EEOC v. Trans State Airlines, Inc. (8th Cir.)
Brief as appellant
June 20, 2005
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE EIGHTH CIRCUIT           
                  ______________________________
                 Nos.  05-2009, 05-2010, 05-2046
                  ______________________________
                                 
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
     PlaintiffAppellant/CrossAppellee,
     and
MOHAMMED SHANIF HUSSEIN,
     PlaintiffIntervenorAppellant/CrossAppellee,
v.                                                
TRANS STATES AIRLINES, INC.,
     DefendantAppellee/CrossAppellant.
       ____________________________________________________
         On Appeal from the United States District Court
               for the Eastern District of Missouri                                    
                    __________________________________________________
            BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY 
                     COMMISSION AS APPELLANT
              ___________________________________________________
ERIC S. DREIBAND               		EQUAL EMPLOYMENT OPPORTUNITY
General Counsel                         COMMISSION
                              		Office of General Counsel
VINCENT BLACKWOOD        		1801 L Street, N.W., Room 7032
Acting Associate General Counsel   	Washington, D.C. 20507
                              		(202) 663-4718
JULIE L. GANTZ
Attorney
          SUMMARY OF CASE AND REQUEST FOR ORAL ARGUMENT
     The EEOC alleges in this action that Trans States Airlines ("TSA") violated
Title VII of the Civil Rights Act of 1964 when it fired Mohammed Hussein, a
Muslim probationary pilot who appears to be of Middle Eastern descent, a week
after the September 11 terrorist attacks because of his religion, national origin and
race.  The defendant asserts that it fired Hussein because it received an anonymous
phone call reporting that Hussein was in a bar in uniform in violation of a
company rule.  In granting summary judgment, the district court stated that the
only evidence supporting the allegation of discrimination was Hussein's name and
the fact that he was terminated shortly after September 11.  The court noted
repeatedly that there was no evidence of statements or actions by persons involved
in the defendant's decision-making process reflecting hostility toward Muslims or
persons of Middle Eastern descent.  We argue in this appeal that a reasonable jury
could infer from the evidence that, if Hussein were not Muslim and perceived to
be Middle Eastern, the defendant would not have terminated him based on an
anonymous phone call without taking reasonable steps to verify the truth of the
accusation against him.  This appeal presents factual issues that turn on a careful
review and explication of the record.  The EEOC submits that oral argument of
twenty minutes per side would assist this Court in resolving these issues.
                        TABLE OF CONTENTS
SUMMARY OF THE CASE AND REQUEST FOR ORAL ARGUMENT. . . . . . . .i
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . .1
STATEMENT OF THE ISSUES AND APPOSITE CASES . . . . . . . . . . .1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .2
     A.   PROCEEDINGS BELOW. . . . . . . . . . . . . . . . . . .2
     B.   STATEMENT OF THE FACTS . . . . . . . . . . . . . . . .3
     C.   THE DISTRICT COURT DECISION. . . . . . . . . . . . . 24
STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . 29
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 30
ARGUMENT
     THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT
     THE DEFENDANT'S ASSERTION THAT IT FIRED HUSSEIN
     BECAUSE IT RECEIVED AN ANONYMOUS REPORT THAT HE WAS
     IN A BAR IN UNIFORM IS A PRETEXT FOR DISCRIMINATION . . . 35
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 58
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
ADDENDUM
     EEOC v. Trans States Airlines, Inc., February 9, 2005, Order Awarding
     Summary Judgment to TSA and Denying TSA's Request for Attorney's
     Fees
                       TABLE OF AUTHORITIES
                             CASES 
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . . . . 29
Bassett v. City of Minneapolis, 211 F.3d 1097 (8th Cir. 2000). 30
Buettner v. Arch Coal Sales Co., Inc., 216 F.3d 707 
(8th Cir. 2000)  . . . . . . . . . . . . . . . . . . . . . .   57
Cherry v. Ritenour Sch. District, 361 F.3d 474 
(8th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . 46, 53
Crawford v. Runyon, 37 F.3d 1338 (8th Cir. 1994) . . . . . . . 30
Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) . . . . . . . 53
Dominguez v. Cruz v. Suttle Caribe, Inc., 202 F.3d 424 
(1st Cir. 2000)   . . . . . . . . . . . . . . . . . . . . . .  39
EEOC v. Ethan Allen, Inc., 44 F.3d 116 (2d Cir. 1994). . . . . 38
EEOC v. Sears Roebuck & Co., 243 F.3d 846 (4th Cir. 2001). . . 42
Griffith v. City of Des Moines, 387 F.3d 733 (8th Cir. 2004) . 53
Hernandez v. State of Texas, 347 U.S. 475 (1954) . . . . . . . 56
Keathley v. Ameritech Corp., 187 F.3d 915 (8th Cir. 1999). . . 29
Kempcke v. Monsanto Co., 132 F.3d 442 (8th Cir. 1998). . . . . 41
Matsushita Electric Indus. Co. v. Zenith Radio Corp., 
475 U.S. 574 (1986) . . . . . . . . . . . . . . . . . . . . .  29
Morgan v. Hilti, Inc., 108 F.3d 1319 (10th Cir. 1997). . . . . 35
Reeves v. Sanderson Plumbing, 530 U.S. 133 
(2000).. . . . . . . . . . . . . . . . . . . . .   39, 47, 48, 52
Rosen v. Thornburgh, 928 F.2d 528 (2d Cir. 1991) . . . . . . . 56
Russell v. TG Missouri Corp., 340 F.3d 735 (8th Cir. 2003) . . 43
Sarmiento v. Queens Coll. CUNY, No. 01-CV-5266, 2005 WL 
396385 (E.D.N.Y. Feb. 11, 2005) . . . . . . . . . . . . . . .  55
Smith v. Chrysler Corp., 155 F.3d 799 (6th Cir. 1998). . . . . 42
Stern v. Trs. of Columbia Univ., 131 F.3d 305 (2d Cir. 1997) . 49
U.S. Postal Serv. Bd. of Governors v. Aikens, 
460 U.S. 711 (1983). . . . . . . . . . . . . . . . . . . . . . 53
Webb v. Garelick Mfg. Co., 94  F.3d 484 (8th Cir. 1996). . . . 29
Yates v. Rexton, 267 F.3d 793 (8th Cir. 2001). . . . . . . . . 47
Young v. Warner-Jenkinson Co., 152 F.3d 1018 
(8th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . 37, 48
                           STATUTES 
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
Title VII of the Civil Rights Act of 1964, 42 U.S.C.  
2000e et seq . . . . . . . . . . . . . . . . . . . . . .     1, 2
Missouri Human Rights Act, Mo. Rev. Stat.  213.010 et seq.. . .2
                    STATEMENT OF JURISDICTION
     This is an enforcement action brought by the Equal Employment
Opportunity Commission pursuant to Title VII of the Civil Rights Act of 1964,  42
U.S.C.  2000e et seq.  The district court had jurisdiction under 28 U.S.C.
 1331, 1337, 1343, and 1345.  Final judgment was entered on February 9, 2005.
Volume I Plaintiffs' Appendix ("P.A.") 19.  Hussein filed a timely notice of appeal
on April 6, 2005.  R.117.<1>  The EEOC filed a timely notice of appeal on April 7,
2005.  R.118.  TSA filed a crossappeal on April 12, 2005.  R.121.  This Court has
jurisdiction under 28 U.S.C.  1291.
            STATEMENT OF THE ISSUE AND APPOSITE CASES
     Whether there is sufficient evidence to support a finding that the
defendant's assertion that it fired Mohammed Hussein because of an anonymous
report that he was in a bar in uniform is a pretext for race, religion, and national
origin discrimination.
Reeves v. Sanderson Plumbing, 530 U.S. 133 (2000)
Young v. Warner-Jenkinson Co., 152 F.3d 1018 (8th Cir. 1998) 
Kempcke v. Monsanto Co., 132 F.3d 442 (8th Cir. 1998)
                      STATEMENT OF THE CASE
     A.   Proceedings Below
     These are appeals from a final order of the United States District Court for
the Eastern District of Missouri dismissing this enforcement action under Title VII
of the Civil Rights Act of 1964, 42 U.S.C.  2000e et seq., and denying the
defendant's request for attorney's fees.  The complaint alleges that the defendant
violated Title VII by terminating the employment of pilot Mohammed Hussein
because of his race, religion, and national origin.  I-P.A.20.  Hussein intervened as
a plaintiff on August 5, 2003.  R.5.  Hussein's complaint seeks relief under the
Missouri Human Rights Act, Mo. Rev. Stat.  213.010 et seq., as well as under
Title VII.  I-P.A.29.
     On February 9, 2005, the district court granted the defendant's motion for
summary judgment.  Addendum at 29; R.111.  In the same order, the district court
denied the defendant's request for attorney's fees.  Addendum at 30.  The court
entered judgment the same day.  I-P.A.19.  Hussein filed a notice of appeal on
April 6, 2005 (R.117); the EEOC filed a notice of appeal on April 7, 2005 (R.118);
and the defendant filed a crossappeal on April 12, 2005, appealing the district
court's denial of its request for attorney's fees.  R.121. 
     B.   Statement of Facts
     Mohammed Shanif Hussein is a Muslim who was born and raised in Fiji. 
II-P.A.227, 236  (Hussein Dep. 8, 43).  Although he is of Indian descent, he stated
that he appears Arabic and many people mistakenly think he is of Arabic descent. 
II-P.A.309  (Hussein Decl.  2).  On February 26, 2001, Hussein was hired as a
pilot by Trans State Airlines ("TSA"), which operates commercial flights for
American Airlines, United Airlines, and U.S. Airways.  II-P.A.230 (Hussein Dep.
19).  Newly hired TSA pilots serve a one-year probationary period.  I-P.A.37B 
(Collective Bargaining Agreement  22F).  At the time of his discharge on
September 18, 2001, Hussein had been with TSA nearly seven months and had
successfully completed his training.  II-P.A.23-35 (Hussein Dep. 36-38); I-P.A.97
(June 15, 2001 Statement of Training Completed).  He had no performance or
disciplinary problems prior to the events leading to his termination.  II-P.A.310
(Hussein Decl.  6).
