No. 03-4787
            _________________________________________

              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
            _________________________________________

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

          Plaintiff-Appellant,
                              
     v.

HAARMANN & REIMER,

          Defendant-Appellee.
          ______________________________________________

        On Appeal from the United States District Court
                 for the District of New Jersey
          ______________________________________________

   Brief of the U.S. Equal Employment Opportunity Commission
          as Plaintiff-Appellant Seeking Reversal of 
   Grant of Defendant-Appellee's Motion for Summary Judgment 
         ______________________________________________

ERIC S. DREIBAND
General Counsel
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W., 7th Floor
Washington, D.C.  20507
(202) 663-4724

LORRAINE C. DAVIS
Acting Associate General Counsel
                                   
CAROLYN L. WHEELER              
Assistant General Counsel               
                                   
ANNE NOEL OCCHIALINO               
Attorney                           

                       TABLE OF CONTENTS
                                
Table of Authorities . . . . . . . . . . . . . . . . . . . . .iii

Statement of Jurisdiction. . . . . . . . . . . . . . . . . . . .1

Statement of Related Cases and Proceedings . . . . . . . . . . .2

Statement of the Issue . . . . . . . . . . . . . . . . . . . . .2

Statement of the Case. . . . . . . . . . . . . . . . . . . . . .2

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

     2.   Statement of Facts . . . . . . . . . . . . . . . . . .2

     3.   District Court Decision  . . . . . . . . . . . . . . 11

Standard of Review . . . . . . . . . . . . . . . . . . . . . . 13

Summary of Argument  . . . . . . . . . . . . . . . . . . . . . 13

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

     THIS COURT SHOULD REVERSE THE DISTRICT COURT'S
     ENTRY OF SUMMARY JUDGMENT BECAUSE THE EEOC 
     ESTABLISHED A PRIMA FACIE CASE OF AGE DISCRIMINATION
     AND OFFERED SUFFICIENT EVIDENCE FOR A JURY TO FIND
     THAT H&R FAILED TO PROMOTE BANQUECER BECAUSE
     OF HIS AGE. . . . . . . . . . . . . . . . . . . . . . . . 15

     A.   The district court correctly held that the EEOC established a
          prima facie case of age discrimination.  . . . . . . 16

          1.   Banquecer was qualified to be the Mailroom Supervisor. 16

                   TABLE OF CONTENTS (con't)

          2.   H&R is precluded from arguing that Banquecer was 
               unqualified since Delgado did not have the very 
               qualification Banquecer allegedly lacked. . . . 17

     B.   The EEOC offered sufficient evidence from which a reasonable
          jury could find that H&R's proffered reasons for choosing Delgado
          over Banquecer were a pretext for age discrimination. 18

          1.   Banquecer met the stated job qualifications but Delgado
               did not.  . . . . . . . . . . . . . . . . . . . 19

          2.   H&R has offered shifting and inconsistent reasons for 
               choosing Delgado. . . . . . . . . . . . . . . . 20

          3.   H&R's offered reasons for choosing Delgado over
               Banquecer that were untrue or exaggerated.  . . 25

               a.   Delgado's supervisory experience.  . . . . 26

               b.   Delgado's inventory control experience . . 29

          4.   H&R had an unequal promotion process. . . . . . 30

          5.   The thirty-year age gap between Banquecer and Delgado
               is indicative of pretext. . . . . . . . . . . . 31

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Certificate of Compliance

Certificate of Service
                     TABLE OF AUTHORITIES 
                                
                             CASES
                                
Abramson v. William Paterson Coll., 260 F.3d 265                                                     
   (3d Cir. 2001). . . . . . . . . . . . . .20, 24, 26, 28-29, 30

Anthony v. BTR Automotive Sealing Sys. Inc., 339 F.3d 506 (6th Cir. 2003)17

Banks v. Travelers Co., 180 F.3d 358 (2d Cir. 1999). . . . . . 31

Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639                                       
 (4th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . passim

EEOC v. Ethan Allen, Inc., 44 F.3d 116 (2d Cir. 1994). . . . . 21

EEOC v. Sears Roebuck & Co., 243 F.3d 846 (4th Cir. 2001). 21, 24

Farrell v. Planters Lifesavers Co., 206 F.3d 271 (3d Cir. 2000)13

Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994) . . . . 18, 21, 31

Lindahl v. Air France, 930 F.2d 1434 (9th Cir. 1991) . 22, 24, 25

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). . . . . 15

Reeves v. Sanderson Plumbing, Prods., Inc.,                                                               
  530 U.S. 133 (2000). . . . . . . . . . . .  .13, 15, 18, 19, 31

Seay v. Tennessee Valley Auth., 339 F.3d 454 (6th Cir. 2003)19, 20

Sempier v. Johnson & Higgins, 45 F.3d 724 (3d Cir 1995). . . . 16

                            STATUTES

28 U.S.C. 1291 . . . . . . . . . . . . . . . . . . . . . . . .2

28 U.S.C. 1331 . . . . . . . . . . . . . . . . . . . . . . . .2

                  TABLE OF AUTHORITIES (con't)

28 U.S.C. 1335 . . . . . . . . . . . . . . . . . . . . . . . .2

29 U.S.C. 621-634 (Age Discrimination in Employment Act). . .1

                                
                                
                          No. 03-4787
            _________________________________________

              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
            _________________________________________

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

          Plaintiff-Appellant,
                              
     v.

