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

Nos. 02-20516, 20517, 20518 & 20519
___________________________________


CAROL FRANK, IRIS DEBOSE, HENRIETTA WILLIAMS,
and SIBYL ARTERBERRY,

  Plaintiffs-Appellants,
v.

XEROX CORPORATION,

  Defendant-Appellee.


_______________________________________________

On Appeal from the United States District Court
for the Southern District of Texas
________________________________________________

BRIEF OF AMICUS CURIAE
THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
IN SUPPORT OF PLAINTIFFS AND IN FAVOR OF REVERSAL
__________________________________________________



      NICHOLAS M. INZEO
      Acting Deputy General Counsel 

      PHILIP B. SKLOVER
      Associate General Counsel

      VINCENT J. BLACKWOOD
      Assistant General Counsel

      BARBARA L. SLOAN
      Attorney

      EQUAL EMPLOYMENT OPPORTUNITY
       COMMISSION
      Office of General Counsel
      1801 L Street, N.W., Room 7014
      Washington, D.C.  20507
      (202) 663-4721


TABLE OF CONTENTS


TABLE OF CONTENTS i

TABLE OF AUTHORITIES   ii

STATEMENT OF INTEREST  1

STATEMENT OF THE ISSUES  2

STATEMENT OF THE CASE

1. Nature of the Case and Course of Proceedings  2

2. Statement of Facts  3

3. Decisions Below  12

STATEMENT OF STANDARD OF REVIEW  13

ARGUMENT

TAKING ACCOUNT OF THE EVIDENCE CONCERNING 
THE IMPLEMENTATION OF THE BALANCED WORKFORCE 
INITIATIVE AT XEROX'S HOUSTON CENTER, 
THERE IS SUFFICIENT EVIDENCE TO SUPPORT 
A FINDING THAT THE PLAINTIFFS WERE DENIED
EMPLOYMENT OPPORTUNITIES BECAUSE OF THEIR RACE. 13

CONCLUSION  29

CERTIFICATE OF COMPLIANCE   30

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

CASES              Page(s)

Bass v. Board of County Commissioners, 
 256 F.3d 1095 (11th Cir. 2001) 17-18, 22-23

Blow v. City of San Antonio, 
 236 F.3d 293 (5th Cir. 2001) 13, 15

Brown v. East Mississippi Electric Power Association, 
 989 F.2d 858 (5th Cir. 1993) 16

Brown v. McLean, 
 159 F.3d 898 (4th Cir. 1998) 24-25

Celestine v. Petroleos de Venezuela, 
 266 F.3d 343 (5th Cir. 2001) 27

Cerrato v. San Francisco Community College, 
 26 F.3d 968 (9th Cir. 1994) 24

Furnco Construction Co. v. Waters, 
 438 U.S. 567 (1978) 15

Goodman v. Lukens Steel Co., 
 482 U.S. 656 (1987) 19

International Union, UAW v. Johnson Controls, 
 499 U.S. 187 (1991) 19

LaPierre v. Benson Nissan, 
 86 F.3d 444 (5th Cir. 1996) 16

Messer v. Meno, 
 130 F.3d 130 (5th Cir. 1997) 13, 18, 25, 26

National R.R. Passenger Corp. v. Morgan, 
 122 S. Ct. 2061 (2002) 22

Odom v. Frank, 
 3 F.3d 839 (4th Cir. 1993) 27

Portis v. First National Bank of New Albany, 
 34 F.3d 325 (5th Cir. 1994) 17

Price Waterhouse v. Hopkins, 
 490 U.S. 228 (1989) 16-17

Reeves v. Sanderson Plumbing Products, 
 530 U.S. 133 (2000) 15, 16

Rutherford v. Harris County, 
 197 F.3d 173 (5th Cir. 1999) 28

Scales v. Slater, 
 181 F.3d 703 (5th Cir. 1999) 17

United  Steelworkers v. Weber, 
 443 U.S. 193 (1979) 1, 14

Vance v. Union Planters Corp., 
 209 F.3d 438 (5th Cir. 2000) 22, 28

Whalen v. Rubin, 
 91 F.3d 1041 (7th Cir. 1996) 23, 24, 26

White v. Federal Express Corp., 
 939 F.2d 157 (4th Cir. 1991) 17


STATUTES AND RULES

42 U.S.C.  1981 2, 16

Title VII of the Civil Rights Act of 1964, 
 42 U.S.C.  2000e et seq.        1

 42 U.S.C.  2000e-2(m)            17

Federal Rule of Civil Procedure 56   13

Federal Rule of Evidence 403         25

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

Nos. 02-20516, 20517, 20518 & 20519
___________________________________

CAROL FRANK, IRIS DEBOSE, HENRIETTA WILLIAMS,
and SIBYL ARTERBERRY,

  Plaintiffs-Appellants,
v.

XEROX CORPORATION,

  Defendant-Appellee.
_______________________________________________

On Appeal from the United States District Court
for the Southern District of Texas
________________________________________________

BRIEF OF AMICUS CURIAE
THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
IN SUPPORT OF PLAINTIFFS AND IN FAVOR OF REVERSAL
________________________________________________  

STATEMENT OF INTEREST

 The Equal Employment Opportunity Commission is the agency  designated
 by Congress to interpret and enforce Title VII of the Civil Rights Act
 of 1964, 42 U.S.C.  2000e et seq. (Title VII), and other federal
 employment discrimination laws.  This appeal raises important questions
 of proof in race discrimination cases.  Plaintiffs proffered substantial
 evidence that Xerox, having concluded under its Balanced Workforce
 Initiative that the Houston Center had too many black employees,
 made race-conscious employment decisions that limited the employment
 opportunities of African-Americans including plaintiffs throughout
 the 1990s.  Xerox made no attempt to show that such a practice
 was valid under United Steelworkers v. Weber, 443 U.S. 193 (1979).
 Nevertheless, the district court essentially ignored the evidence of
 race-conscious decisionmaking in granting summary judgment to Xerox.
 Indeed, despite the evidence, the court required a plaintiff to show
 that she was clearly better qualified for a particular promotion.
 We believe the court's errors may have resulted, at least in part, from
 uncertainty as to how to treat such evidence in ruling on a summary
 judgment motion.  We therefore offer our views to this Court.

