Case 4:98-cv-00136-H Document 1 Filed 09/16/1998 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION

SEP 161998

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

v.

COMPLAINT

SEARS, ROEBUCK AND COMPANY,

JURY TRIAL DEMAND

Defendant.

NATURE OF THE ACTION This is an action under Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices on the basis of national origin and to provide appropriate relief to Francisco G. Santana, who was adversely affected by such practices. Sears, Roebuck and Company failed or refused to hire Francisco G. Santana because of his national origin, Hispanic (Mexican-American).
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 706(f) (1) and (3) of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e-5(f) (1) and (3), and pursuant to Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a.

\

Case 4:98-cv-00136-H Document 1 Filed 09/16/1998 Page 2 of 6
2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the Eastern District of North Carolina, Eastern Division.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII and is expressly authorized to bring this action by Section 706 (f) (1) and (3) of Title VII, 42 U.S.C. § 2000e-5 (f) (1) and (3). 4. At all relevant times, Defendant, Sears, Roebuck and Company (the "Employer"), has continuously been a corporation doing business in the State of North Carolina and the City of Morehead City, and has continuously had at least 15 employees. 5. At all relevant times, Defendant Employer has continuously been an employer engaged in an industry affecting commerce under Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e(b) , (g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Francisco G. Santana filed a charge with the Commission
2

Case 4:98-cv-00136-H Document 1 Filed 09/16/1998 Page 3 of 6
alleging violations of Title VII by Defendant Employer. All conditions precedent to the institution of this lawsuit have been fulfilled.
7. Since at least December 1995, Defendant Employer has engaged in unlawful employment practices at its Morehead City, N.C. facility, in violation of Section 703(a) (1) of Title VII, 42 U.S.C. § 2000e-2(a) (1). The unlawful practices included failing or refusing to hire Francisco G. Santana because of his national origin. Francisco G. Santana is a Spanish surnamed, naturalized United States citizen born in Mexico, who speaks English with a distinguishable Spanish accent. Francisco G. Santana was a qualified applicant for the position of Loss Prevention Agent with at least ten years of experience as a Loss Prevention Agent at a Sears store in California. After failing or refusing to hire Francisco G. Santana, Defendant Employer subsequently hired several less qualified non-Hispanics as Loss Prevention Agents.
8. The effect of the practice complained of in paragraph 7 above has been to deprive Francisco G. Santana of equal employment opportunities and otherwise adversely affect his status as an applicant for employment, because of his national origin, Hispanic (Mexican-American).
9. The unlawful employment practice complained of in 3

Case 4:98-cv-00136-H Document 1 Filed 09/16/1998 Page 4 of 6
paragraph 7 above was intentional. 10. The unlawful employment practice complained of in
paragraph 7 above was done with malice or with reckless indifference to the federally protected rights of Francisco G. Santana.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant Employer, its officers, successors, assigns, and all persons in active concert or participation with it, from failing or refusing to hire any individual due to national origin or any other employment practice which discriminates based on national origin. B. Order Defendant Employer to institute and carry out policies, practices, and programs which provide equal employment opportunities for individuals of Hispanic (Mexican-American) national origin, and which eradicate the effects of its past and present unlawful employment practices. C. Order Defendant Employer to make whole Francisco G. Santana, by providing appropriate affirmative relief necessary to eradicate the effects of its unlawful employment practices, including appropriate backpay with prejudgment interest, in
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Case 4:98-cv-00136-H Document 1 Filed 09/16/1998 Page 5 of 6
amounts to be determined at trial, and rightful place instatement.
D. Order Defendant Employer to make whole Francisco G. Santana by providing compensation for past and future pecuniary losses resulting from the unlawful employment practice described in paragraph 7 above, including but not limited to medical expenses, in amounts to be determined at trial.
E. Order Defendant Employer to make whole Francisco G. Santana by providing compensation for past and future nonpecuniary losses resulting from the unlawful practice complained of in paragraph 7 above, including but not limited to emotional pain, suffering, inconvenience, loss of enjoyment of life and humiliation, in amounts to be determined at trial.
F. Order Defendant Employer to pay Francisco G. Santana punitive damages for its malicious and reckless conduct, as described in paragraph 7 above, in amounts to be determined at trial.
G. Grant such further relief as the Court deems necessary and proper in the public interest.
H. Award the Commission its costs of this action. JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of
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Case 4:98-cv-00136-H Document 1 Filed 09/16/1998 Page 6 of 6

fact raised by its complaint.

Dated this

~

~
day

of

September,

1998.

C. GREGORY STEWART General Counsel

GWENDOLYN YOUNG REAMS Associate General Counsel

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
1801 "L" Street, N.W. Washington, D.C. 20507
~'7v~ MINDY . EINSTEIN Attorney

ROSEMARY J. Super isory Trial Attorney

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
129 West Trade Street Suite 400 Charlotte, NC 28202 (704) 344-6886

6

 
 Case 4:98-cv-00136-H Document 31 Filed 02/03/2000 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

EASTERN DIVISION

NO. 4:98-CV-136-H(3)

EQUAL EMPLOYMENT OPPORTUNITY

,
.. ~ 'i /.

COMMISSION,

Plaintiff,

FRANCISCO G. SANTANA, Plaintiff/Intervenor

v.

SEARS, ROEBUCK & CO.,

Defendant.

This matter is before the court on defendant's motion for summary judgment filed on August 31, 1999. Plaintiff/Intervenor, Francisco G. Santana ("Santana"), filed a response on October 12, 1999. Plaintiff, Equal Employment Opportunity Commission ("EEOC"), filed its response on October 18, 1999. On October 25, 1999, Sears filed a single reply that addressed both responses. The time to file additional pleadings has lapsed; therefore, this matter is ripe for adjudication.
STATEMENT OF THE CASE Santana, a Hispanic-American, was born in Mexico City and later moved to the United States. In 1985, while living in California, Sears hired Santana to work as a part-time loss prevention associate in its Costa Mesa store. Sears hired Santana on a part-time basis because Santana had a full-time job in the United States Marine Corps. Santana worked at Sears until the

Case 4:98-cv-00136-H Document 31 Filed 02/03/2000 Page 2 of 15
Marines transferred him to Cherry Point, North Carolina, in late 1995.
Prior to his transfer, Santana visited the Sears store in Morehead City, North Carolina, and spoke with William Mansfield ("Mansfield"), the loss prevention supervisor. Santana inquired about openings in the loss prevention department and according to Santana, Mansfield seemed excited about possibly acquiring a loss prevention associate with Santana I s experience. After Santana returned to California, Mansfield told the store personnel manager, Teri Katsekes ("Katsekes"), that he had spoken to a man from California with loss prevention experience that was interested in transferring to the Morehead City store. Several weeks later, Santana spoke with Katsekes on the phone and he alleges that Katsekes indicated that a job would be waiting for him when he arrived from California.
In late December 1995, after relocating to Cherry Point, Santana again visited the Morehead City Sears store and requested employment. Mansfield told Santana that a position would not be available until after the holiday season. When Santana returned in January, Mansfield informed him that no positions were available. Accordingly, Santana placed an application on file in the personnel department and gave Mansfield his telephone number in case a position became available. Over the next seven months, Santana submitted two additional applications: the first on March 23, 1996,
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and the second on July 20, 1996. After receipt of the July 20,

1996, application, Katsekes sought approval for a budget increase

to cover the expense of hiring Santana. In October 1996, Patty

Haynes ("Haynes"), the Human Resource Specialist at the Morehead

City store, called Santana and arranged for an interview on October

26,1996.

On October 26, 1996, Haynes conducted Santana's initial

interview. Santana alleges that during the interview, Haynes

commented on his accent and inquired as to where he was "originally

from

" Santana informed Haynes that he was born in Mexico

City. At the conclusion of the interview, Haynes offered Santana

a job as a stock clerk. Santana informed Haynes of his loss

prevention experience, to which Haynes allegedly replied, "you're

the guy from California." Haynes then took Santana to meet with

Katsekes. Santana contends that Katsekes became disinterested

during the interview. Santana attributes the alleged disinterest

to his accented speech and Hispanic national origin. Despite

Santana's perception of the interview, Katsekes was impressed

enough to immediately offer Santana a part-time loss prevention

job, subject to Santana passing a drug test, a background check,

and approval of Katsekes' request for a budget increase.

