EEOC v. BCI Coca-Cola Bottling Co., (10th Cir.)
Brief as Appellant
March 7, 2005                    ORAL ARGUMENT REQUESTED
                                
                        Case No. 04-2220
             IN THE UNITED STATES COURT OF APPEALS
                     FOR THE TENTH CIRCUIT
                                                                                                        
                                
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,

                    Plaintiff/Appellant,

v.

BCI COCA-COLA BOTTLING COMPANY OF
LOS ANGELES, et al.,

                    Defendant/Appellee.

                                                                                                     
                                
        On Appeal from the United States District Court
        for the District of New Mexico, No. CIV 02-1644
           The Honorable James O. Browning, Presiding
                                                                                                       
                                
                 BRIEF OF THE EQUAL EMPLOYMENT
              OPPORTUNITY COMMISSION AS APPELLANT
                                                                                                       


ERIC S. DREIBAND
General Counsel                         SUSAN R. OXFORD          
                                   Attorney                 
CAROLYN L. WHEELER            EQUAL EMPLOYMENT 
Acting Associate General Counsel        OPPORTUNITY COMMISSION
                                   1801 L Street, N.W., Room 7010
LORRAINE C. DAVIS                  Washington, D.C.  20507
Assistant General Counsel               (202) 663-4791
                    
                       TABLE OF CONTENTS
                                                            page

TABLE OF CONTENTS  . . . . . . . . . . . . . . . . . . . .. . . . . . . .                i
                                                       
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . .                iii

PRIOR OR RELATED APPEALS   . . . . . . . . . . . . . . . . . .                 vi

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

STATEMENT OF ISSUE   . . . . . . . . . . . . . .  . . . . . . . . . . . .                1

STATEMENT OF THE CASE . . . . . . . . . . . . . .  . . . . . . .                1

STATEMENT OF FACTS  . . . . . . . . . . . . . . . .  . . . . . . . . . .                 2

     Decision Below . . . . . . . . . . . . . . . . .. . . . . . . . . . . . .                 15

STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . .. . . . . . .                17

SUMMARY OF THE ARGUMENT  . . . . . . . . . . . . . . . . . . .                     18

ARGUMENT 

     THE DISTRICT COURT ERRED IN GRANTING SUMMARY 
     JUDGMENT BECAUSE A REASONABLE FACTFINDER 
     COULD FIND THAT BCI'S PROFFERED REASON FOR 
     TERMINATING STEPHEN PETERS IS A PRETEXT FOR 
     RACE DISCRIMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . .     20
       
     A.   Evidence of Grado's racial animus toward African American 
          employees and evidence that Grado treated non-African
          American employees more favorably than Peters demonstrates 
          that a jury could reasonably find that Grado engineered 
          Peters' termination based on a racially discriminatory motive .     22




     B.   The District Court Erred When it Held, as a Matter of Law,
          that Grado's Racial Bias Cannot be Imputed to BCI on this
          Factual Record. . . . . . . . . . . . . . . . . . .      30 

     C.   Material Issues of Fact in the Record Concerning BCI's
          Explanation and Edgar's Misrepresentation Provide
          Additional Support for a Finding of Pretext in this Case. . .              36

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . .  . . . . . . . . .           41

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . .. . . .           42

CERTIFICATE OF COMPLIANCE  . . . . . . . . .. . . . . . . .         43

APPENDIX

     Memorandum Opinion and Order in EEOC v. BCI Coca-Cola
     Bottling Co. of Los Angeles, Civil Action No. 02-1644 (D.N.M.
     June 14, 2004), R.81 . . . . . . . . . . . . . . . . . . . . . . . .         1a

     Brooks v. Barnhart, 78 Fed.Appx. 52, 2003 WL 22293796 
     (10th Cir. 2003) (unpub.) . . . . . . . . . . . . . . . . . . . .       39a

CERTIFICATE OF SERVICE
                                


                      TABLE OF AUTHORITIES

Federal Cases                                          page

Abrams v. Lightolier, Inc., 50 F.3d 1204 (3d Cir. 1995) . . . . . . . . . .          34

Aka v. Washington Hosp. Ctr., 156 F.3d 1284 (D.C. Cir. 1998) . . . .       41

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . . . . . . . . . .      17

Aramburu v. The Boeing Co., 112 F.3d 1398 (10th Cir. 1997) . . . . .       23

Bergene v. Salt River Proj. Agric. Improvement & Power Dist., 
     272 F.3d 1136 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . .         34

Brooks v. Barnhart, 78 Fed.Appx. 52, 2003 WL 22293796 
     (10th Cir. 2003) (unpub.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     
     35

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) . . . . . . . . . . . .      31

EEOC v. Flasher Co., Inc., 986 F.2d 1312 (10th Cir. 1992) . . . . . . . .       24

EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184 
     (10th Cir. 2000) . . . . . . . . . . . . . . .. . . . . . . . . . . .  17, 21, 23

English v. Colo. Dep't of Corr., 248 F.3d 1002 (10th Cir. 2001) . . . .       32, 33

Ercegovich v. Goodyear Tire Co., 154 F.3d 344 (6th Cir. 1998)  . . . .          34

Griffin v. Wash. Conv. Ctr., 142 F.3d 1308 (D.C. Cir. 1998) . . . . . . . .     34

Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277 
     (4th Cir. 2004) (en banc), petition for certiorari dismissed, 
     125 S.Ct. 1115 (Jan. 25, 2005) (Mem.) . . . . . . . . . . . . . . . . . . . .   34

Hunt v. City of Markham, 219 F.3d 649 (7th Cir. 2000) . . . . . . . . . . . .   34

Kariotis v. Navistar Int'l Transp. Corp., 131 F.3d 672 (7th Cir. 1997) . . 40

Federal Cases (cont'd)                                           page

Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220 
     (10th Cir. 2000) . . . . . . . . . . . . . . . . . . .  23, 29, 30, 32, 34

Lamon v. City of Shawnee, 972 F.2d 1145 (10th Cir. 1992) . . . . . . .          40

Lust v. Sealy, Inc., 383 F.3d 580 (7th Cir. 2004) . . . . . . . . . . . . . . . .         34

McCowan v. All Star Maintenance, Inc., 273 F.3d 917 
     (10th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . .          
17, 35

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

Miller v. Eby Realty Group, 396 F.3d 1105 (10th Cir. 2005) . . . . . . .   20, 21, 36,
                                                                passim

Mulero-Rodriguez v. Ponte, Inc., 98 F.3d 670 (1st Cir. 1996) . . . . . . . 33

Ortiz v. Norton, 254 F.3d 889 (10th Cir. 2001) . . . . . . . . . . . . . . . . . . . 35

Ostrowski v. Atl. Mut. Ins. Cos., 968 F.2d 171 (2d Cir. 1992) . . . . . . .     34
                                        
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) . . . . .   21, 36

Rivera v. City and County of Denver, 365 F.3d 912 (10th Cir. 2004) . . .   37

Russell v. McKinney Hosp. Venture, 235 F.3d 219 (5th Cir. 2000) . . . .    33, 34

St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993) . . . . . . . . . . . . . . .    40
                                   
Santiago-Ramos v. Centennial P.R. Wireless Corp., 
     217 F.3d 46 (1st Cir. 2000) . . . . . . . . . . . . . . . . . . . . . .. . . . 33

Stacks v. Southwestern Bell Yellow Pages, Inc., 
     27 F.3d 1316 (8th Cir. 1994) . . . . . . . . . . . . . . . . . .. . . . . . .  34 

Stinnett v. Safeway, Inc., 337 F.3d 1213 (10th Cir. 2003) . . . . . .    17

Federal Cases (cont'd)                                           page

Stowers v. Wells' Dairy, Inc., 982 F. Supp. 1441 (D. Kan. 1997) . . . . .  24
s Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) . . . . .  . 36

Tran v. Trs. of State Colls. in Colo., 355 F.3d 1263 (10th Cir. 2004) . . .     29


Federal Statutes                                                 

28 U.S.C.  451 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     1

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

28 U.S.C.  1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    1

28 U.S.C.  1337 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    1

28 U.S.C.  1343 . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . .    1

28 U.S.C.  1345 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    1

42 U.S.C.  1981a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     1

42 U.S.C.  2000e-1 et seq.. . . . . . . . . . . . . .  . . . . . . . . . . . . 1

42 U.S.C.  2000e-5(f)(1), (3)   . . . . . . . . . . .  . . . . . . . . . . . . 1



                                

                    PRIOR OR RELATED APPEALS

PRIOR APPEALS
     There are no prior appeals.

RELATED APPEALS
     There are no related appeals.