STATEMENT OF ISSUES

 1. Whether the district court erred in discounting evidence of Xerox's
 Balanced Workforce Initiative which, if believed, is sufficient to
 establish that race was a motivating factor in the employment decisions
 at issue.

 2. Whether, to raise a material issue of fact as to pretext in a race
 discrimination suit, a plaintiff must show that she was clearly better
 qualified for a particular position where there is other evidence of
 race-conscious decisionmaking.

STATEMENT OF THE CASE

 1. Nature of the Case and Course of Proceedings

 These are appeals from final judgments dismissing the race discrimination
 claims of six former or current employees of defendant.  Plaintiffs
 brought a single suit under Title VII and 42 U.S.C.  1981 on June
 29, 2000, alleging inter alia that, because they are black, defendant
 denied them promotions and pay increases and forced them to work in
 a racially hostile work environment.  District court docket number
 (R)1; R36 (First Amended Complaint).  In January 2002, defendant filed
 a separate motion for summary judgment with respect to each plaintiff.
 R59, R61, R63, R65, R67, R69.  On February 28, 2002, in separate orders,
 the district court granted defendant's motions, dismissed plaintiffs'
 claims, and ordered entry of judgment.  R103-R109.  On March 14 and
 April 2, 2002, the court denied plaintiffs' motions for reconsideration.
 R124, R129.  Plaintiffs filed timely notices of appeal on April 12
 (R134-R135 (Horn, Walker)) and May 2, 2002 (R139-R142 (Frank, DeBose,
 Williams, Arterberry)).

 2. Statement of Facts

 During the 1990s Xerox Corporation had in place a program called
 the Balanced Workforce (BWF) Initiative.  According to Xerox's
 1999 BWF Reference Guide, Balanced Workforce is a strategy within
 [the company's] corporate mission designed to ensure all employee
 groups (minorities, majorities, males and females) be proportionately
 represented in all functions and at all levels.  Arterberry Summary
 Judgment Response (SJR), Tab1 at 3.  The Guide explains that BWF
 goals are established for each organization on an annual basis
 based on government labor force data, and BWF Performance Reports
 are distributed to organization managers for their review throughout
 the year.  Id. at 6.  The Guide further explains that BWF is used
 to determine our progress in achieving a balanced workforce and as a
 measurement to hold managers accountable for developing their people and
 giving them opportunities for upward mobility.  Id.  An opportunity
 is defined as a personnel transaction that moves an individual into a
 new job category (i.e., Sales) or grade level (i.e., 7+, 10+, . . .).
 Id. at 7-8.  Management is urged to use promotion, transfer and other
 hiring decisions as opportunities to reach BWF racial and gender goals.
 According to the Guide, Opportunities represent the means to achieve
 Balanced Workforce goals.  If opportunities are not used to move
 representation in the right direction, the Balanced Workforce goals
 will not be achieved.  Id. at 7.

 During this period, pursuant to the BWF Initiative, Xerox regularly
 produced reports listing the actual and desired racial and gender
 composition of each office.  See, e.g., Arterberry SJR, Tab3.  According
 to then-Houston Controller Doug Jean, these reports indicated that, in
 Xerox's Houston Center, African-Americans were overrepresented in the
 workforce, compared to their representation in the local population.
 Whites, in contrast, were considered to be underrepresented.    See,
 e.g., Frank's SJR, Ex10 (Jean Dep. 46-47, 97-99).

 In 1991, Doug Durham transferred into the Houston Center as general
 manager; he remained in that position until 1999.  Frank's SJR, Ex18
 (Durham Dep. 21, 58).  Finding a disproportionate number of black and
 white employees, he directed that the Center begin producing its own
 BWF Summary reports which set explicit racial goals for each job and
 grade-level category and identified the number by which each race was
 over- or underrepresented in that category.  See Frank's SJR, Ex10
 (Jean Dep. 34-36).  By way of illustration, the September 30, 1998,
 report contains the following goals for the Houston Center as a whole
 and for particular job and grade-level categories:


                                BWF  Goal Current Actual Over/Under
                                 %    #     %      #    [represented]

Houston Center

 Black                           15%  26   33%    57     31
 Asian                            3%   5    8%    14      9
 Native American                  3%   5    1%     2     -3
 Hispanic                        18%  32   14%    25     -7
 White                           62%  110  44%    76     -34

Production 

 Black                           17% 21   35%    44     23
 Asian                            3%  4    8%    10      6
 Native American                  1%  1    2%     2      1
 Hispanic                        22% 28   17%    21     -7
 White                           57% 71   38%    47    -24

Sales

 Black                            8%  1   20%     2      1
 Asian                            3%  0   20%     2      2
 Hispanic                         8%  1    0%     0     -1
 White                           81%  8   60%     6     -2

Finance & Operations Support

 Black                           18%  1   29%     2      1
 Asian                            2%  0    0%     0      0
 Hispanic                        15%  1   29%     2      1
 White                           65%  5   43%     3     -2


                                 BWF  Goal Current Actual Over/Under
                                  %    #     %      #    [represented]

Exempt (Non-Sales 10+)

 Black                           10%  1   20%     2      1
 Asian                            2%  0   20%     2      2
 Hispanic                         7%  1   10%     1      0
 White                           81%  8   50%     5     -3

Exempt (Non-Sales 7-9)

 Black                           13%  0   33%     1      1
 Asian                            2%  0    0%     0      0
 Hispanic                         7%  0    0%     0      0
 White                           78%  2   67%     2      0

Exempt (Non-Sales 1-6)

 Black                            8%  2   30%     6      4
 Asian                            3%  1    0%     0     -1
 Hispanic                         7%  1    5%     1      0
 White                           82% 16   65%    13     -3

Arterberry SJR, Tab4 at 2669-2670; see also id. at 2671-2676 (1994,
1997 summaries).<1>