Prior to Santana starting work, store manager Patricia Kiely

("Kiely"), learned of Katsekes' decision to hire Santana. Kiely

informed Katsekes that she did not approve of the hire. Kiely

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Case 4:98-cv-00136-H Document 31 Filed 02/03/2000 Page 4 of 15
based her decision on a telephone conversation with Ann Manherz ("Manherz"), a loss prevention manager for approximately 120 stores. During the conversation, Manherz told Kiely about a California loss prevention agent, currently looking for work in the southeast, who had been the subject of a sexual harassment investigation at a Sears store in California. Thus, at the time Kiely made the decision not to hire Santana, Kiely had never met, seen, talked to, or reviewed any written documents relating to Santana. In fact, Kiely does not even recall knowing his name.
Soon, Santana contacted Katsekes to discuss his employment status. Katsekes told Santana that the additional hours for a loss prevention associate had not been approved. Katsekes did not tell Santana that Kiely directed her not to hire Santana based on the telephone conversation between Kiely and Manherz.
Based on the facts recited above, Santana filed an administrative charge of discrimination against Sears on March 5, 1997. The charge contained allegations of national origin and race discrimination. On September 16, 1998, plaintiff EEOC filed this suit against Sears. The EEOC alleges that Sears refused to hire Santana because of his national origin and that such refusal violates Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"). Santana intervened in the action on December 16, 1998. Sears responded to the parties' complaint and denied subjecting Santana to any unlawful employment
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Case 4:98-cv-00136-H Document 31 Filed 02/03/2000 Page 5 of 15
discrimination. Sears now moves for summary judgment on the grounds that no genuine issue of material fact exists.
COURT'S DISCUSSION I. Summary Judgment Standard
Summary judgment is appropriate pursuant to Fed. R. civ. P. 56 when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247 (1986). The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has met its burden, the non-moving party "must come forward with 'specific facts showing that there is a genuine issue for trial. '" Matsushita Elec. Indus. Co .. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e) (emphasis added)). Summary judgment is not a vehicle for the court to resolve disputed factual issues. See Faircloth v. United States, 837 F. Supp. 123, 125 (E.D.N.C. 1993). Instead, a trial court reviewing a claim at the summary judgment stage should determine whether a genuine issue exists for trial. See Anderson, 477 U.S. at 249. In making this determination, the court must view the inferences drawn from the underlying facts in the light most favorable to the non-moving party. See United States v. Diebold, Inc., 369 U.S. 654, 655
5

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(1962) (per curiam). Only disputes between the parties over facts that might affect the outcome of the case properly preclude the entry of summary judgment. See Anderson, 477 U.S. at 247-48. II. Title VII Claim for National Origin Discrimination
A. Standard of Proof Under Title VII An employer charged with national origin discrimination is entitled to summary judgment if the plaintiff fails to establish a prima facie case or fails to raise a factual dispute regarding the reasons the employer proffers for the alleged discriminatory act. See Henson v. Liggett Group, Inc., 61 F.3d 270, 274 (4th Cir. 1995). Furthermore, "the mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. (internal citations omitted). To establish a claim under Title VII, a plaintiff must show that "but for the employer's motive to discriminate against plaintiff on the basis of [national origin] ," the adverse job action would not have occurred. Id. (internal citations omitted). A plaintiff may make out a prima facie of national origin discrimination by proffering direct evidence of discrimination or indirect evidence "whose cumulative probative force, apart from the presumption's operation, would suffice under the controlling standard to support as a reasonable probability the inference that but for the plaintiff's [national origin discrimination] ," the
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Case 4:98-cv-00136-H Document 31 Filed 02/03/2000 Page 7 of 15
defendant would not have taken the adverse employment action. Holmes v. Bevilacqua, 794 F.2d 142, 146 (4th Cir.1986). In the absence of such evidence, a plaintiff must resort to the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973), presumption framework.
In this case, plaintiffs have no direct evidence of discrimination; therefore, they must satisfy the proof scheme established in McDonnell Douglas. Under McDonnell Douglas, a plaintiff faced with a motion for summary judgment must first establish a prima facie case of discrimination by a preponderance of the evidence. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993); Henson, 61 F.3d at 274. Plaintiffs allege disparate treatment based on Santana's Hispanic national origin.
To establish a prima facie case for discriminatory treatment, the plaintiffs must prove four things: (1) Santana is a member of the protected class; (2) Santana sought and was qualified for a position of employment; (3 ) Santana was rejected for that employment; and, (4) the position was filled by a similarly qualified individual from outside the protected class under circumstances giving rise to an inference of unlawful discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L.Ed. 2d 207, 101 S.Ct. 1089 (1981); Alvorada v. Board of Trustees of Montgomery Comm. College, 928 F.2d 118, 121 (4th Cir. 1991).
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Case 4:98-cv-00136-H Document 31 Filed 02/03/2000 Page 8 of 15
If the plaintiffs establish a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the failure to hire. See McDonnell Douglas, 411 U.S. at 802. Sears' burden is one of production, not of persuasion; therefore, Sears is not required to prove the absence of discriminatory motive. See Henson, 61 F.3d at 274-75. After Sears articulates a legitimate nondiscriminatory reason, the plaintiffs bear the ultimate burden of persuasion. The plaintiffs must show that Sears' proffered reason is merely a pretext for discrimination and that it was motivated, in fact, by a discriminatory purpose. See St. Mary's Honor Ctr. V. Hicks, 509 U.S. 502, 515 (1993) ("CAJ reason cannot be proved to be 'pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason." (emphasis omitted) ) . B. Santana's Prima Facie Case
Sears concedes that plaintiffs meet the first three elements of the prima facie case for national origin discrimination. However, Sears contends that plaintiffs fail to satisfy the fourth element. To satisfy the fourth element of the prima facie case, plaintiffs must prove two things: (1) that the part-time loss prevention position was filled by a similarly qualified individual from outside the protected class; and, (2) the hiring occurred under circumstances giving rise to an inference of unlawful
8

Case 4:98-cv-00136-H Document 31 Filed 02/03/2000 Page 9 of 15
discrimination. There is no dispute that shortly after Sears refused to hire Santana, they hired Virginia Born ("Born"), a Caucasian with less experience than Santana, to fill the part-time loss prevention position. Thus, plaintiffs easily satisfy the first requirement. The issue is whether the circumstances surrounding the hiring of Born give rise to an inference of discrimination.
Plaintiffs argue that an unlawful inference of discrimination arises for several reasons. Initially, plaintiffs argue that an inference of discrimination exists because Sears hired an individual outside the protected class with significantly less experience in loss prevention than Santana. Plaintiffs also argue that Kiely's purported rationale for not hiring Santana is implausible, thus giving rise to an inference of discrimination. Plaintiffs find Kiely's claim, that she declined to hire Santana because of his possible involvement in a sexual harassment incident that occurred in California, to be disingenuous. As stated, Kiely's information and decision were based on a phone conversation with Manherz, a regional loss prevention manager. Plaintiffs are incredulous that a professional such as Kiely would refuse to hire Santana based solely on the Manherz conversation, with no additional investigation to determine whether Santana was actually involved in the sexual harassment. Plaintiffs also find fault in
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Case 4:98-cv-00136-H Document 31 Filed 02/03/2000 Page 10 of 15
Kiely's claim that she was unaware of Santana's national origin at the time she made the decision not to hire him, given Santana's frequent visits to the store, multiple applications, and that his national origin is obvious from meeting him or knowing his surname. According to plaintiffs, the circumstances above raise an inference of discrimination.
Sears maintains that despite hiring an individual outside the protected class, with less experience than Santana, the circumstances do not give rise to an inference of discrimination. In support of their argument, Sears shows that Katsekes actually offered Santana a job, an occurrence entirely inconsistent with discrimination. Addi tionally, there is no evidence that Kiely directed Katsekes not to hire Santana because of his Hispanic origin or that Kiely told Katsekes to hire Born because she was Caucasian. In fact, Sears continues to maintain that Kiely was not even aware of Santana's national origin at the time she decided not to hire him.
Ultimately, the court finds that when viewed in the light most favorable to the plaintiffs, Sears' questionable rationale for refusing to hire Santana is sufficient to give rise to an inference of discrimination. Accordingly, the court finds that plaintiffs have presented a prima facie case of national origin discrimination.
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C. Pretext Having found that plaintiffs presented a prima facie case of national origin discrimination, Sears must satisfy its burden of production by articulating a legitimate nondiscriminatory reason for the refusal to hire Santana. Sears asserts that Kiely refused to hire Santana because she believed that Santana had been involved in a sexual harassment matter while working as a loss prevention agent in California. Sears contends that Kiely made the decision to avoid the risk of employing someone who might sexually harass employees in the Morehead City store. The court finds that Sears has met its burden of producing a legitimate nondiscriminatory reason for the decision not to hire Santana. The burden of persuasion now shifts back to plaintiffs to show two things: (1) Sears' reason is false; and, (2) discrimination was the real reason behind the decision not to hire Santana. Plaintiffs begin by attacking the veracity of Sears' legitimate nondiscriminatory reason. Plaintiffs contend that Sears' reasons for refusing to hire Santana are internally inconsistent and contradicted by the evidence. However, even if plaintiffs' evidence establishes n [t]hat the employer's proffered reason is unpersuasive, or even obviously contrived, it is not in itself sufficient, under this Circuits precedents, to survive [Sears] motion for summary judgment. n Gillins v. Berkely Elec. Co-
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-. Case 4:98-cv-00136-H Document 31 Filed 02/03/2000 Page 12 of 15
09. Inc., 148 F.3d 413, 416 (4th Cir. 1998) (internal citations omitted) . To avoid summary judgment in this circuit, the plaintiffs must satisfy a "pretext-plus" standard. Under "pretextplus," the plaintiffs must do more than attack the "the veracity of the employer's proffered justification. The plaintiffs must [develop] some evidence on which a juror could reasonably base a finding that discrimination motivated the challenged employment action." Id. at 417. In other words, plaintiffs must show that the "real reason" Sears refused to hire Santana was his Hispanic national origin.
Initially, the court notes that plaintiffs offered no credible evidence to dispute the veracity of Sears' legitimate nondiscriminatory reason. Plaintiffs simply offer their own conjecture as to Kiely's motivation for refusing to hire Santana. Nevertheless, even assuming arguendo that plaintiffs successfully challenged the veracity of Sears' reason for not hiring Santana, which they did not do, plaintiffs did not present any evidence of national origin discrimination sufficient to support a jury finding in their favor.
Plaintiffs argue that national origin played a role in his non-selection for two reasons: (1) during Santana's interview with Haynes, she allegedly asked him where he was from; and, (2) during Santana's interview with Katsekes, she appeared to become
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"disinterested." (Santana Dep. at 190-199.) Plaintiffs' arguments

are not at all indicative of discrimination. Haynes' question as

to where Santana was from is a standard question asked in almost

every interview. Further, there is no evidence that Haynes ask the

question with any discriminatory motive. Plaintiffs' allegation

regarding Katsekes' level of "interest" are similarly unpersuasive.