                   STATEMENT OF JURISDICTION
      The district court had jurisdiction over this matter pursuant to 28 U.S.C.
 451, 1331, 1337, 1343 and 1345 and 42 U.S.C.  2000e-5(f)(1) and (3).  The
district court's final judgment entered on June 30, 2004, R.82, constitutes a final
decision that this Court has jurisdiction to review pursuant to 28 U.S.C.  1291. 
Plaintiff-Appellant Equal Employment Opportunity Commission ("EEOC" or
"Commission") filed a timely notice of appeal on August 27, 2004.  R.87. 
                       STATEMENT OF ISSUE
     Whether the district court erred in granting BCI's motion for summary
judgment because the record evidence creates genuine issues of material fact as to
whether BCI's proffered reason for terminating Stephen Peters is a pretext for
discrimination.  EEOC raised this issue below in its opposition to BCI's motion for
summary judgment.  See R.73 ("EEOC SJ Opp. Mem.") at 17-25 (Appendix
("Appx.") at 110-18).  The district court addressed this issue in its opinion and order
granting summary judgment.  See R.81 (slip op.) at 21-37 (attached).
                     STATEMENT OF THE CASE
     Plaintiff-Appellant EEOC brought this action against Defendant-Appellee BCI
Coca-Cola Bottling Company ("BCI") alleging the company discriminated against
Stephen Peters based on his race (African American) in violation of Title VII of the
Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C.  2000e-1 et seq., and
42 U.S.C.  1981a.  R.1 (Appx. at 10).  On June 14, 2004, the district court granted
BCI summary judgment on EEOC's claims of discriminatory discharge and disparate
discipline.  R.81 (attached).  The district court entered final judgment in favor of BCI
on June 30, 2004.  R.82 (Appx. at 295).  This appeal followed.  R.87 (Appx. at 296). 
                       STATEMENT OF FACTS
     BCI is a wholly owned subsidiary of Coca-Cola Enterprises, Inc., doing
business in Albuquerque, New Mexico, as the Coca-Cola Bottling Company of
Albuquerque.  See R.81 (slip op.) at 1.  From 1995 through October 2001, Stephen
Peters worked as a merchandiser in the Albuquerque facility.  Appx. at 166. 
Merchandisers are hourly employees responsible for product placement in retail
grocery and other outlets and for cleaning, arranging and rotating displays and
promotional materials.  Slip op. at 2.  In 2001, Peters' day-to-day work activities were
overseen by account manager Jeff Katt.  Id.; Affidavit ("Aff.") of Stephen Peters  9
(Appx. at 144).  Account managers are salaried sales employees responsible for
selling Coca-Cola products to retail outlets in their area of responsibility.  Slip op.
at 2.  Peters and Katt were among the six merchandisers and two account managers
who reported to District Sales Manager Cesar Grado in 2001.  Id.  Peters was one of
the few African American employees at the Albuquerque facility.       
     Grado coordinated the day-to-day activities of his merchandisers through his
account managers.  For instance, after Grado established the merchandisers' weekly
work schedules and route assignments, id., Katt was responsible for providing a copy
to each of the merchandisers servicing his assigned stores, and would call them if the
schedule changed during the week.  Deposition ("Dep.") I of Jeff Katt at 38 (Appx.
at 67).  Merchandisers were required to call in at the start of each shift to let Katt
know they were at their assigned stores.  Id. at 22 (Appx. at 202).  Merchandisers
routinely contacted Katt if they were unable to work because of illness or any other
reason, and Katt would then relay that information to Grado.  Id. at 22-25 (Appx. at
202); see also Dep. of Cesar Grado at 223-24 (Appx. at 200) (merchandiser Arturo
Lopez called Katt requesting time off during a work day, which Katt authorized). 
     Merchandisers generally work five days each week and have two days off. 
Since retailers require service seven days a week, the merchandisers covering a given
district have different days off to ensure continuous servicing, and Peters and the other
merchandisers worked overtime on their days off as needed.  Slip op. at 2; Grado
Declaration ("Decl.")  3-4 (Appx. at 33).  Because of his greater seniority, Peters
had Saturdays and Sundays off.  Grado Decl.  5 (Appx. at 33).  The incident that
resulted in Peters' termination involved a dispute in which Grado told Peters on
Friday, September 28, 2001, that Peters was needed to work on Sunday, September
30 (one of his regular days off).  Peters did not work as assigned because he was sick. 
     Extra coverage was needed the weekend of September 29 and 30, 2001, because
several retail chains were running Coca-Cola specials.  On Friday morning, September
28, Damian Mirabal, who regularly covered Peters' route on the weekends, suffered
an on-the-job injury that put him out of work for a week.  Merchandiser Joseph
Rivera, who regularly had Sunday off, had earlier told Grado he would not be
available to work overtime that Sunday because of a prior commitment.  To cover the
weekend schedule, Grado asked Katt to direct Peters to work overtime on Sunday. 
Grado Decl.  7 (Appx. at 34-35).       
     Katt said that when Grado asked him to contact Peters about working that
weekend, he told Grado that Peters had just worked a six-day week, including the
prior Sunday, and would not want to work another six days the coming week.  Katt
Dep. I at 40 (Appx. at 67).  Grado, on the other hand, said Katt responded that Peters
would not work on Sunday and might call in sick.  Grado Decl.  7 (Appx. at 35). 
According to Katt, Grado then instructed Katt to tell Peters if he did not work on
Sunday, Grado could change Peters' days off to something less desirable than the
Saturday and Sunday Peters presently had because of his seniority.  Katt Dep. I at 40,
46-48 (Appx. at 67, 239).  Katt called Peters as directed and told him he was needed
to work on Sunday because they were short of people.  Katt said Peters responded, "I
can't do it.  I've got plans."  Id. at 40-25 to 41-6 (Appx. at 67).  Following Grado's
directions, Katt told Peters that Grado threatened to change Peters' days off if Peters
did not agree to work that Sunday.  Id. at 46-48 (Appx. at 239).      
     At some point Grado decided to speak to Peters himself.  Before doing so,
Grado contacted Pat Edgar, a BCI Human Resources ("HR") official based in
Phoenix, and asked if he could order Peters to work on his day off.  Grado Decl.  8
(Appx. at 35).  Edgar said he could, and explained how to give an "insubordination"
warning if Peters resisted working the assigned overtime.  Id.  Edgar instructed Grado
first, however, to "find out what the situation was" and to give the insubordination
warning only if Peters did not "present[] some compelling reason why he could not
work on the day in question."  Decl. of Patricia K. Edgar  6 (Appx. at 23).
     According to Peters, Grado paged him around noon or 1:00 p.m. on Friday. 
When Peters responded to the page, Grado said, "I need you to come in on Sunday to
work."  Peters Dep. at 119-5 to 120-19 (Appx. at 191).  Peters replied that he had
plans and had not been feeling well all week.  Id. at 121-4 to 6 & 23 to 24 (Appx. at
58).  Peters states that Grado never asked him what his plans were or why he was not
feeling well, but simply told Peters to report to work, stating: "I'm not asking you to
come to work, I'm telling you to come to work.  If you do not come to work, it could
lead to insubordination and could lead to termination."  Id. at 121-9 to 16 (Appx. at
58); Peters Aff.  28 (Appx. at 146).  Peters says he never told Grado he was refusing
to work on Sunday, and Grado never warned him that he considered Peters' telephone
responses to be insubordination.  Peters Aff.  29 (Appx. at 146).  To end the
conversation, to prevent a confrontation, Peters told Grado "to do what [you have] to
do and I'll do what I [have] to do."  Peters Aff.  6 (Appx. at 144).   
     Grado tells a somewhat different story, and offers inconsistent versions of what
he said to Peters in this telephone conversation.  Grado alleges that when he told
Peters he needed him to work on Sunday, Peters said only that he "had plans" and
never mentioned feeling ill.  Grado maintains he then asked Peters what his plans were
"in an effort to determine whether [Peters] was able to work one of the weekend
days," and Peters said his plans were none of Grado's business.  Grado Decl.  9
(Appx. at 35-36).  In his deposition, Grado testified that he "explained to [Peters] . . .
that I was giving him a direct order [to work on Sunday], and failure to follow a direct
order would be considered insubordination, and that would be grounds for
termination."  Grado Dep. at 259 (Appx. at 65) (emphasis added).  In a subsequent
declaration provided in support of BCI's motion for summary judgment, Grado
claimed he offered to let Peters work Saturday instead of Sunday, but Peters refused
to work at all that weekend.  Grado claimed he then told Peters "his refusal to work
as ordered was insubordination, and could lead to termination."  Grado Decl.  9
(Appx. at 36) (emphasis added).  Grado asserts that Peters raised his voice during this
exchange.  Id.; Grado Dep. at 258-59 (Appx. at 65).
     Grado immediately contacted Edgar and "told her what had happened."  Grado
Decl.  10 (Appx. at 36).  According to Edgar, Grado told her "Stephen Peters had in
fact refused to come in to work that weekend."  Edgar Decl.  7 (Appx. at 23-24). 
Edgar claimed that Grado further represented that Peters said he "had plans" but
"refused to tell [Grado] what the plans were," and that Grado then informed Peters
that his refusal to comply was insubordination and could lead to termination.  Id. 
     Because Peters felt ill, he postponed his weekend plans and on Saturday,
September 29, went to the doctor instead, where he was diagnosed with a sinus
infection and given a prescription.  Peters Dep. at 122-23, 145-52 (Appx. at 58, 194-
95); EEOC Ex. W (Appx. at 217).  After he returned home from the doctor's office,
Peters telephoned Katt on Saturday evening to inform Katt that he was sick, following
the standard practice when merchandisers could not work an assigned shift because
they were ill.  Katt Dep. I 22-24 (Appx. at 202).  Katt then excused Peters from work
the next day on that basis.  Peters Dep. at 194-15 to 195-8 (Appx. at 1997).  Katt
paged Grado Saturday evening to let him know Peters had called in sick, but Grado
never returned Katt's pages.  Katt Dep. I at 25 (Appx. at 202).  As a result, it was not
until Monday evening, when Grado telephoned Katt at home to discuss the next day's
schedule, that Katt told Grado Peters had called in sick on Saturday and he had
excused Peters from working Sunday on that basis.  Id. at 66 (Appx. at 204).
     Katt stated in his deposition that Grado called him around 6:00 p.m. Monday
evening to discuss the next day's schedule.  When Katt asked Grado which route
Peters was going to cover or why Grado was reassigning Peters' route, Grado replied,
"I think I'm going to terminate him."  Katt asked why, and after Grado explained, Katt
responded: "You do know he called in, he called in sick to me?"  According to Katt,
Grado "kind of paused" and then said, "'Why didn't you tell me that earlier?' And I
said, 'I did.  I tried to page you.'"  Katt Dep. I at 64-67 (Appx. at 203-04).     
     In the meantime, according to BCI, on Monday afternoon Edgar decided to
discharge Peters for "insubordination," after learning from Grado on Monday morning
that Peters had not come to work on Sunday.  Edgar Decl.  12-13, 17 (Appx. at 25-
28).  Edgar said she made this decision alone, without seeking or receiving any
recommendation from Grado.  Edgar Decl.  15 (Appx. at 27).  In her declaration in
support of summary judgment, Edgar further asserted that she based her decision
primarily on Grado's representation of what Peters said to Grado during their
telephone conversation on Friday, not on Peters' failure to work on Sunday.  Edgar
Decl.  13-16 (Appx. at 26-27).  Edgar admitted, however, that Peters' failure to
work on Sunday also played a part in her decision, because it purportedly ratified
Peters' previously-stated intention to defy his supervisor's direct order.  Id. at  14
(Appx. at 26-27).
     Edgar asserted she learned of Peters' sick call to Katt on Saturday and Katt's
approval for Peters to stay home sick before she made her decision on Monday
afternoon to discharge Peters, but claims this information did not affect her resolve to
terminate him.  Edgar Decl.  14 (Appx. at 26-27).  In Edgar's opinion, the fact that
Peters reported his illness to Katt instead of Grado was "particularly suspicious," as
Edgar believed that if Peters was genuinely unable to work due to illness and truly
interested in keeping his job, he would have called Grado, not Katt.  Id. (Appx. at 27). 
     Edgar said she was also influenced, in part, by Peters' two-day suspension  for
"insubordination" from a different supervisor in 1999.  Edgar Decl.  11, 13 (Appx.
at 25-26).  That supervisor had made a last-minute request that Peters work overtime
on a Saturday, his regular day off.  Peters refused because he was serving as a pall
bearer at the funeral of his fianc's son, who had died unexpectedly in a car accident. 
Peters Aff.  33 (Appx. at 146-47); Peters Dep. at 163 (Appx. at 196).  During Peters'
six and a half years with the company, the 1999 incident was the only unexcused
absence on Peters' record.  Peters Aff.  34 (Appx. at 147-48); Peters Dep. at 163
(Appx. at 196); see also Katt Dep. I at 74 (Appx. at 206) (Peters "was an excellent
worker" and Katt never had any problems with him showing up for work or
performing his duties).  Peters' almost perfect attendance record stands in marked
contrast to that of other merchandisers who were not fired despite frequent unexcused
absences.  See, e.g., Peters Dep. 162-63 (Appx. at 196); Katt Dep. I at 75-77 (Appx.
at 206-07) (discussing Arturo Lopez); Grado Dep. at 210-13, 223-27 (Appx. at 199-
201) (same); EEOC SJ Opp. Mem. at 23-24 & n.7 (Appx. at 116-17) (discussing
attendance problems of Oran Sage and Damien Mirabel); Plaintiff's Statement of
Facts ("PSOF") ## 18, 32, 34, 36-38 (Appx. at 126-29).      
     Peters was discharged Tuesday morning, October 2, 2001, at a meeting attended
by Grado, Grado's supervisor Don Bateluna, and HR representative Sherry Pedersen. 
Peters Dep. at 137 (Appx. at 193).  According to Peters, Grado asked him if he knew
why he was there, and when Peters said no, Grado explained, "You've been
terminated for insubordination, for not showing up for work."  Id. at 138 (Appx. at
193).  Peters says no one at the meeting asked him why he did not show up for work
on Sunday, nor was he given a chance to explain his absence before being handed the
termination notice.  Id. at 139 (Appx. at 193).  After receiving the termination notice,
Peters told the group he had not been feeling well and Katt had authorized him to stay
home sick.  Id. at 138-39 (Appx. at 193).  Peters stated: "[A]fter I told them that, they
all got quiet.  And when I left they shut the door and [were] in there talking."  Id. at
139 (Appx. at 193).  According to Edgar, Pedersen called Edgar after the meeting and
asked Edgar if she knew that Peters is African American.  Edgar Decl.  17 (Appx.
at 27-28).    
     Peters filed a charge with EEOC on October 11, 2001, alleging his termination
was racially discriminatory.  EEOC filed suit on December 30, 2002.  Following
discovery, BCI moved for summary judgment, R.65, 66, maintaining that BCI
terminated Peters for insubordination based primarily on Peters' statements to Grado
on Friday afternoon.  BCI further asserted that EEOC's  race discrimination claim
must fail because Edgar was the lone decisionmaker and there is no evidence she
knew Peters' race until after his termination.  In opposition, EEOC contended that
Grado harbored racial animus toward African American employees and that this bias
was properly imputed to BCI because of Grado's substantial involvement in the
termination process as Peters' supervisor and Edgar's sole source of information about
the events on which BCI alleges the termination was primarily based.  As
circumstantial evidence that Peters' termination resulted from Grado's racial bias,
EEOC presented evidence of Grado's racial animus toward African-American
employees, his more favorable treatment of non-African American employees, and
BCI's shifting explanations for Peters' termination.  R.73 at 18-24 (Appx. at 111-17). 
     EEOC presented statements from a number of BCI employees to demonstrate
Grado's racial bias.  Michael Wilson, another African American merchandiser who
worked under Grado, said Grado continually demeaned him and threatened to replace
him, and generally subjected the few African American merchandisers to much greater
scrutiny and more rigorous performance standards than Hispanic merchandisers. 
Wilson Aff.  7 (Appx. at 185).  Wilson also stated that Grado made race-based
remarks to him during working hours, including stating "Black guys [do] not look
good in trucks, they should drive Cadillacs"; telling jokes about Black men dating
Caucasian women; and once, while Wilson was performing an outdoor task that Grado
had ordered him to do even though it was not part of his job duties, remarking that
Wilson should hurry and finish because "'brothers don't like the cold."  Id.  5 (Appx.
at 184-85).   See also Aff. of James Young  6, 9 (Appx. at 181) (Grado treated
African American employees worse than non-African American employees, applied
more rigorous performance standards to Young's work than to non-African American
employees, and constantly threatened to change Young's days off and route); Aff. of
Bryan Esquibel  5, 6 (Appx. at 182-83) (observed Grado treat African American
employees, including Peters, worse than non-African American employees).  Peters
complained to Young on several occasions that he felt he was being treated differently
because he was African American.  Peters Aff.  16 (Appx. at 145).  Katt attested that
he believed (although he said he was not certain) that Grado had used the word
"nigger" or something like it to refer to Peters after Grado learned that Peters intended
to pursue a race discrimination claim against BCI.  Katt Dep. II at 62-64 (Appx. at
212).  
     EEOC also presented several examples of Grado's more favorable treatment of
non-African American employees under similar circumstances.  For instance, on one
occasion Grado ordered Katt to direct a Hispanic merchandiser, Monica Lovato, to
work one of her weekend days off, even though she was "having a birthday that
weekend, and she wanted both those days off pretty badly."  Katt Dep. I at 118 to 120
(Appx. at 211).  Lovato failed to show up for work, failed to call in, and failed to
answer Katt's several pages.  Id.  After Katt informed Grado that she did not show up
for work, Grado did not contact Lovato to give her an "insubordination" warning, nor
did he refer the matter to the HR department for possible disciplinary action.  Indeed,
no discipline was ever imposed on Lovato.  Decl. of Sherry Pedersen  14 (Appx. at
46).  Discussing Lovato's situation later that week, Grado told Katt, "You can't make
somebody work one of their days off."  Katt Dep. I at 119-20 (Appx. at 211).
     On another occasion, Grado gave an insubordination warning to a Hispanic
merchandiser, Arturo Lopez, after Lopez failed one day to call in as required at the
start of work and failed to respond to his supervisor's pages.  Grado Decl.  19 (Appx.
at 38).  Although Lopez ignored Grado's warning and failed to comply with Grado's
directive, Grado did not contact anyone in the HR department to report the
insubordination.  Id. (Appx. at 38-39).  Instead, Grado took no action for several days,
and after Lopez failed to show up for work for three days, he was deemed to have
voluntarily terminated his employment with BCI.  Pedersen Decl.  12 (Appx. at 45). 
     Finally, approximately six months after Peters was fired, Bryan Esquibel, a
Hispanic driver who worked for a different district sales manager, refused a direct
order to take out a delivery, telling his supervisor, "Go ahead and fire me."  When the
supervisor reported this to the HR department, Esquibel was not immediately
terminated, as Peters had been.  Instead, the HR representative asked Esquibel, the
next day, to provide a written statement so his version of events could be considered
before discipline was imposed (a step never offered to Peters before his termination). 
Esquibel refused to provide a statement, and he was then terminated for
insubordination.  See Disciplinary Status Notice (Appx. at 55). 
     EEOC further maintained that the inference that Peters' termination was
because of his race is supported by the fact that district sales managers ("DSMs") like
Grado had discretion on whether to refer matters such as Peters' alleged refusal of
assigned overtime to the HR department for possible discipline.  See Bateluna Dep.
at 38-39 (Appx. at 175).  Indeed, managers apparently had discretion on whether to
give an employee an "insubordination" warning, and Grado did not give the warning
in at least one other situation involving a non-African American employee (Monica
Lovato) that otherwise is materially similar to the Peters situation.  
Decision Below
     The district court granted BCI's motion for summary judgment, concluding
EEOC failed to establish any genuine dispute that BCI's asserted reason for
discharging Peters (insubordination) was a pretext for discrimination.  R.81 (slip op.)
(attached).  According to the district court, EEOC sought to prove "pretext" by
characterizing Peters' discharge as attendance-related (failure to work on Sunday), and
then by demonstrating that BCI did not terminate other employees with similar, or
worse, attendance records.  The court rejected this theory on the ground that BCI had
asserted "insubordination," not attendance, as the reason it terminated Peters.  Id. at
23-26.  Viewing the facts as they appeared to Edgar, the person making the decision,
the district court found "no evidence to support the contention that BCI did not
honestly believe that Peters was insubordinate on Friday."  Id. at 25.  
     The district court also rejected EEOC's contentions that the termination
decision was tainted by Grado's racial animus.  Id. at 31.  Although the district court
found EEOC "created a genuine issue of fact whether Grado was biased against
African Americans," the court reasoned that the issue was not material because: Edgar
decided to terminate Peters without any recommendation from Grado; there was no
evidence "Grado communicated his racial bias to Edgar" before she made her
decision; and the court found no evidence the information Grado gave Edgar was false
or misleading.  Id. at 27-29, 34.  The district court rejected EEOC's contention that
Edgar acted as a "rubber stamp" or "cat's paw" for Grado's prejudice.  Id. at 29 & n.9. 
The court reasoned that the cases applying the "rubber stamp" theory involved
situations where "a decision-maker accepted the recommendations of a biased
supervisor without conducting an independent investigation."  Id. at 29.  Here, the
court concluded, "Grado did not make any recommendations to Edgar" and "Edgar
attempted to do at least some independent investigation by consulting with Pedersen
regarding Peters' disciplinary history."  Id. at 30.  
                                                       STANDARD OF REVIEW
     This Court reviews de novo a district court's decision granting summary
judgment, applying the same legal standards applicable in the district court. 
McCowan v. All Star Maintenance, Inc., 273 F.3d 917, 921 (10th Cir. 2001). 
Summary judgment should be denied if, viewing the evidence and drawing all
reasonable inferences therefrom in the light most favorable to the non-moving party,
there is a genuine issue of material fact.  See, e.g., id. at 926 (reversing district court's
grant of summary judgment for defendant because there were genuine issues of
material fact); Stinnett v. Safeway, Inc., 337 F.3d 1213, 1216-19 (10th Cir. 2003)
(same); EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184 (10th Cir. 2000)
(same).  "A fact is 'material' if, under the governing law, it could have an effect on
the outcome of the lawsuit. . . . A dispute over a material fact is 'genuine' if a rational
jury could find in favor of the nonmoving party on the evidence presented."  Id. at
1190 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). 
Determining credibility, weighing the evidence, and drawing legitimate inferences
from the facts are functions of the jury, not the district court.  Stinnett, 337 F.3d at
1216.  At summary judgment, the court's role "is simply to determine whether the
evidence proffered by plaintiff would be sufficient, if believed by the ultimate
factfinder, to sustain [plaintiff's] claim."  Id. (citations omitted).
                                