 Once the reports were generated, Durham went over them in  senior
 staff meetings and urged his managers to hire to meet those
 targets.  Frank's SJR, Ex10 (Jean Dep. 92); id. at 38-42 (targets
 and actuals were discussed at staff meetings from standpoint of
 how many people should be hired and what their ethnic makeup should
 be to meet the target).  Staff meeting notes from the late 1990s,
 for example, report opportunities for majorities or majorities
 and hispanics.  See, e.g., Arterberry SJR, Tab5 at 2666 (majority
 male and majority female -- we have not made progress); Frank's SJR,
 Ex49 (majorities and hispanics, adding that extraneous people should
 be removed from our headcount so they will not skew our BWF numbers).
 They do not mention opportunities for African-Americans.  Most of these
 discussions concerned Production or Operations people  -- you could
 impact [those areas] the most since there was more hiring and turnover.
 Jean Dep. 47-48 (adding that exempt and professional positions were
 looked at less as there were fewer such jobs, very little turnover
 and very little opportunity to impact those).  Managers were told to
 bring in more white male[s] and white female[s] since those were
 the categories that were underrepresented.  See id. at 42-43.
 The need to use opportunities to bring in white employees was also
 pointed out in Houston's Human Resource Management (HRM) Plan.
 In 1996, for example, the HRM Plan stated that the opportunity exists
 for improvement in hiring qualified majority males and majority females
 in Sales, Production and Administration departments, adding that the
 responsibility for achieving a balanced work force lies with every
 member of the Houston Management Team.  The Staffing and Development
 Manager is tasked with sourcing qualified applicants with the emphasis
 on achieving our Balanced Work Force targets.  Arterberry SJR, Tab2
 at 2679. 

 Managers' evaluations reflected how well they followed and adhered
 to the adamant BWF targets in relation to intake of personnel.
 See, e.g., Arterberry SJR, Tab6 at 2654 (Olivarez); 2657 (Carter).
 Similarly, Sales Manager Amos Benning testified that his success
 in meeting the BWF goals could impact his performance appraisal --
 assuming he had hiring opportunities, he could be penalized for
 not using those opportunities to balance his staff.  Frank's SJR,
 Ex47 (Benning Dep. 66-67).  Benning explained that, as a manager,
 he considered himself obligated to make sure  [he]  had a Balanced
 Workforce.  Id. at 66.  Thus, if the BWF reports indicated that his
 section was out of compliance in that he needed a majority male,
 minority female, whatever the case may be, he would try to find
 a candidate that was qualified and met that profile.  Id. at 58-59
 (also agreeing that under/minus number in report told him who he
 needed to hire).

 When Doug Jean, one of those responsible for generating the BWF
 summaries, commented to a Region HR Manager that it was unfair to
 discriminate against a particular EEO category to meet numbers, he
 was told it was the corporate direction.   Frank's SJR, Ex10 (Jean
 Dep. 99).  Xerox denied, however, that it balance[d] its workforce
 or reach[ed] affirmative action goals by involuntarily discharging
 black employees.  Xerox's Motion for Summary Judgment (XMSJ) for
 Frank's claims, Tab13 (Durham Aff.  6); Tab7 (Buchanan Decl.  4).
 Jean explained the company did not necessarily target blacks for
 termination; while that would be one way to reach BWF goals, it's hard
 to terminate someone based on . . . their EEO category . . . [y]ou
 would have to come up with another reason.  Frank's SJR, Ex10 (Jean
 Dep. 42-44).

 At some point, lower-level employees became aware of both the objectives
 of the BWF Initiative and the specific racial targets.  Jean testified,
 for example, that Durham had him brief employees on the program -- to
 show[] them the statistics in terms of what the targets were and what
 the actuals were and explain that because of affirmative action we
 would be trying to hire to these particular targets.  Jean Dep. 102.
 In 1997, a number of African-American employees, including plaintiffs,
 complained that they were not being treated fairly.  In response,
 Durham and Region Human Resources Manager Lloyd Buchanan held Minority
 Roundtables where interested employees could air their grievances.
 R105, Order granting summary judgment in Frank's case (Order) at 4-5;
 see also XMSJ-Frank, Tab7 (Buchanan Decl.  2-4) (explained BWF in 1997
 Minority Roundtable meetings).  The Roundtables produced no concrete
 improvements, however, and participants later perceived that Xerox
 held their participation against them in making employment decisions.
 See, e.g., Frank's SJR, Ex1 (Frank's Decl.  33).

 Plaintiffs here all worked in non-exempt or lower-level (Grade 1-6)
 exempt (non-sales) positions in the Houston Center.  Carol Frank's
 experiences illustrate the employees' concerns.  Hired as  a Grade 4 in
 1985, with a master's degree and five years of management experience
 (Frank's SJR, Ex1), Frank received good evaluations and regular
 promotions until the early 1990s at which point she was an exempt
 (non-sales) Grade 6, Customer Account Manager (CAM).  XMSJ-Frank,
 Tab2; Frank's SJR Ex3-7; see generally Order at 2.  The BWF-related
 materials indicate that promotion to Grade 7 or above would be considered
 an opportunity that would have to be counted for BWF purposes.
 Arterberry SJR, Tab1 at 7.  Frank never received such a promotion even
 though she continued to receive awards and good performance appraisals.
 See, e.g., XMJS-Frank, Tab1 (Carter Decl.  3); Frank's SJR, Ex43 (Carter
 Dep. 83-84) (hard worker; did a great job; I respected her work).
 Eventually, she surpassed the mid-point for her salary grade and stopped
 receiving merit raises.  XMSJ-Frank, Tab1 (Carter Decl.  5).  In 1997,
 a job she wanted, Customer First Manager, was given to a white employee
 without posting; when that employee left a few weeks later, Frank
 and three other employees including plaintiff Cynthia Walker applied.
 After their interviews, however, Durham announced that he had decided
 not to fill the slot.  Frank's SJR, Ex1; Order at 5-7.  Later that year,
 Frank applied for and got the job of DMSI Coordinator (Grades 4-7).
 Although she asked that it be classified as Grade 7, it was classified
 as Grade 6 and, accordingly, her new job was treated as a lateral move.
 Frank's SJR, Ex1; Order at 5.