Katsekes, like Haynes, offered Santana a job at the conclusion of

the interview. The job offers are inconsistent with plaintiffs'

theory of discrimination, as well as the "disinterest" supposedly

exhibited by Katsekes during the interview.

Plaintiffs also failed to put forth any evidence that Kiely

discriminated against Santana on account of his Hispanic national

origin. Kiely asserts that she had no knowledge of Santana's

national origin at the time she made the decision not to hire him

and Santana failed to bring forth credible evidence to the

contrary.

Plaintiffs cite Kiely's lack of diligence in

investigating whether Santana was actually involved in sexual

harassment as evidence of discriminatory animus. While Kiely may

have made a poor decision in failing to investigate whether Santana

actually committed sexual harassment in California, that failure is

not evidence of discrimination. Kiely's lack of diligence is not

at issue. The issue is whether Kiely discriminated against

Santana, "not the wisdom or folly of [Kiely's] business judgment."

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Case 4:98-cv-00136-H Document 31 Filed 02/03/2000 Page 14 of 15

Jiminez v. Mary Washington College, 57 F.3d 369, 383 (4th Cir.

1995)

See McNairn v. Sullivan, 929 F.2d 974, 980 (4th Cir.

1991) ("Title VII does not require that employment decisions be

impeccable. It only frowns on employment decisions that are based

on race, color, religion, sex or national origin. . "). Kiely's

conduct in no way constitutes an unlawful employment decision

because there is no evidence that Santana's national origin played

a role in Kiely's decision to not investigate.

Plaintiffs' claim of national origin discrimination is further

weakened by the fact that since becoming store manager in July

1995, Kiely has hired seven Hispanic individuals. Kiely hired four

of the individuals prior to the time Santana submitted his

application for employment. Additionally, a fifth individual was

being processed for employment at that time Santana was regected.

Sears argues, and the court agrees, that it is illogical for Kiely

to hire these Hispanic employees and then discriminate on Santana

based on his Hispanic heritage.

Even viewing all the evidence in the light most favorable to

the plaintiffs, the court finds no evidence that national origin

discrimination motivated the defendant's refusal to hire Santana.

Accordingly, the court GRANTS defendant's motion for summary

judgment.

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Case 4:98-cv-00136-H Document 31 Filed 02/03/2000 Page 15 of 15

CONCLUSION

For the reasons stated above, the court GRANTS defendant's

motion for summary judgment. The clerk is directed to close this

case.

e-

This 2 day of February, 2000.

At Greenville, NC #8

United States Distric

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 Case 4:98-cv-00136-H Document 52 Filed 10/10/2001 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION

Equal Employment

)

Opportunity Commission,

)

)

Plaintiff,

)

)

v.

)

)

Sears, Roebuck and Co.,

)

)

Defendant.

)

---------------------------)

Civil Action No. 4:98-CV-136-H(4)

CONSENT DECREE

This action was instituted by the Equal Employment Opportunity Commission (the
"Commission") pursuant to Title vn of the Civil Rights Act of 1964 and Title I of the Civil

Rights Act of 1991, alleging that Defendant Sears, Roebuck and Co. ("Defendant") failed to hire

Francisco G. Santana because of his national origin. Defendant denies any national origin

discrimination. The Court has jurisdiction over this lawsuit pursuant to 28 U.S.c. §§ 451, 1331,

1337, 1343 and 1345.

The Commission and Defendant hereby stipulate to jurisdiction of the Court over the

subject matter of this action.

The parties have advised this Court that they desire to resolve allegations in the

Complaint without the burden, expense and delay of further litigation.

It is therefore the finding of the Court, made on the pleadings and the record as a whole,

that: (1) the Court has jurisdiction over the partes and subject matter of this action; (2) the

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Case 4:98-cv-00136-H Document 52 Filed 10/10/2001 Page 2 of 5
purpose and provisions of Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1991 will be promoted and effectuated by the entry of the Consent Decree; and (3) this Decree resolves all matters in controversy between the parties as provided in paragraphs 1 through 9 below:
It is therefore, ORDERED, ADJUDGED AND DECREED as follows: 1. Defendant shall not discriminate against applicants on the basis of national origin by failing to hire them at its Morehead City, North Carolina store. 2. Within thirty (30) days of the entry of the approval of this Consent Decree and for the term of this Consent Decree, Defendant shall conspicuously post an Employee Notice, marked as Exhibit "A", in a place where it is visible to all employees at its Morehead City, North Carolina store. 3. Defendant shall conduct training for all management employees at its Morehead City, North Carolina store during the term of this Consent Decree. The training program will include an explanation of the requirements of the federal equal employment opportunity laws, including Title VII and the Civil Rights Act of 1991, particularly in the area of discrimination due to national origin. Upon completion of the training program, Defendant shall certify to the Commission the specific training which was undertaken and shall provide the Commission with a roster of all management employees in attendance. The training program will be conducted within sixty (60) days of the Court's approval of this Decree. Management employees who are hired or transferred by Defendant into its Morehead City, North Carolina store, after the training, but during the term of the Consent Decree, shall be given a written copy of Defendant's nondiscrimination policy at the time of hire or transfer.
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Case 4:98-cv-00136-H Document 52 Filed 10/10/2001 Page 3 of 5
4. During the tenn of this Consent Decree, Defendant shall provide the Commission with reports at six (6) month intervals, with the first report being due five (5) months after approval ofthis Decree and the second being due six (6) months after the first. The reports shall include the following infonnation: the name, address and telephone number of all applicants at Defendant's Morehead City, North Carolina store, if any, who, during the reporting period, complained to store management about discrimination due to national origin, a description of the complaint, the identity of each person to whom each complaint was made, and the action taken by the Defendant about each complaint. The reports shall be submitted to the Commission at the time intervals outlined immediately above.
5. In order to review compliance with this Decree, the Commission may inspect Defendant's premises, interview employees, examine and copy documents related to any complaints reported in accordance with paragraph 4 above.
6. If at any time during the tenn ofthis Decree, the Commission believes that the Defendant is in violation of this Decree, the Commission shall give written notice of the alleged violation to the Defendant. The Defendant shall have thirty (30) days in which to investigate and respond to the allegations. Thereafter, the parties shall have a period often (10) days, or such additional period as may be agreed upon by them, in which to engage in negotiation and conciliation regarding such allegations, before the Commission exercises any right provided by law.
7. The tenn of this Decree shall be for one (1) year from its entry by the Court. 8. With the exception of costs previously paid pursuant to court order, Defendant and Plaintiff EEOC shall bear its own costs and attorney fees associated with the litigation of this
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Case 4:98-cv-00136-H Document 52 Filed 10/10/2001 Page 4 of 5
•
case, styled EEOC v. Sears, Roebuck and Co., Civil Action No. 4:98-CV-136H(4), and the entry of this Decree.
9. This Court shall retain jurisdiction of this action for purposes of enforcing this Decree and entry of such further orders as may be necessary or appropriate.
1[1-1- DJ
Date

The parties jointly request that the Court approve and enter this Consent Decree:

SEARS, ROEBUCK AND CO.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

m Johnson & Greaves LLC

copies to:
Erania Ebron, Esq. U.S. Equal Employment Opportunity Commission 129 West Trade Street Charlotte, NC 28202

Mindy . ei tem Regional Attorney Charlotte District Office
James B. Spears, Jr. Haynsworth Baldwin Johnson & Greaves LLC 400 West Trade Street Charlotte, NC 28202

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Case 4:98-cv-00136-H Document 52 Filed 10/10/2001 Page 5 of 5

Attachment "A"

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION

Equal Employment

)

Opportunity Commission,

)

)

Plaintiff,

)

)

v.

)

)

Sears, Roebuck and Co.,

)

)

Defendant.

)

----------------------------)

Civil Action No. 4:98-CV-136-H(4)

NOTICE TO EMPLOYEES

This Notice is being posted pursuant to a Consent Decree entered in Equal Employment Opportunity Commission v. Sears, Roebuck and Co., Civil Action No. 4:98-CV-136-H(4), in the United States District Court for the Eastern District ofNorth Carolina, Eastern Division.

Federal law prohibits discrimination against any employee or applicant for employment because of the individual's race, color, religion, sex, national origin, disability or age (40 and over), with respect to hiring, promotion, discipline, firing, compensation or other terms, conditions or privileges of employment.

Federal law prohibits the failure to hire an individual due to his or her national origin.

Sears, Roebuck and Co. supports and will comply with such federal law in all respects. Specifically, Sears, Roebuck and Co.: (a) will seek to maintain a work environment that is free of discrimination due to national origin; (b) will provide annual training to all Store managers concerning the federal employment discrimination laws, particularly as they apply to Title VII and discrimination due to national origin; and (c) will provide a copy of its policy concerning discrimination to all managers.

Sears, Roebuck and Co. has an equal employment opportunity policy and will ensure that all management, supervisory and other employees abide by the requirements ofthat policy, and that employees will not be subjected to discrimination due to national origin.

If you believe that you have been subjected to discrimination due to your national origin, you should promptly report the discriminatory conduct to a member of Sears, Roebuck and Co. management, or to the U.S. Equal Employment Opportunity Commission.