                    SUMMARY OF THE ARGUMENT
     The district court committed reversible error in granting summary judgment for
BCI because EEOC presented substantial evidence to support its theory that Grado
was biased against African American employees and engineered Peters' termination
because of that bias.  EEOC sought to establish BCI's liability through circumstantial
evidence under the three-part "pretext" method of proof described in McDonnell
Douglas v. Green, 411 U.S. 792 (1973).  Consistent with this proof paradigm, the
Commission presented evidence that Grado exhibited racial bias generally toward
African American employees under his supervision and specifically toward Peters. 
The Commission also presented evidence that Grado set Peters up for possible
discharge by giving him an insubordination warning right after Peters indicated that
he had plans and was feeling sick, and by then misrepresenting the conversation to
Edgar in order to present Peters in the worst possible light.  EEOC's summary
judgment evidence further showed that Grado treated non-African American
employees more favorably than Peters under similar circumstances. 
     Grado's racial animus is properly imputed to Edgar, the putative decisionmaker
in this case.  Edgar claims she terminated Peters primarily because he refused Grado's
directive to work overtime.  In concluding that Peters had refused to work on Sunday,
however, Edgar relied entirely on Grado's version of his conversation with Peters, a
version that EEOC disputed below.  In addition, Edgar's credibility is severely
undermined by record evidence that during this litigation she lied   or at least made
demonstrably false statements   in her declaration when she claimed that she knew
on Monday afternoon, when she made the decision to fire Peters, about Peters'
Saturday evening call to Katt.  Edgar could not have known of this fact until after she
made her decision, if EEOC's evidence   specifically, Katt's sworn statement that he
did not inform Grado about Peters' Saturday call until Monday evening   is believed. 
The record, viewed as a whole, suggests the company was making up its explanation
of Peters' insubordination as it went along in an effort to justify Peters' termination,
after Grado engineered it through his false and misleading statements to Edgar.  In all,
there are a number of genuine issues as to pretext that, when viewed together, mandate
reversal of the district court's grant of summary judgment. 
                                