HAARMANN & REIMER,

          Defendant-Appellee.
          ______________________________________________

        On Appeal from the United States District Court
                 for the District of New Jersey
          ______________________________________________

   Brief of the U.S. Equal Employment Opportunity Commission
          as Plaintiff-Appellant Seeking Reversal of 
   Grant of Defendant-Appellee's Motion for Summary Judgment 
         ______________________________________________

                   STATEMENT OF JURISDICTION

     On April 23, 2001, the United States Equal Employment Opportunity
Commission ("EEOC" or "Commission") brought this action under the Age
Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. 621-634,
alleging that Defendant-Appellee Haarmann & Reimer ("H&R") discriminated
against Luis Banquecer because of his age.  (A36-A40)  The district court had
jurisdiction over this matter pursuant to 28 U.S.C. 1331, 1345.  On October 14,
2003, the district court entered an opinion and final judgment, disposing of all
claims as to all parties.  (A1, A12)  On December 16, 2003, the Commission filed
a timely notice of appeal under Federal Rule of Appellate Procedure 4(a)(1)(B). 
(A13)  This Court has jurisdiction under 28 U.S.C. 1291.  
            STATEMENT OF RELATED CASES AND PROCEEDINGS
     There are no prior or related appellate proceedings in this case. 
                     STATEMENT OF THE ISSUE
     Whether the EEOC offered enough evidence for a reasonable jury to
conclude that the reasons given by the defendant for refusing to promote the fifty-nine year old charging party were a pretext for age discrimination and this Court should therefore reverse the entry of summary judgment in favor of the defendant. (R.11 (Memo. in support of Mo. for Summ. J.), pp. 16-17) (R.16 (Resp.), pp. 8-15)(A9-A11 (opinion)).
                     STATEMENT OF THE CASE
     1.   Nature of the Case and Course of Proceedings
     On April 23, 2001, the EEOC brought this ADEA action against H&R
alleging that it discriminated against Banquecer based on his age when it
promoted a younger employee over him to the position of Mailroom Supervisor. 
(A36-A40)  On October 14, 2003, the district court entered a written opinion and
order granting H&R's motion for summary judgment.  (A1; A12)
     2.   Statement of Facts
     H&R is a company that produces perfumes and flavorings.  (A2)  In January
of 2000, H&R created the position of Mailroom Supervisor.  (A130)  Banquecer
applied for the position.  (A4)  At the time, he was fifty-nine years old and was
working in H&R's mailroom as a Mailroom Coordinator.  (A4)  Despite his
numerous years of experience working in mailrooms, discussed infra, and the fact
that H&R called him a "good employee," (A28), H&R selected a twenty-nine year
old employee named Mary Delgado to be the Mailroom Supervisor.  (A4)
     Job posting and selection process
     At the end of 1999, Facilities Manager Gary Wildenstein and his supervisor
decide to create a new position called "Mailroom Supervisor."  (A45)  Together
they determined the qualifications for the position.  (A118; A130)  On January 14,
2000, H&R posted an Open Position Notice for the position of "Mailroom
Supervisor."  (A19)  The notice states in part: 
     Brief Description of the Position:  Responsible for running the mailroom
     operation.  Define new procedures by communication with internal
     customers to optimize the incoming and outgoing deliveries.  Inventory
     control of facility supplies.

     Position Requirements:  5 years experience in running a mailroom
     operation.  Organizational skills; leadership capabilities; [g]ood
     communication skills both oral and written; able to define new procedures
     and communicate to internal customers.