This Notice will remain posted for one (1) year by agreement with the U.S. Equal Employment Opportunity Commission.

DO NOT REMOVE THIS NOTICE UNTIL:

,2002.

Date

For Sears, Roebuck and Co.

 
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CLOSED, USMJ_Flanagan
U.S. District Court EASTERN DISTRICT OF NORTH CAROLINA (Eastern Division)
CIVIL DOCKET FOR CASE #: 4:98-cv-00136-H

Santana, et al v. Sears, Roebuck & Co. Assigned to: Judge Malcolm J. Howard Demand: $0 Cause: 42:2000 Job Discrimination (Race) Plaintiff Equal Employment Opportunity Commission TERMINATED: 12/16/1998
Plaintiff Francisco G. Santana TERMINATED: 09/05/2001

Date Filed: 09/16/1998 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff
represented by Erania Ebron-Fubara E.E.O.C. 129 W. Trade St. Suite 400 Charlotte, NC 28202 704-344-6682 TERMINATED: 12/16/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mindy E. Weinstein E. E. O. C. Charlotte District Office 129 W. Trade Street, Suite 400 Charlotte, NC 28202-2799 704-344-6886 TERMINATED: 12/16/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rosemary J. Fox E.E.O.C. 129 W. Trade St. Suite 400 Charlotte, NC 28202 704-344-6878 TERMINATED: 12/16/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David P. Voerman P.O. Box 12485 New Bern, NC 28561-2485 252-638-5611 TERMINATED: 09/05/2001

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Plaintiff Equal Employment Opportunity Commission
V. Defendant Sears, Roebuck & Co.
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LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Erania Ebron-Fubara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mindy E. Weinstein E. E. O. C. 129 W. Trade St. Suite 400 Charlotte, NC 29202-2799 704-344-6886 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mindy E. Weinstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rosemary J. Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amy K. Reynolds Kilpatrick, Stockton LLP 3500 One First Union Center Charlotte, NC 28202-6001 704-338-5000 TERMINATED: 08/17/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James B. Spears, Jr. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 201 South College St., Suite 2300 Charlotte, NC 27244 US 704-342-2588 Fax: 342-4379 Email: jim.spears@ogletreedeakins.com
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LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen D. Dellinger Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 201 South College St., Suite 2300 Charlotte, NC 27244 US 704-342-2588 Email: steve.dellinger@ogletreedeakins.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/16/1998
09/16/1998 09/16/1998 10/26/1998 11/23/1998 11/23/1998
12/16/1998 12/16/1998 12/31/1998 01/11/1999 01/13/1999

#

Docket Text

1 Complaint filed alleging failure or refusal to hire based on national origin, Mexican, in violation of Title VII of the Civil Rights Act of 1964. JURY DEMAND. (ll) (Entered: 09/18/1998)
(ll) (Entered: 09/18/1998)
2 Request for Waiver of Service as to Sears, Roebuck & Co. (**Not signed or dated by counsel and therefore not FILED) (ll) (Entered: 09/18/1998)
3 Motion to intervene by Francisco G. Santana , cs. (response due 11/18/98) (dh) (Entered: 10/27/1998)
4 Answer to Complaint by Sears, Roebuck & Co. (dh) (Entered: 11/23/1998)
Motion(s) submitted: [3-1] motion to intervene by Francisco G. Santana submitted. CASE FILE TO JUDGE HOWARD FOR CONSIDERATION. (dh) (Entered: 11/23/1998)
5 Order granting [3-1] motion to intervene by Francisco G. Santana signed by Malcolm J. Howard. cys served. (dh) (Entered: 12/16/1998)
6 Request for Discovery Plan: Discovery Plan due by 1/5/99 (dh) (Entered: 12/16/1998)
Letter on left side of case file - Parties have been given permission from USMJ Dixon to file discovery plan by 1/11/99. (ll) (Entered: 12/31/1998)
7 Discovery Plan filed by Sears, Roebuck & Co., Francisco G. Santana (dh) (Entered: 01/13/1999)
Case submitted to: USMJ Dixon [7-1] discovery submitted. CASE FILE TO USMJ DIXON FOR ENTRY OF SCHEDULING ORDER. (dh) (Entered: 01/13/1999)

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01/22/1999
02/11/1999 06/01/1999 06/01/1999 06/08/1999
07/23/1999 07/23/1999 07/26/1999
07/29/1999 08/17/1999 08/23/1999 08/31/1999 08/31/1999 09/01/1999 09/01/1999

8 Order on Scheduling by Magistrate Wallace W. Dixon setting Discovery cutoff 6/1/99 Deadline for filing of all motions 7/1/99 Jury Trial scheduled for 10/18/99 before Judge Malcolm J. Howard Place: Greenville, NC No. of Interrogs. 25 No. of Depositions 10. Cys. served. Cal. cy. (ll) (Entered: 01/22/1999)
9 Waiver of Service of Summons Returned Executed as to Sears, Roebuck & Co. 9/23/98 Answer due on 11/23/98 for Sears, Roebuck & Co. (ll) (Entered: 02/18/1999)
10 Unopposed Motion by Sears, Roebuck & Co. to extend time for discovery period to July 16, 1999 . w/cs. (ll) (Entered: 06/01/1999)
Motion(s) referred: referred [10-1] motion to extend time for discovery period to July 16, 1999 to USMJ Wallace W. Dixon. Case file to USMJ Dixon for consideration. (ll) (Entered: 06/01/1999)
11 Order granting [10-1] motion to extend time for discovery period to July 16, 1999, reset discovery due for 7/16/99 reset motion filing deadline for 8/3/99 reset Jury trial before Judge Malcolm J. Howard for 11/1/99 Greenville, NC signed by Wallace W. Dixon, USMJ. Cys. served. Cal. cy. (ll) (Entered: 06/11/1999)
12 Unopposed Motion by Equal Employment Opp to extend time for discovery . w/cs. (ll) (Entered: 07/23/1999)
Motion(s) referred: referred [12-1] motion to extend time for discovery to USMJ Wallace W. Dixon. Case file to USMJ Dixon for consideration. (ll) (Entered: 07/23/1999)
Letter dated July 22, 1999 From: David P. Voerman Re: Vacation Plans in Nov. Mr. Voerman advises the court of his vacation planned for November 12, 1999 through November 21, 1999 in Canada. Mr. Voerman seeks assistance in alerting the judges and calendaring clerks regarding his planned vacation. cy to Judge Howard. (dh) (Entered: 07/28/1999)
13 Order granting [12-1] motion to extend time for discovery, reset discovery due for 8/16/99 , reset motion filing deadline for 8/31/99 signed by Wallace W. Dixon, USMJ. Cys. served. (ll) (Entered: 07/29/1999)
Case submitted to: Wallace W. Dixon, USMJ for consideration of proposed Consent Protective Order submitted by parties. (ll) (Entered: 08/17/1999)
14 Consent Protective Order re: confidentiality of discovery material. signed by Wallace W. Dixon, USMJ. Cys. served. (ll) (Entered: 08/23/1999)
15 Motion by Sears, Roebuck & Co. for summary judgment , cs. w/attachments. (response due 9/23/99) (dh) (Entered: 09/03/1999)
16 Memorandum by Sears, Roebuck & Co. in support of [15-1] motion for summary judgment, cs. (dh) (Entered: 09/03/1999)
Pre-trial conference set at 10:00 10/21/99 before USMJ Louise W. Flanagan in G'ville at courthouse annex. (dh) (Entered: 09/01/1999)
Jury trial set at 10:00 11/1/99 before Judge Malcolm J. Howard in G'ville. (dh) Modified on 09/01/1999 (Entered: 09/01/1999)

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09/07/1999 09/10/1999
10/04/1999 10/08/1999
10/08/1999 10/12/1999 10/12/1999 10/18/1999 10/19/1999 10/21/1999 10/25/1999 10/25/1999 10/28/1999 10/29/1999 12/08/1999 12/08/1999