                            ARGUMENT
     THE DISTRICT COURT ERRED IN GRANTING SUMMARY
     JUDGMENT BECAUSE A REASONABLE FACTFINDER COULD
     FIND THAT BCI'S PROFFERED REASON FOR TERMINATING
     STEPHEN PETERS IS A PRETEXT FOR RACE DISCRIMINATION.

     As this Court recently explained, "Pretext exists when an employer does not
honestly represent its reasons for terminating an employee."  Miller v. Eby Realty
Group, 396 F.3d 1105, 1111 (10th Cir. 2005).  In this instance, EEOC presented
substantial evidence that Grado exhibited racial bias in his treatment of the African
American employees under his supervision, and the district court properly found that
EEOC established a disputed issue of fact on this point.  The district court wrongly
concluded that this disputed fact was not "material," reasoning that the decision to
terminate Peters was made by Edgar, a Human Resources ("HR") official located at
a different worksite who had never met Peters and purportedly did not know Peters
was African American when she made her decision.  Edgar, however, relied entirely
on Grado's version of events in deciding Peters had been insubordinate.  Indeed, it is
undisputed that Edgar determined Peters' offense warranted termination without
hearing Peters' side or speaking to Peters' immediate supervisor, Jeff Katt. 
Furthermore, BCI admits that Grado had supervisory discretion in deciding whether
to contact HR about matters involving his staff, and EEOC presented evidence of
similar situations involving Hispanic employees when Grado decided not to contact
the HR department possible disciplinary action.  Thus, Grado was indisputably the
motivating influence behind BCI's decision to terminate Peters, and his racial animus
is, therefore, properly imputed to BCI.  A jury could reasonably conclude, on this
basis, that Peters' termination was "because of" race in violation of Title VII.   
     A jury would also be entitled to consider that in explaining Peters' termination
for "insubordination," there is strong evidence Edgar lied about a material fact. 
Specifically, Edgar said that she knew, on Monday afternoon when she made her
termination decision, that Peters had called in sick and was excused by Katt.  Katt's
testimony that he first informed Grado of Peters' sick call on Monday evening
establishes that Edgar could not have found out about the call until after she made her
decision.  Standing alone, Edgar's misrepresentation might not suffice to establish
pretext.  Miller, 396 F.3d at 1111 (rejection of employer's explanation does not
compel finding of discrimination).  Along with the other evidence of Grado's
discriminatory animus, however, Edgar's misrepresentation is an additional factor a
jury should be entitled to consider in assessing whether to discredit BCI's proffered
explanation and to find, instead, that Peters' discharge was motivated by race
discrimination in violation of Title VII.  See id. (permissible for jury to infer ultimate
fact of discrimination from falsity of employer's explanation) (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000)); EEOC v. Horizon/CMS
Healthcare Corp., 220 F.3d at 1199-1200 and n.11 (reversing summary judgment for
defendant where EEOC's evidence, in aggregate, was sufficient to support finding of
pretext). 
A.   Evidence of Grado's racial animus toward African American employees
     and evidence that Grado treated non-African American employees more 
     favorably than Peters demonstrates that a jury could reasonably find that Grado 
     engineered Peters' termination based on a racially discriminatory motive. 
                         