(Id.)     
     Two employees applied for the position:  Banquecer and Delgado.  (A110,
Depo. pg. 30)  Both candidates submitted self-nomination forms and supporting
material to H&R's personnel department, which were forwarded to Wildenstein. 
(A110, Depo. pp. 30-31)  Wildenstein asserts that he interviewed both Delgado
and Banquecer.  (A52)  Banquecer, however, has consistently denied that
Wildenstein ever interviewed him.  (A23; A101, Depo. pg. 50)  On February 8,
2000, H&R posted a notice stating that it had selected Delgado to be the Mailroom
Supervisor.  (A129)  Soon afterward, H&R promoted Banquecer to Senior
Mailroom Clerk, which involved a two-grade salary increase.  (A28)
     Banquecer's work experience
     Banquecer's mailroom experience began in 1965 when he started working
for K-mart.  (A142)  Banquecer's responsibilities at K-mart included "mailroom,
shipping, receiving, and packing."  (A142)  He held this job for over seventeen
years.  (A142)  In 1984, Banquecer took a job at the Employment Office in
Clifton, New Jersey, where he worked for two years in the mailroom and supply
room.  (A142)  From late 1986 to early 1988, Banquecer worked at Kline and
Company as the Assistant Manager of the mailroom where he sorted and delivered
mail and did "receiving, stock, [and] inventory supply."  (A142)  Starting in late
1988, Banquecer worked for a year at the Radisson Hotel where he had mail duties
and performed maintenance work.  (A142)  Beginning in 1990, Banquecer worked
for three years at Mokrynski and Associates as the Assistant Manager of the
Mailroom where he again did shipping, receiving, and inventory.  (A142)  From
1994 to 1998, Banquecer was the sole person working in the mailroom at
Creations Aromatique where he "r[a]n the entire operation in the company, in the
mailroom, and shipping and receiving, everything."  (A99, Depo. pp. 22-23) 
     In 1998, H&R acquired Creations.  (A99, Depo. pp. 24)  Banquecer
continued working in the mailroom, although he changed job locations from
Englewood Cliffs, New Jersey, to Teterboro, New Jersey.  (A99, Depo. pp. 22, 25) 
He was one of up to six people who worked in the mailroom.  (A99, Depo. pg. 25) 
Banquecer received positive evaluations; in 1998 he earned "meets expectations"
or "exceeds expectations" in each of twenty-one categories and his supervisor,
Gary Wildenstein, called him an "excellent worker" with a "very positive
attitude."  (A146)  In August of 1999, Banquecer won a "Service Plus Award" and
seventy-five dollars for working late to ensure that H&R shipped a product on
time.  (A148-A149)
     Beginning in October of 1998, Wildenstein became Banquecer's supervisor. 
(A152, Aff. at 3)  For most of the period from October 1998 through February
2000, however, the person who answered Banquecer's questions at work was Eric
Colon, another mailroom employee.  (Id.)  In January of 1999, Wildenstein
announced that Colon would be in charge of the mailroom; in 1999 Wildenstein
made Colon "Team Leader" of the mailroom.  (A153, Aff. at 4)  During 1999,
Colon made work assignments in Wildenstein's absence, signed time sheets, and
handled complaints about the mailroom.   (A153, Aff. at 5-7; A154-A180)
     Delgado's work experience
     In December of 1995, Delgado started working at what was then called
"H&R Florasynth," a predecessor company to H&R, as a Data Entry Receiving
Clerk.  (A63, Depo. pg. 6)  In this position she entered data into the computer,
received noninventory shipments, and printed labels.  (A64, Depo. pg. 12)  In
1996, Delgado was promoted to Production Coordinator/Warehouse Receiving
Clerk, a position in which she performed all her old duties and became more
involved with the inventory of raw materials.  (A65, Depo. pg 13)  
     In early 1997, H&R promoted Delgado to Inventory Control Coordinator
where she performed her old duties and some new ones, including: training three
employees on a system called SAP and answering their questions about it; creating
and implementing a log for noninventory items that were received in the
warehouse and were taken to the mailroom for distribution; creating and
implementing a log for samples sent to the labs; documenting and maintaining
files about the samples; and, when her supervisor was absent, answering questions
about problems in the warehouse.  (A66-A67, Depo. pg. 20-24)  She did not keep
attendance records or evaluate employees' work performance.  (A68, Depo. pg.
25)  Delgado also testified that she never supervised any warehouse employees as
Inventory Control Coordinator.  (Id.)  Delgado's 1997 performance review, which
mentions her negative attitude towards other employees, does not refer to any
supervisory duties she performed.  (A136)
     In January of 1999, H&R promoted Delgado to the position of Facilities
Coordinator, a position in which she worked under Wildenstein.  (A68, Depo. pg.
26)  Her duties included: meeting with vendors; redirecting in-house facilities
complaints (e.g., about clogged toilets or lamps that were out); maintaining
responsibility for company vehicles; updating registration and insurance;
performing inventory control of facilities supplies, such as hand soap and
Kleenex, and all mailroom supplies; helping the engineering personnel with the
computers; and assisting the security personnel director.  (A68, Depo. pg. 27; A69,
Depo. pp. 30-32; A128)  According to Delgado, she also handled complaints
concerning the mailroom; had responsibility for the mailroom in Wildenstein's
absence; offered input when Wildenstein prepared performance reviews of the
mailroom employees, including Banquecer and Colon; and kept attendance
records of all mailroom employees.  (A103, Depo. pg. 45; A106-A107, Depo. pp.
58, 60-62).  Neither Delgado's 1998 nor her 1999 performance evaluation refers to
any supervisory responsibilities she performed as Facilities Coordinator.  (A134,
A138)
     It is undisputed that Delgado lacked five years of experience running a
mailroom operation.  (A121, Depo. pg. 58; R.11, Memo. in Support of Summ. J.,
at 6)
     H&R Position Statement
     On November 27, 2000, H&R submitted a position statement to the EEOC
in the form of a letter responding to Banquecer's charge of discrimination.  (A28)
The letter states that Banquecer's position as Mailroom Coordinator did not
involve supervisory responsibility and that he "was not as qualified for this
supervisory position as Ms. Delgado."  (A28)
     In the letter, H&R reviewed Delgado's employment history and asserted
that she "had held two supervisory positions before being promoted"   Inventory
Control Coordinator and Facilities Coordinator.  (A29)  Accordingly, H&R stated
that Delgado "possessed the requisite supervisory experience and knowledge of
the mailroom operation fitting the criteria of Mailroom Supervisor."  (A29)
     H&R further contended that Wildenstein interviewed "both Ms. Delgado
and Mr. Banquecer."  (A29) (emphasis in original).  According to H&R, it "simply
determined that Mary Delgado was the best applicant for this position" because
she "had more supervisory experience and better qualifications."  (A29)
