Equal Employment Opportunity Commission and Cynthia Trudeau v. Communication
Technical Systems
 00-16111


 IN THE UNITED STATES COURT OF APPEALS
 FOR THE NINTH CIRCUIT


 No. 00-16111


 EQUAL EMPLOYMENT OPPORTUNITY
 COMMISSION,

 Plaintiff-Appellant,

 and

 CYNTHIA TRUDEAU,

    Intervenor,

 v.

 COMMUNICATION TECHNICAL SYSTEMS,
 INC. (SOUTHWEST), and COMMUNICATION
 TECHNICAL SYSTEMS, INC.,

 Defendants-Appellees.



 On Appeal from the United States District Court
 for the District of Arizona


 BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
 COMMISSION AS APPELLANT


 C. GREGORY STEWART    CAREN I. FRIEDMAN
 General Counsel    Attorney
        EQUAL EMPLOYMENT OPPORTUNITY
 PHILIP B. SKLOVER     COMMISSION
 Associate General Counsel  1801 L Street, NW, 7th Floor
        Washington, D.C. 20507
 LORRAINE C. DAVIS    (202) 663-4720
 Assistant General Counsel

 TABLE OF CONTENTS

 TABLE OF AUTHORITIES  . . . . . . . . . . . . . . . . . .  ii
 STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . 1
 STATEMENT OF ISSUES . . . . . . . . . . . . . . . . . . . 2
 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 2
 STATEMENT OF FACTS  . . . . . . . . . . . . . . . . . . . 3
  1. Factual Background  . . . . . . . . . . . . . . 3
  2. District Court Decision . . . . . . . . . . . . 12
 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . 16
 ARGUMENT  . . . . . . . . . . . . . . . . . . . . . . . . 20

  1. The district court erred in granting summary
   judgment to the defendants where the
   Commission established a prima facie case
   of pregnancy discrimination and proffered
   evidence of pretext . . . . . . . . . . . . . . 20

   a.  Standard of Review  . . . . . . . . . . . . 20

   b.  Discussion  . . . . . . . . . . . . . . . . 20

  2. The district court erred in concluding that
   Ms. Trudeau is not entitled to relief even if
   the defendants are found liable for
   pregnancy discrimination  . . . . . . . . . . . 32
   a.  Standard of Review  . . . . . . . . . . . . 32
   b.  Discussion  . . . . . . . . . . . . . . . . 33

 CONCLUSION  . . . . . . . . . . . . . . . . . . . . . . . 39

 STATEMENT OF RELATED CASE

 CERTIFICATE OF COMPLIANCE

 CERTIFICATE OF SERVICETABLE OF AUTHORITIES

 FEDERAL CASES

 Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) . . . . 34

 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)  . . 20

 Barbour v. Merrill, 48 F.3d 1270 (D.C. Cir. 1995) . . . . 38

 EEOC v. Dinuba Med. Clinic, ___ F.3d ___, No. 98-16454,
  2000 WL 1199529 (9th Cir. Aug. 24, 2000) . . . . . . 32

 EEOC v. Farmer Bros. Co., 31 F.3d 891 (9th Cir. 1994) . . 35

 EEOC v. Goodyear Aerospace Corp.,
  813 F.2d 1539 (9th Cir. 1987)  . . . . . . . . . . . 36-37

 EEOC v. Hacienda Hotel, 881 F.2d 1504 (9th Cir. 1989) . . 34,36

 EEOC v. Occidental Life Ins. Co., 535 F.2d 533
  (9th Cir. 1976), aff'd, 432 U.S. 355 (1977)  . . . . 37

 EEOC v. Wal-Mart Stores, Inc.,
  156 F.3d 989 (9th Cir. 1998) . . . . . . . . . . . . 36

 Freeman v. Arpaio, 125 F.3d 732 (9th Cir. 1997) . . . . . 26

 General Tel. Co. v. EEOC, 446 U.S. 318 (1980) . . . . . . 36

 Godwin v. Hunt Wesson, Inc.,
  150 F.3d 1217 (9th Cir. 1998)  . . . . . . . . . . . 20-22
             & 32

 International Brotherhood of Teamsters v. United States,
  431 U.S. 324 (1977). . . . . . . . . . . . . . . . . 23

 Kolstad v. American Dental Ass'n,
  119 S. Ct. 2118 (1999) . . . . . . . . . . . . . . . 36

 McDonnell Douglas Corp. v. Green,
  411 U.S. 792 (1973)  . . . . . . . . . . . . . . . . 20-21

 Reeves v. Sanderson Plumbing Prods., Inc.,
  120 S. Ct. 2097 (2000) . . . . . . . . . . . . . . . 27-28

 Schnidrig v. Columbia Mach., Inc.,
  80 F.3d 1406 (9th Cir. 1996) . . . . . . . . . . . . 22,31
 Sischo-Nownejad v. Merced Community College Dist.,
  934 F.2d 1104 (9th Cir. 1991)  . . . . . . . . . . . 21,32

 Smith v. F.W. Morse & Co.,
  76 F.3d 413 (1st Cir. 1996)  . . . . . . . . . . . .  23

 St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993) . . . 27

 Texas Dep't of Community Affairs v. Burdine,
  450 U.S. 248 (1981)  . . . . . . . . . . . . . . . . 21,27


 FEDERAL STATUTES

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

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

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

 Title VII of the Civil Rights Act of 1964

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

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

  42 U.S.C.  2000e-5(g)(1)  . . . . . . . . . . . . . 34,36

 Pregnancy Discrimination Act

  42 U.S.C.  2000e(k) . . . . . . . . . . . . . . . . 2,20

 Civil Rights Act of 1991

  42 U.S.C.  1981a(b) . . . . . . . . . . . . . . . . 35

  42 U.S.C.  1981a(b)(1)  . . . . . . . . . . . . . . 36


 FEDERAL RULES

 Fed. R. App. P. 4(a)(1)(B) . . . . . . . . . . . . . 2

 Fed. R. Civ. P. 4(m) . . . . . . . . . . . . . . . . 7

 Fed. R. Civ. P. 60(a)  . . . . . . . . . . . . . . . 2

 IN THE UNITED
 STATES COURT OF APPEALS
 FOR THE NINTH CIRCUIT


 No. 00-16111


 EQUAL EMPLOYMENT OPPORTUNITY
 COMMISSION,

 Plaintiff-Appellant,

 and

 CYNTHIA TRUDEAU,

    Intervenor,

 v.

 COMMUNICATION TECHNICAL SYSTEMS,
 INC. (SOUTHWEST), and COMMUNICATION
 TECHNICAL SYSTEMS, INC.,

 Defendants-Appellees.



 On Appeal from the United States District Court
 for the District of Arizona


 BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
 COMMISSION AS APPELLANT


 STATEMENT OF JURISDICTION

  The district court had jurisdiction pursuant to 28 U.S.C.  1331 & 1345
  and 42 U.S.C.  2000e-5(f)(1) & (3).  On March 31, 2000, the district
  court entered judgment.  (R.E. 146)<1>.  The judgment constitutes a
  final decision, which the Court has jurisdiction to review pursuant to
  28 U.S.C.  1291.<2>  The Commission filed a timely notice of appeal
  on May 26, 2000.  (R.E. 147); see Fed. R. App. P. 4(a)(1)(B).

 STATEMENT OF ISSUES

  1)  Whether the district court erred in granting summary judgment to
  the defendants where the Commission established a prima facie case of
  pregnancy discrimination and proffered evidence of pretext.
  2)  Whether the district court erred in concluding that Ms. Trudeau
  is not entitled to relief even if the defendants are found liable for
  pregnancy discrimination.

