifically, the Commission argued that a jury could
disbelieve the proffered reasons for Castron's transfer based on evidence that
Charlton ignored her repeated requests to be transferred to Final Assembly, which
matched her skills, but transferred her to Structures Mod despite knowing that a
RIF was imminent and that she was likely to be laid off.  Id.
	While Boeing contends that this evidence is "irrelevant" because there was
no evidence of an opening in Final Assembly in August 2002, the Commission
cited in its opening brief to evidence that Charlton transferred a male engineer
from PSA to Final Assembly during the time when Castron was repeatedly
requesting, and Charlton was repeatedly denying, her requests to move to Final
Assembly.  Br. at 37 (citing RE137-38).  A reasonable jury could therefore find
Boeing's assertion that it transferred Castron to Structures Mod because she
requested it and to advance her career lacking any credibility.  Resp. at 31.
Additionally, there is no evidence in the record that there were any openings in
Structures Mod in August 2002.  To the contrary, Hartoog testified that Charlton
simply asked him if he could take Castron "under [his] wing."  RE154.
Additionally, the Commission identified in its opening brief undisputed evidence
that in the previous four years leading up to Castron's transfer to Structures Mod,
not a single engineer had transferred from PSA to Structures Mod and that it would
have taken years for Castron to be fully trained.  Br. at 40.  Based on all of this
evidence, a reasonable jury could discredit Boeing's proffered reasons for
Castron's transfer and infer that Charlton acted out of discriminatory animus in
transferring her to Structures Mod knowing that she would be laid off.
	As for Castron's layoff, Boeing first contends that any discriminatory
animus Charlton harbored is irrelevant because he "was not the decisionmaker"
and, since he did not change any RIF scores, did not influence Castron's layoff.
Resp. at 35-36.  There are several problems with this argument.  First, as discussed
above and in the Commission's opening brief, a jury could find that Charlton's
decision to transfer Castron to Structures Mod was motivated by discriminatory
animus and caused her layoff.  Br. at 40.  Second, although Hobby assigned
Castron's RIF scores, Charlton testified that both he and Hobby were involved in
the "ability to perform remaining work" and "past performance" assessments and
that he reviewed the scores Hobby assigned Castron to ensure that the scores were
consistent with another manager's scores.  SER184-85 (Charlton Depo.95-97);
SER186 (Charlton Depo.109, 111); SER187 (Charlton Depo.113).  Charlton is also
listed on both evaluation sheets as an evaluator.  RE229, 231.  Thus, a reasonable
jury could find that Charlton was a decisionmaker and/or that the scores originally
assigned by Hobby were the product of sex discrimination and that Charlton
approved them due to his own discriminatory and/or retaliatory animus.  Finally,
Boeing's claim that Charlton was not a decisionmaker because he only approved
the RIF is disingenuous in light of its argument that the same-actor inference
applies merely because Charlton approved Castron's positive annual evaluations.
	Boeing also argues that the Commission contradicted itself by arguing both
that Castron should have been excluded from the RIF (as Charlton promised she
would be) and that her RIF assessment scores should have been higher.  Resp. at
37.  These arguments are not contradictory.  Based on evidence that Charlton
reneged on his promise to exclude Castron from the RIF and that Boeing allowed
recently transferred employees to be excluded, a jury could infer that Charlton's
approval of Castron's layoff was based on either discriminatory or retaliatory
animus.  See Br. at 13, 48 (making this argument as to retaliation claim).  A
reasonable jury could also find that Hobby harbored his own discriminatory
animus against Castron based on her sex and that this motivated him to give her
low, and inaccurate, RIF assessment scores.  As set out in the Commission's
opening brief, Hartoog's testimony would support this conclusion, as would
evidence that Hobby had no basis for judging Castron's performance because he
visited her twice and never sought Hartoog's input about her performance.  Br. at
42-43.