17 Motion by EEOC to extend time to respond to defendant's motion for summary judgment . w/cs. Cy. to USMJ Dixon w/po. (ll) (Entered: 09/10/1999)
18 Order granting [17-1] motion to extend time to respond to defendant's motion for summary judgment, Response to reset to 10/6/99 for [15-1] motion for summary judgment , reset Jury trial before Judge Malcolm J. Howard for 2/7/00 signed by Wallace W. Dixon, USMJ. Cys. served. Cal. cy. (ll) (Entered: 09/10/1999)
19 Motion by EEOC to extend time for two-days to and including Oct. 8, 1999 to respond to deft's motion for summary judgment , cs. cy to Clerk w/p.o. (dh) (Entered: 10/12/1999)
20 Order granting [19-1] motion by pla. to extend time for two-days to and including Oct. 8, 1999 to respond to deft's motion for summary judgment, Response to motion reset to 10/8/99 for [15-1] motion for summary judgment signed by David W. Daniel, Clerk. cys served 10/8/99. (dh) (Entered: 10/12/1999)
22 Affidavit of Erania Ebron-Fubara by EEOC Re: [21-1] motion response. w/ attachments. (ll) (Entered: 10/19/1999)
23 Memorandum by Francisco G. Santana in opposition to [15-1] motion for summary judgment. w/cs. Reply due on 10/29/99. (ll) (Entered: 10/19/1999)
24 Affidavit of Francisco G. Santana by Francisco G. Santana Re: [21-1] motion response. w/attachments. (ll) (Entered: 10/19/1999)
21 Response by EEOC to [15-1] motion for summary judgment. w/cs and attachments. Reply due on 10/27/99. (ll) (Entered: 10/19/1999)
25 Document filed by defendant Sears, Roebuck & Co. titled: Defendant's Notice of Intent To File Its Reply To Plaintiffs' Responses To Defendant's Motion For Summary Judgment, cs. (dh) (Entered: 10/28/1999)
26 Motion by Sears, Roebuck & Co. to exceed the ten page limit imposed on replies , cs. cy faxed to Clerk 10/28/99. (dh) (Entered: 10/28/1999)
27 Reply by Sears, Roebuck & Co. to response to [15-1] motion for summary judgment, cs. (dh) Modified on 10/28/1999 (Entered: 10/28/1999)
28 Document filed by defendant Sears, Roebuck & Co. titled: Defendant's Supplement To Its Motion For Summary Judgment, cs. w/attachments. (dh) Modified on 10/28/1999 (Entered: 10/28/1999)
Motion(s) submitted: [15-1] motion for summary judgment submitted. CASE FILE TO JUDGE HOWARD FOR CONSIDERATION. (dh) (Entered: 10/28/1999)
29 Order granting [26-1] motion to exceed the ten page limit imposed on replies signed by David W. Daniel, Clerk. cys served by mail. Telephoned counsel. (dh) Modified on 10/29/1999 (Entered: 10/29/1999)
Pre-trial conference set at 1/20/00 before USMJ Louise W. Flanagan at courthouse annex. (dh) (Entered: 12/09/1999)
Jury trial set at 2/7/00 before Judge Malcolm J. Howard in G'ville. (dh) (Entered: 12/09/1999)

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01/12/2000 01/18/2000 01/18/2000
01/31/2000 02/03/2000
02/03/2000
02/03/2000 02/14/2000 03/03/2000 03/31/2000 03/31/2000 04/04/2000 04/07/2000 04/12/2000
04/24/2000
05/01/2000

Updated docket sheet to Magistrate Judge Flanagan for pretrial conference scheduled for 1/20/00. (ll) (Entered: 01/12/2000)
28 Faxed Motion by Francisco G. Santana to continue pretrial and trial , cs. cy to Judge Howard. Original to follow in the mail. (dh) (Entered: 01/19/2000)
29 Order granting [28-1] motion to continue pretrial and trial, reset Jury trial before Judge Malcolm J. Howard for 3/6/00 in G'ville The clerk is directed to reset the pretrial accordingly. cys served by mail. Telephoned counsel. signed by Malcolm J. Howard, US Judge. (dh) (Entered: 01/19/2000)
30 Unopposed Motion by Sears, Roebuck & Co. for a date certain for trial . w/cs. Cy. to Judge Howard w/po. (ll) (Entered: 01/31/2000)
31 (**VACATED - SEE #43 ORDER OF 5/31/01**) Order mooting [30-1] motion for a date certain for trial, granting [15-1] motion for summary judgment. The court grants defendant's motion for summary judgment. The clerk is directed to close this case. cys served. signed by Maclcolm J. Howard, US Judge. OB Ref: CIV OB# 62, P-104. (dh) Modified on 05/31/2001 (Entered: 02/03/2000)
32 (**VACATED ON 5/31/01 - SEE #43 ORDER) Judgment for Sears, Roebuck & Co. against Francisco G. Santana, EEOC. IT IS ORDERED AND ADJUDGED defendant's motion for summary judgment is granted and this case is closed. cys served. signed by David W. Daniel, Clerk. OB Ref: CIV OB# 62, P-105 (dh) Modified on 05/31/2001 (Entered: 02/03/2000)
Case closed. Non-Permanent. (dh) (Entered: 02/03/2000)
33 Bill of costs from defendants in the amount of $4,075.89, w/attachments. (dh) (Entered: 03/03/2000)
Bill of Costs submitted to Clerk for consideration. (dh) (Entered: 03/03/2000)
Case file to appeal clerk. (ja) (Entered: 03/31/2000)
35 Notice of appeal by EEOC (rp) (Entered: 04/24/2000)
36 Notice of appeal by Francisco G. Santana (rp) (Entered: 04/24/2000)
USCA appeal fees received: APPEAL FEE $ 105.00 RECEIPT # 37186 (rp) (Entered: 04/24/2000)
34 Order granting in part, denying in part [33-1] Bill of Costs. The defendant is ALLOWED $2,931.55 in court reporting fees, $80.00 in witness fees, and $394.50 copy fees for a total award of $3,406.05. signed by David W. Daniel, Clerk. OB Ref: CIV OB #63, p. 80. Cys. served. (ll) (Entered: 04/12/2000)
Notice of Appellate Action to USCA and counsel re: [36-1] appeal by Francisco G. Santana, [35-1] appeal by EEOC Appeal Pkg. mailed consisting of Dkting Statement, Transm. Sheet and Index (rp) (Entered: 04/24/2000)
37 Order THE COURT CONSOLIDATES THESE CASES FOR PURPOSES OF BRIEFING AND ORAL ARGUMENT signed by Patricia S. Connor. (rp) (Entered: 05/01/2000)

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05/16/2000
06/14/2000 12/12/2000 03/20/2001 05/02/2001
05/14/2001 05/15/2001 05/24/2001 05/24/2001 05/24/2001 05/29/2001 05/31/2001
05/31/2001 06/21/2001 06/21/2001 07/09/2001

38 Judgment for Sears, Roebuck & Co. against Francisco G. Santana, EEOC. IT IS ORDERED AND ADJUDGED defendant shall have and recover of the plaintiffs the sum of $3,406.05 in costs. signed by David W. Daniel, Clerk. OB Ref: CIV OB #63, p. 108. Cys. served. (ll) (Entered: 05/16/2000)
Certificate to USCA and counsel re: [36-1] appeal, [35-1] appeal certifying that the record in this case is complete for purposes of the appeal. Cy. to Judge (rp) (Entered: 06/14/2000)
24 HOUR RECORD Transmitted record on appeal to U.S. Court of Appeals: [36-1] appeal by Francisco G. Santana, [35-1] appeal by EEOC (rp) (Entered: 12/12/2000)
39 Opinion from USCA Re: [36-1] appeal, [35-1] appeal - REVERSED AND REMANDED (rp) (Entered: 03/20/2001)
THE MANDATE IN THIS CASE WILL NOT ISSUE AT THE SCHEDULED TIME BECAUSE A TIMELY PETITION FOR REHEARING HAS BEEN FILED AND A TIMELY PETITION FOR REHEARING EN BANC HAS BEEN FILED (rp) (Entered: 05/02/2001)
Record on appeal returned from U.S. Court of Appeals: [36-1] appeal by Francisco G. Santana, [35-1] appeal by EEOC (rp) (Entered: 05/14/2001)
40 Order IT IS ORDERED THAT THE PETITION FOR REHEARING AND REHEARING EN BANC IS DENIED signed by Patricia S. Connor. (rp) (Entered: 05/15/2001)
41 Certified copy of judgment of USCA Re: [36-1] appeal, [35-1] appeal - THE COURT REVERSED AND REMANDED THE JUDGMENT OF THE DISTRICT COURT (rp) (Entered: 05/24/2001)
**Remove appeal flag - no further appeals pending (rp) (Entered: 05/24/2001)
42 Order THE COURT AWARDS EEOC $578 IN COSTS signed by Patricia S. Connor. (rp) (Entered: 05/24/2001)
Case submitted to: Judge Howard [41-1] submitted. CASE FILE TO JUDGE HOWARD FOR CONSIDERATION. (dh) (Entered: 05/29/2001)
43 Order - In accordance with the order of the Fourth Circuit, this court's February 3, 2000 is hereby vacated; vacating [31-1] order , set Jury trial before Judge Malcolm J. Howard for 10:00 a.m. on 8/20/01 in Greenville. signed by Malcolm J. Howard, USDJ. OB Ref: CIV OB #66, p. 96. Cys. served. Cal. cy. (ll) Modified on 05/31/2001 (Entered: 05/31/2001)
Case reopened. (ll) (Entered: 05/31/2001)
Pre-trial conference set at 9:30 8/7/01 before USMJ Louise W. Flanagan at courthouse annex. (dh) (Entered: 06/21/2001)
Jury trial set at 10:00 8/20/01 before Judge Malcolm J. Howard in G'ville. (dh) (Entered: 06/21/2001)
44 Motion by Amy K. Reynolds co-counsel for deft. Sears, Roebuck & Co. to withdraw as counsel of record , cs. (response due 8/1/01) (dh) (Entered:

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07/16/2001 07/17/2001
07/23/2001 08/08/2001 08/08/2001 08/08/2001 08/13/2001 08/13/2001 08/13/2001
08/13/2001 08/13/2001 08/17/2001
09/04/2001
09/28/2001