 STATEMENT OF THE CASE

  This is an employment discrimination case brought pursuant to the
  Pregnancy Discrimination Act, 42 U.S.C.  2000e(k), contained in Title
  VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.  2000e et
  seq. ("Title VII").  The Commission filed suit on behalf of charging
  party Cynthia Trudeau when defendants refused to hire her as a computer
  systems engineer because she was pregnant.  The district court granted
  the defendants' motion for summary judgment, and this timely appeal
  followed.

 STATEMENT OF FACTS

  1. Factual Background
  Cynthia Trudeau worked as a systems engineer at Infinisys Corporation,
  a computer consulting firm in Phoenix, from August 1995 to May 1997.
  (R.E. 96).  Infinisys went bankrupt during the last week in May 1997.
  (R.E. 83).  The owner of Infinisys gathered employees together and
  announced that the company would cease business operations as of
  that day.  (R.E. 84).
  Meanwhile, Communication Technical Systems, Inc. ("CTS"), a computer
  consulting firm out of Atlanta, was looking to enter the Phoenix
  market.<3>  CTS briefly considered purchasing Infinisys; however,
  after CTS's officers traveled to Phoenix to evaluate the situation,
  they decided against buying Infinisys due to its dire financial problems.
  (R.E. 14-15).  Instead, CTS purchased some of Infinisys' office furniture
  and equipment and negotiated a lease with the landlord to take over
  Infinisys' building space.  (R.E. 13, 16, 78).  CTS also set about
  acquiring Infinisys' former customers.  (R.E. 37).  Most importantly
  for purposes of this appeal, CTS sought to hire Infinisys' systems
  engineers.
  To that end, on May 22, 1997, Keith Gordon, president of CTS, Inc., and
  CEO of CTS Southwest, and Mike Malone, Executive Vice-President of CTS,
  Inc., met briefly with eight of Infinisys' systems engineers, including
  Ms. Trudeau, to tell them that CTS was interested in hiring some or all
  of them.  (R.E. 41-42).  CTS officers told the systems engineers that
  if they were interested in working for CTS, they should report to work
  the next morning to be considered for available positions.  (R.E. 64).
  Ms. Trudeau was the only female systems engineer at Infinisys, and
  she was six months pregnant with twins at the time of this meeting.
  (R.E. 98).
  Ms. Trudeau was interested in working for CTS as a systems engineer,
  so she reported to work the next morning at 8:30 a.m.  (R.E. 98).
  However, CTS officers did not grant her an interview, (R.E. 98), though
  they did conduct interviews with other Infinisys systems engineers
  who were interested in gaining employment.  (R.E. 24-26, 38-39, 73).
  At around noon, Ms. Trudeau's supervisor at Infinisys, John Abretske,
  sent her home and told her he would call her later to tell her whether
  she had a job with CTS.  (R.E. 65).  Mr. Abretske called Ms. Trudeau
  that evening to tell her that CTS decided not to hire her.  (R.E. 65).
  Ms. Trudeau asked, "Who did [CTS] decide to keep?"  Mr. Abretske
  responded, "Everybody else."  (R.E. 98-99; see also R.E. 67-68).
  Indeed, CTS offered employment to every Infinisys systems engineer,
  except Ms. Trudeau.  See R.E. 33 (offer letter to Ken Bruder);
  R.E. 34 (offer letter to Jamie Neilon); R.E. 115 (affidavit of Tom
  Donnelly stating that CTS offered him a position); R.E. 119 (affidavit
  of Dave Nansel stating that CTS offered him a position); R.E. 80
  (Mr. Scarborough's testimony that Francisco Brooks reported to him
  while working at CTS); R.E. 104 (Eric Borgen told EEOC investigator that
  he received an offer of employment from CTS); R.E. 50 (Mr. Abretske's
  testimony that CTS offered Gerald Crow a position, but he went to work
  for MCI); R.E. 42, 88 (Jeff Barrett did not attend the meeting with CTS
  because he had another job lined up and was not interested in working for
  CTS; nevertheless, CTS made him an offer).  When Mr. Abretske informed
  her that CTS was not going to offer her a job, Ms. Trudeau asked him
  if it was due to her particular skills.  Mr. Abretske answered, "No."
  (R.E. 65).
  Mr. Abretske had been Ms. Trudeau's supervisor for almost her
  entire tenure with Infinisys.  (R.E. 62-63).  In fact, in May 1997,
  Mr. Abretske supervised all nine of Infinisys' systems engineers.
  (R.E. 36).  Due to the fact that Mr. Abretske was the engineering
  manager at Infinisys, Mr. Gordon and Mr. Malone sought Mr. Abretske's
  opinion about the Infinisys systems engineers when they were deciding
  who to hire.  (R.E. 17-18, 20, 40).  According to Mr. Gordon, CTS
  relied primarily on Mr. Abretske's recommendations in deciding which
  Infinisys systems engineers to hire.  (R.E. 19, 21-22, 32).  Mr. Gordon
  testified that he did not rely on any documentation such as personnel
  files, performance evaluations, or resumes.  (R.E. 22-23); see also
  R.E. 48-49, 85 (testimony that there was no access to personnel files
  when the hiring decisions were being made).
  According to Mr. Abretske, he did not provide CTS with detailed
  information about the expertise of each systems engineer.  (R.E. 108).
  Rather, he made general recommendations either for or against hiring
  the engineers.  (R.E. 108).  Mr. Abretske recommended that CTS hire all
  of Infinisys' systems engineers, except Francisco Brooks.  (R.E. 104,
  106, 66).  Mr. Abretske testified that he recommended against hiring
  Mr. Brooks because he was "somewhat incompetent" and had "really poor
  Unix skills."  (R.E. 45, 57).  Despite Mr. Abretske's recommendation
  against hiring Mr. Brooks and in favor of hiring Ms. Trudeau, CTS hired
  Mr. Brooks but did not hire Ms. Trudeau.  (R.E. 80).  Mr. Brooks ended
  up working for CTS for only about a month.  (R.E. 81-82).
  Mr. Abretske testified that he got the impression that Ms. Trudeau's
  pregnancy was the reason CTS did not offer her a job.  (R.E. 104, 106).
  He testified that he "remember[ed] there was some discussion about Cindy
  and her pregnancy," but he could not "remember exactly what was said and
  how the conversation came about."  (R.E. 44).  He further testified:
  "I know [CTS officers] tended to be leery of hiring Cindy because of
  the fact that she was pregnant, and quite pregnant."  (R.E. 43).<4>
  Mr. Gordon testified that one of the reasons CTS did not hire Ms. Trudeau
  was because she did not have experience with Unix, a particular type of
  computer system.  (R.E. 27).  Mr. Malone was adamant at his deposition
  that CTS "[a]bsolutely" wanted only systems engineers with Unix skills.
  (R.E. 72).  Both Mr. Gordon and Mr. Malone admitted, however, that CTS
  offered jobs to, and hired, several Infinisys systems engineers who had
  no experience with Unix systems.  (R.E. 27-28, 72); see also R.E. 117
  (Mr. Bruder does not have Unix skills); R.E. 119 (Mr. Nansel does not
  have Unix skills); R.E. 115 (at the time CTS offered him a position,
  Mr. Donnelly had no Unix skills).  In addition, CTS hired Mr. Abretske
  in a supervisory capacity, and, as Mr. Gordon admitted, he did not have
  Unix skills either.  (R.E. 19, 29-30, 54).
  Despite CTS's position that it wanted only systems engineers with
  Unix skills, Mr. Gordon and Mr. Malone indicated to Mr. Abretske that
  they would need to hire someone with Novell and Microsoft<5> computer
  systems experience to take over a portion of Infinisys' business
  that specifically required knowledge of those systems.  (R.E. 48).
  Ms. Trudeau was certified to work on Novell systems and was working
  toward certification in Microsoft systems.  (R.E. 59-60).  At Infinisys,
  she worked on projects involving both Novell and Microsoft systems.
  (R.E. 61, 97).   In fact, Ms. Trudeau was the lead engineer on the
  Vodavi project, which entailed conversion from Novell to Microsoft.
  (R.E. 97).  Ken Bruder, an Infinisys systems engineer who CTS ended up
  hiring, had also worked on the Vodavi project at Infinisys.  Ms. Trudeau,
  however, was the lead engineer because she was senior to Mr. Bruder.
  (R.E. 89-90).  Mr. Scarborough testified that the Vodavi project was
  ongoing when Infinisys folded, and CTS took it over.  (R.E. 91-92).
  Another of the Infinisys accounts that CTS took over was with the City
  of Phoenix.  According to Mr. Abretske, working on this account required
  Novell systems skills, and CTS assigned Mr. Bruder to the project.
  (R.E. 52).  Mr. Bruder, however, was unable to handle this account on
  his own, and Mr. Abretske had to assist him.  (R.E. 52).  Mr. Abretske
  testified that Ms. Trudeau would have been able to handle this account
  without assistance.  (R.E. 52-53).
  In Mr. Abretske's opinion, Ms. Trudeau would have been a better
  choice than Mr. Bruder to work on former Infinisys accounts for CTS.
  (R.E. 48).  This is because, according to Mr. Abretske, Ms. Trudeau "was
  definitely more advanced than Ken Bruder," she "had a larger amount of
  experience with systems engineering," and she "had more talent than Ken."
  (R.E. 46-47).  When asked whether Ms. Trudeau was a better engineer
  than Mr. Bruder, Mr. Abretske stated that if he had to choose between
  the two of them, he "personally would have picked Cindy."  (R.E. 47).
  Mr. Bruder himself acknowledged he had less experience than Ms. Trudeau,