	Boeing argues, however, that Hobby was "clearly . . . in a position to have
information about Castron's work performance" and that it is "undisputed that
Hobby got feedback from Hartoog regarding Castron's work performance."  Resp.
at 37-38.  But in its opening brief, the Commission cited evidence showing that
Hobby checked on Castron only twice in the two months preceding her evaluation
and that Hartoog was the only one who trained Castron and the only one with
knowledge of her performance but that neither Hobby nor Charlton ever asked him
about Castron's performance.  Br. at 10, 42.  Although Boeing asserts that
"Hartoog did not testify that he never spoke with Hobby about Castron's work
performance," Resp. at 15 (citing RE155), Hartoog actually testified on the cited
page "no" and "I don't believe so" when asked if Hobby inquired about Castron's
performance, and, as cited in the Commission's opening brief, Hartoog testified
unequivocally on pages 82-83 of his deposition that neither Charlton nor Hobby
asked him about Castron's performance.  Br. at 42 (citing RE158-59).  Thus, a jury
could easily disbelieve Hobby's testimony that he received feedback regarding
Castron's performance from the engineers with whom Castron worked and could
therefore infer that Castron's low scores were a pretext for sex discrimination.  See
Br. at 42-43.
	Finally, Boeing claims that the Commission's assertion that a reasonable
jury could infer discrimination based on evidence that three engineers in the D32
skill code were excluded from the RIF assessment, which is permissible under
Boeing's policy, is "misleading" and "irrelevant" because those engineers were in
a different skill code.  Resp. at 16; Br. at 13.  There was nothing misleading about
the Commission's representation or its argument.  The Commission's opening brief
clearly states that the excluded engineers were in the D32 skill code under
Feuerstein and Wright, and in no way suggests that they were in skill code 62E, as
was Castron.  The Commission's point was merely that a jury could find that, as
Charlton had promised Castron, it was entirely possible to exclude recently
transferred employees from a RIF assessment.
5.	The evidence would allow a reasonable jury to find that the transfer and
termination were retaliatory.
	Boeing argues in a footnote that Castron did not engage in protected activity
because she complained to Charlton about only a "hostile environment," not
gender discrimination.  "The summary mention of an issue in a footnote, without
reasoning in support of the appellant's argument," however, "is insufficient to raise
the issue on appeal." Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.4 (9th Cir.
1996).  Moreover, Castron's complaint constituted protected activity.  Br. at 44.
	As for pretext, Boeing asserts that the clear temporal proximity between
Castron's complaint to Charlton and her transfer is not probative of pretext because
Boeing admits that Castron's transfer was due to her complaint.  Resp. at 56 n.19.
By raising this only in an undeveloped footnote, Boeing has conceded the
Commission's point about the probative nature of the temporal proximity between
the complaint and transfer.  Hilao, 103 F.3d at 778 n.4; Br. at 45-46.  In any event,
this is an absurd proposition.  If this Court endorsed it, employers would be free to
transfer employees who complained of discrimination with impunity, no matter
how adverse the transfer, so long as the employer admitted that the transfer was
due to the complaint.  Where, as here, evidence is presented that the transfer was
adverse and retaliatory, a jury must decide whether to believe an employer's
assertion it was acting appropriately to remedy a complaint of discrimination.  See
Swenson v. Potter, 281 F.3d 1184, 1194-95 (9th Cir. 2001) (stating that
transferring an employee to a less desirable location does not satisfy an employer's
remedial obligations but concluding that evidence did not support jury's finding
that transfer was less desirable).
	Apparently recognizing the weakness of this argument, Boeing goes on to
contend that Charlton's repeated denials of Castron's multiple requests to be
transferred to Final Assembly are not probative of pretext because until August
2002 she never complained about a hostile work environment and, once she did,
Charlton immediately transferred her to Structures Mod.  Resp. at 54-55.  As
discussed in the Commission's opening brief, however, a jury could easily find it
suspicious that Boeing repeatedly denied Castron's requests to transfer to Final
Assembly but, once she complained, immediately transferred her to Structures
Mod, where she was "set up to fail."  RE171; see Br. at 45-46.