     Wildenstein's Deposition Testimony
     Wildenstein testified at his March 26, 2002, deposition that he interviewed
both candidates.  (A50-53)  According to Wildenstein, he talked with Banquecer
about "why he did not fit the qualifications," including that Banquecer was "not as computer literate as much as [he] needed somebody to be."  (A52-53) 
Wildenstein added that he also needed "somebody that can look beyond what was
happening in the mailroom at the present time and be able to correct the
deficiencies that were in there" and that he "needed somebody who knew
inventory control, that could take and continue on with the total inventory of what we keep in there."  (A53)  According to Wildenstein, although Banquecer was "an excellent worker overall," he "had a tendency to disregard the procedures that
were set down in the mailroom to try and help people to do different things within
the floor area to send out packages and/or to do different things during that period of time."  (A59)
     As to Delgado, Wildenstein testified that as Facilities Coordinator she
assisted him by investigating mailroom complaints, taking over responsibility for
running the mailroom, and helping him prepare evaluations for several mailroom
workers, including Banquecer.  (A48, A56-A57)  Wildenstein also stated that
Delgado took over in the absence of supervisors in shipping and receiving when
the two of them were working at Florasynth, which was a predecessor company to
H&R.  (A55)
     EEOC Lawsuit
     On April 23, 2001, the EEOC sued H&R for age discrimination.  (A36)  In
H&R's motion for summary judgment, it argued that the EEOC had failed to
establish a prima facie case because Banquecer was unqualified and because
Delgado was better qualified.  (R.11, Memo. in Support of Summ. J., at 13-15)  In
making this argument, H&R relied on Wildenstein's deposition testimony.  (Id.) 
H&R also argued that the EEOC had failed to show that H&R's proffered reason
for not selecting Banquecer   "he did not possess the necessary qualifications"  
was a pretext for age discrimination.  (R.11, Memo. in Support of Summ. J. at 17)
     3.   District Court Decision
     The district court concluded that the EEOC had established a prima facie
case of age discrimination.  (A7-A9).  In reaching this conclusion, the court
rejected H&R's argument that Banquecer was unqualified because he lacked
supervisory experience.   (A8)  Specifically, the court noted that "managerial
supervisory experience" was not a posted requirement.  (A8)  According to the
court, "[t]o 'run' a mailroom operation does not necessarily imply supervision of
other employees, if, for instance, the mailroom is composed of one employee."  
(A8)  The court also stated that "one can be capable of 'leadership' without having had prior managerial experience."  (A8)  Moreover, the district court found, H&R could not argue that Banquecer was unqualified because he lacked five years of experience running a mailroom operation since H&R admitted that Delgado also lacked this experience.  (A8-A9)  Finally, the court concluded that Banquecer
satisfied the other qualifications listed in the position notice.  (A9)
     The district court noted that H&R had proffered legitimate non-
discriminatory reasons for selecting Delgado.  (A10)  The court then turned to the
issue of pretext.  (Id.)  The court rejected the EEOC's argument that H&R had
offered shifting reasons that were probative of pretext.  (Id.)  In the court's view, H&R had "consistently asserted that Banquecer was not qualified for the position and that Delgado was better qualified" and "Wildenstein's offering during his deposition of more examples showing why, in his opinion, Delgado was better
qualified does not indicate a shift in position designed to cover up a discriminatory motive."  (Id.)  The district court further concluded that neither Wildenstein's deposition testimony nor any other evidence offered by the EEOC suggested a discriminatory motive.  (A10-A11)  Finally, the court noted that H&R had submitted evidence that two-thirds of its staff is over forty years of age, which, in the court's view, did "not indicate any company-wide discrimination on the basis of age."  (A11)
                       STANDARD OF REVIEW
     This court reviews a grant of summary judgment applying the same
standard as the district court.  See Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000).  Summary judgment should only be granted "'if the pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.'" Id. (citing Fed. R. Civ. P. 56(c)).  In making this determination, the court must view the facts in the light most favorable to the nonmoving party and must draw all inferences in its favor. 
See id.
                       SUMMARY OF ARGUMENT
     This Court should reverse the district court's entry of summary judgment in
favor of H&R on the EEOC's claim of age discrimination.  The district court's
finding that the EEOC had failed to establish pretext with respect to Banquecer's
non-promotion to the Mailroom Supervisor position contradicts the Supreme
Court's central teaching in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133 (2000), that a plaintiff's prima facie case, combined with sufficient evidence
to find that the employer's proffered justification is false, may allow a fact-finder to conclude that an employer unlawfully discriminated.
     The district court properly concluded that the EEOC had established a prima
facie case of age discrimination.  As the court found, Banquecer satisfied the
requirement of five years' experience in running a mailroom operation since he
had multiple years of experience running a one-person mailroom.  Moreover,
H&R is precluded from arguing that Banquecer's lack of experience rendered him
unqualified for the position because H&R does not dispute that Delgado lacked
this experience.
     The district court erred, however, in concluding that the EEOC's evidence
fell short of raising a jury question as to whether H&R's asserted justifications for selecting Delgado were unworthy of belief.  The EEOC's evidence establishes that H&R selected the one candidate who failed to meet the stated qualifications  
Delgado   instead of hiring the one candidate who did   Banquecer.  The EEOC
also offered evidence that H&R proffered shifting and inconsistent reasons for
choosing Delgado over Banquecer.  Further, the EEOC offered evidence that some
of the reasons H&R gave for selecting Delgado were untrue or exaggerated and
that H&R had an unequal promotion process.  Based on this evidence, and the
thirty-year age gap between Delgado and Banquecer, a reasonable jury could
conclude that the reasons given by H&R for not selecting Banquecer to be
Mailroom Supervisor were false and that H&R unlawfully discriminated against
Banquecer based on his age.
                         ARGUMENT
     THIS COURT SHOULD REVERSE THE DISTRICT COURT'S ENTRY
     OF SUMMARY JUDGMENT BECAUSE THE EEOC ESTABLISHED A
     PRIMA FACIE CASE OF AGE DISCRIMINATION AND OFFERED
     SUFFICIENT EVIDENCE OF PRETEXT FOR A JURY TO FIND THAT
     H&R FAILED TO PROMOTE BANQUECER BECAUSE OF HIS AGE.