  and, unlike her, he had never worked as a project leader.  (R.E. 117).
  Mr. Bruder never worked on any Unix projects while he was employed
  by CTS.  (R.E. 51, 104, 109).
  Besides her lack of Unix skills, another reason that CTS gave for why
  it did not hire Ms. Trudeau was that, as Mr. Gordon testified, she
  "had a couple of glitches against her on her performance."  (R.E. 27).
  Mr. Gordon did not specify what the "glitches" were, but later in his
  testimony, he alluded to customer complaints.  (R.E. 28).  As it turns
  out, Ms. Trudeau did receive complaints from one of Infinisys' customers.
  (R.E. 56).  It is not unusual, however, for customers to lodge complaints
  about systems engineers.  (R.E. 117).  For example, Mr. Bruder admitted
  that customers had complained about him and that he had been replaced
  by another engineer on certain projects while working at Infinisys.
  (R.E. 117).  In addition, Mr. Donnelly admitted that he too had
  received customer complaints and was replaced by another engineer on
  those projects.  (R.E. 116).  Despite customer complaints against them,
  as noted above, CTS nevertheless offered jobs to both Mr. Bruder and
  Mr. Donnelly.  (R.E. 115, 117).
  Furthermore, Mr. Abretske testified that he did not inform Mr. Gordon
  or Mr. Malone of Ms. Trudeau's customer complaints, and that he did not
  recall saying anything negative about Ms. Trudeau to either Mr. Gordon
  or Mr. Malone.  (R.E. 45, 55-56).  Mr. Malone testified that at the time
  of hiring, he had no knowledge of Ms. Trudeau's skills or performance.
  (R.E. 74).  In fact, Ms. Trudeau had always received good performance
  evaluations at Infinisys, and she received a $4,000 raise after her
  first year.  (R.E. 62).
  Ms. Trudeau's salary at Infinisys at the time the company folded was
  $34,000 per year plus $12,000 annual commission.  (R.E. 97).  CTS hired
  former Infinisys systems engineers either at the same salary they
  were earning at Infinisys, or at an increase in salary.  For example,
  Mr. Nansel's offer of employment from CTS was for the same salary he
  earned at Infinisys.  (R.E. 119).  On the other hand, Mr. Bruder's salary
  increased from $37,000 to $43,000 when he went from Infinisys to CTS.
  (R.E. 117).
  CTS Inc.'s maternity leave policy applied to CTS Southwest.
  (R.E. 75-76).  Furthermore, according to CTS's employee handbook,
  insurance benefits would have been available to Ms. Trudeau anywhere from
  30 to 60 days from the date of hire.  (R.E. 125).  CTS hired Infinisys
  employees on May 23, 1997.  (R.E. 104, 110).  Ms. Trudeau delivered
  her twins on July 31, 1997.  (R.E. 69).  She incurred out-of-pocket
  expenses to gain insurance coverage after CTS refused to hire her.
  (R.E. 70, 100).
  As a result of CTS's discrimination, Ms. Trudeau experienced emotional
  distress and mental anguish.  (R.E. 100).  When CTS refused to hire
  Ms. Trudeau, she was six months pregnant with twins.  CTS's conduct left
  her with neither an income nor insurance coverage.  Without Ms. Trudeau's
  salary, she and her husband did not have the means to meet their
  own monthly expenses, much less the expenses of a family of four.
  (R.E. 100).
  2. District Court Decision
  The Commission filed suit alleging that CTS discriminated against
  Ms. Trudeau on the basis of sex and pregnancy in violation of Title
  VII.  CTS moved for summary judgment, arguing that Ms. Trudeau:  1)
  was not qualified for the position; 2) was not treated less favorably
  than similarly-situated non-pregnant employees; and 3) cannot rebut
  its legitimate, nondiscriminatory reasons for refusing to hire her.
  (R.E. 137).
  The district court found that Ms. Trudeau was not qualified for the
  position because she did not have Unix systems experience and because
  she had received customer complaints.  (R.E. 139).  The district court
  also agreed with CTS that Ms. Trudeau was not treated less favorably than
  similarly-situated non-pregnant employees.  Specifically, the district
  court found that Mr. Bruder and Ms. Trudeau were not similarly situated
  because they had different qualifications and because Mr. Bruder had
  not received customer complaints.  (R.E. 139).
  Next, the district court noted the disagreement as to the number
  of Infinisys' systems engineers to whom CTS offered employment.
  CTS maintained that Mr. Bruder was the only Infinisys systems engineer
  offered employment, while the Commission maintained that CTS offered
  employment to every Infinisys systems engineer except Ms. Trudeau.
  (R.E. 139).  As to this disagreement, the district court stated that
  "[t]he number is irrelevant."  (R.E. 139).  "As long as CTS can show
  that the decision to not hire Trudeau was made in good faith...," the
  court continued, "CTS's business decision will not be re-evaluated by
  this Court, regardless if one or many former Infinisys employees was
  hired."  (R.E. 139-40).
  The district court next opined that the Commission "relied solely on
  [Ms. Trudeau's] allegations in making its finding of discrimination
  and in bringing this action."  (R.E. 140).  In the court's view,
  the Commission's only evidence of discrimination is Ms. Trudeau's
  allegations that "Abretske told her there was talk about her pregnancy
  during the hiring process, that the reason she was not hired has nothing
  to do with her skills or training, that he believed she was qualified
  for a position, and that he did recommend her to CTS."  (R.E. 140).
  According to the district court, however, "Abretske denies having made
  any of those comments, or cannot remember when, where, or to whom the
  comments were made."  (R.E. 140).  Taking Ms. Trudeau's statements as
  the only evidence of discrimination, the district court concluded that
  those "sworn statements about what another said [are] alone insufficient
  to create a genuine issue of material fact."  (R.E. 141).  The district
  court thus concluded that the Commission did not meet its burden of
  establishing a prima facie case of discrimination.  (R.E. 141).
  The court then went on to conclude that CTS offered a legitimate,
  nondiscriminatory reason for failing to hire Ms. Trudeau, namely that
  Mr. Bruder was more qualified for the position in question and that he
  did not receive customer complaints.  (R.E. 139, 141).  The district
  court deferred to CTS's position that Mr. Bruder was better qualified
  than Ms. Trudeau because, in its view, courts should not engage "in
  second-guessing employment hiring decisions turning on the qualifications
  of applicants."  (R.E. 139).  On the issue of discrimination, the
  district court ended its analysis here, without proceeding to consider
  whether the Commission's pretext evidence rebutted CTS's explanation
  for not hiring Ms. Trudeau.
  On the issue of damages, the district court first noted that, before
  declaring bankruptcy, Infinisys never promised to compensate its
  employees for vacation, sick time, or accrued wages.  (R.E. 141).
  The court then concluded that Ms. Trudeau "is not entitled to lost
  vacation or sick time accrued with Infinisys" because she "had no
  legitimate expectation to receive damages from Infinisys in exchange
  for unused vacation and sick days."  (R.E. 141).  The district court
  next observed that, even if CTS acquired the assets of Infinisys,
  it did not thereby acquire the liabilities of Infinisys, such as
  unpaid wages and "the responsibility of continued employment for all
  existing Infinisys employees."  (R.E. 142).  In the district court's
  view, "[d]amages similar to what Trudeau claims are an unfortunate
  consequence of bankruptcy."  (R.E. 142).
  As for insurance coverage, the district court noted the disagreement
  between the Commission and CTS as to when Ms. Trudeau would have
  been entitled to insurance benefits had she been hired.  (R.E. 142).
  CTS argued that Ms. Trudeau would not have been entitled to any
  insurance benefits during a 90-day probationary period.  (R.E. 142).
  On the other hand, the Commission argued (and presented evidence)
  that, pursuant to CTS's employee handbook, Ms. Trudeau would have been
  eligible for insurance benefits somewhere between 30 and 60 days after
  her hire date, and, therefore, would have had insurance coverage for the
  delivery of her twins.  (R.E. 142).  After noting the parties' divergent
  factual positions, and without referring to any record evidence cited
  by the parties in support of their positions, the district court simply
  concluded that "Trudeau is not entitled to reimbursement for loss of
  insurance coverage during her pregnancy."  (R.E. 142).
  The district court also found that Ms. Trudeau's claim for  damages is
  "speculative" because "[s]he was never quoted her potential starting
  salary, nor was it known when she would begin her maternity leave,
  since a twin pregnancy carries greater risk and an indefinite delivery
  date."  (R.E. 143).  The district court in essence ruled that even if
  the Commission could prove that CTS discriminated against Ms. Trudeau,
  it would not be entitled to an award of damages on her behalf.
  Accordingly, the district court granted CTS's motion for summary
  judgment.  (R.E. 145).