     On September 13, 2001, Hussein returned a TSA plane to St. Louis
following the September 11 terrorist attacks and the grounding of commercial
aircraft.  II-P.A.241 (Hussein Dep. 62-63).  That evening, he ate dinner at
Skooner's, a restaurant and bar at the Howard Johnson's hotel near the airport
where he was staying.  Hussein sat at the bar portion of the restaurant.  II-P.A.247-
48, 250-51, 253 (Hussein Dep. 88-89, 97-101, 109).  Hussein testified that he wore
nothing that signified he was a pilot.  II-P.A.248, 253; see also FBI Report at 2-3.<2> 
He stated that he did not want to be seen in his pilot's uniform following the
September 11 attacks because he looked Arabic and "the media had made a big
deal about uniforms being stolen."  II-P.A.248.  Angelina Lodatto, a former
bartender at Skooner's, testified that she never saw a pilot in uniform seated at the
bar at Skooner's, and that the presence of a pilot in uniform would be so unusual
she would remember it.  II-P.A.320; see also II-P.A.336 (Lodatto Decl.  7, 9). 
Because pilots and other airline employees were frequent visitors at Skooner's,
Skooner's employees were aware of the rules prohibiting a pilot from drinking
within 12 hours of flight duty or being in a bar in uniform.  II-P.A.336 (Lodatto
Decl.  6).  Lodatto testified that she was told that pilots in uniform were not to be
seated at or served at the bar.  II-P.A.319.  On the night of September 13, Lodatto
was working at the Kung Jeon Lounge, which is located upstairs from Skooner's. 
She stated that Hussein came into the lounge that night wearing a white button
down shirt and dark pants; he was not wearing any part of his pilot's uniform.  II-
P.A.337.
     TSA's General Operations Manual ("GOM") sets forth standards for pilot
conduct.  II-P.A.477 (Swoboda Dep. 71).  The GOM's alcohol and drug policy
prohibits pilots from drinking alcohol within twelve hours of reporting for duty
and forbids pilots from drinking in public while in uniform at any time.  I-P.A.92
(GOM Part 10  B(1), (3), (4)).  The GOM also provides:  "To eliminate the
possibility of any Trans States Airlines crewmember employee in uniform being
associated with the use of alcoholic beverages, crewmembers in complete or
partial uniform . . . are prohibited from visiting any establishment or portion
thereof the primary purpose of which is to serve alcoholic beverages."  I-P.A.92
(GOM Part 10  B (5)).  According to one of TSA's flight managers, a pilot is
considered to be at least in partial uniform if he is wearing any of the following
items:  his epaulets, tie, jacket, hat, or identification badge.  II-P.A.473 (Swoboda
Dep. 57).  Two TSA supervisors testified that a pilot dressed in a pilot's dark pants
and white shirt without the epaulet shoulder boards attached would not be in
uniform.  II-P.A.464 (Swoboda Dep. 19); II-P.A.493 (White Dep. 30-31).  Two
other supervisors disagreedone testified that, because the pilot shirt has flaps for
epaulets, wearing it would be considered being in uniform.  I-P.A.142 (Aman Dep.
38).  Another stated, "I would not show up in a bar with black pants and my white
uniform shirt on with or without epaulets or with or without a tie."  II-P.A.453
(Scott Dep. 30).
     Emmet Conrecode, a pilot for TWA and a major in the Marine Corps
Reserve, was grounded in St. Louis between September 11 and September 16 and
staying at the Howard Johnson's.  I-P.A.174 (Conrecode Dep. 11).  On the night of
September 13, he went to Skooner's and sat at the bar eating dinner and drinking a
beer.  I-P.A.174 (Conrecode Dep. 12-13).  He testified that a man he subsequently
learned was Hussein was acting in an "unusual" manner.  I-P.A.175.  According to
Conrecode's deposition testimony, this man was wearing a pilot's shirt, dark
pants, and epaulets and drinking a beer, which Conrecode knew pilots were not
permitted to do.  I-P.A.175-76.  Moreover, according to Conrecode, Hussein was
"happily raising his beer watching the coverage of the airplanes hitting the towers
and bouncing around the bar attempting to engage people in conversation,
debate."  I-P.A.181.  Conrecode asserted that Hussein watched the television
coverage of the 9/11 attacks, smiling, and when the aircraft hit one of the towers,
"he raised his beer as in a salute and took a swig."  I-P.A.177.  Conrecode
described Hussein's demeanor as "celebratory."  I-P.A.178.
     According to Conrecode, Hussein left Skooner's after another pilot asked
him to leave, but returned after a brief time without his epaulets and continued
watching the television coverage and trying to engage other patrons in
conversation.  I-P.A.178.  Conrecode testified that he asked the bartender why
Hussein was acting strangely and she told him that he was in favor of the terrorist
attacks and had been engaged in debates with patrons.  I-P.A.180.  Conrecode did
not personally hear Hussein say anything in support of the 9/11 attacks.  
I-P.A.180; see also I-P.A.187.  Conrecode testified that he heard Hussein say, "I
get to fly tomorrow," and interpreted this to mean that Hussein was about to
"betray" the United States.  I-P.A.184, 194.  Conrecode testified that the notion
that Hussein was going to fly a plane into a building "was my greatest fear."  
I-P.A.204.
      Conrecode testified that after he left Skooner's he learned Hussein's name
and the fact that he was a pilot for TSA from the hotel's desk clerk and then went
to his room but was unable to sleep.  I-P.A.182, 185.  He testified that he thinks he
called the FBI and left a message giving "a general description of a pilot drinking
in uniform ecstatic about 9/11" and naming Hussein.  I-P.A.185.  He stated that he
subsequently called the St. Louis Airport police at approximately 3 a.m.  
I-P.A.185, 186.  Conrecode recalled telling the police that "I observed a pilot that I
had identified as being a Trans States pilot in a bar in uniform drinking,
celebrating the 9/11 attacks, and proclaiming that he was going to be flying
tomorrowor this morning."  I-P.A.186.  He recalled that he gave Hussein's name
but did not recall if he said Hussein was Middle Eastern although, "based on his
name," he believed he was of Middle Eastern descent.  I-P.A.186, 191.  Conrecode
testified that FBI agents came to his room at about 9 a.m. on the morning of
September 14 and he gave them a statement.  I-P.A.189.  Conrecode could not
name anyone else who witnessed Hussein's behavior at Skooner's.  He testified
that he recognized several pilots who were present that night but did not give their
names to the FBI or the police.  I-P.A.190.
     The FBI report concerning the incident gives no indication that Conrecode
ever spoke with the FBI, either by phone or in person.  Rather, the report indicates
that Conrecode's story was communicated to the FBI by the St. Louis Airport
Police Department at 6:45 a.m. on the morning of September 14.  See Information
Control Form.<3>  According to the FBI report, Conrecode told the airport police that
"[w]hile sitting at the hotel bar[, he] heard an individual of Mid-East decent [sic]
saying that he supported the attacks."  Id.  The FBI report states that Conrecode
reported that the individual was in "civilian clothes," but wearing a "pilot's t-shirt
and may have shown a pilot's ID for Trans-States Airlines."  Id.
     An FBI agent awoke Hussein in his hotel room the morning of September
14 and forced his way into the room.  II-P.A.252 (Hussein Dep. 107).  Detective
James Moore of the St. Louis Airport Police Department accompanied the agent. 
FBI Report at 1.  The FBI agent asked for Hussein's identification and flight
credentials, and questioned him about his background and his behavior on the
night of September 13.  II-P.A.252-53 (Hussein Dep. 108-09).  Hussein was asked
if he had any weapons and who the pilot uniform on the chair in his room
belonged to.  II-P.A.252 (Hussein Dep. 108).  Hussein denied that he was acting in
any way that could be reported as supportive of the terrorist attacks.  FBI Report at
2.  When the FBI agent told Hussein he had been reported smiling in Skooner's
while watching the coverage of the 9/11 attacks, Hussein replied that he had
learned that his wife was pregnant that day.  II-P.A.253 (Hussein Dep. 112); FBI
Report at 2.  According to the FBI report, Hussein stated that he was not wearing
any insignia that would indicate he was a pilot, but "acknowledged his epauletted
white shirt and dark pants were indicative of a member of a flight crew."  FBI
Report at 2-3.  The FBI took no further action.  Later on September 14, Hussein
told flight manager Rodney Aman about the FBI interview that had occurred that
morning.  II-P.A.257 (Hussein Dep. 126).  Aman testified that, "as a guess," the
incident had something to do with 9/11.  I-P.A.162.  Hussein stated, "As soon as I
told Rodney, it seemed like everyone else knew."  II-P.A.257.
     Conrecode testified that after calling the FBI and airport police on the
morning of September 14, he went back to sleep and later that day or the next day
he called TSA's Vice President of Flight Operations, Daniel Reed.<4>  I-P.A.195. 
Conrecode testified that, when he called the FBI, he was acting as a military
officer defending the country, but when he called TSA,  he "was acting as an
airline captain trying to save the career of a misguided young man," and he was
"hoping to defend the profession from bad press coverage."  I-P.A.196, 204.  He
testified that he identified himself to Reed as a pilot, but he was not sure whether
he gave his name and, if he gave it, whether Reed caught his name, as he had
disturbed him in the middle of a meeting.  I-P.A.196, 197-98.  He stated that he
gave Reed "a watered down version of what I told the FBI" that Hussein had
been drinking in uniform and seemed to be intimidating stranded passengers.  
I-P.A.195.  He stated in a declaration that he told Reed that he witnessed Hussein
in Skooner's in his pilot's uniform, drinking alcohol, and had "received reports
that he was speaking out in favor of the terrorist attacks."  I-P.A.208-09
(Conrecode Decl.  11).  Conrecode testified that he "may have" told Reed that
Hussein was making comments in support of the 9/11 attacks and that the FBI
would likely be contacting TSA because he had reported Hussein's behavior to the
FBI.  I-P.A.196.  