	As for the retaliatory termination claim, Boeing admits the Commission
established a prima facie case but again argues that the Commission offered "no
evidence" of pretext.  Resp. at 58.  Boeing fails to respond, however, to the
Commission's argument that the close temporal proximity between Castron's
protected activity and her layoff - just two months - is probative of pretext.  Br. at
48.  Boeing argues that Hobby was the sole decisionmaker, but, as discussed, supra
at 21-22, a reasonable jury could find that Charlton was a decisionmaker.  Boeing
also argues that Hobby did not know of Castron's protected conduct, Resp. at 59-
60, but this is a strawman argument, as the Commission expressly disclaimed this
argument.  Br. at 47, n.12.
6.	The evidence was sufficient to create a jury question as to whether
Wrede's layoff was due to sex discrimination.
	Boeing first suggests that Wrede's concession that she does not have any
direct evidence of Wright's discriminatory animus would preclude a jury from
finding discrimination.  Resp. at 42.  This is incorrect, of course, as the Supreme
Court and this Court have held that a plaintiff's prima facie case and evidence
allowing a jury to disbelieve an employer's proffered reasons may allow a jury to
find discrimination.  Br. at 49-50.  Although Boeing contends to the contrary,
Resp. at 46-47, the Commission's evidence showing that the scores Wrede
received in the RIF assessment were not just wrong but were not even credible,
combined with other circumstantial evidence, would allow a jury to infer that the
real reason for her layoff was sex discrimination.  See generally Br. at 49-60.
	Boeing also suggests that the Commission argued that the use of subjective
criteria establishes pretext.  Resp. at 43-44.  It did not.  Instead, the Commission
argued that careful analysis of subjective evaluations is required because such
evaluations are particularly susceptible to abuse and more likely to mask pretext.
Br. at 52 (citing authority).  The mere fact that neither Wright nor Feuerstein made
up the assessment forms does not change this analysis, as it is the use of such
subjective evaluations that makes them more likely to mask pretext.
	As for Wrede's scores, Boeing concedes that Wrede's unigraphics score was
inaccurate and fails to rebut the Commission's point that the "0" she received for
product vision was implausible since Wright's own 2001 evaluation of Wrede
stated that she had continued her personal development with product vision.  Br. at
51.  Boeing also asserts that Wright lowered Wrede's communication/leadership
score on the "ability to perform future work" scoresheet "precisely because . . . she
[ ] failed to improve her ability to delegate work."  Resp. at 46 (citing RE55-56).
Nowhere on either of the cited pages, however, did Wright testify that he lowered
Wrede's "communication/leadership" score (which consisted of four
subcategories) for this deficiency.  Boeing also fails to give any support for its
assertion that Wrede's inability to delegate was the cause of her low score for the
entire category of "past performance."  Resp. at 46.  As the Commission's opening
brief points out, and Boeing fails to dispute, Wright actually failed to supply any
reason for Wrede's low score in this category.  Br. at 57.  Finally, the idea that
Wrede's scores for "ability to perform future work" and/or "past performance"
dropped between the April and October assessments because of Wrede's difficulty
in delegating work - which Wright called a "positive flaw" on Wrede's 2001
evaluation - is undermined by evidence showing that this was a concern before the
April assessment, if it ever really was a concern at all.  RE65.
	Citing Villiarimo v. Aloha Island Air, 281 F.3d 1054, 1062 (9th Cir. 2002),
Boeing also contends that Wrede's own assessment of her skills is irrelevant
because her testimony is "uncorroborated" and "self-serving."  Resp. at 45.
Nothing on the cited page of Villiarimo, however, supports Boeing's assertion, and
the Commission cited contrary persuasive authority on this point that Boeing fails
to acknowledge.  Br. at 51.  See also Reeves v. Sanderson Plumbing Prod., 530
U.S. 133, 144 (2000) (holding that the plaintiff "made a substantial showing that"
the reason given for his termination "was false" and citing the plaintiff's testimony
that he had properly maintained attendance records).