 SUMMARY OF ARGUMENT

  The Commission established a prima facie case of pregnancy discrimination
  via direct and circumstantial evidence.  Furthermore, the Commission
  came forward with evidence of pretext to rebut CTS's proffered reasons
  for failing to hire Ms. Trudeau.
 Accordingly, the district court erred in granting summary judgment to
 CTS.
  First, the Commission presented direct evidence of pregnancy
  discrimination.  Specifically, Mr. Abretske testified that "there was
  some discussion about Cindy and her pregnancy" during the hiring process.
  He also testified that he knew that CTS's officers were "leery of hiring
  Cindy because of the fact that she was pregnant."  This evidence of
  discriminatory animus is alone sufficient to establish a prima facie
  case and to satisfy the required showing at the pretext stage.
  In addition to establishing a prima facie case via direct evidence
  of discrimination, the Commission offered circumstantial evidence,
  as well.  On this point, the district court found that the Commission
  failed to establish that Ms. Trudeau was: 1) qualified for the
  position in question; and 2) treated less favorably than non-pregnant
  similarly-situated applicants.  The Commission, however, raised a genuine
  issue of material fact on the question whether Ms. Trudeau was qualified
  for the position of systems engineer at CTS.  The Commission presented
  evidence that Ms. Trudeau was highly qualified for the position due
  to her skills, training, and experience and due to the nature of CTS's
  business.
  The Commission also presented evidence from which a reasonable jury
  could find that Ms. Trudeau was treated less favorably than other
  similarly-situated non-pregnant applicants.  For example, there is
  evidence that CTS offered a job to every Infinisys systems engineer
  except Ms. Trudeau.  One of the applicants to whom CTS offered employment
  was described as "somewhat incompetent."  At least one other was less
  skilled and experienced than Ms. Trudeau.
  The Commission also met its burden of raising a genuine issue of material
  fact on the question of pretext.  One reason that CTS advanced for not
  hiring Ms. Trudeau is that she did not possess Unix computer systems
  skills.  The Commission, however, produced evidence that four of the
  eight Infinisys systems engineers to whom CTS offered jobs did not
  have Unix skills either.  Moreover, the Commission presented evidence
  that at least one of the systems engineers who went to work for CTS,
  Mr. Bruder, was hired to handle former Infinisys accounts that required
  Novell and Microsoft skills, which Ms. Trudeau possessed.  Mr. Bruder
  did not work on Unix accounts for CTS.
  The other reason that CTS advanced for not hiring Ms. Trudeau was
  that she had customer complaints while working at Infinisys.  One of
  Infinisys' former customers had complained about Ms. Trudeau; however,
  the Commission presented evidence that it was not unusual for a systems
  engineer to receive customer complaints.  Indeed, two of the systems
  engineers to whom CTS offered jobs, Mr. Bruder and Mr. Donnelly, had
  also received customer complaints while at Infinisys, and they had
  to be replaced by different systems engineers on particular projects.
  Moreover, there is evidence that CTS officers did not even know about
  Ms. Trudeau's customer complaints at the time they made their hiring
  decision.
  In addition, the fact that CTS offered a job to every Infinisys systems
  engineer except the one who was pregnant, including those who had no
  Unix skills and those who had received customer complaints, sheds light
  on CTS's true motivation for not hiring Ms. Trudeau.  In short, the
  Commission presented ample evidence that would permit a reasonable jury
  to disbelieve the reasons CTS offered for failing to hire Ms. Trudeau
  and find instead that her pregnancy was the real reason.  In granting
  summary judgment, the district court invaded the province of the jury.
  This Court should reverse and remand for trial.
  On the issue of damages, the district court erred in confusing damages
  that Ms. Trudeau may have suffered due to Infinisys' bankruptcy with
  damages that the Commission is seeking for CTS's discriminatory
  failure to hire her.  Should a jury find that CTS is liable for
  pregnancy discrimination, the Commission will be entitled to back pay
  and benefits for Ms. Trudeau, and compensatory and punitive damages.
  In addition, as the Commission itself is a plaintiff in this action,
  the Commission is seeking injunctive relief, as well.
  The district court also erred in ruling that Ms. Trudeau's damages
  are speculative because CTS never quoted her a starting salary, and
  because she was pregnant with twins.  It was not necessary for CTS to
  have quoted Ms. Trudeau a starting salary in order for the district
  court to calculate a reasonable award of back pay.  The Commission
  presented evidence of Ms. Trudeau's former salary, as well as evidence
  that CTS paid greater or comparable salaries to systems engineers hired
  from Infinisys.  Furthermore, because Ms. Trudeau's delivery date is
  certain and can be used in calculating an award of damages, the district
  court erred in concluding such damages would be speculative.