      According to Reed, he received the call about Hussein on his cell phone
while he was in a staff meeting in TSA's maintenance hangar.  II-P.A.401 (Reed
Dep. 22-23).  Reed testified that four supervisors were present:  Mike White,
Rodney Aman, Stuart Scott, and Mike Swoboda.  II-P.A.400.  Reed stepped out of
the conference room to take the call.  II-P.A.401.  Reed testified that the caller,
who did not identify himself, reported that a pilot in a TSA uniform "was in a
lower bar at the Howard Johnson's" and "was making comments about 9/11," and
that "the bartender had asked him to leave."  II-P.A.401.  According to Reed, the
caller "did not say [the pilot] was drinking.  They said he was in the bar, in a
uniform, making comments and that the bartender told him to leave the bar. . . . He
took some of his uniform pieces off and went into the bar upstairs."  II-P.A.402. 
The caller did not describe what Hussein was wearing, but stated only that he was
in a pilot's uniform.  II-P.A.410-11.  According to Reed, the caller told him that he
obtained Hussein's name and airline "because he had read his ID." II-P.A.401,
411.
     Reed testified that he stepped back into the conference room and told the
flight managers "[t]hat I just received a report . . . what they told me on the phone. 
Asked them to verify that the pilot was indeed in town for that day or not out on a
trip. . . . And they told me he was not on a trip for the company and that he was a
probationary pilot."  II-P.A.402.  According to Reed, "after that answer came back
I said with this phone call and this thing, I believe it's happened and we should
terminate him and I made that call."  II-P.A.411.  Reed testified that the decision
to terminate Hussein was made approximately an hour after he received the
anonymous phone call.  II-P.A.410; see also II-P.A.428.  Reed testified that he
directed one of his manager pilots to terminate Hussein.  II-P.A.411.
     Reed testified that he did not obtain the identity of the person who reported
Hussein in a drinking establishment because "[t]he individual said that I would be
getting a follow-up phone call explaining everything to me."  II-P.A.400, 401. 
Although he considered the allegations "serious," Reed made no record or notes of
the call.  II-P.A.399, 400.  Reed acknowledged that he had no idea who the caller
was or what motivated him to call.  II-P.A.407.  In Reed's mind, "it was a reliable
call because I verified that the pilot was in town and that very possibly could have
happened.  And I think it's a reliable call when he comes up with the pilot's
name."  II-P.A.406.  Reed stated that if Hussein "had not been in St. Louis I was
going to dismiss the call."  II-P.A.404.  He stated that at the time he decided to
discharge Hussein, he did not know his national origin or race or that he was a
Muslim.  II-P.A.443 (Reed Decl.  31); see also II-P.A.413 (Reed Dep. 70-72). 
     Mike Swoboda testified that Reed left the meeting room when the call came
in about Hussein, and his conversation could not be heard.  II-P.A.465.  According
to Swoboda, Reed was gone for 3 to 5 minutes.  Id.; see also I-P.A.197
(Conrecode Dep. 103) (stating his conversation with Reed was three minutes
long).  He returned after the call had ended and asked those present who
Mohammed Hussein was.  II-P.A.465.  Swoboda told Reed that he knew Hussein,
and that he was a first officer based in St. Louis and was probably probationary. 
Id.  According to Swoboda, "It was then that Mr. Reed instructed me to terminate
Mr. Hussein's employment."  II-P.A.465. 
     Flight manager Rodney Aman testified that Reed was still on the phone
when he came back to the meeting.  He said he heard Reed say:  "It doesn't matter,
he was in a bar in uniform."  I-P.A.147.  According to Aman, the call lasted "less
than a minute" and Reed said nothing to those in the meeting after he finished the
call.  I-P.A.148.  Neither Stuart Scott nor Mike White remembered the call about
Hussein.  II-P.A.452 (Scott Dep. 26); II-P.A.488 (White Dep. 12-13).
     TSA has an Employee Handbook which sets forth the company's policies
regarding the fair treatment of employees.  The Handbook does not distinguish
between probationary and non-probationary employees and Reed testified that the
handbook is applicable to every employee of TSA.  II-P.A.397, 430.  The
handbook states that TSA "commit[s] to our employees that we will discuss any
problem, answer any questions, and address any issue that you will bring to our
attention."  I-P.A.50.   The handbook's "Open Door Policy" provides:  
     The management of the Company has been committed to a policy of
     open and direct communications between employees and managers
     and supervisors.  We endeavor to keep employees informed on
     current Company business and enable them to discuss issues of
     concern with their supervisors.  The Company will always give
     utmost consideration to the well being of its employees.  We intend
     that every employee shall be treated justly and considerately at all
     times.  
I-P.A.51.  After examining the "open door policy" during his deposition, Reed
testified that it affords employees accused of misconduct notice of the charges
against them and an opportunity to respond to the allegations.  II-P.A.430 (Reed
Dep. 141).  
     The handbook also sets out a system of progressive discipline as follows: 
     It is the policy of Trans States Airlines, Inc., to treat all employees as
     fairly as possible, given the exact circumstances of each individual
     situation.  A system of progressive discipline will be utilized with
     employees who fail to observe/follow company procedures, rules, or
     meet work performance requirements.  Except for serious violations,
     an employee is to be first given a supervisor's verbal warning for an
     infraction.  Subsequent steps will include a supervisor's written
     warning, time off without pay, and discharge.  Certain serious
     infractions may necessitate a consolidation of one or more of the
     progressive steps.  The basic Rules of Conduct . . . summarize those
     rules that may warrant immediate grounds for dismissal.
I-P.A.56.  Notwithstanding his testimony that the Handbook applied to all
employees, Reed stated that a probationary employee would not be protected by
the open-door policy or the progressive discipline policy in the Handbook.  II-
P.A.435 (Reed Dep. 159).
     TSA pilot and union leader Dario Miranda stated that being in a bar in
uniform is subject to TSA's progressive discipline policy and is not grounds for
discharge for a first offense.  II-P.A.347-48 (Miranda Decl.  19).  Chief pilot
James White testified that a 30-day suspension would be an appropriate
punishment for a first offense for a nonprobationary pilot.  II-P.A.498 (White Dep.
51-52).  There is no evidence that any pilot, either probationary or not, other than
Hussein, has been fired by TSA for violating this rule.  See, e.g., II-P.A.410 (Reed
Dep. 60-61); II-P.A.498 (White Dep. 51); II-P.A.348 (Miranda Decl.  20).
     TSA also has a collective bargaining agreement ("CBA") with the Air Line
Pilots Association ("ALPA"), the pilots' union.  The CBA sets out a grievance
process applicable to disciplinary actions including discharge; the process includes
notification to the pilot of any charges, an opportunity to defend himself, and the
right to appeal disciplinary action.  I-P.A.35-36 (CBA at 52-53,  B). 
Probationary pilots are expressly denied access to the grievance process.  I-P.A.36
(CBA at 53,  B(5)).  According to Reed, under the CBA, "TSA is not required to
have just cause' to terminate a probationary pilot and is not required to conduct
an investigation, provide notice of discipline, the reasons therefore or provide a
probation [sic] pilot accused of a rules violation an opportunity to present
information on his/her behalf."  II-P.A.440 (Reed Decl.  11).  Reed also asserted
that it is TSA's "consistent practice" not to take these steps.  II-P.A.440 (Reed
Decl.  11-13).
     Miranda, the head of the pilots' union, testified that provisions in the
Employee Handbook apply to pilots unless they conflict with the CBA.  II-
P.A.345 (Miranda Decl.  8, 10).  According to Miranda, nothing in the CBA
conflicts with the Employee Handbook's policies of fair treatment and open
communication with employees.  II-P.A.346 (Miranda Decl.  13-15). 
     TSA did not ascertain whether Conrecode's allegations were true.  No one
who was at the meeting testified that he checked to see if Hussein was in St. Louis
on September 13th.  See, e.g., II-P.A.488 (White Dep. 12).  Reed stated he did not
investigate the allegations because "I had what I considered a credible report and
he's a probationary pilot, I do not go any further."  II-P.A.405.  Reed also stated
"[For] [t]he probationary pilot I did no investigation."  II-P.A.409.  According to
Swoboda, if a probationary employee was accused of violating a rule of conduct,
TSA would not care if the probationary person actually violated the rule.  II-
P.A.474.  Swoboda agreed with the statement that it would make no difference if a
probationary employee was falsely accused.  II-P.A.474.  However, when
Swoboda was asked during his deposition what he would do to investigate to
determine whether or not a rule of conduct violation has occurred, he replied, "If a
rule of conduct was broken by a probationary employee . . . . I would have to
know something about the accuser."  II-P.A.482.  Swoboda testified that he would
want to know whether the accuser is a pilot and his motivation for making the
accusation.  II-P.A.482; see also II-P.A.482 ("I've got to know why somebody is
accusing somebody").
     Aman testified that he assumed an investigation had been done because the
company did not take lightly decisions to terminate pilots.  I-P.A.153.  Aman
agreed that, if Hussein was not in uniform or in a bar, his discharge was not
justifiable.  I-P.A.153.  He testified, "I would say yes, they should investigate that,
but it was from every indication that I had, that it had been."  I-P.A.153.  Aman
stated, "I would trust that they would" fully investigate allegations before
terminating an employee.  I-P.A.153.  When asked what he would do if someone
called and identified a pilot as being in a bar in uniform, Aman agreed that he
would want to know the identity of the caller, the name of the bar where the pilot
was seen, when the pilot had been seen, and agreed that he would make a record of
the phone call.  I-P.A.153-54.  He also stated, "If Mr. Hussein had witnesses or
whatever, that would have peaked [sic] my curiosity, but he made no claim."  I-
P.A.155.  Aman explained, "I didn't do the investigation . . . I don't know what-
all, who-all was interviewed; I don't know where the interviews took place.  I
don't know if they had a picture of the man in uniform . . . ."  I-P.A.155.  Aman
stated that he "would have trusted [TSA] to conduct the investigation as they saw
appropriate."  I-P.A.155.  He stated it would not have surprised him if TSA asked
Hussein if he had any witnesses and agreed it was something they should have
done.  I-P.A.155.  In answering the question of whether it would make a difference
how he conducted the investigation if the pilot was probationary or non-
probationary, he answered that "for probationary pilots, they serve at the
discretion of the company, they're not entitled to an investigation."  I-P.A.155. 