07/11/2001)
45 Joint motion by EEOC, Francisco G. Santana, Sears, Roebuck & Co. to continue pretrial and trial , cs. cy to Judge Howard. (dh) (Entered: 07/17/2001)
46 Order granting [45-1] joint motion to continue pretrial and trial, reset Jury trial before Judge Malcolm J. Howard for 10/15/01 The clerk shall reschedule pretrial accordingly. ccys served. calendar copy. signed by Malcolm J. Howard, US Judge. (dh) (Entered: 07/17/2001)
47 Notice of attorney appearance for Sears, Roebuck & Co. by Stephen D. Dellinger. w/cs. (ll) (Entered: 07/24/2001)
Motion(s) referred: referred [44-1] motion to withdraw as counsel of record to USMJ William A. Webb. CASE FILE TO USMJ WEBB FOR CONSIDERATION. (dh) (Entered: 08/08/2001)
(dh) (Entered: 08/08/2001)
48 Document filed by plaintiff Francisco G. Santana titled: Objections To Defendant's Request For Admission, cs. (dh) (Entered: 08/09/2001)
Pre-trial conference set at 10:00 10/3/01 before USMJ Louise W. Flanagan at courthouse annex. (dh) (Entered: 08/13/2001)
Jury trial set at 10:00 a.m. on 10/16/01 before Judge Malcolm J. Howard in G'ville. (dh) (Entered: 08/13/2001)
49 Order Reassigning Magistrate Judge - The magistrate judge designation shall be changed to the Honorable Louise W. Flanagan. The Honorable Malcolm J. Howard shall remain as the presiding district judge. All future pleadings should reflect the revised case number of: 4:98-CV-136-H4. signed by David W. Daniel, Clerk. Cys. served. (ll) (Entered: 08/13/2001)
(ll) (Entered: 08/13/2001)
Motion(s) referred: referred [44-1] motion to withdraw as counsel of record to USMJ Louise W. Flanagan. Case file to USMJ Flanagan for consideration. (ll) (Entered: 08/13/2001)
50 Order granting [44-1] motion to withdraw as counsel of record, for Amy K. Reynolds to withdraw as attorney (Terminated attorney Amy K. Reynolds for Sears, Roebuck & Co. signed by Louise W. Flanagan, USMJ. Cys. served. (ll) (Entered: 08/17/2001)
51 Stipulation of dismissal by plaintiff/intervenor Santana and Sears, Roebuck and Co. - stipulate that Plaintiff Santana dismisses with prejudice his individual claims against Sears, Roebuck and Co. Further, Santana dismisses with prejudice all claims for damages against Sear, Roebuck and Co., including but not limited to all claims for backpay, past and/or future pecuniary losses, past and/or future nonpecuniary losses, compensatory damages, emotional pain and suffering damages and/or punitive damages. (dh) (Entered: 09/05/2001)
Case submitted to: Louise W. Flanagan, USMJ [0-0] pre-trial conference scheduled for 10/3/01. (ll) (Entered: 09/28/2001)

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10/01/2001 10/01/2001 10/01/2001 10/10/2001 10/10/2001

CASE FILE RETURNED from: Judge Flanagan's chambers. (ll) (Entered: 10/01/2001)
Telephoned counsel and advised there was no need for counsel to come to the Pretrial Conf. on 10/3/01 since the parties have submitted a proposed Consent Decree. (ll) (Entered: 10/01/2001)
Case submitted to: Judge Howard for consideration of proposed Consent Decree submitted by parties. (ll) (Entered: 10/01/2001)
52 Consent (Decree) judgment for EEOC against Sears, Roebuck & Co. (See document for terms of decree.) signed by Malcolm J. Howard, USDJ. OB Ref: CIV OB #67, p. 58. Cys. served. (ll) (Entered: 10/10/2001)
Case closed. Permanent. (ll) (Entered: 10/10/2001)

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 243 F.3d 846 (2001)
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, and Francisco G. Santana, Plaintiff, v.
SEARS ROEBUCK AND COMPANY, Defendant-Appellee. Francisco G. Santana, Plaintiff-Appellant, and
Equal Employment Opportunity Commission, Plaintiff, v.
Sears Roebuck and Company, Defendant-Appellee.
Nos. 00-1507, 00-1509.
United States Court of Appeals, Fourth Circuit.
Argued December 6, 2000. Decided March 16, 2001.
847 *847 ARGUED: Robert John Gregory, Office of General Counsel, Equal Employment Opportunity Commission, Washington, DC, ON BRIEF: C. Gregory Stewart, General Counsel, Philip B. Sklover, Associate General Counsel, Lorraine C. Davis, Assistant General Counsel, Lisa J. Banks, Office of General Counsel, Equal Employment Opportunity Commission, Washington, D.C., for Appellants.
James Bernard Spears, Jr., Haynsworth, Baldwin, Johnson & Greaves, L.L.C., Charlotte, North Carolina, Jerry H. Walters, Jr., Haynsworth, Baldwin, Johnson & Greaves, L.L.C., Charlotte, North Carolina, for Appellee.
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Reversed and remanded by published opinion. Judge Diana Gribbon Motz wrote the majority opinion, in which Judge MICHAEL joined. Judge NIEMEYER wrote a dissenting opinion.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
The Equal Employment Opportunity Commission (EEOC) brought this Title VII action on behalf of intervenor Francisco Santana, asserting that Sears Roebuck & Co. discriminated against Santana on the basis of national origin when it refused to hire him as a loss prevention associate. The district court granted summary judgment to Sears; Santana and the EEOC now appeal. For the reasons that follow, we reverse.
I.
Santana, born in Mexico in 1960, has olive skin and speaks with an Hispanic accent. He moved to this country in 1971 and has since become a naturalized citizen of the United States. In 1979, after graduating from high school, Santana enlisted in the United States Marine Corps and has continually served as a Marine since that time.
During much of his adult life, Santana has also worked for Sears. In 1985, while he was stationed at a Marine base in Tustin, California, Sears hired Santana as a part-time loss prevention agent to provide undercover store security in its Costa Mesa, California store. Except for a one-year military leave of absence when he was stationed abroad, for the next ten years, Santana continued to work as a part-time loss prevention agent at the Costa Mesa store. In late 1995, the Marines transferred Santana to the Marine Corps Air Station in Cherry Point, North Carolina.

In preparation for this transfer in October 1995, Santana visited North Carolina. During his visit, Santana went to the Sears store in Morehead City, North Carolina to inquire about job opportunities for the same position he had held for ten years in California 0907 specifically part-time loss prevention agent. Santana spoke with William Mansfield, the loss prevention manager in the Morehead City store. Mansfield assured Santana that the Morehead City store could use someone with his experience and that there would be a job waiting for him when he arrived. Mansfield then gave Santana a business card with the telephone number of the store's operations manager, Teri Katsekes, and said he would talk to Katsekes about Santana and his background and experience.
Upon his return to California, in November 1995, Santana asked the personnel department at the Costa Mesa 848 Sears to send *848 a transfer form to the personnel department at the Morehead City store. The Costa Mesa
personnel department prepared the form, dated November 27, 1995, and forwarded it as requested. Santana contacted the Morehead City operations manager, Katsekes, by telephone, in November or early December, 1995. They had a brief conversation in which Santana told Katsekes that he would be available for work in North Carolina approximately the last week in December; she responded that they would be glad to have him in the North Carolina store and to get in touch with the store when he arrived.
In late December 1995, Santana reported for duty at the Marine base in Cherry Point, North Carolina. Shortly thereafter, he visited the Sears store in Morehead City to inquire about starting work. Loss prevention manager Mansfield told Santana that a job would not be available until after the holidays. When Santana returned to the store the first week in January, Mansfield again indicated that there were no openings, so Santana completed an employment application, told Mansfield he would continue to check back, and gave Mansfield his address and telephone number. Santana returned to the store twice in February but was unable to see either Mansfield or operations manager Katsekes.
Periodically, throughout the spring and summer of 1996, Santana returned to the Morehead City store to check on employment possibilities. Santana submitted an additional employment application on March 23, 1996. Although Santana made several attempts to talk with Katsekes or Mansfield during this period, he was unable to speak with either of them. On July 20, 1996, Santana submitted a third application; in that application he indicated that he would accept a loss prevention position or "any other position" with Sears. (At his deposition, Santana identified copies of the March and July applications, which were submitted as exhibits in opposition to Sears's motion for summary judgment.) Despite these efforts, Sears did not contact Santana until October 1996.
In October, Patty Haynes, a human resources specialist at the Morehead City store, telephoned Santana and invited him to come in for an interview. During this interview, Haynes commented on Santana's accent and asked where he was "[o]riginally from." Santana answered that he had been born in Mexico City. At the conclusion of the interview, Haynes offered Santana a position as a stock clerk. When Santana referred to his loss prevention experience, Haynes realized that he was "the guy from California" and remembered his previous applications.
Haynes then took Santana to meet with Katsekes, who interviewed him in the office of the store manager, Patricia Kiely; according to Santana, Katsekes told him that Kiely was on vacation at the time. Santana remembered this because Katsekes apologized for the messiness of the desk during the interview, explaining that it was not her office, where she normally conducted interviews, but that she was "standing in" for store manager Kiely, using Kiely's desk, while Kiely was on vacation. Santana maintains that, during the interview, Katsekes became increasingly disinterested and abrupt due to his accent, although she did not comment on the accent, as Haynes had. Nevertheless, at the conclusion of the interview, Katsekes offered Santana a part-time loss prevention position, sent him for a routine drug screening, and stated that he would begin work right after a satisfactory drug screening result was received. Two days later, on October 25, 1996, Santana underwent a drug screening test; the negative result was sent to Sears.
On November 1, 1996, Santana returned to the store to give Haynes a copy of his social security card and asked when he could begin work. Haynes told him that "the trainer was sick." When Santana demurred that he had been trained and worked for the company for ten years, she replied that company policy required retraining. A 849 week later, on November 8, 1996, Santana telephoned Haynes, again *849 inquiring when he could start work. Haynes told him that a background investigation was being conducted and that he would be called by November 12. During this time, Santana spoke twice with David Mrazick, the loss prevention manager who had replaced