 ARGUMENT

  1. The district court erred in granting summary judgment to the
  defendants where the Commission established a prima facie case of
  pregnancy discrimination and proffered evidence of pretext.
   a.  Standard of Review
  This Court reviews the district court's decision to grant summary
  judgment de novo.  Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1219-20
  (9th Cir. 1998).  The Court "must determine, viewing the evidence in
  the light most favorable to the nonmoving party, whether any genuine
  issues of material fact exist and whether the district court correctly
  applied the relevant substantive law."  Id. at 1220.  "[S]ummary judgment
  will not lie . . . if the evidence is such that a reasonable jury could
  return a verdict for the nonmoving party."  Anderson v. Liberty Lobby,
  Inc., 477 U.S. 242, 248 (1986).
   b.  Discussion
  Title VII prohibits discrimination "because of or on the basis of
  pregnancy, childbirth, or related medical conditions."  42 U.S.C. 
  2000e(k).  Generally, Title VII cases are governed by the burden-shifting
  framework articulated in McDonnell Douglas Corporation v. Green, 411
  U.S. 792, 802-04 (1973).  Pursuant to that framework, the plaintiff
  must first establish a prima facie case of discrimination.  Id. at
  802.  This initial burden is "not onerous."  Texas Dep't of Community
  Affairs v. Burdine, 450 U.S. 248, 253 (1981).  Indeed, the Court has
  stated that "[t]he requisite degree of proof necessary to establish a
  prima facie case for Title VII . . . on summary judgment is minimal."
  Godwin, 150 F.3d at 1220 (citation omitted); see also Sischo-Nownejad
  v. Merced Community College Dist., 934 F.2d 1104, 1111 (9th Cir. 1991)
  (stating that "very little" evidence must be produced to establish a
  prima facie case and to survive summary judgment).
  Once the plaintiff raises a presumption of discrimination through
  establishment of the prima facie case, the employer then carries the
  burden of producing a legitimate nondiscriminatory reason for its
  conduct.  McDonnell Douglas, 411 U.S. at 802; see also Burdine, 450
  U.S. at 253.  The burden then shifts back to the plaintiff to show that
  the reason given by the employer is not the true reason, but instead
  is a pretext for discrimination.  McDonnell Douglas, 411 U.S. at 804;
  see also Burdine, 450 U.S. at 253.
  At the outset, it is worth noting that where, as here, there is direct
  evidence of discrimination, a plaintiff need not establish a prima
  facie case using the McDonnell Douglas elements.  Indeed, "[t]he
  prima facie case may be based either on a presumption arising from
  the [McDonnell Douglas factors] . . ., or by more direct evidence of
  discriminatory intent."  Schnidrig v. Columbia Mach., Inc., 80 F.3d
  1406, 1409 (9th Cir. 1996) (citations omitted).  Furthermore, direct
  evidence of discriminatory animus may satisfy the required showing at
  the pretext stage.  Godwin, 150 F.3d at 1221.  Here, the Commission
  proffered direct evidence of CTS's discriminatory motive.  For example,
  Mr. Abretske testified that "there was some discussion about Cindy
  and her pregnancy" during the hiring process, and that CTS's officers
  were "leery of hiring Cindy because of the fact that she was pregnant."
  (R.E. 43-44).  Such direct evidence of discrimination is sufficient in
  itself to establish a prima facie case of discrimination and to show
  pretext.  For this reason alone, the district court erred in granting
  summary judgment.
  Failing to take into account the Commission's direct evidence of
  discrimination, the district court analyzed the case using the McDonnell
  Douglas framework and concluded that the Commission did not establish
  a prima facie case of pregnancy discrimination.  In so concluding, the
  district court erred.  The district court also erred when it failed to
  consider the Commission's pretext evidence that rebutted the defendants'
  proffered reasons for not hiring Ms. Trudeau.  This Court should,
  therefore, reverse the grant of summary judgment and remand for trial
  on the merits.
  According to the district court, in order to establish a prima facie case
  of pregnancy discrimination, the Commission had to satisfy the following
  elements:  1) Ms. Trudeau was pregnant; 2) she was qualified for the
  position; 3) she was not hired; and 4) she was treated less favorably
  than other non-pregnant, similarly-situated applicants.<6>  (R.E. 138)
  (citing McDonnell Douglas, 411  U.S. at 802).  Accepting the defendants'
  version of the facts, the district court concluded that the Commission
  failed to satisfy the second and fourth elements of its prima facie case.
  (R.E. 138).
  The Commission, however, proffered sufficient circumstantial evidence to
  establish a prima facie case under McDonnell Douglas.  As to the second
  element of the prima facie case, i.e. whether Ms. Trudeau was qualified
  for the position, quite obviously, Ms. Trudeau was a systems engineer,
  and CTS sought to hire systems engineers.  This alone qualifies her, for
  purposes of establishing a prima facie case.  In addition, Ms. Trudeau
  was certified to work on Novell systems, and she was working toward
  certification in Microsoft systems.  (R.E. 59-60).  At Infinisys,
  she worked on projects involving both Novell and Microsoft systems,
  and she was the lead engineer on the Vodavi project, which entailed
  conversion from Novell to Microsoft.  (R.E. 61, 97).  This evidence
  plainly raises a genuine issue of material fact on the question of
  Ms. Trudeau's qualifications because it would allow a reasonable jury
  to find that Ms. Trudeau was qualified to work as a systems engineer.
  The Commission also presented evidence from which a reasonable jury
  could find that Ms. Trudeau was treated less favorably than other
  similarly-situated non-pregnant applicants, to satisfy the fourth
  element of its prima facie case.  Ms. Trudeau was the only female (and,
  necessarily, the only pregnant) systems engineer at Infinisys when
  the corporation folded.  CTS offered a position to every Infinisys
  systems engineer except her.<7>  Several of the systems engineers
  to whom CTS offered employment had similar or lesser qualifications
  than Ms. Trudeau.  For example, Francisco Brooks, who CTS hired, was
  "somewhat incompetent" and had "really poor Unix skills" according to
  Mr. Abretske.  (R.E. 45, 57).  The district court, however, compared
  Ms. Trudeau only to Mr. Bruder and found that the two were not similarly
  situated because, according to CTS, Mr. Bruder was better qualified,
  and he had not received customer complaints.
  Even if the district court correctly focused on Mr. Bruder as the
  appropriate comparator, the Commission raised a genuine factual dispute
  by pointing to record evidence that Ms. Trudeau was a more competent
  systems engineer than Mr. Bruder and that Mr. Bruder had, in fact,
  received customer complaints.  For example, Mr. Bruder worked on the
  Vodavi project at Infinisys, but Ms. Trudeau was the project leader
  because, as between her and Mr. Bruder, she was the senior engineer.
  (R.E. 89-90).  Furthermore, Mr. Bruder, who CTS hired to take over
  the Infinisys accounts, was unable to handle them on his own, and
  Mr. Abretske had to assist him.  (R.E. 52).  According to Mr. Abretske,
  Ms. Trudeau would have been able to handle these accounts without
  assistance.  (R.E. 52-53).  Mr. Abretske testified that Ms. Trudeau
  would have been a better choice than Mr. Bruder to work on Infinisys'
  former accounts for CTS because she "was definitely more advanced than
  Ken Bruder," she had more experience with systems engineering, and she
  had "more talent than Ken."  (R.E. 46-48).  Mr. Bruder himself admitted
  that he did not have as much experience as Ms. Trudeau, and, unlike her,
  he had never worked as a project leader.  (R.E. 117).  He also admitted
  that, while working as a systems engineer at Infinisys, he had received
  customer complaints.  (R.E. 117).
  The district court did not consider this evidence because, in its view,
  "[c]ourts [refrain] from engaging in second-guessing employment hiring
  decisions turning on the qualifications of applicants."  (R.E. 139).
  Courts cannot, however, turn a blind eye to evidence that raises a