     James White, TSA's chief pilot who supervised the flight managers,
testified that "[a] person is innocent until proven guilty.  So you gather your facts,
conduct your investigation."  II-P.A.494.  When asked if this was true for
probationary pilots, White stated that, because probationary pilots are not afforded
rights under the collective bargaining agreement, the company would not need to
verify if a probationary pilot was actually guilty of a rule violation and White
would not care if he was guilty or not.  II-P.A.494.  White said he would want to
know the identity of the person reporting the incident "in most cases."  II-P.A.495. 
He said if he got a call from the Federal Aviation Administration or from a current
employee, "that's good enough for me."  II-P.A.494-95.  And he stated it would be
important to assess the credibility of the allegation "for me."  II-P.A.495.
     Reed testified that he has fired other pilots based on an anonymous phone
call.  He stated that in 1999, he received an anonymous call that a group of 6-8
pilots was in a bar drinking in South Bend, Indiana, during a training exercise.  II-
P.A.407.  Because they violated TSA's policy prohibiting pilots from drinking
alcohol within twelve hours of reporting for duty, "I terminated all the
probationary pilots on the spot and the ones that weren't terminated on the spot
were not probationary and they went through the bargaining agreement grievance
process but they were all terminated."  II-P.A.407.  Reed asserted that he did not
investigate the accuracy of the allegation for the probationary pilots.  Id.  He stated
that the report "matched a number of [a] group I had up there in training; the pilots
I knew were there."  Id.  To verify the accuracy of the report for the non-
probationary pilots, Reed testified that he had someone obtain "statements from
the bartender and stuff like that that they were in there drinking."  II-P.A.407-08. 
Reed acknowledged that the bartender's statements addressed both whether
probationary pilots were present at the bar as well as non-probationary pilots.  II-
P.A.407-08 (Reed Dep. 49-50). 
     A pilot who was present at the incident, Lionel Purnwasy, recounted that the
class of pilots sent to South Bend numbered 12-16.  II-P.A.369.  The night of the
training session, "a couple of guys there had a couple had beers to drink, one or
more of them got drunk, and a few people were fired over the incident."  II-
P.A.369.  Purnwasy testified that "[a] good portion of the class, if not all of us"
was at a bar prior to the training waiting to begin the exercise.  II-P.A.372, 375,
378.  He testified that three of the group were fired, two of them probationary
pilots.  II-P.A.373.  All three drank alcohol prior to the training exercise, and one
was intoxicated during the exercise.  II-P.A.373, 382-83.  According to Purnwasy,
none of the others in the training group had had any alcohol.  II-P.A.387. 
Purnwasy testified that the three pilots were fired "[w]ithin a week" of TSA
finding out about the incident.  II-P.A. 383-84.
     On September 18, Swoboda handed Hussein his termination letter when he
saw Hussein at TSA's offices that morning.  II-P.A.467 (Swoboda Dep. 31).  The
letter stated:  "As you are aware, probationary pilots serve at the discretion of the
company.  After careful review, your employment with Trans States Airlines is
terminated effective immediately."  I-P.A.98.  Hussein recalled that he asked if the
termination letter was a joke and asked several times for the reason.  II-P.A.256. 
Neither Swoboda nor Aman gave Hussein a reason for his termination; they told
him he was not entitled to a reason.  I-P.A.150 (Aman Dep. 71); II-P.A.257
(Hussein Dep. 128).  Aman did not answer Hussein when Hussein asked if his
termination was connected to the FBI interview.  II-P.A.257 (Hussein Dep. 128). 
Hussein filed a charge with the EEOC on December 10, 2001, alleging that he was
fired because of his race, national origin, and religion.  I-P.A.99.  
     Reed testified that the FBI contacted him about Hussein after he had
terminated him.  II-P.A.413.  According to Reed, the FBI agent asked if Hussein
was employed by TSA, Reed said he no longer was, and the conversation lasted 1-
2 minutes.  Id.  Reed stated this call did not affect his decision to terminate
Hussein because he had already terminated him.  II-P.A.414.  However, James
Gall, an EEOC investigator, stated in his August 1, 2002 report that Reed told him
that Reed instructed his flight managers to investigate Conrecode's allegation, but
before the investigation had been completed, a representative from the FBI called
to say the FBI wanted to talk to Hussein.  I-P.A.112 (Gall Respondent Witness
Interview Summary at 1); I-P.A.212 (Gall Dep. 55-56); I-P.A.225 (Gall Decl.
 15).  Reed therefore terminated Hussein because he was already suspected of
being in a drinking establishment in uniform.  Id.   
     In deposition testimony and in statements offered in support of TSA's
motion for summary judgment, however, Reed maintained that he ordered
Hussein's termination within an hour of Conrecode's call and without engaging in
any investigation because Hussein was a probationary employee and, Reed
maintained, he never investigated allegations of misconduct by probationary
pilots.  II-P.A.405, 409 (Reed Dep. 39, 57); II-P.A.503-04, 505-06 (TSA's
Memorandum in Support of Summary Judgment).  Furthermore, contrary to
Reed's statement to the EEOC investigator that the decision to fire Hussein was
influenced by the fact that Hussein had been interviewed by the FBI, Reed
testified at his deposition that he decided to fire Hussein before he had been
contacted by the FBI and the only reason was the anonymous report that Hussein
was seen in a bar in uniform.  II-P.A.411, 414 (Reed Dep. 64, 74-75).
     On January 28, 2003, the EEOC found cause to believe discrimination had
occurred.  I-P.A.114.  The EEOC provided TSA with its determination letter and
invited TSA and Hussein to engage in conciliation.  The EEOC and TSA
exchanged correspondence, including a proposed conciliation agreement drafted
by the EEOC, dated May 16, 2003.  I-P.A.119.  TSA representative David Hayes
submitted a counter-proposal on June 13, 2003, which lacked a calculation for
back pay.  I-P.A.129.  Among other things, Hayes stated that TSA's counteroffer
"would be our highest possible offer" but said, "if we are moving closer toward
settlement I will be glad to have that number calculated and then make you an
additional offer."  Id.  On June 16, 2003, Gall sent a letter asking Hayes to
calculate back pay and respond by June 20, 2003, or it would consider conciliation
a failure.  I-P.A.130.  When Gall informed Hussein of TSA's offer on June 17,
2003, Hussein rejected it.  I-P.A.224 (Gall Decl.  12).  The difference between
TSA's offer and Hussein's monetary demand for compensatory damages, punitive
damages, and back pay was over $150,000, and there was lack of agreement about
the terms of Hussein's proposed reinstatement.  I-P.A.223-34 (Gall Decl.  12). 
Because of the large gap between the parties' offers and demands, as well as
TSA's statement that its last offer "would be our highest possible offer," the
EEOC concluded that conciliation had failed.  I-P.A.224 (Gall Decl.  13).  On
June 18, 2003, the EEOC notified the parties that conciliation had failed.  I-
P.A.131; I-P.A.224 (Gall Decl.  13).  Neither party requested conciliation be re-
opened and neither party made a new offer or demand.  I-P.A.224-25 (Gall Decl. 
14).  
     EEOC filed suit on July 17, 2003.  R.1.  On July 12, 2004, the EEOC,
Hussein, and TSA engaged in mediation in an attempt to settle the case, but the
mediation was unsuccessful.  II-P.A.312 (Hussein Decl.  16).
     The District Court Decision
     The district court granted the defendant's motion for summary judgment but
denied its request for attorney's fees.  The court assumed that the plaintiffs
established a prima facie case of discrimination based on race, religion, and
national origin.  Addendum 24.  However, the Court concluded that "the EEOC
and Hussein have failed to present sufficient evidence to raise a question of
material fact as to whether TSA's explanation that Hussein was fired because
Reed received a report that he, a probationary pilot, was in a bar in uniform was
pretextual and to create a reasonable inference of discrimination based on his race,
religion, or national origin."  Id. at 29.  According to the Court, the only evidence
the EEOC and Hussein presented was "Hussein's name, race, religion, and
national origin and the date he was firedtwo days after the terrorist attacks on
September 11."  Id. at 28.  The court added, "[t]hey have introduced no statements
or actions by persons involved in TSA's decision-making process reflective of a
discriminatory attitude."  Id.
     The court stated that "neither the EEOC nor Hussein have introduced any
evidence that Reed was not told during a telephone call that Hussein had been in a
uniform in a bar on September 13."  Id. at 25.  The court pointed out that
Hussein's denial that he had been either in uniform or in a bar that evening "is not
evidence that TSA fabricated the telephone call."  Id.
     The court rejected the plaintiffs' contention that TSA's failure to follow its
progressive discipline policy constitutes evidence of pretext.  Although the court
acknowledged that a company's failure to follow its policies may support an
inference of pretext, the court concluded that there is no dispute that TSA
followed its established policies in this case.  Id. at 25.  The court determined that,
because  B(5) of the CBA "specifically negates any progressive discipline
procedure for probationary pilots," "insofar as this provision conflicts with the
employee handbook's progressive discipline policy, the CBA clearly controls." 
Id. at 26.  The court concluded, "The evidence before the Court is that Hussein
was fired following a report to Reed that he had been in a bar in uniform and that
the progressive discipline policy did not apply to him because he was a
probationary pilot."  Id.  The court stated that the defendant "did follow its own
rules in firing Hussein without an investigation or notification of the reasons for
his discharge."  Id. at 28.