Mansfield; Mrazick indicated that there was an immediate need for someone in the loss prevention department, that he was impressed by Santana's experience, and that he would speak to "management" on Santana's behalf.
Despite this, no one at Sears contacted Santana about starting work. When Santana did not hear from Sears, he telephoned the store repeatedly; he also contacted Sears loss prevention officials in California, including that region's manager, to see if they could determine the reason for the delay. After these telephone calls failed to yield an answer, on November 22, Santana went to the store to speak with Haynes or Katsekes; Haynes saw him and told him Katsekes would telephone him by November 26. On November 27, after Santana had not heard from Katsekes, he called her. At that time she told him that he was not going to be hired after all because Sears had hired someone else in his place and the store did not have the payroll to hire yet another person. Subsequently, Santana learned that Virginia Born, a Caucasian woman, had been hired as a part-time loss prevention agent two weeks earlier, on November 12, 1996.
Upon hearing that he was not going to be hired, Santana immediately telephoned Sears corporate headquarters to complain about the way he had been treated. After Santana related his story, an employee in the corporate office asked if he was willing to take any available position at the Morehead City Sears; Santana stated that he was. Shortly thereafter, the corporate employee called him and said that the Morehead City store was going to find him a position before December 6 and someone would call him by November 29. When Santana did not hear from anyone, he called on December 2, 1996 and talked to Haynes, who said she did not know anything about finding him a position. The Morehead City Sears never employed Santana.[1]
In early 1997, Santana filed an EEOC claim against Sears alleging discrimination on the basis of national origin. Sears assigned David Cross, the Fair Employment Manager for the South Central region, to respond to the charge. Cross contacted Katsekes and Haynes in the course of preparing this response and asked why Santana had not been hired. Based on their explanations, Cross submitted a position statement for Sears to the EEOC. The position statement acknowledged Santana "had a number of years" experience in loss prevention at a Sears store in California, and that his job history was "a positive one." The Sears position statement asserted that the Morehead City store did not hire Santana before October 1996 because "he had not shown up or contacted the unit" and, although store employees repeatedly tried to contact him, they were "unable to do so." When Santana "finally showed up," he was told "that the position had been filled," and he responded that he "had been on deployment with the military." Thereafter, Santana "constantly inquired about any open positions in the unit." Recognizing that Santana "would be an asset" to the store, Sears interviewed him and requested "additional hours and payroll for its" loss prevention division, but the request was denied. Sears maintained that they did not hire Santana because there were no hours available in loss prevention.
During discovery, Sears offered another story. Katsekes testified that it was difficult to find experienced loss 850 prevention employees and that she was interested in hiring the "loss prevention agent from a *850 California
Sears store" that Mansfield told her about, but Mansfield was unable to locate this person in late 1995 or early 1996 at his work number, and was told by someone that he was on deployment. (Mansfield ended his employment with Sears in 1996 and did not testify or submit an affidavit.) Katsekes could not identify who told Sears this, and acknowledged that no effort was made to contact the California loss prevention agent at his home. She did not testify that this agent had been deployed by the Marines or had told the store he had been deployed. Moreover, Katsekes did not dispute that Santana had filed employment applications in January, March, and July 1996 but she maintained that she was "never aware of [the earlier] applications" and that the first time she saw his July application was in October 1996 when she interviewed him.
Katsekes admitted that the reasons she gave to Cross, and that he in turn gave to the EEOC in 1997, for refusing to hire Santana in October 1996 were inaccurate. She explained that she did have an available loss prevention position when she interviewed Santana because she had determined to "take those hours from somewhere else in the store" and "put on extra Loss Prevention help." Katsekes testified that she had been impressed with Santana's loss prevention experience and offered him a job, contingent on his passing a drug test and background check, "[h]owever ... after the interview" she "was instructed not to go any further with the application." Katsekes acknowledged that a few weeks after she interviewed Santana, a Caucasian woman, Virginia Born, was hired as a part-time loss prevention associate. Sears records produced to Santana indicate that on November 12, 1996, Sears hired Born, who had no loss prevention experience, no previous employment

history with Sears, and less education than Santana. Katsekes admitted that "[w]ith respect to education and prior experience," she would "have to say Mr. Santana" was more qualified than Born.
In her 1999 deposition, Katsekes testified that the reason Sears did not employ the better qualified Santana was not what she previously told Cross, but rather that, a few hours after her interview with Santana, Mrazick came into her office and told her that store manager Patricia Kiely "decided that we're not going to go any further with this application." Katsekes maintained that she did not ask either Mrazick or Kiely the reason for this decision because she was angry at Kiely for overruling her without an explanation. Katsekes further testified that she did not inform Santana or Cross or the EEOC that Kiely had overruled her decision to hire Santana because she thought it reflected badly on the store.
Kiely testified in her deposition (taken in 1999, several months after Katsekes's) that in October 1996, when Mrazick told her that Katsekes "was getting ready to hire a guy from California with asset protection experience," she told him she "did not want that to happen," without explaining her reasons. Kiely maintained that in the beginning of 1996, she had a telephone conversation with Ann Manherz, a Sears regional manager, who mentioned in passing an unnamed "asset protection agent from California that had some sexual harassment issues," and Kiely mistakenly thought Santana "could be that person." (Sears does not contend and has not contended that Santana was in fact the individual to whom Manherz had referred.) Kiely acknowledged that she did not investigate or attempt to confirm that Santana was the suspected individual. Rather, she "assumed" that he was the individual Manherz had spoken about and therefore decided not to hire him. Kiely further asserted that, at the time she decided not to hire Santana, she had not met or seen Santana, and that she did not know his national origin or even his name.
Ann Manherz testified that she had no involvement with Santana's attempt to become employed at the Morehead 851 City store, and that she had never discussed *851 Santana with Kiely, Katsekes, Haynes, or anyone else except
her lawyer. Manherz further testified that she never had any conversations with Kiely, Katsekes, or Haynes about employment decisions at the Morehead City store. In response to a question from Sears as to whether she "[c]ould ... have had a conversation with Ms. Kiely about a loss prevention agent being accused of sexual harassment," Manherz responded, "I could have." In a later affidavit, Manherz elaborated that she was aware, in early 1996, that a loss prevention agent from a California store, who had been accused of sexual harassment, was looking for work in the Southeast and she could "very well" have talked with Kiely about this agent, but reiterated that she did not know Santana or talk about him specifically with Kiely.
After discovery was completed, the district court granted Sears's motion for summary judgment. The court reasoned that, although the EEOC had established a prima facie case of national origin discrimination, it had failed to establish that Sears's proffered legitimate non-discriminatory reason for its failure to hire Santana 0907 namely, Kiely's belief that he had "some sexual harassment concerns" 0907 was a pretext for illegal discrimination.
II.
A plaintiff establishes a prima facie case of discrimination in hiring when he demonstrates that (i) he belongs to a protected class, (ii) he applied and was qualified for a job for which the employer was seeking applicants, (iii) despite his qualifications, he was rejected, and (iv) after his rejection, the position remained open and the employer continued to seek applicants from persons of his qualifications. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).[2] Plainly, Santana satisfies all four elements of a prima facie case: (i) as a Hispanic Mexican-American, he is a member of a protected class, (ii) he applied and was well qualified for a position as a part-time loss prevention associate at Sears, (iii) despite his qualifications, Sears rejected him, and (iv) the position remained open, Sears continued to seek to fill it, and did shortly fill it by hiring a less qualified Caucasian woman.
Indeed, the prima facie case here is a strong one. The evidence as to Santana's year-long job seeking odyssey 0907 including his numerous visits to the store, contacts with store personnel, and the filing of three different job applications 0907 is uncontroverted. Unlike some cases, here the EEOC presented overwhelming evidence that Santana diligently applied for the job denied him. Cf. Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d