  genuine issue of material fact as to whether an employer was motivated
  by qualifications or, instead, by discriminatory criteria.  Courts are
  obliged to explore whether a challenged hiring decision was made on
  impermissible grounds and not merely rubber stamp a hiring decision
  simply because the employer claims an applicant is unqualified.
  Furthermore, on summary judgment, the court is obligated to draw all
  inferences in a light most favorable to the nonmovant, and it is not
  permitted to weigh the evidence or make credibility determinations.
  See Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997).  The trial
  court's failure to "second-guess" CTS's hiring decision was tantamount
  to viewing the evidence in the light most favorable to the movant and
  resolving a disputed issue of fact rather than leaving it for a jury.
  Had the court properly considered the evidence in the light most
  favorable to the Commission, it would have been compelled to conclude
  that the Commission raised a genuine issue of material fact on the
  fourth element of its prima facie case, as well.  The district court,
  therefore, erred when it concluded that CTS was entitled to summary
  judgment for the Commission's failure to establish a prima facie case
  of pregnancy discrimination.
  In addition to establishing its prima facie case, the Commission also met
  its burden of raising a genuine issue of material fact on the question
  of pretext.  A plaintiff may demonstrate pretext "by showing that the
  employer's proffered explanation is unworthy of credence."  Burdine,
  450 U.S. at 256; see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
  511 (1993) ("The factfinder's disbelief of the reasons put forward by
  the defendant (particularly if disbelief is accompanied by a suspicion
  of mendacity) may, together with the elements of the prima facie case,
  suffice to show intentional discrimination."); Reeves v. Sanderson
  Plumbing Prods., Inc., 120 S. Ct. 2097, 2109 (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").  In deciding
  whether the employer's explanation is pretextual, "the trier of fact may
  still consider the evidence establishing the plaintiff's prima facie case
  and inferences properly drawn therefrom."  Reeves, 120 S. Ct. at 2106
  (citation omitted).   The Commission came forward with ample evidence
  from which a reasonable jury could infer that CTS's proffered legitimate
  nondiscriminatory reasons are not the true reasons for its failure to
  hire Ms. Trudeau.
  One of CTS's proffered reasons for not offering Ms. Trudeau a job is
  that she did not possess Unix computer systems skills.  (R.E. 27).
  Record evidence shows, however, that despite Mr. Malone's insistence
  that CTS was interested in hiring only systems engineers with Unix
  skills, (R.E. 72), both Mr. Gordon and Mr. Malone admitted that CTS
  nevertheless extended job offers to various Infinisys systems engineers
  who had no Unix experience whatsoever.  (R.E. 27-28, 72).  The systems
  engineers who lacked Unix skills but who nonetheless received job offers
  include Mr. Bruder (R.E. 117), Mr. Donnelly (R.E. 115), and Dave Nansel
  (R.E. 119).  In addition, CTS hired Mr. Abretske in a supervisory
  capacity, and, as Mr. Gordon admitted, Mr. Abretske did not have Unix
  skills either.  (R.E. 19, 29-30, 54).
  Moreover, Mr. Gordon and Mr. Malone told Mr. Abretske that CTS would
  need to hire some systems engineers who were qualified to work on
  accounts that formerly belonged to Infinisys and that required Novell
  and Microsoft systems skills -- skills that Ms. Trudeau possessed.
  (R.E. 48, 59-60).  Finally, Mr. Malone himself admitted that, at the
  time of hiring, he had no knowledge of Ms. Trudeau's skills.  (R.E. 74).
  Thus, a reasonable jury could find that Ms. Trudeau's lack of Unix
  skills was not the real reason CTS failed to extend her an offer.
  The other reason that CTS proffered for its failure to hire
  Ms. Trudeau is that she had received customer complaints.  (R.E. 28).
  The Commission, however, pointed to evidence that CTS offered jobs
  to at least two systems engineers, Mr. Bruder and Mr. Donnelly, who
  had received customer complaints.  (R.E. 116-17).  Furthermore, the
  Commission presented evidence that it is not unusual for customers
  to complain about systems engineers. (R.E. 117).  Mr. Bruder and
  Mr. Donnelly both stated that they had received customer complaints and
  were subsequently replaced by different systems engineers on certain
  projects while working for Infinisys.  (R.E. 116-17).
  The Commission also presented evidence that, at the time they made
  their hiring decisions, Mr. Gordon and Mr. Malone did not even know
  about the customer complaints lodged against Ms. Trudeau.  For example,
  Mr. Abretske testified that he told neither Mr. Gordon nor Mr. Malone
  of Ms. Trudeau's customer complaints.  (R.E. 55-56).  In fact, at his
  deposition, Mr. Abretske could not recall saying anything negative
  about Ms. Trudeau to Mr. Gordon or Mr. Malone.  (R.E. 45).  Finally,
  just as Mr. Malone admitted that he had no knowledge of Ms. Trudeau's
  skills at the time of hiring, he also admitted that he knew nothing about
  her performance level.  (R.E. 74).  Thus, a reasonable jury could also
  find that Ms. Trudeau's customer complaints were not the real reason
  CTS failed to offer her a job.
  Moreover, the very fact that CTS offered jobs to every Infinisys
  systems engineer except Ms. Trudeau, including one that Mr. Abretske
  described as "somewhat incompetent" (R.E. 45), and one that did not even
  express an interest in working for CTS (R.E. 42, 88), is sufficient to
  raise an inference that CTS's stated reasons are actually a pretext
  for discrimination.  The district court found that the number of
  offers that CTS made is "irrelevant" as long as the decision not to
  hire Ms. Trudeau was made "in good faith."  (R.E. 139-40).  On the
  contrary, it is certainly relevant that the only systems engineer
  who was six months pregnant with twins during the hiring process is
  the only systems engineer to whom CTS refused to extend an offer,
  despite her arguably superior qualifications.  The fact that all of
  the other systems engineers received offers is certainly indicative of
  discriminatory conduct.
  In addition, Mr. Abretske, who was intimately involved in the
  decision-making process believed that Ms. Trudeau's pregnancy was the
  reason CTS did not hire her.  He testified that he knew that Mr. Gordon
  and Mr. Malone were "leery of hiring Cindy because of the fact that
  she was pregnant."<8>  (R.E. 43).  In the midst of this glaring direct
  and circumstantial evidence of discrimination, the district court
  nevertheless found that CTS acted "in good faith" because Ms. Trudeau was
  not trained in Unix and because she had received customer complaints.
  Yet, as demonstrated, a reasonable jury could disbelieve both of CTS's
  proffered reasons and find instead that the more likely explanation for
  CTS's failure to hire Ms. Trudeau was her pregnancy.  The district court
  essentially made findings of fact where material facts are in dispute,
  by misstating the significance of certain pieces of evidence and by
  altogether ignoring certain other pieces of evidence.  In so doing,
  the district court invaded the province of the jury.
  The Ninth Circuit "has set a high standard for the granting of summary
  judgment in employment discrimination cases."  Schnidrig, 80 F.3d at
  1410.  A plaintiff "need produce very little evidence of discriminatory
  motive to raise a genuine issue of material fact."  Godwin, 150 F.3d
  at 1220 (citation omitted).  This is "precisely because the ultimate
  question is one that can only be resolved through a 'searching inquiry'
  - one that is most appropriately conducted by the factfinder, upon a full
  record."  Sischo-Nownejad, 934 F.2d at 1111.  Because the Commission
  offered substantial evidence that the employer's proffered reasons are
  not credible, in addition to direct evidence of discrimination, it "has
  made a sufficient showing to create triable issues with respect to the
  employer's motivation."  Godwin, 150 F.3d at 1219 (citations omitted).
  The district court, therefore, erred when it granted summary judgment
  in favor of the defendants.