 Finally, in 1998, Frank applied for a position as Manager of Customer
 Operations (MCO); after an interview, Frank was denied the job
 and was told that she would not be eligible for such promotion for
 approximately three more years.  Frank's SJR, Ex34.  As the 1998 BWF
 Summary reflects, the target for African-Americans in exempt (non-sales)
 jobs was 0 for Grades 7-9 and 1 for Grades 10+; African-Americans were
 already overrepresented (by 1) in each category.  See supra at 6
 (Arterberry SJR, Tab4 at 2670).  The successful candidate for the
 MCO position was a Hispanic male named Joe Olivarez.  Order at 5-6;
 XSJM-Frank, Tab3 (Olivarez Aff.); cf. Frank's SJR, Ex10 (Jean Dep. 75)
 (Durham said he needed a Hispanic senior staff).

 In early 1999, Frank heard the company was planning to create a Grade
 7-9 DMSI Project Manager position, which seemed a good fit for her since
 she was a DMSI Coordinator.  She also heard, however, that a white male
 employee was being groomed for the job.  Despite questioning, Frank's
 boss would not or could not tell her when or even whether the position
 would be created.  Order at 6.  Frustrated, Frank resigned and, in late
 December, filed a charge of discrimination.  See id.; cf. Frank SJR,
 Ex11 (Moses Dep. 21)(heard Frank's supervisor say she had done a good
 job and . . . finally gotten rid of Carol Frank).

 Frank and five other plaintiffs filed suit in June 2000.  They allege:
 that they were denied promotions and pay raises and/or were demoted,
 terminated or constructively discharged because of their race; that they
 were subjected to a racially hostile work environment, based largely on
 the BWF Initiative and what they viewed as managers' efforts to force
 them to quit to achieve BWF targets; and that they were retaliated
 against due to their participation in the Minority Roundtable.  R1.
 Xerox filed separate motions for summary judgment as to each plaintiff.
 In general, the company argued that the bulk of the challenged employment
 decisions were outside the limitations period and that plaintiffs could
 not show they had been discriminated against on the basis of race.
 As for the BWF, the company took the position that the plaintiffs had
 not shown it affected their employment.

 3. Decisions Below

 In separate opinions, the district court granted summary judgment on
 each plaintiff's claims.  The court initially agreed with Xerox that
 most of the claims were untimely and, on that basis, did not consider
 the evidence with respect to those employment decisions for any purpose.
 See, e.g., R103 (Williams Order at 8) (dismissing pre-1999 claims and
 considering only remaining ones).  The remaining claims were dismissed
 for lack of evidence.  In so doing, the court also gave short shrift to
 the BWF-related materials, essentially treating them as irrelevant for
 any purpose.  See, e.g., id. at 15 (mentioning BWF only in describing
 disparate impact claim). 

 Regarding Carol Frank, the court held that all of her promotion claims
 were untimely under Title VII.  However, the court held that the final
 one -- relating to the 1998 MCO position -- was timely under  1981.
 Order at 11-13.  As to that decision, the court concluded that Frank
 made out a prima facie case under McDonnell Douglas; Xerox's proffered
 explanation for the decision  it chose the successful candidate, Joe
 Olivarez, because he was better qualified  satisfied the company's
 burden; and Frank did not show the reason was pretextual.  Id. at 15-17.
 According to the court, Frank failed to raise a genuine issue of material
 fact as to pretext because she presented insufficient evidence that she
 was clearly better qualified than Olivarez.  Id. at 17.  As for the
 BWF-related information, the court stated that Frank failed to provide
 any connection between Xerox's implementation of the BWF in 1988-1990
 and Frank's failure to receive the MCO job in 1998, and there was no
 evidence the BWF played any role in the selection process.  Id. at 16.

STATEMENT OF STANDARD OF REVIEW

 This Court reviews the grant of summary judgment de novo.  Messer
 v. Meno, 130 F.3d 130, 134 (5th Cir. 1997).  In so doing, the Court
 reviews the record as a whole, view[ing] all facts in the light most
 favorable to the non-moving party and do[es] not defer to any factual
 assumptions the district court has apparently made.  Blow v. City of
 San Antonio, 236 F.3d 293, 296 (5th Cir. 2001); Fed. R. Civ. P. 56.

ARGUMENT

TAKING ACCOUNT OF THE EVIDENCE CONCERNING THE IMPLEMENTATION OF THE
BALANCED WORKFORCE INITIATIVE AT XEROX'S HOUSTON CENTER, THERE IS
SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT THE PLAINTIFFS WERE DENIED
EMPLOYMENT OPPORTUNITIES BECAUSE OF THEIR RACE.

 The central question in this case, as in most discrimination cases,
 is the motivation behind the adverse employment actions challenged
 by the plaintiffs.  Unlike most other discrimination cases, however,
 this case contains affirmative evidence that could support a finding
 that the decision-makers at Xerox's Houston Center were following
 a policy of disfavoring black employees in filling vacant positions
 in order to correct a perceived racial imbalance in its workforce.
 The district court erroneously treated the evidence as irrelevant.
 On the contrary, as we explain below, the evidence is highly relevant
 to plaintiffs' claims that Xerox discriminated against them because
 of their race.  If a jury finds on the basis of this evidence that
 race was a negative factor in Xerox's decision with respect to any of
 the specific actions challenged by the plaintiffs, then the burden of
 proof would shift to Xerox to establish that it would have made the
 same decision if race was not a factor.<2>  In any event, the evidence
 concerning the implementation of the Balanced Workforce Initiative was
 clearly relevant to a determination as to whether Xerox's asserted,
 non-discriminatory reasons for the challenged decisions were pretextual.

 1.  The district court erred in ignoring the evidence concerning
 Xerox's Balanced Workforce Initiative in granting Xerox's motions for
 summary judgment.  Viewed in the light most favorable to plaintiffs,
 that evidence could support a finding that Xerox officials decided
 that there were too many African-American employees and too few white
 employees at the Houston Center and, therefore, required managers
 to consider race in making hiring, transfer and promotion decisions
 throughout the 1990s in an effort to correct this perceived imbalance.
 Although Xerox argued that the BWF Initiative played no role in any of
 the employment decisions at issue in this case, the evidence in fact
 is sufficient to support a finding that racial considerations informed
 and shaped the company's decisionmaking processes.