     The district court erred in granting summary judgment in favor of H&R.  In
reaching its ruling, the district court utilized the familiar burden-shifting analysis for employment discrimination claims set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803-805 (1973).  The district court properly found that the EEOC had established a prima facie case of age discrimination.  The district court erred, however, in concluding that the EEOC's evidence was insufficient to allow a reasonable jury to conclude that H&R's reasons for choosing Delgado over
Banquecer to be Mailroom Supervisor were a pretext for age discrimination.  See
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) ("[A]
plaintiff's prima facie case, combined with sufficient evidence to find that the
employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.").  Therefore, this Court should reverse the district court's entry of summary judgment in favor of H&R and
remand this case for trial.
     A.   The district court correctly held that the EEOC established a prima
          facie case of age discrimination.

     Two reasons support the district court's conclusion that the EEOC had
established a prima facie case of age discrimination.  First, Banquecer was
qualified to be the Mailroom Supervisor.  Second, H&R is precluded from arguing
that Banquecer was unqualified since Delgado, who was selected, did not meet the
very job qualification Banquecer was alleged to lack.
          1.   Banquecer was qualified to be the Mailroom Supervisor.
     In concluding that the EEOC had established a prima facie case, the district
court correctly rejected H&R's argument that Banquecer did not meet the
requirement of five years of experience "running" a mailroom operation because
he lacked supervisory experience.  (A8-A9)  As the district court noted, the
position notice did not list managerial or supervisory experience and "[t]o 'run' a mailroom operation does not necessarily imply supervision of other employees, if, for instance, the mailroom is composed of one employee."  (A8)  Since Banquecer had more than five years of experience running a one-person mailroom at
Creations, Kline & Company, and Mokrynski & Associates, he satisfied the "five
year running a mailroom operation" requirement.  (A99, Depo. pg. 24; A20;
A142) 
          2.   H&R is precluded from arguing Banquecer was unqualified
               since Delgado did not have the very qualification Banquecer
               allegedly lacked.

     The district court correctly found that even if Banquecer did not satisfy the
requirement of five years "running" a mailroom operation, H&R is precluded from
arguing that he was unqualified because H&R concedes that Delgado lacked this
experience.  See Anthony v. BTR Automotive Sealing Sys. Inc., 339 F.3d 506,
515 (6th Cir. 2003)  ("A plaintiff should not be required to prove that he is
qualified to meet the stated requirements for a position where the selected
candidate likewise does not meet the requirements."); Dennis v. Columbia
Colleton Med. Ctr., Inc., 290 F.3d 639, 646 (4th Cir. 2002) (plaintiff's evidence
sufficient for jury to find she was qualified where neither she nor selectee met all the posted qualifications and they satisfied aspirational list equally well).
     Thus, the district court properly found that the EEOC successfully
established a prima facie case of age discrimination.
     B.   The EEOC offered sufficient evidence from which a reasonable jury
          could find that H&R's proffered reasons for choosing Delgado over
          Banquecer were a pretext for age discrimination.
     The central issue on appeal is whether the EEOC raised a genuine issue of
material fact as to pretext.  The district court concluded that the EEOC had not,
going so far as to state that the EEOC failed to offer "any" evidence that H&R's
asserted reasons for promoting Delgado in lieu of Banquecer were a pretext for
age discrimination.  (A11) (emphasis in original).  In making this ruling, the
district court overlooked relevant evidence in the record and violated the basic
tenet of Reeves v. Sanderson Plumbing, 530 U.S. at 148, which is that "a
plaintiff's prima facie case, combined with sufficient evidence to find that the
employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated."  See also Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994) (plaintiff may defeat summary judgment by establishing a prima facie case and "discrediting the proffered reasons, either circumstantially or directly").  While this showing does not always defeat a defendant's motion for summary judgment, the EEOC's evidence in this case was enough to allow a reasonable jury to find that H&R discriminated against Banquecer based on his age.  The EEOC's evidence of pretext falls into five general categories.
          1.   Banquecer met the stated job qualifications but Delgado did
               not.

     Pretext can be inferred when an employer eliminates applicants for a failure
to meet unstated qualifications rather than eliminating applicants who fail to meet stated qualifications.  See Seay v. Tennessee Valley Auth., 339 F.3d 454, 466-67 (6th Cir. 2003) (pretext established where employer claimed it reduced large applicant pool by eliminating applicants (including  plaintiff) who lacked
management experience but did not eliminate applicants who failed to meet stated
qualifications).
     Here, the district court agreed with the EEOC that Banquecer satisfied the
posted requirement of five years of experience running a "mailroom operation"
and that "the position notice does not list any qualification that Banquecer
lacked."  (A8-A9)  In contrast, H&R concedes that Delgado did not satisfy the
posted requirements since she lacked five years of experience running a mailroom.
(A55)  Thus, the only applicant who satisfied the stated qualifications for the
position was Banquecer.  While H&R asserts that it primarily selected Delgado
because she had "supervisory experience," that was not a posted qualification. 
(A19)  Thus, H&R eliminated Banquecer for failing to meet an unstated
qualification and selected Delgado although she was the only one who failed to
meet the stated qualifications.  "This inconsistency tends to undermine [H&R]'s
legitimate nondiscriminatory explanation and raises 'an inference [of pretext] that must be drawn, at summary judgment, in favor of the nonmovant.'" Seay, 339
F.3d at 468 (citation omitted).
          2.   H&R has offered shifting and inconsistent reasons for choosing
               Delgado.