  2. The district court erred in concluding that Ms. Trudeau is not
  entitled to relief even if the defendants are found liable for pregnancy
  discrimination.
   a.  Standard of Review
  The district court ruled on summary judgment that, as a matter of law,
  Ms. Trudeau is not entitled to damages.  Questions of law are reviewed
  de novo.  EEOC v. Dinuba Med. Clinic, ___ F.3d ___, No. 98-16454, 2000
  WL 1199529 (9th Cir. Aug. 24, 2000).  Likewise, as stated above, this
  Court reviews the district court's decision to grant summary judgment
  de novo.  Godwin, 150 F.3d at 1219-20.
   b.  Discussion
  The district court erred in concluding that Ms. Trudeau is not entitled
  to damages.  The district court's analysis presupposes that the
  Commission is seeking remedies under a theory of successor liability.
  The district court ruled that because Infinisys "never promised
  . . . its employees that they would be compensated for vacation, sick
  time, or accrued wages," and because CTS did not acquire Infinisys'
  liabilities, therefore, Ms. Trudeau "had no legitimate expectation
  to receive damages."  (R.E. 141).  In so ruling, the district court
  utterly misunderstood the Commission's claim for legal and equitable
  relief under Title VII.  The district court's confusion is evident
  from its statement that "[d]amages similar to what Trudeau claims are
  an unfortunate consequence of bankruptcy."  (R.E. 142) (emphasis added).
  The Commission is obviously not seeking reimbursement for wages and
  insurance coverage that Ms. Trudeau lost as a consequence of Infinisys'
  bankruptcy.  Indeed, on summary judgment, the Commission argued that it
  was seeking relief to make Ms. Trudeau whole for injuries she suffered
  on account of CTS's unlawful employment discrimination, including back
  pay with benefits, and compensatory and punitive damages. (R.61 at 19).
  Despite the Commission's argument, the district court's analysis focused
  on whether CTS acquired Infinisys' assets and liabilities at bankruptcy.
  Whether Infinisys promised to pay wages earned, and whether CTS
  acquired Infinisys' liabilities, however, are questions that are simply
  irrelevant to the central question in the instant case, namely whether
  CTS is liable for failing to hire Ms. Trudeau based on her pregnancy,
  in violation of Title VII.  In other words, the question here is whether
  CTS is responsible for remedies that flow from its own unlawful conduct.
  One of Title VII's essential purposes is "to make persons whole for
  injuries suffered on account of unlawful employment discrimination."
  Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975).  "The injured
  party is to be placed, as near as may be, in the situation [s]he would
  have occupied if the wrong had not been committed."  Id. at 418-19
  (citation omitted); see also EEOC v. Hacienda Hotel, 881 F.2d 1504, 1518
  (9th Cir. 1989) ("the district court is required to attempt to make
  victims of discrimination whole by restoring them to the position in
  which they would have been absent the discrimination").  Thus, Congress
  has provided that when a Title VII plaintiff successfully demonstrates
  intentional discrimination, the plaintiff is entitled to injunctive
  relief, including reinstatement, back pay, "or any other equitable
  relief as the court deems appropriate."  42 U.S.C.  2000e-5(g)(1).
  Additionally, since the enactment of the Civil Rights Act of 1991, the
  prevailing Title VII plaintiff is also entitled to compensatory damages,
  and, in appropriate cases, to punitive damages, as well.  42 U.S.C. 
  1981a(b).
  In keeping with the Supreme Court's directive to make Title VII
  plaintiffs whole for injuries suffered due to unlawful discrimination,
  this Court has held that a plaintiff may collect any actual,
  out-of-pocket expenses incurred due to lost insurance coverage.  EEOC
  v. Farmer Bros. Co., 31 F.3d 891, 902 (9th Cir. 1994).  The Commission
  raised a genuine issue of material fact as to whether Ms. Trudeau would
  have been covered by CTS's medical insurance at the time she delivered
  her twins.  CTS argued that Ms. Trudeau would not have been entitled to
  any medical insurance benefits during a probationary 90-day period, which
  included her delivery date.  The district court accepted CTS's position.
  (R.E. 142).  The Commission, however, produced evidence that, according
  to CTS's employee handbook, Ms. Trudeau would have been entitled to
  medical insurance benefits anywhere from 30 to 60 days from her date
  of hire.  (R.E. 125).  Had she been hired on May 23, 1997, as were the
  other former Infinisys employees (R.E. 104), a reasonable jury could
  find that she would have had medical insurance coverage through CTS
  for her twins' birth on July 31, 1997.  (R.E. 69).
  In addition to back pay and benefits for Ms. Trudeau, the Commission is
  seeking compensatory and punitive damages.  The Commission proffered
  evidence that Ms. Trudeau suffered mental anguish and emotional
  distress as a result of CTS's conduct.  (R.E. 100).  As to punitive
  damages, there is ample evidence in the record from which a reasonable
  jury could conclude that CTS intentionally discriminated "with malice
  or with reckless indifference to [Ms. Trudeau's] federally protected
  rights."  42 U.S.C.  1981a(b)(1); see also Kolstad v. American Dental
  Ass'n, 119 S. Ct. 2118, 2122 (1999).  The Commission's direct evidence
  of discrimination -- that CTS's officers were "leery" of hiring a
  pregnant woman -- alone is sufficient to demonstrate that CTS acted
  with malice or reckless indifference.  See EEOC v. Wal-Mart Stores,
  Inc., 156 F.3d 989, 992 (9th Cir. 1998) (direct evidence that employer
  refused to hire applicant on basis of pregnancy enough to demonstrate
  reckless disregard for purposes of awarding punitive damages).
  Moreover, the district court ignored the fact that the Commission,
  itself a plaintiff in this action, is seeking injunctive relief.
  "Section 706(g) specifically gives courts the power to enjoin an
  'unlawful employment practice.'"  EEOC v. Goodyear Aerospace Corp.,
  813 F.2d 1539, 1544 (9th Cir. 1987) (quoting 42 U.S.C.  2000e-5(g)(1)).
  Thus, when the Commission files a civil enforcement action, it not only
  acts to secure relief for aggrieved individuals, but it also seeks to
  "advance the public interest in preventing and remedying employment
  discrimination."  General Tel. Co. v. EEOC, 446 U.S. 318, 331 (1980);
  see also Hacienda Hotel, 881 F.2d at 1519 ("the EEOC is not merely a
  proxy for the victims of discrimination, but acts also 'to vindicate
  the public interest in preventing employment discrimination.'")
  (quoting General Tel., 446 U.S. at 326).
  "The EEOC's right of action is independent of the employee's private
  action rights."  Goodyear Aerospace, 813 F.2d at 1542.  Indeed,
  the Commission's "interests in determining the legality of specific
  conduct and in deterring future violations are distinct from the
  employee's interest in a personal remedy."  Id.  By seeking injunctive
  relief, "'the EEOC promotes public policy and seeks to vindicate rights
  belonging to the United States as sovereign.'"  Id. at 1543 (quoting EEOC
  v. Occidental Life Ins. Co., 535 F.2d 533, 537 (9th Cir. 1976), aff'd,
  432 U.S. 355 (1977).  Thus, regardless of the availability of specific
  remedies such as back pay and benefits for Ms. Trudeau, the Commission
  is entitled to proceed and obtain relief in the public interest.
  Finally, the district court erred when it found that because CTS never
  quoted Ms. Trudeau a starting salary, and because being pregnant with
  twins "carries greater risk and an indefinite delivery date," an award
  of damages is "speculative."  (R.E. 143).  First of all, employers who
  deny employment opportunities based on unlawful discriminatory reasons
  do not have to quote a prospective employee a salary in order for that
  individual to collect back pay.  There are obviously reliable ways
  of calculating what Ms. Trudeau would have earned had CTS hired her.
  For example, the Commission produced evidence of Ms. Trudeau's salary at
  Infinisys and also came forward with evidence that CTS offered other
  Infinisys systems engineers either the salary they were currently
  earning, or an increase.  (R.E. 97, 117, 119).  The salary used to
  calculate an award of back pay need not be undisputed; it need only
  be a realistic figure.  See Barbour v. Merrill, 48 F.3d 1270, 1279
  (D.C. Cir. 1995).
  Secondly, when the district court ruled that damages were "speculative"
  because Ms. Trudeau's due date was uncertain, Ms. Trudeau had already
  delivered her twins.  Thus, the district court knew the precise date
  that she would have been forced to take maternity leave because that
  date had come and gone.  Therefore, the time frame for calculating an
  award of back pay is not speculative.  In fact, the district court
  itself engaged in speculation when it stated that Ms. Trudeau's
  pregnancy carried "greater risk," thus implying that she would have
  taken maternity leave earlier simply because she was carrying twins.
  (R.E. 143).  The date that Ms. Trudeau actually delivered her twins
  provides a concrete benchmark for calculating an award of back pay
  should a jury find that CTS discriminated against Ms. Trudeau on the
  basis of her pregnancy.  In sum, the district court erred when it ruled
  that Ms. Trudeau is not entitled to damages.