     There is ample evidence in the record that Grado was racially biased   he
disfavored African American employees, favored Hispanic employees, and used his
position as district sales manager to mete out differences in treatment consistent with
this bias.  As the district court acknowledged, slip op. at 34, EEOC introduced the
affidavits of several employees who described how Grado treated African American
employees less favorably than he treated employees of other races.  One African
American merchandiser, Michael Wilson, described how Grado continually demeaned
him, threatened to replace him, and generally subjected him and the few other African
American merchandisers to much greater scrutiny and more rigorous performance
standards than Hispanic merchandisers.  This merchandiser also described various
race-based remarks that Grado made to him during working hours.  Another African
American merchandiser, James Young, described how Grado applied more rigorous
performance standards to his work than to that of non-African American employees,
and constantly threatened to change his days off and route (similar to Grado's threat
to change Peters' days off if he did not work overtime on September 30, 2001).  A
Hispanic employee, Bryan Esquibel, said he observed Grado treat African American
employees worse than non-African American employees.  Peters said he complained
to James Young that he felt he was being treated differently because he was African
American.  See discussion supra at 12-13.  Based on this record evidence, the district
court properly found that EEOC "created a genuine issue of fact whether Grado was
biased against African Americans."  Slip op. at 34.
     In addition, EEOC presented evidence of non-African American employees
who worked under Grado and who violated similar workplace rules but were treated
more leniently than Peters.  "Unexplained or irrational differences" in an employer's
treatment of similarly-situated employees may provide a basis for a finding of pretext. 
EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d at 1199; Kendrick v. Penske
Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000) (plaintiff can also show
"pretext" by demonstrating "he was treated differently from other similarly-situated
employees who violated work rules of comparable seriousness").  "Similarly situated
employees are those who deal with the same supervisor and are subject to the same
standards governing performance evaluation and discipline."  Aramburu v. The
Boeing Co., 112 F.3d 1398, 1404 (10th Cir. 1997) (internal quotes and citations
omitted).  EEOC offered examples of non-African American merchandisers under
Grado's supervision who received more favorable treatment than Peters under similar
circumstances.  See discussion supra at 13-15. 
     For example, Monica Lovato who, like Grado, is Hispanic, was asked on one
occasion to work one of her weekend days off.  She initially objected, stating she did
not wish to work the overtime because she was celebrating her birthday.  Although she
was directed to work anyway, she failed to show up, failed to call in, and did not
respond to pages from her supervisor that morning.  When Grado learned of this, he
did not consider her to be insubordinate and did not give her an "insubordination"
warning.  See Grado Decl.  20.  BCI never imposed any discipline on Lovato; indeed,
Grado never even contacted the HR department about this incident.  Pedersen Aff. 
14.  In contrast to his response when Peters objected to assigned overtime because he
had plans and was feeling ill, Grado said of Lovato, "You can't make an employee
work on their day off."  Katt Dep. I at 118-20. 
     Contrary to the district court's conclusion, see slip op. at 30, Lovato and Peters'
circumstances are sufficiently similar to make comparison meaningful in a pretext
analysis.  As this Court has said, "The infractions giving rise to the comparison need
not involve exactly the same offenses; they need only be of comparable seriousness." 
EEOC v. Flasher Co., Inc., 986 F.2d 1312, 1316 (10th Cir. 1992) (citation omitted);
Stowers v. Wells' Dairy, Inc., 982 F. Supp. 1441, 1444 (D. Kan. 1997) (same). 
Moreover, the very aspect on which the district court found dissimilarity   the absence
of an insubordination warning in Lovato's case   is itself a product of Grado's bias
(i.e., Grado elected to give Peters a warning but not to give Lovato one after she failed
to call in or show up for her assigned weekend overtime).  It makes no sense to view
as exculpatory one of the very acts challenged as discriminatory, and BCI cannot
establish dissimilarity on this basis.  Rather, under circumstances such as this, a jury
should determine whether the employees are sufficiently similar that their differential
treatment supports an inference of discriminatory intent. 
     Given the evidence here, a jury could easily conclude that Grado would never
have even contacted Edgar about Peters had Peters been Caucasian or Hispanic.  The
district court should have permitted the jury to determine whether Grado's more
lenient treatment of Lovato when she failed to show up, or even call in, for her
assigned weekend overtime (having previously indicated she had birthday plans) was
because she is Hispanic.  Considering Grado's comment that "[y]ou can't make
someone work on their day off," Appx. at 211, a jury could plausibly conclude from
this differential treatment, along with the evidence of Grado's demonstrated animus
toward African American employees, that Grado's decision to orchestrate Peters'
discharge by elevating the matter to Edgar was motivated by racial bias.
     Grado's handling of another incident shortly after Peters' termination, an act of
alleged insubordination by Hispanic merchandiser Arturo Lopez, suggests Grado
intentionally escalated the Peters matter, by immediately bringing it to the attention
of the HR department, to set Peters up for discharge.  Grado gave Lopez an
insubordination warning that Lopez, unlike Peters, indisputably ignored.  Grado did
not advise the HR department of Lopez's insubordination, however.  Appx. at 38. 
Lopez thereafter failed to show up for work for the next several days and was
subsequently deemed to have voluntarily terminated his employment.  Pedersen Decl.
 12 (Appx. at 45).  Had Grado treated Lopez like he treated Peters, he would have
immediately notified HR and not waited several days to take action.  Thus, the fact
that BCI eventually found Lopez to have abandoned his job does not diminish the
significance of the comparison.  Lopez was insubordinate as soon as he failed to
respond to Grado's directive following the insubordination warning.  Grado could not
have known, at that point, that Lopez would not show up for work for the next three
days, yet Grado took no disciplinary action toward Lopez.  In stark contrast, Grado
called Edgar about Peters immediately following their telephone conversation on
Friday afternoon, without even waiting to see whether Peters would heed Grado's
warning and show up for work on Sunday as he had been directed.  A reasonable jury
could find that Grado knew that once he brought Peters to the attention of the HR
department in this manner, Peters' days would likely be numbered.  A reasonable jury
could conclude, on this basis, that Grado set Peters up to be discharged, while calling
no attention to Lovato and Lopez's conduct.       
     Similarly, Grado admits he ordered Peters to work overtime on Sunday and not
Joseph Rivera, although Rivera had less seniority than Peters.  See Grado Decl.  7
(Appx. at 34-35).  Given the evidence of Grado's hostility toward non-Hispanic
employees, a reasonable jury could find that Grado simply treated the less-senior
Rivera better because he happened to be Hispanic, just as the jury could find that
Grado treated Lovato and Lopez more leniently than Peters because they happen to
be Hispanic. 
     The evidence also shows that in the only other instance where a BCI employee
was terminated for insubordination   a Hispanic driver who worked for a different
supervisor   even that employee was treated better than Peters.  When Bryan Esquibel
was faced with termination for insubordination approximately six months after Peters
was fired, the HR department offered him the opportunity to give his version of events
even though it was undisputed he had failed to follow a supervisor's directive, daring
his supervisor to "[g]o ahead and fire me."  See Appx. at 55.  Peters, on the other
hand, who told Grado he was feeling ill and was subsequently excused by Katt on this
basis, was never given this opportunity.  In sum, the district court erred in not
permitting a jury to consider whether the dissimilarities between Peters' treatment and
that of several Hispanic employees under similar, albeit not identical, circumstances
support an inference of race discrimination on the part of Grado.   
     The record evidence further shows that Grado acted on his bias against African
American employees when he intentionally manipulated the disciplinary process with
respect to Stephen Peters.  Edgar had instructed Grado on Friday to "find out what the
situation was" and give Peters the insubordination warning only if Peters did not offer
"some compelling reason why he could not work on the day in question."  Edgar Decl.
 6 (Appx. at 23).  EEOC presented evidence from which a jury could reasonably
conclude that Grado lied to Edgar about the content of his conversation with Peters
in order to engineer Peters' termination. Specifically, Grado told Edgar, among other
things:  that he asked Peters about his plans (Peters disputes Grado ever asked him this
question, see Plaintiff's Statement of Disputed Facts ("PSODF") #51, (Appx. at 135);
Peters Aff.  28 (Appx. at 146)), that Peters said his plans were none of Grado's
business (EEOC disputes that Peters had any occasion to discuss his plans because
Grado never asked about his plans, see id.), and that Peters refused to work that
weekend (Peters states Grado never asked him to work on Saturday, and Peters never
refused to work on Sunday, PSODF ## 50, 53,54, 59 (Appx. at 135-36)). 
Significantly, neither Grado nor Edgar maintain that Grado ever told Edgar that Peters
said he was feeling ill. 
     Crediting EEOC's version, as the district court was required to do, this evidence
is more than sufficient to permit a jury to infer that Grado lied to Edgar when he told
her Peters refused to disclose his weekend plans and expressly refused to work.  The
evidence is also sufficient to permit the jury to infer that Grado further deceived Edgar
by failing to mention that Peters said he was feeling ill.  Considering this disputed
evidence along with EEOC's additional evidence that Grado exhibited racial animus
toward African American employees and that Grado treated non-African American
employees who committed similar infractions more favorably, a reasonable jury could
infer that Edgar's decision to terminate Peters was based on inaccurate and incomplete
information tainted by Grado's bias.
     The district court concluded that the only relevant inquiry is whether Edgar
sincerely believed Peters was insubordinate, and found that she did.  Slip op. at 22-24. 
This was error.  Although the district court properly "look[ed] at the facts as they
appear[ed] to" the decisionmaker, Kendrick v. Penske Transp., 220 F.3d at 1231, if
EEOC's evidence is believed, as it must be on summary judgment, Grado intentionally
manipulated the information he provided to Edgar to cast Peters in the worst possible
light.  Thus, the facts on which Edgar relied here were filtered through and, it can be
inferred, were distorted by Grado's racial bias, without any opportunity for Peters to
explain.  Based on all the evidence, a jury could reasonably infer that Grado's false
and misleading statements were the basis for Edgar's termination decision, and that
these statements were motivated by Grado's racial animus.
B.   The District Court Erred When it Held, as a Matter of Law, that Grado's
     Racial Bias Cannot be Imputed to BCI on this Factual Record. 
     