     H&R's shifting and inconsistent reasons for its failure to promote
Banquecer gives rise to a genuine issue of material fact as to pretext.  This Court has consistently recognized that "[i]f a plaintiff demonstrates that the reasons given for [an employment action] did not remain consistent, beginning at the time they were proffered and continuing throughout the proceedings, this may be viewed as evidence tending to show pretext."  Abramson v. William Paterson
Coll., 260 F.3d 265, 284 (3d Cir. 2001) (agreeing that "ever-changing nature" of
defendant's proffered reasons for firing plaintiff "detract[ed] from their
legitimacy" and reversing summary judgment); see also Fuentes, 32 F.3d at 765
(stating that "inconsistencies" and "contradictions" in employer's reasons can
demonstrate pretext).  Like this Court, other circuits have also routinely held that an employer's shifting reasons for an employment action are probative of pretext. See, e.g., EEOC v. Sears Roebuck & Co., 243 F.3d 846, 852-53 (4th Cir. 2001) ("[T]he fact that Sears has offered different justifications at different times for its failure to hire [plaintiff] is, in and of itself, probative of pretext."); EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994) (holding that jury could find that employer discriminated based on age where it offered inconsistent and contradictory explanations for termination). 
     An employer's justifications do not need to be directly contradictory to be
probative of pretext.  Instead, plaintiffs "provide sufficient evidence of falsity" where they show that an employer offered an initial explanation but later offered an additional explanation.  See Dennis, 290 F.3d at 646 (justifications for promotion "inconsistent" and probative of pretext where decisionmaker testified at deposition that selectee had better managerial experience but testified at trial that selectee's managerial experience and computer knowledge set him apart). Similarly, a jury may find that an employer's justification is "a later fabrication" where the employer initially gives "vague explanations about 'overall qualifications'" and supplies a straightforward answer only after litigation begins. Lindahl v. Air France, 930 F.2d 1434, 1438 (9th Cir. 1991) (explanation of "computer proficiency" was so straightforward "one might expect that [employer] would have mentioned it if it really were the explanation").
     Here, H&R offered inconsistent explanations for its selection of Delgado
over Banquecer.  In H&R's November 27, 2000, position statement, it asserted
that Wildenstein had interviewed both candidates and found Delgado better
qualified.  (A28-A29)  Specifically, H&R said that Delgado "had more
supervisory experience and better qualifications" than Banquecer because she had
held two supervisory positions while Banquecer had held none.  (A29) 
Significantly, H&R did not assert in its November 27, 2000, position statement
that Banquecer was "unqualified" for the Mailroom Supervisor position because
he lacked five years of experience running a mailroom operation or for any other
reason.  (A28-A30)
     Sixteen months later, however, H&R changed its tune.  Wildenstein testified
at his March 26, 2002, deposition that Banquecer "did not fit the qualifications"
for a number of specific reasons conspicuously absent in H&R's position
statement: 1) that Banquecer was "not computer literate as much as [he] needed
somebody to be"; 2) that Banquecer was not "somebody that can look beyond
what was happening in the mailroom at the present time and be able to correct the
deficiencies that were in there"; and 3) that Banquecer was not someone who
"knew inventory control, that could take and continue on with the total inventory
of what we keep in there."  (A52-A53)  Additionally, Wildenstein gave two other
reasons for not promoting Banquecer that H&R did not mention in its position
statement.  First, Banquecer "had a tendency to disregard the procedures that were
set down in the mailroom to try and help people to do different things within the
floor area to send out packages and/or to do different things during that period." 
(A59)  Second, Banquecer did "not specifically fully" meet the requirement of five
years running a mailroom operation.  (A119, Depo. pp. 51-52)  Relying on
Wildenstein's testimony, H&R argued to the district court that it did not select
Banquecer for the reasons Wildenstein gave in his deposition.  (A10; R.11, Memo.
in Support of Summ. J., at 6, 14)
     Accordingly, H&R initially asserted in its November 27, 2000, position
statement that Banquecer was less qualified than Delgado but later relied on
Wildenstein's testimony to assert that Banquecer was unqualified for reasons not
originally mentioned in its position statement.  These "ever changing" reasons for
refusing to promote Banquecer "may be viewed as evidence tending to show
pretext."  Abramson, 260 F.3d at 284; see also Dennis, 290 F.3d at 646 (plaintiff
provided sufficient evidence of falsity where decisionmaker gave at trial
additional reason for not selecting plaintiff that decisionmaker failed to mention
during his deposition).  Adding to the inference of pretext a jury could draw, at
least two of the reasons Wildenstein gave for not selecting Banquecer   his alleged lack of computer proficiency and inventory control experience   are such
"straightforward answers" that H&R reasonably could be expected to have
mentioned them in its position statement had they actually been true.  See Lindahl, 930 F.2d at 930 (stating that "computer explanation would have been such a straightforward answer" to plaintiff's inquiries about non-promotion that "one
might expect" employer would have initially mentioned it "if it really were the
explanation"); see also Abramson, 260 F.3d at 284 (noting that "two technology-
related concerns" for employment action "were not mentioned until
[decisionmaker's] deposition").  Accordingly, "a factfinder could infer from the
late appearance of [H&R]'s current justification[s]" that they are merely "post-
hoc" rationalizations instead of legitimate explanations for its non-promotion of
Banquecer.  Sears, 243 F.3d at 852.
     H&R's shifting and inconsistent explanations are particularly probative of
pretext in this case because at least one of the explanations given by Wildenstein
during his deposition   Banquecer's lack of computer proficiency   differed from
the written job qualifications.  See Dennis, 290 F.3d at 646 (stating that both of
employer's late explanations for non-promotion "differed from the written job
qualifications, giving them the flavor of post-hoc rationalizations"); Lindahl, 930 F.2d at 1438 (noting that "computer proficiency had never been listed as a
qualification for the position").  The omission of "computer proficiency" from the
posted requirements is particularly telling because Wildenstein helped determine
the qualifications for the Mailroom Supervisor position.  (A118, Depo. pg. 45)  A 
jury therefore could infer that had Wildenstein really been looking for someone
with "computer proficiency" he would have included it in the written
qualifications and that his failure to do so indicates that "computer proficiency"
was a later fabrication intended to cover up for age discrimination. 
     In short, the EEOC offered evidence that H&R provided shifting and
inconsistent reasons for refusing to promote Banquecer.  Based on this evidence
alone, a jury could find that the reasons given by H&R were a pretext for
discrimination.
          3.   H&R's offered reasons for choosing Delgado over Banquecer
               that were untrue or exaggerated.