 In cases under Title VII and other federal employment discrimination
 statutes, evidence is typically assessed using the familiar McDonnell
 Douglas framework, where plaintiffs attempt to establish unlawful
 motivation by negative inference  i.e., by showing that the employer's
 non-discriminatory explanation for a challenged employment decision
 is unworthy of credence.  See, e.g., Reeves v. Sanderson Plumbing
 Prods., 530 U.S. 133, 146-49 (2000).  Under the framework, the plaintiff
 initially establishes a prima facie case by eliminating the most obvious
 non-discriminatory explanations for a decision, generally by showing
 that there was an available position and she did not lack the basic
 qualifications for the position sought.  Furnco Constr. Co. v. Waters,
 438 U.S. 567, 575-76 (1978).  See also Blow, 236 F.3d at 296.  If a
 plaintiff establishes a prima facie case, the defendant must produce
 evidence of a legitimate, non-discriminatoy explanation for the decision
 at issue.  The plaintiff must then prove that the employer's articulated
 reason is a pretext for discrimination, which she may do by showing
 that it is unworthy of credence, thus raising an inference that the
 true reason was discrimination.  Reeves, 530 U.S. at 142-43.<3>

 This framework was developed in recognition of the fact that it is
 usually hard for a plaintiff to affirmatively establish that the employer
 based a challenged employment decision on race or another prohibited
 criterion.  Reeves, 530 U.S. at 142-43.  Because the employer should
 know the actual reason for a challenged decision, evidence that the
 explanation it asserted is unworthy of credence may be quite persuasive
 evidence that the true reason is discriminatory.  Id.

 Occasionally there is sufficient affirmative evidence of motivation
 that it is unnecessary for a plaintiff to rely on the McDonnell Douglas
 framework.  Usually referred to as direct evidence, such evidence,
 if believed, would be sufficient to support an affirmative finding
 that race or another prohibited criterion was a motivating factor in
 the challenged decision.  See, e.g., Price Waterhouse v. Hopkins, 490
 U.S. 228 (1989); Brown v. East Miss. Elec. Power Ass'n, 989 F.2d 858,
 861-62 & n.8 (5th Cir. 1993) (supervisor's routine use of racial slurs
 constitutes direct evidence that racial animus was a motivating factor
 in the contested disciplinary decisions) (citing cases).  In Price
 Waterhouse, 490 U.S. at 235, for example, the Supreme Court held that
 a finding that gender was a motivating factor in a partnership decision
 was properly based on evidence that plaintiff was told her chances for
 partnership would improve if she would take a course at charm school;
 walk, talk and dress more femininely; wear make up, have her hair
 styled and wear jewelry.  Where a plaintiff can make such a showing,
 the burden shifts to the employer to prove that it would have made
 the same decision even if it had not taken the [the prohibited factor]
 into account.  Id. at 258; see also 42 U.S.C.  2000e-2(m); cf. White
 v. Federal Express Corp., 939 F.2d 157, 160 (4th Cir. 1991) (burden
 shifts whenever plaintiff, using any sufficiently probative direct
 or indirect evidence, shows unlawful discrimination was substantial
 factor in employment decision, citing Price Waterhouse).<4> 

 In Bass v. Board of County Commissioners, 256 F.3d 1095, 1110-12 & n.7
 (11th Cir. 2001), the Eleventh Circuit held that the existence of an
 affirmative action plan, when combined with evidence that the plan was
 followed in an employment decision, is sufficient to constitute direct
 evidence of unlawful discrimination and, so, remove the case from the
 McDonnell Douglas framework.  This is true, the Court of Appeals added,
 even where  as in Bass - the defendant contests the validity of the
 evidence or disavows reliance on the plan.  Id. at 1111.  The Court
 reasoned that, unless it is valid under Title VII, an affirmative
 action plan amounts to nothing more than a formal policy of unlawful
 discrimination.  Id. at 1111 n.7.<5>

 Applying that analysis, the Bass Court reversed a summary judgment
 for the employer, holding that, despite defendant's disclaimers,
 plaintiff's evidence that the employer may have acted pursuant to
 its affirmative action plan  which undeniably was in place during the
 relevant timeframe -- was direct evidence of racial discrimination
 precluding summary judgment.  Id. at 1110-12.  The Court based its
 decision on evidence that defendant had set county-wide goals for the
 hiring of minorities and pressured managers to hire or promote to meet
 the goals, the challenged decision was based on subjective interview
 scores, the successful candidate lacked minimum qualifications for
 the job, and a non-decisionmaker told plaintiff that the County would
 continue to promote on the basis of color.  Id. at 1106-12.
 In our view, the same reasoning should lead to the same result in this
 case: plaintiffs' materials concerning the content and implementation
 of Xerox's BWF Initiative should be considered direct evidence of
 discrimination precluding summary judgment.  While disavowing any
 reliance on the Initiative with respect to plaintiffs, Xerox does not
 deny that the BWF Initiative was in place throughout the relevant
 timeframe.  If a jury believes the record evidence -- the Summary
 reports, BWF Guidelines and HRM plan, the senior staff notes and
 evaluations as well as the testimony of Doug Jean and Amos Benning --
 it could find that management at the Houston Center considered race in
 its decisionmaking and that, because plaintiffs are African-American,
 their employment opportunities were sharply limited.<6>

 Specifically, in the Summary reports, Xerox identified explicit racial
 goals for each job and grade-level category; for African-Americans,
 that target sometimes was as low as zero.  These reports state that
 blacks were overrepresented in virtually every job and grade-level
 category at the Houston Center, while whites were underrepresented.  See,
 e.g., Arterberry SJR, Tab4.  The reports were then used to monitor the
 company's progress towards reaching the listed target numbers.  See,
 e.g., Frank's SJR, Ex10 (Jean Dep. 92); Ex47 (Benning Dep. 58-59)
 (reports show whether we needed majority male, minority female,
 whatever the case may be).  Moreover, the BWF Guidelines explain
 that hiring, promotion and transfer decisions were opportunities to
 balance the workforce (Arterberry SJR, Tab1 at 7-8); other documents
 confirm that management was updated as to available opportunities
 for majorities or, sometimes, majorities and hispanics  but
 not for African-Americans.  See, e.g., Tab2 at 2682 (1996 HRM Plan,
 stating that opportunity exists for improvement in hiring qualified
 majority males and . . . females); Tab5 (2666: 4/6/98 meeting notes,
 opportunities are majority male and majority female  we have not made
 much progress; 2664: 11/23/98 notes, opportunities for majority and
 Hispanic); Frank's SJR, Ex49 (same).