	 Boeing also contends that Eroh's assessment of Wrede's abilities is
irrelevant because Eroh "judged Wrede in isolation" and because his testimony
fails to show that the scores she received were inaccurate.  As the Commission
stated, however, Eroh did not judge Wrede in isolation but against his own RIF
assessment scores.  Br. at 55.  Boeing also takes issue with the Commission's
citation to a Tenth Circuit case to support the relevance of Eroh's assessment of
Wrede, but that case is fully consistent with this Court's holding that co-worker
assessments of the validity of an employee's evaluation can create a genuine issue
of material fact.  Hernandez v. City of Vancouver, 2008 WL 1741492, at *2 (9th
Cir. April 14, 2008) (in disparate treatment case, holding that co-workers'
testimony that the plaintiff's work "was scrutinized more heavily because of his
race" "was more than adequate to raise a disputed issue of act as to [the plaintiff's]
job performance").  See also Vincent v. Brewer Co., 514 F.3d 489, 499 (6th Cir.
2007) (holding that co-worker assessments of plaintiff's performance were
probative of pretext).
	Boeing also argues that because the EEOC did not offer direct testimony
from Wrede's then-current or past managers as to Wrede's performance, but
instead relied on Wrede's affidavit as to what the managers said, "the statements
are entitled to no weight."  Resp. at 49 (citing Villiarimo, 281 F.3d at 1062).
Nothing on the cited page of Villiarimo remotely suggests that the EEOC had to
supply corroborating evidence from the managers themselves and, most
significantly, Boeing does not contest that Wrede's affidavit constitutes admissible
evidence.  Resp. at 49.  Boeing also contends that the managers' views as to
Wrede's performance "are irrelevant" because the managers failed to compare
Wrede's performance to her co-workers' performances.  Resp. at 48.  Boeing fails
to cite any authority for this proposition, however, and this Court has suggested
that such a comparison is unnecessary to establish a factual question as to the
plaintiff's performance.  See Davis v. Widnall, No. 97-15313, 1998 WL 856505, at
*1 (9th Cir. Nov. 19, 1998) (concluding that the plaintiff established pretext based
on the testimony of prior supervising officers as to the plaintiff's performance,
without any mention of the officers having compared the plaintiff's performance to
his co-workers').  See also Vincent, 514 F.3d at 499 (former managers' testimony
that plaintiff's performance was "above average" - without comparison to her co-
workers' performance - was probative of pretext where employer argued there was
a RIF).  Moreover, some of the managers did compare Wrede's performance to
other co-workers in the RIF.  Br. at 58-59.
	Finally, Boeing again ignores the standard for summary judgment by
claiming that none of the other men identified for the RIF received assistance from
Feuerstein in finding their new jobs.  Resp. at 52.  The Commission pointed to
Johnson's and York's EEOC interviews as evidence that Feuerstein offered them
assistance, which was how York found his new position.  Br. at 59-60.  While both
men denied in their affidavits that Feuerstein assisted them, their denials simply
create a disputed factual issue that a jury must resolve.
                               CONCLUSION
	For the reasons set forth above and in the Commission's opening brief, the
Commission requests that this case be remanded for trial.
			Respectfully submitted,
			RONALD S. COOPER
			General Counsel
			VINCENT J. BLACKWOOD
			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
 			May 1, 2008
                           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 6,999 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 1st day of May, 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
                                 ADDENDUM
R. 111, EEOC's Response to Boeing's Motion for Summary Judgment at pg. 12
***********************************************************************
<<FOOTNOTES>>
<1> The district court's suggestion in Bahri that only conduct that is overtly sex-based
can rise to the level of an actionable hostile work environment is also incorrect;
any conduct that is sufficiently severe or pervasive to alter the terms and conditions
of the plaintiff's employment is actionable if it is based on the plaintiff's sex.
<2> Boeing concedes that the Commission established a prima facie case of
discrimination as to Castron's termination.  Resp. at 34.