     The EEOC offered evidence that some of the reasons H&R gave for
choosing Delgado over Banquecer were untrue or exaggerated, which is also
probative of pretext.  This evidence would also allow a jury to disbelieve H&R's
explanations for Banquecer's non-promotion.  See Abramson, 260 F.3d at 283-84
(discussing plaintiff's evidence disputing reasons given for termination and
reversing summary judgment).  Similarly, evidence that an employer exaggerated
a selectee's qualifications can support a jury's finding that an employer's
proffered reasons were false.  See Dennis, 290 F.3d at 647 (jury could have found
that selectee's "management and computer skills were overplayed" where selectee
had failed computer class and only managed a small store years earlier).  As
discussed below, the EEOC's evidence shows that H&R exaggerated or made up
Delgado's supervisory experience and that, contrary to H&R's assertion, 
Banquecer had inventory control experience.
               a.   Delgado's supervisory experience
     According to H&R, Delgado held two supervisory positions   Inventory
Control Coordinator and Facilities Coordinator   before her promotion.  (A29) 
The EEOC, however, offered evidence disputing this.
     Delgado herself denied that she supervised any warehouse personnel when
she was the Inventory Control Coordinator.  (A68, Depo. pg. 25; A66, Depo. pg.
20)  She also denied that she kept any attendance records or evaluated the
performance of any warehouse workers as Inventory Control Coordinator.  (A68,
Depo. pg. 25)  Delgado's self-nomination form and memorandum are also devoid
of any reference to supervisory experience she had as Inventory Control
Coordinator.  (A131-A133)  Delgado's 1997 evaluation, when she was the
Inventory Control Coordinator, makes no mention of supervisory experience or
duties.  (A136-A137)  Thus, a jury could find that Delgado had no supervisory
duties as Inventory Control Coordinator.  
     The EEOC's evidence also casts doubt upon H&R's assertion that the
Facilities Coordinator position was supervisory.  (A29)  For this point, H&R
appears to rely on the deposition testimony of Wildenstein and Delgado stating
that Delgado assisted the mailroom clerks, supervised mailroom employees in
Wildenstein's absence, investigated mailroom complaints, and participated in
mailroom employees' evaluations.  The EEOC's evidence, however, contradicts
H&R's contention that the Facilities Coordinator position was supervisory.
     According to Banquecer, from October of 1998 until February 8, 2000, Eric
Colon   not Delgado   answered his questions about the mailroom.  (A152, Aff. at
3)  In January of 1999 Wildenstein announced to the mailroom employees that
Colon   not Delgado   would be in charge of the mailroom and later appointed
him "Team Leader."  (A153, Aff. at 4)  Banquecer also stated that Colon   not
Delgado   handled mailroom complaints in 1999.  (A153, Aff. at 7)  
Banquecer further stated that Colon made work assignment in Wildenstein's
absence (and even when Wildenstein was available).  (A153 Aff. at 5) 
Banquecer also specifically denied that Delgado assigned work to mailroom
employees, discussed their work performance with them, or did anything to make
him or the other mailroom employees think she was a supervisor.  (A153, Aff. at 8)  Further, although Delgado testified that she kept attendance records for "all the
mailroom employees," (A106, Depo. pg. 60), Banquecer denied this fact in his
affidavit and his 1999 attendance sheets submitted by the EEOC are all signed by
Colon or Wildenstein.  (A153, Aff. at 6; A154-A180)  Finally, neither the
requisition for the Facilities Coordinator position nor Delgado's 1998 and 1999
performance evaluations refers to any supervisory duties.  (A128; A134; A138) 
     Thus, the EEOC's evidence would allow a jury to find either that Delgado
did not have any supervisory duties as Inventory Control Coordinator or Facilities
Coordinator or, at the very least, that H&R over-emphasized any supervisory
experience she actually did have.  Thus, a reasonable jury could find that H&R's
claim that it selected Delgado because she had held two supervisory positions is a
post-hoc rationalization covering up for discrimination.  See Abramson, 260 F.3d
at 283-84 (discussing plaintiff's evidence refuting employer's proffered reasons
for termination and reversing summary judgment); Dennis, 290 F.3d at 647 (jury
could have concluded that selectee not chosen for his allegedly superior skills
where plaintiff offered evidence that decisionmaker "overplayed" selectee's
management experience and computer skills).
               b.   Banquecer's inventory control experience
     The EEOC's evidence also casts doubt upon the truth of Wildenstein's
testimony that Banquecer was unqualified in part because he did not know
"inventory control."  (A53, Depo. pg. 56)  The EEOC submitted Banquecer's self-
nomination form, which states that he did "inventory" at Mokrynski & Associates,
and his Creations' application, which states that "inventory" was one of his
responsibilities at Kline & Company.  (A20; A142)  Wildenstein also testified that
he saw these documents.  (A123, Depo. pg. 72).  Thus, the EEOC's evidence
shows not only that Banquecer had inventory control experience, but that
Wildenstein knew it.  A factfinder could therefore find that H&R's "inventory
control" reason was false.  See Abramson, 260 F.3d at 283-84 (discussing
plaintiff's evidence refuting reasons for termination and finding pretext).
          4.   H&R had an unequal promotion process.
     Other evidence a jury could rely upon to conclude that H&R's reasons for
not promoting Banquecer were false concerns H&R's unequal promotion process.
See Dennis, 290 F.3d at 647 ("evidence of the unequal way in which
[decisionmaker] conducted the promotion process could have persuaded the jury
that" the decisionmaker "did not give [plaintiff] fair consideration but rather
discriminated against her").  Although H&R asserts that Wildenstein interviewed
both candidates, Banquecer has consistently denied that Wildenstein interviewed
him.  (A23); (A101, Depo. pg. 50).  Since the court must view all facts in the light most favorable to the EEOC on summary judgment, the court must assume that
Wildenstein interviewed only Delgado.  Based on this fact, a jury could conclude
that H&R had an unequal promotion process.  See Dennis, 290 F.3d at 647
(unequal promotion process where decisionmaker sought out and intensively
interviewed male selectee but did not fully look into plaintiff's qualifications and may have denied fair consideration to another female applicant).  Therefore, a jury could find that H&R's explanations for choosing Delgado are merely post-hoc
rationalizations covering up for age discrimination. 
          5.        The thirty-year age gap between Banquecer and Delgado is
                    indicative of pretext.