 Other evidence indicates that managers were evaluated on how well
 they followed and adhered to the adamant BWF objectives in making
 personnel decisions.  See Tab6 (evaluations of Linda Carter and Joe
 Olivarez); Frank's SJR, Ex47 (Benning Dep. 66-67, 78).  Indeed, the HRM
 plan documents state that the responsibility for achieving a balanced
 work force lies with every member of the Houston Management Team.
 Arterberry SJR, Tab2 at 2682; Tab1 at 7.  Furthermore, although HR
 Manager Lloyd Buchanan adamantly denied that the company involuntarily
 discharged black employees as a means of reaching its racial targets,
 he did not deny that the targets were considered in hiring, promotion
 and/or pay decisions.  XMSJ-Frank, Tab7 (Buchanan Decl.  3-4).<7>
 The testimony of Doug Jean and Amos Benning is telling.  Jean stated that
 managers were told to hire to meet the targets which meant more white
 males and white females since those groups were underrepresented (Frank's
 SJR, Ex10 (Jean Dep. 42-43)); he also noted that money designated for
 merit pay increases was allocated based on EEO categories.  Id. at
 103, 150.  He further described meetings with black employees where
 he showed them the racial target numbers and explained that because
 of affirmative action we would be trying to hire to these particular
 targets.  Id. at 102.  When he commented to an HR manager that it
 seemed unfair to discriminate against one EEO category just to meet
 numbers, he was told it was the corporate direction.  Id. at 99. 
 As for Benning, he stated that, as a manager, he considered himself
 obligated to make sure [he] had a Balanced Workforce.  Frank's SJR,
 Ex47 (Benning Dep. 65).  The Summary reports, he explained, showed
 whether his section was complying with the balanced workforce goals
 and, to the extent it was out of compliance -- in that it needed
 a majority male, minority female, whatever the case may be, when a
 hiring opportunity arose, he would try to find a candidate that was
 qualified and met that profile.  Id. at 58-59, 66; see also id. at 64-65
 (agreeing that under/minus numbers on BWF reports indicated who he
 needed to hire).<8>  He also indicated that he could be penalized for
 not using opportunities to balance his workforce.  Id. at 66-67, 78.
 Finally, there is the fact that over this nine- or ten-year period, these
 plaintiffs were consistently denied promotions (or their opportunities
 were otherwise expressly limited), and the successful candidates were
 not black.  While the district court refused to consider evidence
 of employment decisions it found untimely, such decisions are, at a
 minimum, relevant background evidence to show a general pattern of
 minority employment.  See National R.R. Passenger Corp. v. Morgan,
 122 S. Ct. 2061, 2072 (2002); Vance v. Union Planters Corp., 209 F.3d
 438, 445 & n.8 (5th Cir. 2000) (evidence of defendant's past treatment
 of employees in plaintiff's protected class could help undermine
 defendant's proffered reason regarding plaintiff).  Viewing all of the
 evidence as a whole, we submit, a jury could find that Xerox managers
 favored white employees and disfavored black employees when making
 promotion and other employment decisions during the 1990s.

 We do not suggest, of course, that the mere fact an employer has an
 affirmative action plan -- or Balanced Workforce Initiative -- on
 the books constitutes direct evidence of discrimination.  See Whalen
 v. Rubin, 91 F.3d 1041, 1045 (7th Cir. 1996).  On the contrary, whether
 such a program affected a plaintiff's employment status is a question
 of fact.  Id. at 1046.  Where as here the employer disavows reliance
 on the program, there must be evidence from which a jury could find
 that the employer adhered to the program during the relevant timeframe
 and that it informed the employment decisionmaking at issue.  See Bass,
 256 F.3d at 1106.  

 Based on our review of the record, we believe that the evidence is
 sufficient with respect to some or all of the employment decisions
 challenged by the plaintiffs.<9>  With respect to Carol Frank,
 for example, a jury could find that the BWF Initiative adversely
 affected her upward mobility throughout the 1990s.  During this period,
 Frank repeatedly sought promotion from Grade 6 to Grade 7 or above,
 both within her job category and outside it (see, e.g., Frank's SJR,
 Ex30) (DMSI Coordinator job was classified Grades 4-7).  Although her
 performance was consistently praised, Frank was never promoted.  During
 the time Frank was unsuccessfully seeking promotion above Grade 6, the
 BWF declared that African-Americans were overrepresented in Grades 7-9
 and Grades 10+.  See Arterberry RJS, Tab4 at 2670.  Since the Balanced
 Workforce Reference Guide indicates that promotion from Grade 6 to 7 or
 above would constitute an opportunity for balancing the workforce,
 a decision to promote Frank, a member of an overrepresented group,
 would be a missed opportunity and redound to the detriment of the
 decisionmaker.  See id., Tab1 at 7-8.  This evidence is sufficient to
 support a finding that race was a motivating factor in Xerox's repeated
 refusals to promote Frank.<10>