     Having properly found that EEOC presented sufficient evidence of Grado's bias
against African American employees to create a genuine issue of fact, slip op. at 34,
the district court erred in concluding this issue is not "material" here.  Id.  The district
court reasoned that no race discrimination claim can be established on these facts
because Edgar authorized the termination, not Grado.  The court acknowledged
EEOC's argument that under certain circumstances "'a defendant may be held liable
if the manager who discharged the plaintiff merely acted as a rubber stamp, or the
"cat's paw," for a subordinate employee's prejudice, even if the manager lacked
discriminatory intent.'"  Id. at 29 (quoting Kendrick v. Penske Transp., 220 F.3d at
1231).  The district court wrongly concluded, however, that "Edgar . . . did not act as
a 'rubber stamp' or 'cat's paw' for Grado's prejudice" because Grado did not express
any opinion or make a recommendation to Edgar regarding Peters' termination.  Slip
op. at 29.
     Imputing Grado's racial animus to BCI is proper under the circumstances
presented here.  Clearly, Grado, as District Sales Manager, was BCI's agent for
purposes of managing and supervising merchandisers like Peters.  As Peters'
supervisor, Grado substantially controlled his work environment and directed his work
activities.  As part of his supervisory duties, Grado had been trained to contact HR
staff for guidance in disciplinary matters, but had discretion on whether to contact HR
for possible discipline in specific circumstances.  Grado Decl.  6; Bateluna Dep. at
37-39.  When Grado gave Peters work assignments, and when he contacted the HR
department about Peters, he did so in his capacity as Peters' supervisor and BCI's
agent.  BCI is, therefore, at least potentially liable for how Grado performed those
supervisory duties, including whether he did so in a discriminatory manner. 
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 754-65 (1998) (applying basic
principles of agency in determining employer's vicarious liability for harm caused by
a supervisor's misuse of supervisory authority).  
     Furthermore, Grado substantially influenced Edgar's termination decision. 
Grado initiated the disciplinary process, and after he did so, Edgar relied entirely on
information from Grado in deciding Peters was insubordinate on Friday.  Edgar stated
that a primary factor in her decision to terminate Peters was "firsthand observation or
information" from Grado.  Edgar Dep. II at 142-45 (Appx. at 170).  She admitted she
did not speak to Peters or otherwise investigate what happened Friday afternoon
before authorizing Peters' termination.  Id. at 148 (Appx. at 171).  Moreover, contrary
to the district court's conclusion, see slip op. at 27, 34, EEOC presented evidence that
significant elements of what Grado told Edgar were inaccurate or incomplete, see
discussion at 5-6 & 28, supra, and a reasonable jury could infer from EEOC's
evidence that Grado intended these inaccuracies to cast Peters in the worst possible
light, making it almost a certainty that Edgar would impose harsh discipline on Peters. 
Thus it is immaterial whether there was any "evidence that Grado communicated his
racial bias to Edgar."  Slip op. at 34.  Edgar, by relying completely on Grado for
information about the weekend's events, created a classic "cat's paw" situation.  See
English v. Colo. Dep't of Corr., 248 F.3d 1002, 1011 (10th Cir. 2001) (defendant may
be liable for subordinate employee's prejudice where decisionmaker does not
independently investigate complaint against employee).
     Although the district court noted that other circuits have recognized a defendant
may be held liable if the discharging official acted as a "rubber stamp" or "cat's paw"
for a biased subordinate, the district court erroneously concluded that this Circuit has
not yet adopted this standard.  See slip op. at 29 n.9 (noting this Circuit  stated, in
Kendrick, only that other circuits have recognized this principle of employer liability). 
Subsequent to Kendrick, this Circuit expressly acknowledged that "under certain
circumstances, a defendant may be held liable for a subordinate employee's prejudice
even if the manager lacked discriminatory intent."  English, 248 F.3d at 1011 (citing
Kendrick, 220 F.3d at 1231-32) (other citations omitted).  Such liability is proper
where a plaintiff can show that "the decisionmaker followed the biased
recommendation [of a subordinate] without independently investigating the complaint
against the employee."  Id.    
     The district court further erred in concluding that a supervisor's bias can be
imputed only where the decision-maker "accepted the recommendations of a biased
supervisor without conducting an independent investigation."  Slip op. at 29-30
(citations omitted).  A subordinate's bias is also properly imputed where the
subordinate substantially influenced the decision, regardless of whether the biased
subordinate made an express recommendation.  See, e.g., Russell v. McKinney Hosp.
Venture, 235 F.3d 219, 221 (5th Cir. 2000) (evidence of age bias sufficient to
withstand summary judgment where plaintiff was fired immediately after a non-
supervisory peer, who had exhibited age animus, threatened to quit if plaintiff was not
fired) ; Mulero-Rodriguez v. Ponte, Inc., 98 F.3d 670 (1st Cir. 1996) (influence by
allegedly-biased company accountant precluded summary judgment).  In any event,
in this instance the fact that Grado may not have expressly recommended Peters'
termination is immaterial, because the information Grado provided to Edgar was such
that serious disciplinary action was bound to follow.  Grado clearly had a substantial
influence over Edgar's decision to terminate Peters.  
     The district court incorrectly concluded that Edgar "attempted to do at least
some independent investigation."  Slip op. at 30.  The fact that Edgar asked Pedersen
to check Peters' personnel file and discovered the 1999 disciplinary action does not
constitute "independent investigation" of what occurred September 28-30, 2001.  Even
if the 1999 incident constitutes additional support for Peters' termination, it is
undisputed that Edgar would not have been considering possible discipline of Peters
had it not been for the events that transpired during the last weekend of September
2001.  And in determining what happened on September 28-30, Edgar relied solely
on Grado and conducted no independent investigation.  Of particular note, Edgar
relied solely on Grado for the content of his Friday afternoon telephone conversation
with Peters, which BCI now claims is the primary reason Peters was terminated, and
which EEOC asserts was inaccurate or misleading in several material respects. 
Compare Kendrick v. Penske Transp., 220 F.3d at 1231 (decisionmaker's independent
investigation included asking plaintiff for his version of events). 
     The district court also rejected EEOC's race discrimination claim, in part,
because "EEOC has not directed the Court's attention to any evidence in the record
linking Grado's potential bias to his decision to involve Edgar in the situation with
Peters."  Slip op. at 30.  In so doing, the district court failed to view the evidence in
the light most favorable to EEOC and failed to draw all reasonable inferences in
EEOC's favor.  EEOC's evidence of Grado's more favorable treatment of non-African
American employees under similar circumstances, along with EEOC's general
evidence of a Grado's bias against African American employees, see discussion at pp
11-14, supra, is sufficient for a jury to infer that Grado acted based on a
discriminatory motive when he decided to involve Edgar in the situation with Peters. 
See, e.g., Ortiz v. Norton, 254 F.3d 889, 896 (10th Cir. 2001) (evidence supporting
inference that decisionmakers harbored bias against Hispanics in other types of
employment actions was relevant because the same bias "might have affected other
decisions, including decisions adverse to [the] plaintiff"); Brooks v. Barnhart, 78
Fed.Appx. 52, 2003 WL 22293796 (10th Cir. 2003) (reversing district court's grant
of judgment as a matter of law, in part because district court failed to consider
evidence that supervisor generally disparaged male employees and treated them less
favorably than female employees) (unpub.) (attached); see also McCowan, 273 F.3d
at 926 (nexus between racially hostile comments and plaintiffs' termination is
essential only when arguing comments are "direct" evidence of discrimination, but "is
not the test in proving discrimination with circumstantial evidence").  
     In sum, Grado's demonstrated racial bias is properly imputed to BCI here
because Edgar relied wholly on information from Grado concerning the 2001 incident
which served as the primary basis for terminating Peters; Grado was acting in his
official capacity as an agent of BCI when he conveyed the information to Edgar; and
EEOC disputes, in critical respects, the veracity of the information Grado supplied. 
Thus, EEOC could establish a claim of race discrimination in violation of Title VII
through circumstantial evidence since a reasonable jury could conclude here that the
asserted reason for firing Peters (insubordination) was a pretext for race discrimination
because the basis on which Edgar premised her decision was engineered by Grado,
and a reasonable jury could conclude, on this evidence, that Grado's actions were
motivated by his racial animus.  
C.   Material Issues of Fact in the Record Concerning BCI's Explanation and 
     Edgar's Misrepresentation Provide Additional Support for a Finding of
     Pretext in this Case.