     Finally, the thirty-year age gap between Banquecer and Delgado provides
further evidence from which a jury could conclude that H&R chose Delgado over
Banquecer because he was too old.  See Banks v. Travelers Co., 180 F.3d 358, 367
(2d Cir. 1999) (where no other plausible reasons existed, jury entitled to infer age discrimination when employer kept twenty-seven year old and terminated the
forty-nine year old plaintiff).  Here, Banquecer was fifty-nine years old when he
applied for the Mailroom Supervisor position.  Delgado was twenty-nine years
old.  (A4)  The thirty-year age gap between Banquecer and Delgado is one more
piece of evidence that a reasonable jury could rely upon to find that age
discrimination was the real reason for Banquecer's non-promotion.  See Banks,
180 F.3d at 367.
     In summary, the EEOC offered more than enough evidence to establish a
genuine issue of material fact as to pretext by discrediting H&R's explanations for Banquecer's non-promotion.  Accordingly, this evidence, combined with the
EEOC's prima facie case, would permit a reasonable jury to conclude that H&R
discriminated against Banquecer based on his age.  See Reeves, 530 U.S. at 148;
Fuentes, 32 F.3d at 764.  Therefore, this Court should find that the district court erred when it concluded that the EEOC's evidence was insufficient to show that H&R discriminated based on age.
                           CONCLUSION
     For the reasons stated above, the Commission believes the district court
erred in finding that the EEOC failed to establish a genuine issue of material fact as to pretext.  Therefore, the Commission requests that this Court reverse the district court's entry of summary judgment in favor of H&R and remand this case for trial.
                              Respectfully submitted,
                              ERIC S. DREIBAND
                              General Counsel
          
                              LORRAINE C. DAVIS
                              Acting Associate General Counsel 
          
                              CAROLYN L. WHEELER
                              Assistant General Counsel
          
          
                              __________________________
                              ANNE NOEL OCCHIALINO
                              Attorney
                              U.S. EQUAL EMPLOYMENT
                                OPPORTUNITY COMMISSION
                              1801 L Street, N.W., 7th Floor     
                              Washington, D.C.  20507
                              (202) 663-4724
          
                              March 15, 2004
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                                   ____________________________
                                   ANNE NOEL OCCHIALINO
                                   Attorney
                                   U.S. EQUAL EMPLOYMENT
                                     OPPORTUNITY COMMISSION
                                   Office of General Counsel
                                   1801 L Street, N.W., 7th Floor
                                   Washington, D.C.  20507  
                                   (202) 663-4724

Dated: March 15, 2004
                      CERTIFICATE OF SERVICE
     I certify that on March 15, 2004, I served two copies of this brief by mailing them first-class, postage prepaid, to the following:

Timothy I. Duffy 
McElroy, Deutsch & Mulvaney 
1300 Mount Kemble Avenue 
P.O. Box 2075 
Morristown, NJ 07962 

                                   
                                   ____________________________
                                   ANNE NOEL OCCHIALINO
                                   Attorney
                                   U.S. EQUAL EMPLOYMENT
                                     OPPORTUNITY COMMISSION
                                   Office of General Counsel
                                   1801 L Street, N.W., 7th Floor
                                   Washington, D.C.  20507
                                   (202) 663-4724