 CONCLUSION

  For the foregoing reasons, the Court should reverse the district court's
  grant of summary judgment and remand for trial.

 Respectfully submitted,

 C. GREGORY STEWART
 General Counsel

 PHILIP B. SKLOVER
 Associate General Counsel

 LORRAINE C. DAVIS
 Assistant General Counsel




 CAREN I. FRIEDMAN
 Attorney

 EQUAL EMPLOYMENT OPPORTUNITY
  COMMISSION
 1801 L Street, NW, 7th Floor
 Washington, D.C. 20507
 (202) 663-4720

 September 11, 2000STATEMENT OF RELATED CASE

  To the knowledge of the Commission, there are no related cases pending
  in this Court.
 CERTIFICATE OF COMPLIANCE
  I certify that, pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit
  Rule 32-1, the attached opening brief is monospaced, has 10.5 or fewer
  characters per inch, and contains 8,777 words.

       ___________________________________
       Caren I. Friedman

 CERTIFICATE OF SERVICE

  I hereby certify that on this 11th day of September 2000, the original
  and fifteen (15) true and correct copies of the attached brief were
  mailed first class postage prepaid to the Clerk of Court, and two
  (2) true and correct copies were mailed to counsel of record at the
  following address:

     Charles W. Herf, Esq.
     Mireya C. Martin, Esq.
     QUARLES & BRADY LLP
     One East Camelback Road, Suite 400
     Phoenix, Arizona 85012-1649




       ___________________________________
       1Citations to the Excerpts of Record will refer to the page
       number and will be abbreviated "R.E."  Citations to other record
       documents will refer to the district court docket number and will
       be abbreviated "R."

 2Currently pending before this Court is the Commission's Motion to
 Correct Clerical Mistake Pursuant to Fed. R. Civ. P. 60(a).  In that
 motion, the Commission argues that the district court made a clerical
 mistake when, despite granting the Commission's motion to amend the
 complaint to add a defendant, the court entered final judgment in favor
 of only one defendant.  Regardless of the Court's ruling on that pending
 motion, the Court has jurisdiction over this appeal.  If the Court grants
 leave to correct the clerical mistake, the appeal will proceed against
 both defendants-appellees; otherwise, the appeal will proceed against
 Communication Technical Systems, Inc. (Southwest) only.

 3Communication Technical Systems, Inc. (Southwest), headquartered
 in Phoenix, is a wholly-owned subsidiary of Communication Technical
 Systems, Inc., a company based in Atlanta.  (R.E. 11-12).  Since the
 same individuals own and manage both corporations, the defendants will
 simply be referred to as "CTS".  Where appropriate, the parent will be
 referred to as "CTS, Inc." and the subsidiary will be referred to as
 "CTS Southwest."

 4One week after Mr. Abretske testified unfavorably to CTS, the
 company filed a Third-Party Complaint against him, alleging that CTS
 "relied exclusively on the information and recommendations provided
 by" Mr. Abretske, and that Mr. Abretske "provided the only source of
 information regarding the systems engineers at Infinisys."  (R.30
 at 2-3; R.23).  The Third-Party Complaint went on to allege that
 Mr. Abretske (and his wife) were required to indemnify CTS to the
 extent that it is found liable for discrimination against Ms. Trudeau.
 (R.30 at 4).  Prior to CTS filing this action against Mr. Abretske,
 however, Mr. Gordon testified that Richard Scarborough, Infinisys'
 Director of Technical Services, also had some input in the hiring process
 because he was familiar with the systems engineering staff at Infinisys.
 (R.E. 17, 32).  Indeed, Mr. Scarborough testified that CTS followed his
 hiring recommendations "[a] hundred percent."  (R.E. 95). Moreover,
 at summary judgment, CTS argued that it decided to hire Mr. Bruder
 based on Mr. Abretske's and Mr. Scarborough's recommendations.
 (R.50 at 8).  In any event, the district court ruled that CTS could not
 serve Mr. Abretske with the Third-Party Complaint because the time for
 service under Fed. R. Civ. P. 4(m) had passed.  (R.E. 136).

 5Elsewhere in the record, Microsoft systems are referred to as "NT".
 See, e.g., R.E. 128.

 6The Commission takes issue with the district court's formulation of
 the prima facie case.  McDonnell Douglas "did not purport to create
 an inflexible formulation" of the prima facie case.  International
 Brotherhood of Teamsters v. United States, 431 U.S. 324, 358 (1977);  see
 id. ("The importance of McDonnell Douglas lies, not in its specification
 of the discrete elements of proof there required, but in its recognition
 of the general principle that any Title VII plaintiff must carry the
 initial burden of offering evidence adequate to create an inference that
 an employment decision was based on a discriminatory criterion illegal
 under the Act.").  In the Commission's view, under the facts of this case,
 it could establish a prima facie case of pregnancy by showing that:
 1) Ms. Trudeau was pregnant; 2) she was qualified for the position;
 3) CTS did not offer her a position; and 4) CTS offered positions to
 non-pregnant persons who had similar or lesser qualifications.  See,
 e.g., Smith v. F.W. Morse & Co., 76 F.3d 413, 421 (1st Cir. 1996)
 (formulating prima facie elements of pregnancy discrimination to fit
 facts of that case).  For the sake of argument, however, the Commission
 will demonstrate that, even using the district court's formulation,
 it has established a prima facie case of pregnancy discrimination.

 7See R.E. 33 (offer letter to Ken Bruder); R.E. 34 (offer letter to Jamie
 Neilon); R.E. 115 (affidavit of Tom Donnelly stating that CTS offered him
 a position); R.E. 119 (affidavit of Dave Nansel stating that CTS offered
 him a position); R.E. 80 (Mr. Scarborough's testimony that Francisco
 Brooks reported to him while working at CTS); R.E. 104 (Eric Borgen told
 EEOC investigator that he received an offer of employment from CTS);
 R.E. 50 (Mr. Abretske's testimony that CTS offered Gerald Crow a position,
 but he went to work for MCI); R.E. 42, 88 (Jeff Barrett did not attend
 the meeting with CTS because he had another job lined up and was not
 interested in working for CTS; nevertheless, CTS made him an offer).

 8The district court attempted to discount Mr. Abretske's testimony
 by stating that Mr. Abretske denied having made certain comments
 to Ms. Trudeau or cannot remember having made them.  (R.E. 140).
 Whether Mr. Abretske recalls what he said to Ms. Trudeau the night he
 told her CTS was not offering her a job is immaterial.  The fact remains
 that at his deposition, he testified unequivocally that CTS's officers
 discussed Ms. Trudeau's pregnancy and were "leery" of hiring her because
 of her pregnancy.  (R.E. 43-44).