     In addition, the court determined that Hussein was treated the same as
similarly situated probationary pilots who had been fired in 1999 for drinking
alcohol 12 hours prior to reporting to work in violation of TSA's General
Operations Manual.  The court stated, "Those that were probationary pilots were
discharged on the spot' without verification of the accuracy of the anonymous
report.  The non-probationary pilots were discharged after a substantiating
statement was taken from the bartender."  Id. at 26.
     The district court rejected the contention that the timing of Hussein's
discharge so close to the 9/11 attacks could support an inference of discriminatory
animus.  In the court's view,  Reed decided to discharge Hussein "based on an
anonymous report and without an investigation that went further than learning that
Hussein was in St. Louis and was a probationary pilot."  Id. at 27.  The court
stated that, "assuming, without deciding, that Captain Conrecode also informed
Reed, as he had informed the FBI, that Hussein appeared to be of Middle Eastern
descent and spoke in favor of the terrorist attacks, there is no evidence that this
influenced Reed in his decision to terminate Hussein for a violation of TSA rules." 
Id.  The court pointed out that the only statement "credited to Reed" once he got
the call about Hussein was the comment, "[i]t doesn't matter, he was in a bar in
uniform."  Id.  
     The court emphasized that "Hussein testified that at no time during his
employment with TSA did anyone in management or otherwise make any negative
comment about his race, religion, or national origin.  Indeed, there is no evidence
that anyone in TSA's management or employ spoke against, or took any action,
after the September 11 attacks in relation to people of Middle Eastern descent." 
Id. at 27.  The court stated that there is evidence that Reed "was unaware of
Hussein's race, religion, or national origin" and that "[t]here is no evidence that
Reed presumed Hussein was of the Islamic faith because of his name."  Id. at 27-
28.  "To conclude that the EEOC and Hussein have presented a triable issue as to
pretext in response to the properly-supported pending motion, the Court would
have to find that the timing of his discharge gives rise to an inference that
someone of Hussein's name and appearance was discriminated against in reaction
to the tragic events of September 11.  This the Court cannot do under the standards
set forth above."  Id. at 28. 
     In a footnote, the court recognized that there is a dispute in the record about
what being "in uniform" means and whether Hussein was "in uniform" the night
of September 13.  In the court's view, because "there is no dispute that Reed was
told [Hussein] was in uniform," reliance on an honest yet incorrect belief is not
evidence of pretext, and "any ambiguity about what being in uniform' requires
does not, in and of itself, support an inference of discrimination."  Id. at 27 n.16
(case citations omitted).
     The court rejected the defendant's request for attorney's fees.  The court
stated, "[a]lthough the claims of discrimination are found to be without merit, they
are not frivolous or groundless," making an award of fees "inappropriate."  Id. at
30.  The court also rejected the defendant's argument that it was entitled to fees
because the EEOC failed in its duty to conciliate.  The court stated, "The record
clearly shows that both the EEOC and TSA attempted to resolve this dispute
through conciliation rather than litigation."  Id. at 31.  The court noted that
Captain Hayes who was conducting negotiations for TSA stated "that he was
reluctant to take the time to provide further calculations because the parties were
so far apart in their respective positions."  Id.  Nonetheless, EEOC investigator
Gall requested that TSA perform the calculations.  According to the court, the
EEOC filed suit prior to the time period specified by Gall for TSA to respond to
his request because he concluded that "Hussein and TSA were so far apart in their
respective positions."  Id.   The court noted, "Thus, the parties agree on thisthat
they were far apart."  Id.  Furthermore, the court stated, "There is no indication
that the EEOC could have convinced Hussein to come down in his settlement
demand, or that TSA would have come up."  Id.
                        STANDARD OF REVIEW
     A district court's grant of summary judgment is reviewed de novo applying
the same standard as the district court.  Keathley v. Ameritech Corp., 187 F.3d
915, 919 (8th Cir. 1999).  In determining whether summary judgment was
appropriate, this Court assesses the facts in the light most favorable to the non-
moving party, drawing all reasonable inferences in its favor.  Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986); Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).  Summary judgment is appropriate only if
no reasonable fact finder could return a verdict for the Commission.  Keathley,
187 F.3d at 919 ("Summary judgment should not be granted unless the evidence
could not support any reasonable inference' of discrimination.") (quotation
omitted).  This Court has emphasized that, "[b]ecause discrimination cases often
turn on inferences rather than on direct evidence, we are particularly deferential to
the non-moving party alleging discrimination."  Webb v. Garelick Mfg. Co., 94
F.3d 484, 486 (8th Cir. 1996) (citation omitted).  Therefore, "summary judgment
should seldom be used in employment discrimination cases."  Crawford v.
Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994); Bassett v. City of Minneapolis, 211
F.3d 1097, 1099 (8th Cir. 2000) ("emphasiz[ing] the oft repeated phrase that
summary judgment should seldom be granted in discrimination cases").
                       SUMMARY OF ARGUMENT
     Contrary to the district court's view, there is sufficient evidence to support a
finding that TSA's assertion that Mohammed Hussein was terminated because of
an anonymous report that he was in a bar in uniform is not the true explanation for
its action.  A reasonable jury could infer from this finding that Hussein was
terminated for discriminatory reasons.  Daniel Reed asserted that he decided to
terminate Hussein based on an anonymous tip that Hussein was in a bar in uniform
without knowing the identity or motivation of the caller or whether the allegations
were true.  Reed insisted that he did no investigation because it is TSA's policy
and consistent practice not to investigate reports of misconduct for probationary
pilots such as Hussein.  However, given the inconsistent statements made by Reed
and his managers regarding the company's policies and practices, a reasonable
jury could disbelieve TSA's stated reason for his termination and infer a
discriminatory motive was behind it.
     First, because Reed gave inconsistent reasons for and about Hussein's
termination, a jury could infer that the explanation TSA offered in court was not
its true reason.  Reed initially told the EEOC that he had instructed his flight
managers to investigate the report that Hussein was in a bar in uniform but called
off the investigation and fired Hussein when he received a call from the FBI
informing him that the FBI wanted to interview Hussein.  In later statements,
however, Reed acknowledged that the FBI did not contact him until after he had
fired Hussein, and Reed asserted that he ordered Hussein's termination in response
to Conrecode's call without initiating an investigation into the identity of the
anonymous tipster or the veracity of his allegation.
     Second, a jury could find that Reed's current version of events that,
because Hussein was a probationary pilot, TSA fired him on the basis of an
anonymous phone call without even a cursory investigation to verify the
allegationis inherently incredible, as well as inconsistent with statements of
TSA officials regarding the company's policies.  The policy Hussein was accused
of violating is ambiguous, as evidenced by TSA managers' conflicting testimony
about what it means to be "in uniform."  Yet Reed maintains that he decided to fire
Hussein based on the anonymous call stating that he was in a bar "in uniform"
without knowing what Hussein was wearing on the night in question or any
information at all as to the familiarity of the caller with TSA's rules regarding
uniforms.  Moreover, although Reed testified that he checked on Hussein's
whereabouts on the night in question, there is contrary evidence in the record
including the testimony of TSA's flight manager that, when he told Reed shortly
after Conrecode's call that Hussein was based in St. Louis and probably
probationary, Reed immediately "instructed [him] to terminate Mr. Hussein's
employment" without any further inquiry into his whereabouts on September 13. 
A reasonable jury could find it improbable that TSA would invest months of pilot
training in Hussein only to terminate him based on a brief, uncorroborated,
anonymous call reporting an act of misconduct that would not typically warrant
such a drastic penalty, and accordingly, infer from Reed's overreaction to the call
that discriminatory animus motivated him.
     Additionally, there is evidence that Reed's failure to investigate the
allegation against Hussein or give him an opportunity to respond before he was
fired is inconsistent with the TSA Employee Handbook's written policies
providing for progressive discipline and fair treatment to employees.  Although
the district court accepted TSA's assertion that these policies did not apply to
Hussein because he was probationary, there is evidence in the record, including
Reed's testimony, that the Handbook applied to all employees, including
probationary employees.  Consequently, a reasonable jury could find, based on
TSA's departure from these policies when it fired Hussein without considering
less severe sanctions, without informing him of the reason for his termination, and
without giving him an opportunity to defend himself, that the company's
explanation constituted a pretext for discrimination.  
     There is also evidence that Reed's hasty termination of Hussein is
inconsistent with TSA's usual practices in addressing a report of employee
misconduct.  Reed's insistence that he never conducts an investigation into reports
of misconduct by probationary pilots is inconsistent with his statement to an
EEOC investigator that he had initiated an investigation into the allegation against
Hussein, but called it off after he was contacted by the FBI.  The record is also
replete with inconsistencies in TSA managers' testimony regarding the company's
practices upon receiving a complaint that a probationary pilot violated one of its
rules.  While two of the managers said it would not matter if the probationary pilot
was guilty of the alleged misconduct or not, all of them testified that they would at
least want to know the identity of the caller reporting an act of misconduct.  One
manager testified he assumed an investigation had been done and agreed that if
Hussein had not in fact been in a bar in uniform, his termination was unwarranted.
     The district court found the plaintiffs' case wanting because there was no
evidence of statements or actions by persons involved in the defendant's decision-
making process reflecting open hostility toward Muslims or persons of Middle
Eastern descent.  However, it is well-established that direct evidence is not
required to prevail in a discrimination action.  The district court also erred by
uncritically accepting Reed's assertion that he did not infer from Hussein's name
that he was a Muslim or might be of Middle Eastern descent.  A reasonable jury
could find that Reed knew or assumed that Hussein was Muslim and/or Middle
Eastern based on the fact that Reed knew that Hussein had a Middle Eastern
name the same name (Mohammed) as the founder of the Muslim faith.  Because
a reasonable jury could infer from the collective evidence that, if Hussein were not
Muslim and perceived to be Middle Eastern, the defendant would not have
terminated him based on an anonymous phone call without taking reasonable steps
to verify the truth of the accusation against him, summary judgment was
improperly granted. 
                             ARGUMENT
     THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT
     THE DEFENDANT'S ASSERTION THAT IT FIRED HUSSEIN
     BECAUSE IT RECEIVED AN ANONYMOUS REPORT THAT HE WAS
     IN A BAR IN UNIFORM IS A PRETEXT FOR DISCRIMINATION.