     A plaintiff can show pretext by demonstrating that "the employer's proffered
explanation is unworthy of credence."  Texas Dep't of Cmty. Affairs v. Burdine, 450
U.S. 248, 256 (1981); Miller, 396 F.3d at 1111 (permissible to infer ultimate fact of
discrimination from falsity of employer's explanation) (citing Reeves, 530 U.S. at
147).  "The relevant inquiry is not whether [the employer's] proffered reasons were
wise, fair or correct, but whether [the employer] honestly believed those reasons and
acted in good faith upon those beliefs."  Rivera v. City and County of Denver, 365
F.3d 912, 924-25 (10th Cir. 2004) (citations omitted; emphasis added).  In this case,
evidence submitted by the Commission casts serious doubt as to the veracity of a
material aspect of Edgar's explanation.  
     Edgar maintains she knew Peters called in sick and was excused by Katt when
she made her decision, and took this fact into account.  See slip op. at 25; Edgar Decl.
 14 (Appx. at 26-27); see also BCI SJ Reply at 6 (Appx. at 223).  Indeed, Edgar
asserts that before deciding whether to terminate Peters, she "asked Mr. Grado to
check and make sure that Mr. Peters had not tried to page him or leave a message for
him regarding why he was not coming in to work [on Sunday]," Edgar Decl.  12
(Appx. at 25), indicating she considered this a relevant consideration in her
decisionmaking.  But if EEOC's evidence is believed, as it must be on summary
judgment, Edgar could not have known on Monday afternoon, when she made the
decision to fire Peters, that Katt had authorized Peters to stay home sick, because
Edgar said she learned this from either Grado or Pedersen, id., and neither Grado nor
Pedersen knew of it until Monday evening at the earliest, after Grado called Katt to
discuss the next day's schedule.  Katt Dep. I at 66-67 (Appx. at 203-04); Pedersen
Decl.  6 (Appx. at 44). 
     In addition, Peters explained that after he was informed at the Tuesday morning
termination meeting that he was being fired for failing to work on Sunday, he told the
group (consisting of Grado,  Pedersen, and Grado's supervisor Don Bateluna) that he
had not been feeling well over the weekend and had called in sick to Katt.  Peters says
that afterward, "they all got quiet."  Appx. at 193.  According to Edgar, Pedersen,
whose reaction at the meeting suggests she had previously been unaware Katt had
excused Peters from working on Sunday, called Edgar after the meeting and asked
Edgar if she knew Peters is African American.  Edgar Decl.  17 (Appx. at 28).  If
EEOC's evidence that Katt did not tell Grado about Peters' sick-call until Monday
evening is believed,  Edgar's account of Pedersen's Tuesday telephone call   without
any reference to Pedersen's newly-acquired knowledge of Peters' medical excuse
from work   seems implausible under the circumstances, and a reasonable juror could
choose not to believe Edgar on this point.  Indeed, it is difficult to imagine why
Pedersen would ask Edgar if she knew Peters was African American, unless Pedersen
was concerned about BCI's treatment of Peters because of race or concerned that
Peters might bring a charge of race discrimination against the company.  Even if
Pedersen was concerned that Peters might bring a discrimination charge against BCI
based on Peters' comments at the termination meeting, see Appx. at 193; see
discussion at 11 n.6, supra, a reasonable jury could conclude that Pedersen called
Edgar immediately after the termination meeting to inform her, as well, that Peters,
who had just been fired for failing to show up for assigned overtime on Sunday, had
actually called in sick to Katt pursuant to standard company procedure.    
     Thus, if EEOC's evidence is believed, a jury could conclude that Edgar's
statement   that she knew Peters called in sick to Katt before making her decision  
is a lie or at least is not true.  A jury could believe that, in fact, Edgar only learned
Katt had excused Peters when Pedersen called her after the Tuesday morning
termination meeting, or from Grado on or after Monday evening when Katt first
informed Grado of the Saturday call, and that Edgar, therefore, could not have taken
this into account in deciding to fire Peters.  A jury could further conclude generally,
given this evidence of dissembling, that BCI management, having been manipulated
by Grado into terminating Peters, devised after-the-fact explanations in an effort to
rationalize their decision.
     The "question is not whether the employer's reasons for a decision are right but
whether the employer's description of its reasons is honest."  Kariotis v. Navistar Int'l
Transp. Corp., 131 F.3d 672, 677 (7th Cir. 1997) (internal quotation marks and
citations omitted).  Where the evidence would permit a jury to conclude that an
employer lied in some aspect of its reasons, the jury can infer from this dishonesty that
the employer may be lying overall in its explanation of its actions in order to mask an
illegal motivation.  This Court recently explained that one of a factfinder's primary
roles is to assess credibility in deciding how to view the evidence.  See  Miller, 396
F.3d at 1112 (citing Lamon v. City of Shawnee, 972 F.2d 1145, 1159 (10th Cir.
1992)).  "If the factfinder concludes that one of the employer's reasons is
disingenuous, it is reasonable for it to consider this in assessing the credibility of the
employer's other proffered reasons."  Miller, 396 F.3d at 1112.  A factfinder's
disbelief of the defendant's asserted reasons, "particularly if disbelief is accompanied
by a suspicion of mendacity," suffices to support a finding of intentional
discrimination.  Id. at 1113 (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
511 (1993)).  
     Once BCI began refocusing its explanation of Peters' alleged insubordination
from his failure to show up for work on Sunday to his Friday afternoon statements to
Grado, BCI could have admitted that Edgar did not know, when she made her
decision, that Peters had been medically excused by Katt on Saturday evening, and
BCI could have further asserted that such knowledge would not have altered Edgar's
decision, in any event.  BCI chose, instead, to assert that Edgar learned about Peters'
medical excuse from Grado before she made her decision and took this information
into account on Monday afternoon when she decided to fire Peters.  Given BCI's
contention on this point, the record evidence presents a material issue of fact
concerning the honesty of BCI's asserted explanation.  When an employer "chooses
to lie about its reasons for terminating an employee it runs the risk that 'the lie will
lead the jury to draw an adverse inference,'" a principle that holds true "even when
there are possible legitimate explanations for the lie."  Miller, 396 F.3d at 1113-14
(citing and quoting Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1293-4 & n.8 (D.C.
Cir. 1998)).  The district court erred in not permitting a jury to consider this evidence
of dishonesty, along with EEOC's other evidence of Grado's bias against African
American employees and his more favorable treatment of Hispanic employees, in
assessing whether BCI's proffered reason is a pretext for discrimination.
                           CONCLUSION
     For all of the foregoing reasons, EEOC respectfully urges this Court to reverse
the district court's grant of summary judgment in favor of BCI and to remand this
matter for a jury trial.
                                

       STATEMENT IN SUPPORT OF REQUEST FOR ORAL ARGUMENT
     The Commission believes oral argument would materially assist this Court in
resolving the issues presented in this very fact-intensive controversy.  The district
court failed to recognize that some of the material facts are in dispute.  The district
court wrongly concluded that other disputed facts raised by EEOC are not material in
this instance.  As a result, the district court short-circuited the Commission's
statutorily-authorized enforcement of Title VII and deprived the jury of its role as
factfinder in this matter.  The Commission believes that a discussion of these and
related issues at oral argument would benefit this Court in its consideration of this
appeal.
                         Respectfully submitted,

                         ERIC S. DREIBAND                   
                         General Counsel                         
                                   
                         CAROLYN L. WHEELER            
                         Acting Associate General Counsel        
                                   
                         LORRAINE C. DAVIS                  
                         Assistant General Counsel               

                                                                              
                         SUSAN R. OXFORD, Attorney 
                         U.S. Equal Employment  Opportunity Commission
                         1801 L Street, N.W.
                         Washington, D.C. 20507
                         (202) 663-4791
Dated:    March 7, 2005

                   CERTIFICATE OF COMPLIANCE

     I certify that this brief complies with the type-volume limitation set forth in Fed.
R. App. P. 32(a)(7)(B).  This brief contains 10,720 words.  See Fed. R. App. P.
32(a)(7)(B)(i).  The brief was prepared using the WordPerfect 9 word processing
system, in 14-point proportionally-spaced type for text and 14-point type for footnotes. 
See Fed. R. App. P. 32(a)(5).