 2.  The district court considered only one of Carol Frank's
 discriminatory promotion claims on the merits.  In granting summary
 judgment on this claim, concerning a position as a Manager of Customer
 Operations (MCO), the district court analyzed the evidence under the
 McDonnell Douglas framework, and held that Frank could not establish
 that Xerox's assertion that she was denied that promotion based on
 qualifications was pretextual because she did not establish that she was
 clearly better qualified than the individual Xerox selected for the
 particular position.  Order at 17.  As we have argued above, we believe
 that this claim should not have been analyzed under McDonnell Douglas in
 light of the affirmative evidence that race was a factor in the decision.
 Nonetheless, even if the claim is analyzed under McDonnell Douglas,
 Frank was not required to prove that she was clearly better qualified
 in order to withstand summary judgment because she is not relying solely
 on evidence of comparative qualifications to establish discrimination.
 In Messer v. Meno, 130 F.3d 130 (5th Cir. 1997), the plaintiff alleged
 that she was denied promotions and undercompensated because of her race
 and sex, relying in part on evidence that her employer was adhering to
 an affirmative action plan.  As in this case, the employer asserted
 that it based the challenged decisions solely on qualifications.
 This Court, analyzing the claims under McDonnell Douglas, reversed a
 summary judgment for the employer, holding that the evidence that the
 employer used its hiring and promotion practices to attain and maintain
 a balanced workforce raised an inference that, for applicants meeting
 the minimum qualifications, the employer considered race and/or gender
 in employment decisions.  Id. at 139.  By arbitrarily discount[ing]
 this evidence (id. at 137), the Court stated, the district court reached
 an erroneous conclusion that plaintiff failed to produce any facts that
 would show the employer's reasons for its personnel decisions regarding
 her were pretexts for discrimination.  Id. at 139.

 This case is analogous to Messer; as in Messer, the district court
 here erred in arbitrarily discounting the evidence regarding Xerox's
 implementation of the BWF at the Houston Center.  As explained above,
 this evidence, if believed, establishes that, throughout the 1990s,
 Xerox strove to attain and maintain a racially-balanced workforce and,
 as a result, employees such as Carol Frank were stuck in lower-level
 jobs because of their race.  While not uncontroverted, the evidence,
 at a minimum, is sufficient to raise a material factual issue regarding
 whether Xerox's proffered reasons for its actions are unworthy of
 credence.  See Messer, 130 F.3d at 139 (evidence appearing to depict an
 agency-wide consciousness of race and gender as grounds for employment
 decisions raises material issue of fact as to pretext); Whalen, 91 F.3d
 at 1045 (evidence is relevant to key issue of discriminatory intent).
 Moreover, in light of this additional evidence, the court erred in
 holding that, to withstand summary judgment, Carol Frank was required
 to show that she was clearly better qualified than Joe Olivarez,
 the individual to whom Xerox gave the MCO position.  Order at 17-18.
 In reaching this decision, the court relied on Celestine v. Petroleos
 de Venezuela, 266 F.3d 343, 356-57 (5th Cir. 2001), which states that a
 plaintiff may survive summary judgment and take his case to the jury
 by providing evidence that he was clearly better qualified than [the
 successful applicant].  The Celestine Court reasoned that the single
 question for the trier of fact is whether the employer's selection of a
 particular applicant over the plaintiff was motivated by discrimination,
 and evidence of the plaintiff's superior qualifications is thus
 probative of pretext.  Id.  However, the Court continued, the bar is
 set high for this kind of evidence because differences in qualifications
 are generally not probative evidence of discrimination unless those
 disparities are of such weight and significance that no reasonable
 person, in the exercise of impartial judgment, could have chosen the
 candidate selected over the plaintiff for the job in question.'  Id.
 See also Odom v. Frank, 3 F.3d 839, 847 (4th Cir. 1993) (showing of
 gross disparities ensures that court does not simply substitute its
 own judgment as to parties' comparative qualifications).

 As is clear from the decision, however, the reasoning of Celestine is
 limited to cases where, unlike here, plaintiffs attempt to prove pretext
 solely on the basis of comparative qualifications.  The standard does
 not apply in cases such as this one where the plaintiff proffers other
 evidence from which a jury could find the employer's failure to select
 the plaintiff was motivated by discrimination.  See Vance, 209 F.3d at
 444 (plaintiff need not meet clearly better qualified standard where
 other evidence supports pretext finding); cf. Rutherford v. Harris
 County, 197 F.3d 173, 182 n.9 (5th Cir. 1999) (noting, in response to
 argument that plaintiff failed to show she was clearly better qualified,
 that she did not attempt to prove pretext solely on the basis of her
 comparative qualifications).  

 Here, there is no dispute that Frank met the legitimate minimum
 qualifications for the MCO position, and Xerox does not deny that she
 also had a history of successful job performance and more education
 than the successful applicant.  In addition to this  evidence, however,
 plaintiffs proffered the BWF-related materials which, if believed,
 would show that Xerox considered race in making promotion decisions and
 that Frank's status as a Grade 6 exempt (non-sales) African-American
 applicant for the MCO position mattered.  As discussed supra at 9-11,
 a decision to grant the promotion to Frank would have only increased
 the perceived overrepresentation of African-Americans in Grades 7 and
 above.  By contrast, giving the job to Olivarez did not have negative
 implications under the BWF since he already held a management position
 (XMSJ-Frank, Tab3, Olivarez Aff.  3), and there is no reason to believe
 that moving him to a different management job would be considered a
 missed opportunity under the BWF.  Accordingly, whether the BWF evidence
 is considered evidence of pretext or direct evidence of discrimination,
 it should obviate any need for Frank to also show that she was clearly
 better qualified than Olivarez.

CONCLUSION

 For the foregoing reasons, the Commission respectfully asks this Court
 to reverse the judgment below and remand the case to the district court
 for further proceedings on the merits.

      Respectfully submitted,

      NICHOLAS M. INZEO
      Acting Deputy General Counsel 

      PHILIP B. SKLOVER
      Associate General Counsel

      VINCENT J. BLACKWOOD
      Assistant General Counsel



      _____________________________
      BARBARA L. SLOAN
      Attorney

      EQUAL EMPLOYMENT OPPORTUNITY
       COMMISSION
      Office of General Counsel
      1801 L Street, N.W., Room 7014
      Washington, D.C.  20507
      (202) 663-4721 

CERTIFICATE OF COMPLIANCE

 In accordance with Federal Rule of Appellate Procedure 32, I certify that
 this brief was prepared with Courier New (monospaced)  typeface, 12 point
 font, and contains 6986 words, from the Statement of Interest through the
 Conclusion, as determined by the Word Perfect 9 word counting program.