     The plaintiffs allege in this action that TSA violated Title VII by firing
Mohammed Hussein because of his religion, race, or national origin, or a
combination of those factors.  The district court granted TSA's motion for
summary judgment because it concluded that there is insufficient evidence that
TSA's asserted, non-discriminatory explanation for its decision to fire Hussein is
pretextual.  This was error.  When the evidence is properly viewed in the light
most favorable to the plaintiffs and reasonable inferences are drawn in the
plaintiffs' favor, a reasonable jury could find that TSA's explanation is a pretext
for unlawful discrimination.
     Pretext can be shown by "such weaknesses, implausibilities,
inconsistencies, incoherence, or contradictions in the employer's proffered
legitimate reasons for its action that a reasonable factfinder could rationally find
them unworthy of credence and hence infer that the employer did not act for the
asserted non-discriminatory reasons.'"  Morgan v. Hilti, Inc., 108 F.3d 1319, 1323
(10th Cir. 1997) (quoting Olson v. Gen'l Elec. Astrospace, 101 F.3d 947, 951-52
(3d Cir. 1994)).  TSA is not entitled to summary judgment because there is
sufficient evidence to support a finding that TSA's assertion that Hussein was
terminated because of an anonymous report that he was in a bar in uniform is not
the true explanation for its action, and a reasonable jury could infer from this
finding that TSA terminated Hussein's employment for discriminatory reasons.
     Daniel Reed testified that he received the call about Hussein on his cell
phone while he was in a morning staff meeting with several of his flight managers. 
Reed stated that the caller, who did not identify himself, reported that a pilot in a
TSA uniform "was in a lower bar at the Howard Johnson's" and "was making
comments about 9/11," and that "the bartender had asked him to leave."  II-
P.A.401.  According to Reed, the caller told Reed Hussein's name, which the
caller said he had obtained "because he had read his ID."  II-P.A.401.<5>  The caller
did not tell Reed what Hussein was wearing; but stated only that he was in a
pilot's uniform.  II-P.A.410-11.  
     Reed made no record or notes of the call, had no idea who the caller was,
nor the caller's motivation for reporting Hussein.  II-P.A.399, 400, 407.  Reed
testified that he did not obtain the identity of the anonymous caller because "[t]he
individual said that I would be getting a follow-up phone call explaining
everything to me."  II-P.A.400, 401.  Yet, within an hour of receiving the
anonymous call and after he learned that Hussein was based in St. Louis and a
probationary pilot, Reed decided to fire Hussein without knowing who had made
the call.  Reed maintained that, because Hussein was probationary and he had what
he considered a credible report, he did not look into the matter further before
terminating Hussein.  II-P.A.405.  He stated that the company need not have just
cause to terminate a probationary pilot, and if a probationary pilot is accused of
misconduct, it is both TSA's policy and "consistent practice" to dispense with
investigating the report, informing the pilot of the reason for his termination, or
affording him an opportunity to give his side of the story. 
     A jury could discredit this version of events for several reasons.  First, a jury
could infer that the explanation TSA offered in court for terminating Hussein was
not its true reason from the evidence that the defendant's explanation shifted over
time.  See Young v. Warner-Jenkinson Co., 152 F.3d 1018, 1024 (8th Cir. 1998)
("When an employer has offered different explanations for an adverse employment
action and when evidence has been presented that would allow a reasonable trier
of fact to disbelieve each explanation, the trier of fact may reasonably infer that
the employer is hiding somethingthat is, that the true explanation is unlawful
discrimination").
     In August 2002, Reed told the EEOC during its investigation that he had
instructed his flight managers to investigate the report that Hussein was in a bar in
uniform but called off the investigation and fired Hussein when he received a call
from the FBI informing him that the FBI wanted to interview Hussein about a
matter it would not divulge.  I-P.A.112.  In Reed's deposition testimony and
declaration offered in support of TSA's motion for summary judgment, however,
Reed insisted that he ordered Hussein's termination within an hour of Conrecode's
call and without engaging in any investigation because Hussein was a
probationary employee and, Reed maintained, he never investigated allegations of
misconduct by probationary pilots.  II-P.A.405, 409; see also II-P.A.503-04.
     Contrary to his statement to the EEOC investigator that the decision to fire
Hussein was influenced by the fact that Hussein had been interviewed by the FBI,
Reed testified at his deposition that he decided to fire Hussein before he had been
contacted by the FBI and the only reason was the anonymous report that Hussein
was seen in a bar in uniform.  Such shifting justifications constitute evidence of
pretext.  See EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994)
(discrepancies in justifications for termination permitted inference that
explanations were pretextual and developed over time to counter evidence
suggesting discrimination).  
     And Reed's statements that TSA's consistent practice is to conduct no
investigation of reports of misconduct by probationary pilots is flatly inconsistent
with Reed's earlier statement to Gall that he called off the investigation he had
asked his flight managers to perform.  Because these two statements cannot be
reconciled, a jury could find that Reed, when approached by the EEOC
investigator, fabricated a story about ordering an investigation because he thought
the investigator would find it implausible that Reed fired Hussein without
verifying the accuracy of the anonymous phone call.  A reasonable jury could
further conclude that TSA's present explanation for why it did not investigate the
veracity of the callHussein was probationaryis also false, and offered to mask
the true reason it did no investigationbias stemming from Hussein's religion and
perceived national origin.  A factfinder's disbelief of an employer's proffered
reason for an employment action, particularly where "disbelief is accompanied by
a suspicion of mendacity," allows an inference that the employer acted for a
discriminatory motive.  See Reeves v. Sanderson Plumbing, 530 U.S. 133, 147
(2000) (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 501, 511 (1993)); see
also Dominguez v. Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 432 (1st Cir. 2000)
("[W]hen a company, at different times, gives different and arguably inconsistent
explanations, a jury may infer that the articulated reasons are pretextual").
     In addition, a jury could reject TSA's assertion that, because Hussein was a
probationary pilot, it fired him on the basis of an anonymous phone call without
even a cursory investigation to verify the allegations because it is both inherently
implausible and inconsistent with statements of TSA officials regarding the
company's policies.  The policy Hussein was allegedly terminated for violating is
ambiguous, as evidenced by the fact that even TSA's managers did not give
consistent testimony regarding what being "in uniform" means.  Compare II-
P.A.464 (Swoboda Dep. 19) and II-P.A.493 (White Dep. 30-31) (pilot dressed in
pilot's dark pants and white shirt without the epaulet shoulder boards attached
would not be in uniform) with I-P.A.142 (Aman Dep. 38) and II-P.A.453 (Scott
Dep. 30) (wearing the white shirt with or without the epaulets would be
considered being in uniform).  Nonetheless, Reed testified that he decided to fire
Hussein based on an anonymous phone call stating that he was in a bar "in
uniform" without any specific information as to what Hussein was wearing or any
information at all as to the familiarity of the tipster with TSA's rules regarding
uniforms.  II-P.A.411.
     Furthermore, Reed testified that he trusted the information relayed by the
call because he verified that Hussein was in St. Louis the night of September 13
and that if Hussein had not been in St. Louis he "was going to dismiss the call." 
II-P.A.404.  However, a jury could discredit Reed's testimony that he checked to
see if Hussein was in St. Louis.  According to Swoboda, when he told Reed
shortly after Conrecode's call that Hussein was based in St. Louis and probably
probationary, Reed instructed him to terminate Hussein without any further
inquiry into his whereabouts on September 13.  II-P.A.465.  According to Aman,
Reed said nothing to those in the meeting after he finished the call.  I-P.A.148. 
None of the other TSA managers who were at the meeting testified that he checked
to see whether Hussein was in St. Louis before he was fired.  While TSA may
argue that Reed could assume Hussein was in St. Louis on the night of September
13 because Swoboda told him Hussein was based there, a jury could find
otherwiseHussein lived in California and commuted to his St. Louis base, and
because planes were grounded after September 11, Hussein could have been
stranded elsewhere. 
     Given that TSA had invested several months of pilot training in Hussein at
some expense, a jury could find it implausible that the company would be so hasty
in letting one of its pilots go and could infer from Reed's apparent overreaction to
an uncorroborated allegation against Hussein that he acted out of a discriminatory
motive.  See Kempcke v. Monsanto Co., 132 F.3d 442, 447 (8th Cir. 1998) (in
reversing the district court's grant of summary judgment to the defendant in an age
discrimination case, the court held that a reasonable factfinder could conclude that
the employer's action in firing the plaintiff for giving innocently discovered
incriminating documents to his lawyer rather than returning them such an extreme
overreaction as to be "unworthy of credence"); see also EEOC v. Sears Roebuck &
Co., 243 F.3d 846, 854 (4th Cir. 2001) (in a Title VII action in which a store
manager rejected the plaintiff for a position allegedly because she thought,
mistakenly, that he had been accused of sexual harassment in the past and made no
effort to confirm that the plaintiff was indeed the suspected individual, the court
found sufficient evidence to support a finding that the defendant's asserted
justification for failing to hire the plaintiff was false, stating, "A juror could easily
find it implausible that [the decision-maker] would reject a qualified applicant,
such as Santana, without first substantiating that he was, in fact, the individual
accused of sexual harassment."); Smith v. Chrysler Corp., 155 F.3d 799, 807-08
(6th Cir. 1998) ("When the employee is able to produce sufficient evidence to
establish that the employer failed to make a reasonably informed and considered
decision before taking its adverse employment action, thereby making its
decisional process unworthy of credence,' then any reliance placed by the
employer in such a process cannot be said to be honestly held").
     There is evidence that Reed's failure to investigate the allegation against
Hussein or give him an opportunity to respond before he was fired is inconsistent
with TSA's normal practices in dealing with a report of misconduct.  An
employer's failure to follow its ususal policies may support an inference of
pretext.  See, e.g., Russell v. TG Missouri Corp., 340 F.3d 735, 746 (8th Cir.