                                                                                                   
March 7, 2005                      Susan R. Oxford               
          
                                

                    CERTIFICATE OF SERVICE
I, Susan R. Oxford, hereby certify that on this 7th day of March, 2005, I caused two
copies of the attached brief, along with one copy of the accompanying appendix, to
be sent by Federal Express, next-day delivery, postage prepaid, to counsel for BCI
Coca-Cola Bottling Company of Los Angeles at the following address:
               E. Todd Presnell, Esq.
               MILLER & MARTIN LLP
               1200 One Nashville Place
               150 Fourth Avenue North
               Nashville, Tennessee 37219
               tpresnell@millermartin.com

On this same date, I am also e-mailing a copy of this brief to the U.S. Court of
Appeals for the Tenth Circuit at esubmission@ca10.uscourts.gov and to counsel for
BCI at the e-mail address noted above.  The document that I am filing and serving
electronically is an exact copy of the written document filed with the Court  and
served on counsel for BCI today.  Prior to e-mailing this brief to the Court and
counsel, I scanned the document using the Symantec AntiVirus program version
8.00.9374 on March 7, 2005, at approximately 2:15 p.m.   No viruses were found.  No
privacy redactions were required before filing and serving this brief electronically.
                                                                                                   
                              Susan R. Oxford
                              EEOC / Office of General Counsel
                              1801 L Street, N.W., Room 7010
                              Washington, D.C.   20507
                              Tel. (202) 663-4791
March 7, 2005                 Fax. (202) 663-7090
                              susan.oxford@eeoc.gov

                         











                     A  P  P  E  N  D  I  X
                                                  
__________________________________

1 In April 2002, six months after Peters was terminated,
 only three of the 200 employees in BCIs Albuquerque facility
 were African American.  Slip op. at 34 n.10.  There were 127 
Hispanic employees.  See BCI Ethnicity/Race Employee 
Information (Appx. at 155-60).  Cesar Grado is Hispanic; 
Jeff Katt is Caucasian.  Appx. 157-58.

2 Katt explained, for instance, that if a merchandiser 
assigned to work on the weekend did not report in by 
5:30 a.m., I would start getting nervous . . . , because 
if they didnt show up, that [would mean] I had to either
 go out there or to reassign people to get the work done. 
 Katt Dep. I at 91 (Appx. at 208).  

3 BCI asserted in its reply brief below that Peters
 had worked only five days that week.  BCI SJ Reply
 at 3 n.7 (Appx. at 220).  Apparently, BCIs work 
week runs from Monday through Sunday.  See Appx. at 
40, 232.  For the week immediately preceding the one 
in question, Peters worked six days (Monday through
 Friday and Sunday).  As a result, he had just finished 
working six consecutive days, although the first day 
(Sunday) was actually counted in the prior week.  Appx.
 40, 143. 

4 See also Pedersen Decl.  7 (Edgar decided Monday
 afternoon to fire Peters) (Appx. at 44). 

5 Edgar claims she learned this from either Grado or HR 
representative Sherry Pedersen.  Edgar Decl.  12 (Appx.
 at 25).  Pedersen claims she learned this from Grado.
  Pedersen Decl.  6 (Appx. at 44).  Grado does not 
explain exactly how he learned this (see, e.g., Grado 
Decl.  13, Appx. at 37), but presumably he learned it
 from Katt.  As noted above, Katt states that the first
 time he mentioned this to Grado was on Monday evening,
 after Grado told Katt Peters was being fired the next 
day.  See Katt Dep. I at 66 (Appx. at 204); see also n.4
 and accompanying text, supra.  

6 Pedersen never mentioned this conversation in her declaration. 
 As noted above, see p.9 n.6, supra, she did assert, however, that
 at some unspecified point (described only as later) she learned 
from Grado that Peters had called in sick to Katt and relayed this 
to Edgar (again without specifying when she passed this information
 along).  Pedersen Decl.  6 (Appx. at 44).  Notably, neither Edgar 
nor Pedersen mention in their declarations that Peters left the 
meeting saying, Youll be hearing from my attorneys.  Peters Dep.
 at 140 lines 15-16 (Appx. at 193).  

7 Grado was Wilsons district sales manager from 1997 until 2000.  
Wilson Aff.  2, 3 (Appx. at 184).  Young worked at BCI from 1995 
to October 2000, during which Grado was his district sales manager 
for approximately three to six months.  Young Aff.  2, 3 (Appx.
 at 180).

8 BCI does not dispute, and the district court agreed, 
that EEOC satisfied the first  prong of the McDonnell
 Douglas analysis by demonstrating a prima facie case 
of discrimination.  BCI SJ Mem. at 16 (Appx. at 83); 
slip op. at 18-19.  BCI satisfied the second prong by 
offering a non-discriminatory reason for discharging
 Peters, namely, that Peters was insubordinate.  Id. at
 19-20.  The issue on appeal is whether EEOC satisfied 
the third prong of McDonnell Douglas by offering sufficient
 evidence for a reasonable jury to find BCIs asserted
 reason was a pretext for race discrimination. 

9 This is not a decision that simply later turned out to be mistaken
 in light of subsequently-acquired information.  See Tran v. Trs. of
 State Colls. in Colo., 355 F.3d 1263, 1268-69 (10th Cir. 2004) (employers
 good faith belief not pretextual even if belief later found to be 
erroneous).  Grados intentional manipulation of the facts to misrepresent
 his conversation with Peters makes Edgars reliance on this misinformation
 more than just an innocent error in business judgment. 

10 Edgar could have taken a number of responsible steps 
to ensure she was receiving accurate and complete information.
  For example, she could have offered Peters a chance to 
provide his version of the telephone conversation, and she 
could have asked Katt what happened on Friday afternoon, 
since Katt was Peters immediate supervisor and had first-hand 
knowledge of much of what transpired.  See Pedersen Dep. I at 
31-32 (Appx. at 62).  Edgar elected not to make any of these 
simple inquiries.

11  At least nine circuits have concluded a subordinates
 prejudice is properly imputed to an employer if a biased 
subordinate substantially influenced the decision or played 
a role in the decisionmaking process.  See, e.g., Santiago-Ramos
 v. Centennial P.R. Wireless Corp., 217 F.3d 46, 55 (1st Cir.
 2000); Ostrowski v. Atl. Mut. Ins. Cos., 968 F.2d 171, 182 
(2d Cir. 1992); Abrams v. Lightolier, Inc., 50 F.3d 1204, 1214 
(3d Cir. 1995); Russell v. McKinney Hosp. Venture, 235 F.3d 219,
 227 (5th Cir. 2000); Ercegovich v. Goodyear Tire Co., 154 F.3d
 344, 354-56 (6th Cir. 1998); Hunt v. City of Markham, 219 F.3d
 649, 652-53 (7th Cir. 2000); Stacks v. Southwestern Bell Yellow
 Pages, Inc., 27 F.3d 1316, 1323 (8th Cir. 1994); Bergene v. 
Salt River Proj. Agric. Improvement & Power Dist., 272 F.3d 1136, 
1141 (9th Cir. 2001); Griffin v. Wash. Conv. Ctr., 142 F.3d 1308,
 1312 (D.C. Cir. 1998).  Only the Fourth Circuit has squarely 
ruled to the contrary.  See Hill v. Lockheed Martin Logistics 
Mgmt., Inc., 354 F.3d 277 (4th Cir. 2004) (en banc), petition 
for certiorari dismissed based on parties stipulation, 125 S.Ct.
 1115 (Jan. 25, 2005) (Mem.); but see Lust v. Sealy, Inc., 383 
F.3d 580, 584 (7th Cir. 2004) (criticizing Hills reliance on 
Seventh Circuit precedent for Fourth Circuits restricted analysis 
of causation).

12 When Grado asked Katt why he did not mention this sooner, 
Katt explained that he paged Grado Saturday evening at least
 twice, but Grado never responded.  Appx. at 202-04.  

13Such after-the-fact reasoning is also reflected in BCIs
 explanations of Peters alleged insubordination.  BCI 
initially stated that Peters insubordination was his 
failure to show up for work on Sunday.  See Peters Dep. 
at 138 (Grados statement to Peters at termination meeting) 
(Appx. at 193);  Ex. 3 attached to Grado Decl. (written 
termination notice) (Appx. at 41); EEOC SJ Opp.  Mem., Ex. 
I (BCIs Statement to New Mexico Dept. of Labor) (Appx. at
 165).  Only later did BCI describe the insubordination as 
based primarily on Peters stateme nts to Grado on Friday 
afternoon.  See, e.g., BCI SJ Mem. at 11 (Appx. at 78).