      ____________________________
      Barbara L. Sloan

CERTIFICATE OF SERVICE
 I hereby certify that two copies of the foregoing brief were sent this
 20th day of September, 2002, by first-class mail, postage prepaid,
 to the following counsel of record:

   Gordon R. Cooper II
   COOPER & COOPER
   3003 South Loop West, Suite 108
   Houston, TX  77054


   Melvin Houston
   HOANG, LA & HOUSTON, P.C.
   7011 Harwin, Suite 108
   Houston, TX  77036


   Michael V. Galo, Jr.
   AKIN, GUMP, STRAUSS, HAUER & FELD L.L.P.
   300 Convent Street, Suite 1500
   San Antonio, Texas 78205


     
      __________________________

      
1  The exhibits to Arterberry's Summary Judgment Response are not
consecutively paginated.  For clarity in Tabs 2-6, EEOC cites the
Bates number on each document.

2  An employer could also attempt to justify the use of race-conscious
affirmative action under United Steelworkers v. Weber, 443 U.S. 193
(1979), under which a private employer like Xerox may make race-conscious
employment decisions only to eliminate manifest racial imbalances in
traditionally segregated job categories.  Id. at 197.  Xerox has never
argued that it would have been justified in favoring whites over blacks
in making hiring, promotion or pay decisions under this standard. 

3  Although this framework was developed under Title VII, this Court
has also applied to claims under 42 U.S.C.  1981.  LaPierre v. Benson
Nissan, 86 F.3d 444, 448 n.2 (5th Cir. 1996).

4  There is language in some of this Court's decisions suggesting a
narrower definition of direct evidence which would include only evidence
[that] would serve to prove unlawful discrimination without any inferences
or presumptions.  See, e.g., Scales v. Slater, 181 F.3d 703, 709 n.6
(5th Cir. 1999); cf. Portis v. First Nat'l Bank of New Albany, 34
F.3d 325 (5th Cir. 1994) (any statement or written document showing a
discriminatory motive on its face).  This definition cannot be applied
literally in discrimination cases, however, since it would exclude what
Justice O'Connor characterized as direct evidence in Price Waterhouse,
490 U.S. at 272-73.  There, the partners never expressly informed
the plaintiff that they would vote against her because of her sex.
To find a violation, the court had to infer that, had she been a man,
her personality traits and dress would not have barred her from becoming
a partner.

5  As we noted, supra, the validity of Xerox's BWF Initiative is not
at issue.  Like the employer in Bass (and also in Messer v. Meno, 130
F.3d 130 ((5th Cir. 1997), discussed infra), Xerox has never argued that
it properly could favor whites over blacks in making hiring, promotion
or pay decisions.

6  To establish a claim of intentional race discrimination, plaintiffs
need not show that the employer was motivated by racial animus.
See International Union, UAW v. Johnson Controls, 499 U.S. 187, 199
(1991) (Title VII) (absence of a malevolent motive does not convert
discriminatory practice into neutral practice with discriminatory
effect); cf. Goodman v. Lukens Steel Co., 482 U.S. 656, 669 (1987)
( 1981).

7  On the contrary, Buchanan testified that Amos Benning was sent to
Houston as Sales Manager in 1998 to address concerns that there were no
African-Americans on Durham's senior staff.  XMSJ-Frank, Tab7 (Buchanan
Decl.  3-5).  Cf. Benning Dep. 78 (admitting hiring minority male
because his team had none).  This evidence demonstrates that Xerox
engaged in race-conscious decisionmaking.  While Xerox's witnesses
never admitted hiring whites because of race, a jury could find that,
where the numbers showed whites were underrepresented, Xerox also hired
to meet those targets.

8  Durham stated that Even under BWF, . . . Xerox will always select
the most qualified candidate for a job, regardless of that person's race
or gender (XMSJ-Frank, Tab13 (Durham Decl.  5)), but a jury could find
this statement self-serving in light of the other evidence.  Xerox also
proffered a copy of its generic non-discrimination policy from the early
1990s (XMSJ-Arterberry, Tab18), and an Affirmative Action Policy Memo
(Williams Reply, Tab2), which was not issued until 1999 and states that
promotion decisions should be based on qualifications, considering
only valid requirements for the position for which an individual is
being considered, without explaining when, if ever, race (or other
prohibited criteria) might be a valid requirement.  A jury could find
that the generalized statements in these memos do not undercut the clear
directives in the Balanced Workforce materials.

9  The district court essentially ignored the BWF-related materials in its
orders dismissing the other plaintiffs' claims.  In Frank's case, however,
the court indicated that it was under the impression the Initiative was
in place only from 1988-1990.  Order at 17.  That impression is simply
inaccurate.  As noted above, the evidence suggests that management in
the Houston Center adhered to the BWF directives throughout the 1990s.

10  In arguing below that summary judgment was proper despite the
BWF-related materials, Xerox cited, without explanation, Whalen, 91
F.3d 1041, and Cerrato v. San Francisco Community College, 26 F.3d 968,
976 (9th Cir. 1994).  XMSJ-Frank at 9.  The company elsewhere also
cited Brown v. McLean, 159 F.3d 898 (4th Cir. 1998).  These cases
all involve affirmative action plans, but they are otherwise inapt.
Significantly, all three plaintiffs lost after trial, not on summary
judgment.  In Cerrato, the Ninth Circuit rejected plaintiff's argument
that the mere existence of [an] affirmative action plan gives rise
to discriminatory intent on the part of defendants.  26 F.3d at 976.
We agree, but that is not the argument here.  We likewise agree with
Whalen, where the Seventh Circuit upheld the district court's decision
to let the jury determine whether defendant's affirmative action policy
affected the challenged promotion decision.  91 F.3d at 1045-46.  As for
Brown, a divided panel of the Fourth Circuit, while hesitat[ing] to say
that there was no probative value to introducing the city's affirmative
action plan into evidence, ruled that the district court did not abuse
its discretion in excluding it under Fed. R. Evid. 403 where, inter alia,
plaintiff never applied for the job in question.  159 F.3d at 904-05.