2003) ("[A]n employer's deviation from its own policies can, in some instances,
provide evidence of prextext").  Reed testified that TSA's Employee Handbook
applies to all employees, including probationary employees, and affords an
employee accused of misconduct notice of the charges against him and an
opportunity to respond.  II-P.A.430.  The handbook also sets out a system of
progressive discipline.  I-P.A.56.  TSA's failure to investigate the veracity of an
anonymous report of Hussein's misconduct and immediate termination of Hussein
without considering less severe sanctions constituted a significant departure from
these policies.  TSA pilot and union leader Dario Miranda testified that being in a
bar in uniform was not a dischargeable offense and would be subject to the
progressive discipline policy.  II-P.A.347-48.  Chief pilot James White stated that
a month-long suspension would be an appropriate punishment for a first offense
for a nonprobationary pilot.  II-P.A.498.  And there is no evidence that any pilot
other than Hussein has been fired by TSA for violating this rule.
     The district court concluded that Reed's explanation of his decision to fire
Hussein was corroborated by Reed's testimony about a 1999 incident in South
Bend, Indiana, in which Reed received an anonymous phone call that some TSA
pilots were drinking within 12 hours of a training exercise and fired the
probationary pilots "on the spot."  Addendum at 26.  Reed testified that based on
the call, he fired the entire group of 6-8 pilots at the exercise, and the probationary
pilots were fired immediately.  Reed testified that for the nonprobationary pilots
involved, he obtained a statement from the bartender to verify who was drinking. 
II-P.A.407-08.  
     However, Lionel Purnwasy, a TSA pilot who was one of the group in South
Bend for the training, gave a different version of events.  According to Purnwasy,
there were 12-16 pilots at the exercise and all of them were in the bar.  II-P.A.369,
372, 378.  However, only three were drinkingtwo probationary pilots and one
nonprobationary pilotand only those three were fired.  II-P.A.369, 373. 
Purnwasy recalled that the three pilots were fired "within a week" of TSA learning
they had been drinking prior to the training exercise.  II-P.A.384.  Because,
according to Purnwasy, not all the pilots at the training were fired, as Reed had
asserted, and the three rule-offenders were fired "within a week" rather than
immediately, a jury could infer that at least some investigation had been done to
identify which of the group had been drinking and which had not.  Reed
acknowledged that the bartender's statement addressed both whether probationary
pilots were present at the bar as well as non-probationary pilots.  II-P.A.407-08. 
Because Reed did not fire everyone and had no way of knowing who had violated
the rule, a reasonable jury could find that the bartender's statement identifying
which of the group was drinking was obtained before the probationary pilots were
fired.  If this were the case, a jury could conclude that TSA's failure to verify the
accuracy of Conrecode's call and its decision to terminate Hussein an hour after
receiving the call demonstrates that Hussein was not given the same treatment as
the probationary pilots in South Bend.  Accordingly, a reasonable jury could find
that discriminatory animus motivated Hussein's termination.
     Even if the evidence did establish that the probationary pilots accused of
drinking in South Bend were terminated without an investigation into the veracity
of the report, however, this would not compel a finding that Reed's explanation
for Hussein's termination is true.  Because Reed had sent the group of pilots to
South Bend for training, he knew they were there when he received the call
reporting that TSA pilots were drinking within 12 hours of the training exercise. 
II-P.A.407.  Furthermore, the pilots in South Bend were accused of a more serious
violationthree pilots had been drinking prior to participating in the training
exercise, and at least one was intoxicated.   II-P.A.373, 382-83.  Moreover, the
policy they were accused of violatingdrinking alcohol within 12 hours of
reporting for dutyis more straightforward than the policy prohibiting pilots from
being in a drinking establishment in uniform.  Consequently, a jury could reject
TSA's assertion that other probationary pilots were treated in the same manner as
Hussein.  Cf. Cherry v. Ritenour Sch. Dist., 361 F.3d 474, 479 (8th Cir. 2004) (test
to determine whether employees are "similarly situated" is a "rigorous one;"
individuals used for comparison must have engaged in the same conduct without
any mitigating or distinguishing circumstances).  Thus Reed's testimony regarding
the South Bend incident does not conclusively establish that Reed would have
fired Hussein without an investigation into Conrecode's call simply because he
was probationary.
     In addition, TSA's failure to give Hussein a reason for his termination or
give him a chance to defend himself is inconsistent with the handbook's open door
policy and general policies regarding the fair treatment of employees and
encouragement of open communication between management and employees, as
well as inconsistent with how the company typically acted, at least according to
flight manager Aman.  Aman agreed that TSA should have asked Hussein if he
had witnesses to his behavior the night of the 13th, that it would not have
surprised him if TSA had done so, and that he assumed Hussein had been given an
opportunity to name witnesses in his defense.  See I-P.A.155 ("If Mr. Hussein had
witnesses or whatever, that would have peaked [sic] my curiosity, but he made no
claim"). 
     The district court accepted TSA's assertion that the Employee Handbook's
policies regarding the fair treatment of employees, open door policy, and
progressive discipline policy afforded no protection or rights to Hussein because
he was a probationary pilot.  See Addendum at 26.  There is evidence casting
serious doubt upon the contention that the Handbook is inapplicable to
probationary pilots or that there is a conflict between the CBA and Employee
Handbook.  The district court erred in accepting the defendant's assertion
uncritically, without considering contrary evidence.  See Reeves, 530 U.S. at 151
("Credibility determinations, the weighing of evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge'")
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)); Yates v. Rexton,
267 F.3d 793, 800 (8th Cir. 2001) (district court is prohibited from making a
credibility judgment or a factual finding from conflicting evidence).  The
Handbook does not distinguish between probationary and non-probationary
employees nor indicate that probationary pilots are excluded from any of its
provisions.  Reed himself testified that the Handbook is applicable to every
employee of TSA.  II-P.A.397.  See Young, 152 F.3d at 1024 (court rejected
defendant's contention that employee policy manual did not apply to temporary
employees because a former human resources manager testified that the policy
manual applies to all employees).
     The district court erred in accepting TSA's assertion that the Handbook
policies conflict with the CBA's provision exempting probationary pilots from the
union's grievance process in the event of discipline and discharge.  A reasonable
jury could find that the CBA and the Handbook can be read together without
conflict based on the plain language of the documents.  The fact that Hussein did
not have access to the union's grievance process would not necessarily cancel out
the rights and benefits outlined in the Handbook.  Miranda, who was familiar with
these documents as the head of the pilot's union, testified that nothing in the GOM
or CBA conflicts with the Employee Handbook's policies of fair treatment and
open communication with employees.  II-P.A.346.  Miranda's testimony directly
conflicts with Reed's, yet the district court accepted Reed's testimony.  This was
improper.  See Reeves, 530 U.S. at 151 ("[A]lthough the court should review the
record as a whole, it must disregard all evidence favorable to the moving party that
the jury is not required to believe").  Accordingly, a jury could find that the
manner in which TSA terminated Hussein deviated from its written policies and
infer that TSA stated reason for firing Hussein is pretextual.  See, e.g., Stern v.
Trs. of Columbia Univ., 131 F.3d 305, 313 (2d Cir. 1997) (reasons for
employment decisions are subject to scrutiny under Title VII and "[d]epartures
from procedural regularity . . . can raise a question as to the good faith of the
process where the departure may reasonably affect the decision'") (quoting
Zahorik v. Cornell Univ., 72 F.2d 85, 93 (2d Cir. 1984)).  
     There is conflicting evidence as to the truthfulness of TSA's assertion that
its "consistent practice" was not to "conduct an investigation, provide a reason for
discipline or discharge, or provide the probationary pilot an opportunity to present
information on his behalf."   II-P.A.440.  TSA's assertion that it undertakes no
investigation of accusations against probationary pilots is belied by Reed's
explanation to EEOC investigator James Gall in August 2002 that he had called
off the investigation regarding Hussein once he got a call from the FBI informing
him that the FBI wanted to interview Hussein.  I-P.A.112.  Moreover, there are
inconsistencies in TSA managers' testimony regarding the company's practices
upon receiving a complaint of a pilot violating one of its policies.  For example,
although flight manager Swoboda testified that TSA would not care if the
probationary employee actually violated a rule or if he had been falsely accused,
when Swoboda was asked what he would do to investigate to determine whether
or not a rule of conduct had in fact been broken as reported, he replied, "If a rule
of conduct was broken by a probationary employee . . . . I would have to know
something about the accuser."  II-P.A.482.  He testified that he would want to
know whether the accuser was a pilot and his motivation for making the
accusation.  Id.  And while chief pilot White testified that, because probationary
pilots are not afforded rights under the collective bargaining agreement, the
company would not need to verify if Hussein was actually guilty of a rule
violation, he stated he would want to know the identity of the person reporting the
incident "in most cases."  II-P.A.495.  According to White, the identity and
position of the person reporting misconduct would be important, as would an
assessment of the caller's credibility.  Id.
     Flight manager Aman agreed that if Hussein was not in uniform or in a bar,
his discharge was unwarranted.  I-P.A.153.  Aman testified that he assumed an
investigation had been done because the company did not take lightly decisions to
terminate pilots.  I-P.A.153.  Aman stated the company "should investigate" and
that he assumed and trusted that they had investigated the report about Hussein.  
I-P.A.153.  Instead of stating that no investigation was warranted because of
Hussein's probationary status, Aman offered, "I didn't do the investigation . . . I
don't know what-all, who-all was interviewed; I don't know where the interviews
took place.  I don't know if they had a picture of the man in uniform . . . ."  
I-P.A.155.  In answer to the question of what would Aman do if someone called in
and identified a pilot as being in a bar in uniform, he agreed that he would want to
know the identity of the caller, the name of the bar where the pilot was seen, when
the pilot had been seen, and agreed that he would want to make a record of the
phone call.  I-P.A.153-54.  He also stated that he would want to know if Hussein
had witnesses and agreed that TSA should have asked Hussein if he had any
witnesses.  I-P.A.155.  A jury could conclude from this testimony that such
measures were typically taken, and that TSA had departed from its usual practice
in its handling of the call about Hussein.  
     Based on this evidence, which is not mentioned in the district court's
decision, a reasonable jury could find that, although probationary pilots lack a
contractual right to an investigation, TSA's normal practice would be to at least
make some effort to verify the truth of an anonymous report of misconduct. 
Although Reed admitted that he did not determine the identity of the caller before
ordering Hussein's termination and stated that he would never do so where a
probationary pilot was accused of misconduct, every other manager who testified
agreed that he would want to know the identity of the caller in such a case.  A jury
could view these inconsistencies as further evidence that the company's stated
reason for terminating Hussein was not the real reason.  See Reeves, 530 U.S. at
148 ("[O]nce the employer's justification has been eliminated, discrimination may
well be the most likely alternative explanation, especially since the employer is in
the best position to put forth the actual reason for its decision").  
     The district court found the plaintiffs' case lacking because the record
contains "no statements or actions by persons involved in TSA's decision-making
process reflective of a discriminatory attitude."  Addendum at 28; see also id. at 27
(noting that there is no evidence anyone at TSA took action against or spoke out
against people of Middle Eastern descent).  According to the court, the only
evidence presented was "Hussein's name, race, religion, and national origin and
the date he was firedtwo days after the terrorist attacks on September 11."  Id. 
The district court is mistaken.  This case should go to a jury because there is
sufficient evidence to support a finding that TSA's articulated nondiscriminatory
reason for firing Hussein is false, as detailed above.  See Reeves, 530 U.S. at 147
("Proof that the defendant's explanation is unworthy of credence is simply one
form of circumstantial evidence that is probative of intentional discrimination, and
it may be quite persuasive").  Were this not the case, the mere fact that an
individual with a Muslim or Arab-sounding name was fired shortly after
September 11 would not be enough to support a Title VII claim.
     The court also thought it was important that the only person who testified
that he heard Reed say anything in relation to the call reporting Hussein testified
that Reed said only "it doesn't matter, he was in a bar in uniform."  This, in the
court's view, shows that Reed did not voice any hostility towards Muslims or
Arabs.  See id.  However, it is well established that direct evidence is not
necessary to prove a discrimination claim under Title VII.  See, e.g., Desert Palace,
Inc. v. Costa, 539 U.S. 90, 100 (2003) ("We have often acknowledged the utility
of circumstantial evidence in discrimination cases"); Griffith v. City of Des
Moines, 387 F.3d 733, 744 (8th Cir. 2004) (Magnuson, J., concurring) ("The
language and legislative history of the Civil Rights Act of 1991 do not support a
distinction between direct and indirect evidence").  A Title VII plaintiff may
establish that the defendant acted for a discriminatory motive by means of either
direct or circumstantial evidence, Cherry, 361 F.3d at 478, and circumstantial
evidence should not be seen as inferior.  See U.S. Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 716 (1983) (recognizing that direct evidence is not required
because "[t]here will seldom be eyewitness' testimony as to the employer's
mental processes," thus the "sensitive and difficult" issue of intentional
discrimination will frequently be proven by circumstantial evidence of pretext).
     In its decision, the district court stated that there is evidencein the form of
Reed's own testimonythat Reed "was unaware of Hussein's race, religion, or
national origin," and there is no evidence that Reed "presumed that Hussein was of
the Islamic faith because of his name."  Addendum at 27-28.  However, a jury
could find that Reed at least suspected that Hussein was Muslim or Arab or both.
     That a person would not connect the name Mohammed Hussein with being
Muslim and Arab defies belief.  It is widely known that Mohammed is a common
Muslim first name.  Because Mohammed was the founder of Islam, many Muslims
are named after him, including the famous boxer Mohammed Ali.  Moreover, the
pilot who flew the first plane into the World Trade Center was named Mohammed
Atta.  "Hussein" is a well-known Middle-Eastern name given that, at the time of
the events in question here, the ousted Iraqi dictator Saddam Hussein was an
infamous Arab leader. 
     The district court ignored these realities, instead focusing on the fact that
the only thing anyone remembers Reed saying when he got the call about Hussein
was "it doesn't matter, he was in a bar in uniform."  See Addendum at 27.  TSA is
free to argue to a jury that this demonstrates a lack of discriminatory animus on
Reed's part, but it is not conclusive.  Swoboda did not recall Reed saying anything
to the caller.  See II-P.A.465 (testifying that Reed's conversation could not be
heard and Reed returned to the room after the call had ended).  Moreover, Reed
knew Hussein's name and was told, days after the 9/11 terrorist attacks, that
Hussein was making comments supportive of the attacks by a person who believed
he was of Middle Eastern descent "based on his name" and who told the police he
was Middle Eastern when he reported Hussein's activities the night of September
13.  Conrecode testified that he "may have" told Reed that Hussein was making
comments in support of the 9/11 attacks and that the FBI would be contacting TSA
because he had reported his behavior to the FBI.  I-P.A.196.  Based on this
evidence and the fact that Mohammed Hussein's name is plainly Muslim and
Arab-sounding, a jury could find implausible Reed's testimony that he had no idea
what Hussein's religious faith was and did not consider that he was Middle
Eastern, particularly days after the 9/11 attacks when hostility towards Muslims
and Arabs was widespread.  See  Sarmiento v. Queens Coll. CUNY, No. 01-CV-
5266, 2005 WL 396385, at *11 (E.D.N.Y. Feb. 11, 2005) (in Title VII action,
court noted "[i]t is likely that [one of the decision-makers] knew that Plaintiff was
Hispanic given his identifiably Hispanic name."); cf. Hernandez v. State of Texas,
347 U.S. 475, 480 n.12 (1954) (in case challenging exclusion of Hispanics from
jury service, the Court rejected the defendant's argument that the plaintiff should
not have relied on names as showing the descent of persons in the Texas county at
issue, and stated that "just as persons of a different race are distinguished by color,
these Spanish names provide ready identification of the members of this class").
     In Rosen v. Thornburgh, 928 F.2d 528, 534 (2d Cir. 1991), a Title VII
action, the court of appeals found "unavailing" the defendants' contention that the
plaintiff could not survive summary judgment because the person who
recommended he be terminated during a training program, during which the
plaintiff had been subject to harassing comments, did not know he was Jewish. 
The court stated:  "We believe that a trier of fact might reasonably conclude that
Rosen's religion was apparent from his surname as well as from the vocal anti-
semitism engendered by his presence at the [training center]."  Id.  A reasonable
jury could make a similar connection in this casethat Hussein's religion and
national origin were apparent from his name, and the fact that the report which
precipitated his termination was linked to the 9/11 attacks.
     A jury weighing the conflicting evidence could conclude that Reed credited
the call from Conrecode and failed to give Hussein the same treatment he would
have had his name been Joe Smith.  The district court maintained that, even
assuming that Conrecode informed Reed that Hussein appeared to be of Middle
Eastern descent and spoke in favor of the terrorist attacks, there was no evidence
that this influenced Reed's decision to terminate Hussein.  On a motion for
summary judgment, the court was required to assume Conrecode told Reed
Hussein was of Middle Eastern descent because it is a reasonable inference, and
whether it influenced Reed is a question for the jury.  "To survive summary
judgment, [the plaintiff] must adduce enough admissible evidence to raise genuine
doubt as to the legitimacy of a defendant's motive, even if that evidence does not
directly contradict or disprove a defendant's articulated reasons for its actions." 
Buettner v. Arch Coal Sales Co., Inc., 216 F.3d 707, 717 (8th Cir. 2000).  
                            CONCLUSION
     For the foregoing reasons, the judgment of the district court should be
reversed and the case remanded for further proceedings.
                              Respectfully submitted,
                              ERIC S. DREIBAND
                              General Counsel
                              VINCENT J. BLACKWOOD
                              Acting Associate General Counsel
                              ___________________________________
                              JULIE L. GANTZ
                              Attorney
                              U.S. EQUAL EMPLOYMENT 
                              OPPORTUNITY COMMISSION
                              1801 L Street, N.W.
                              Washington, D.C. 20507
                              (202) 663-4718
June 20, 2005
                    CERTIFICATE OF COMPLIANCE
     Pursuant to FRAP 32(a)(7)(C), I certify that this brief has been prepared in
proportionally spaced typeface using Corel Word Perfect 9, Times New Roman
14-point font, and the textual portion contains 13,026 words. 
                                        _________________________
                                        Julie L. Gantz
                      CERTIFICATE OF SERVICE
     I hereby certify that two copies of the foregoing brief have been overnight
mailed to:
William B. Jones
MCMAHON, BERGER, HANNA, LINIHAN, 
CODY & MCCARTHY
2730 North Ballas Road, Suite 200
St. Louis, MO  63131
Jerome J. Dobson
Michelle D. Neumann
WEINHAUS, DOBSON, 
GOLDBERG & MORELAND
906 Olive Street, Suite 900
St. Louis, MO 63101
____________________________
Julie L. Gantz
Attorney
EQUAL EMPLOYMENT 
OPPORTUNITY COMMISSION
1801 L Street, N.W.
Washington, D.C. 20507
June 20, 2005
                             ADDENDUM
**************************
<NOTES>
<1> Citations to the record are abbreviated R. and refer to the district court 
docket number.
<2> The FBI Report was filed separately with the Clerk because it was filed under 
seal in the district court and was subject to a protective order issued by the 
district court.
<3> This intake form documenting Conrecodes call to the St. Louis Airport Police 
is attached to the FBI Report that was filed under seal in the district court.
<4> There is a conflict in the evidence as to when this call occurred.  Flight 
manager Mike Swoboda testified that he prepared Husseins termination letter on the 
same day that Conrecode called TSA, and gave the letter to Hussein the following day.  
II-P.A.466.  It is undisputed that Swoboda gave Hussein his termination letter on 
September 18.
<5> Conrecode testified that he learned Husseins name and employer from the hotels 
desk clerk.  I-P.A.182.  Conrecode could not recall if Hussein showed his ID at any 
time in Skooners.  I-P.A.181 (Conrecode Dep. 41).