Cir.1998) (upholding dismissal of failure-to-promote claim where plaintiff did not allege that she had applied for a promotion); Brown v. McLean, 159 F.3d 898, 903 (4th Cir.1998) (plaintiff who failed to apply for re-employment could not establish a prima facie case of discrimination); Chambers v. Wynne Sch. Dist., 909 F.2d 1214, 1217 (8th Cir.1990) (plaintiff did not establish a prima facie case of discrimination with regard to openings for which she never formally applied).
Furthermore the uncontroverted evidence clearly demonstrates that Santana, again unlike some discrimination claimants, was well qualified for the position he so eagerly sought. Cf. Montgomery v. John Deere & Co., 169 852 F.3d 556, 559-60 (8th Cir.1999) (plaintiff's prima facie case was, "at best, weak" where evidence *852 showed that, at the time of his termination, his performance was deficient); Pafford v. Herman, 148 F.3d 658, 669 (7th Cir.1998) (absent evidence that plaintiff was qualified for promotion, her prima facie case was "too weak to allow the factfinder to speculate" as to employer's motive) (internal quotation marks omitted). In fact, his previous ten years of experience as a part-time loss prevention agent with Sears would seem to make him as qualified as any person could be for this position.
It is also beyond question that Santana satisfied the third and fourth elements of the prima facie case, namely that, despite his qualifications, Sears rejected his application for employment and then quickly filled the position by hiring a Caucasian woman. While employers often insist in hiring cases such as this one that the person chosen for the job over the plaintiff was better qualified, see, e.g., Bray v. Marriott Hotels, 110 F.3d 986, 990 (3d Cir.1997), here even Sears concedes, as it must, that Santana's education and experience were superior to the Caucasian woman hired in his stead, who had never before worked for Sears, had less education, and had no loss prevention experience. In sum, Santana presented uncontroverted evidence of a strong prima facie case 0907 despite his repeated applications, his superb qualifications, and his expressed willingness to accept any available position, Sears refused to hire him at the Morehead City store and instead hired a Caucasian woman who, Sears itself concedes, was less qualified than Santana.
Once a plaintiff establishes a prima facie case, the burden then shifts to the employer to "produc[e] evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason." Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). In this case, Sears has, over time, proffered several reasons for its failure to hire Santana, including the selection of someone else, a lack of available hours in the loss prevention department, and the belief that Santana had been investigated for sexual harassment in the past. Sears now insists that only this last explanation 0907 the belief that Santana was the person described by Manherz who had been investigated for sexual harassment 0907 is the true reason for its failure to hire Santana. If this is the reason Sears did not hire Santana 0907 although this belief ultimately proved to be unfounded 0907 it nonetheless constitutes a legitimate non-discriminatory explanation. See Pollard v. Rea Magnet Wire Co., 824 F.2d 557, 559-60 (7th Cir.1987).
Once an employer offers a legitimate, non-discriminatory explanation for the challenged employment decision, "the plaintiff must than have an opportunity to prove ... that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Burdine, 450 U.S. at 253, 101 S.Ct. 1089. The Supreme Court recently clarified the plaintiff's burden at the pretext stage in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). The Court reiterated that evidence of pretext, combined with the plaintiff's prima face case, does not compel judgment for the plaintiff, because "[i]t is not enough ... to disbelieve the employer; the factfinder must [also] believe the plaintiff's explanation of intentional discrimination." Id. at 2108 (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). However, the Reeves Court made plain that, under the appropriate circumstances, "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." Id. at 2109.
Here, looking at the totality of the circumstances, there is ample evidence from which a factfinder could conclude that, in the words of the Reeves Court, Sears's "asserted justification is false." Id. Indeed, the fact that Sears has 853 offered different justifications at different times *853 for its failure to hire Santana is, in and of itself, probative of pretext. See, e.g., Dominguez-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."); Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1167 (6th Cir.1996) ("An employer's

changing rationale for making an adverse employment decision can be evidence of pretext."); EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir.1994) (holding that a reasonable juror could infer that the shifting and inconsistent explanations given by the employer at trial were pretextual, developed over time to counter the evidence suggesting discrimination).
Moreover, a factfinder could infer from the late appearance of Sears's current justification that it is a post-hoc rationale, not a legitimate explanation for Sears's decision not to hire Santana. See Tyler v. Re/Max Mountain States, Inc., 232 F.3d 808, 813 (10th Cir.2000) ("We are disquieted ... by an employer who `fully' articulates its reasons for the first time months after the decision was made."). Katsekes interviewed and offered Santana a job in October 1996; the first time Katsekes claimed that Kiely overruled her decision to hire Santana was in her deposition in May 1999, over two and a half years later. Katsekes stated that she chose not to tell Santana at the time that her decision to hire him had been overruled by Kiely because she thought it reflected badly on the store. This explanation certainly seems possible. But, Katsekes had another opportunity to disclose Kiely's involvement in the decision not to hire Santana, namely in 1997, when Cross contacted her in the course of preparing his response to Santana's EEOC Charge of Discrimination, and she did not do so. Instead, Katsekes told Cross that no hours were available in loss prevention 0907 an explanation that she conceded years later at her deposition was not accurate and is further belied by the fact that Virginia Born was hired as a loss prevention associate less than three weeks after Katsekes interviewed Santana.
Katsekes's failure to tell Cross or the EEOC of Kiely's involvement seems curious. If Kiely had instructed Katsekes not to hire Santana, why would Katsekes not tell this to Cross? She could hardly be embarrassed to disclose this fact to Cross, a fellow Sears employee, and, as an operations manager, she must have known the importance of responding truthfully and completely to an EEOC discrimination charge. Furthermore, would she not have realized that Cross would want to talk to Kiely, if Kiely had indeed made the ultimate decision not to hire Santana? It seems probable that Katsekes would have mentioned Kiely's involvement during the EEOC investigation, if not before. Given that she did not do so, a trier of fact would certainly be entitled to infer that this explanation is nothing more than a post hoc rationale, invented for the purposes of litigation.
Apart from the late appearance of Sears's current explanation, there is additional evidence from which a factfinder could infer that it is unworthy of belief. Kiely claims that she ordered Katsekes not to hire Santana because, based on a casual conversation with Manherz eight months earlier, she believed that Santana had been investigated for sexual harassment. While Sears now acknowledges that this belief was incorrect, it contends that a mistaken belief, honestly held, is not a pretext for discrimination. In this case, however, the evidence does not support Sears's contention that Kiely honestly believed that Santana was the individual investigated for sexual harassment. Kiely admits that, at the time she rejected Santana, she did not know the name of the individual to whom Manherz referred and did not make any attempt to verify that Santana was, in fact, that individual. A juror could easily find it implausible that Kiely would reject a qualified applicant, such as 854 Santana, without first substantiating that he was, in fact, the individual accused of sexual harassment. *854 See 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."). This is particularly true given that both Kiely and Katsekes testified that the Morehead City store had difficulty finding people experienced in loss prevention, as Santana was. The credibility of Kiely's explanation is further undermined by the fact that, until after this litigation was underway, she admittedly failed to reveal to anyone, including Mrazick or Katsekes, the now-asserted reason for her claimed directive not to hire Santana.
In sum, the EEOC made out a strong prima facie case of national origin discrimination and offered ample evidence to discredit Sears's proffered non-discriminatory reason for its failure to hire Santana. Under Reeves, this showing is sufficient to permit a trier of fact to "infer the ultimate fact of discrimination from the falsity of the employer's explanation." Reeves, 120 S.Ct. at 2108. Indeed, Reeves teaches that when "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." Id. at 2108-09. Of course, if "no rational factfinder could conclude that the [employer's job] action was discriminatory," then the case should not proceed beyond summary judgment. Id. at 2109. But, in the absence of evidence requiring such a conclusion,

a prima facie case and evidence of pretext raises a sufficient inference of discrimination to entitle a plaintiff to survive a motion for summary judgment.
Thus, the only remaining question is whether Sears has presented evidence such that "no rational factfinder" could conclude that Sears's refusal to hire Santana was motivated by national origin discrimination. Id. Sears maintains that it has. Specifically, Sears contends that it has presented evidence proving that: (1) the person who decided not to hire Santana was Kiely, and (2) Kiely did not know Santana's national origin. That argument must fail, however, because, although Sears has certainly presented evidence that could lead a factfinder to these conclusions, Sears has not presented evidence that requires this. Rather, ample evidence in the record would permit a reasonable trier of fact to reject either or both of these conclusions.
Sears maintains that Kiely, not Katsekes, decided to revoke the job offer to Santana. While that is certainly Sears's contention, there is a good deal of record evidence that discredits it. For example, Katsekes failed to tell anyone that Kiely was the decision-maker either at the time of Santana's job application or during the EEOC administrative process. The trier of fact could reasonably infer from Katsekes's failure to disclose Kiely's involvement until litigation had begun that the explanation is simply untrue, and that the relevant decision-maker in this case was Katsekes, not Kiely. Furthermore, Santana testified, in the kind of detail that imbues his testimony with credibility, that when Katsekes interviewed him, she did so in Kiely's untidy office, explaining that Kiely was on vacation. If a factfinder credits this testimony, and Sears apparently offered no attendance records or other evidence to counter it, then Sears's contention that, within hours of Santana's interview, Kiely ordered Katsekes not to hire Santana appears unlikely.
Moreover, on the present record, it is undisputed that in the weeks following Santana's interview, Mrazick told Santana he would talk to "management" on Santana's behalf, Haynes told Santana his start date would begin after training and the background check were completed, and Katsekes continued to evade Santana's inquiries 855 as to a start date. Indeed, Katsekes did not notify Santana for more than *855 a month that she was withdrawing the job offer and during that time she hired a Caucasian woman for the job that had been offered to Santana. A factfinder could infer from this evidence that Katsekes, not Kiely, decided not to follow through on the job offer to Santana; that remembering Santana's accent and national origin, Katsekes became increasingly less enthusiastic about Santana as a candidate and for this reason, she delayed finalizing his start date; and that when Katsekes found a less "foreign" candidate, she determined to hire that person and revoke her offer to Santana. Of course, a finder of fact might not so conclude, but there is certainly evidence, now uncontroverted, that permits this inference.
Even if a factfinder should conclude that Kiely was the relevant decisionmaker, a factfinder might not accept Sears's second contention 0907 that Kiely did not know Santana's national origin. As the EEOC notes, Kiely's assertion to this effect "is not supported by any other testimony in the record." EEOC Reply Brief at 6 n. 2. In fact, Katsekes stated in her affidavit not that Mrazick told her to stop activity on the application of the unnamed California loss prevention agent, but that "Ms. Kiely had directed [Mrazick] to tell me that the store would not hire Mr. Santana," (emphasis added), suggesting that Kiely did know Santana by his "Hispanic sounding" name.
Moreover, Santana testified that he was in the Morehead City store very frequently over a year-long period, during which time he repeatedly talked with store personnel about job openings and submitted three job applications; even Sears conceded that Santana "constantly inquired" about open positions. Given this uncontroverted evidence, a jury might conclude that Kiely, the manager of this small store, would over time have heard Santana's name or seen him and ascertained that this Hispanic man was the loss prevention agent from California. Furthermore, there is no dispute that numerous other members of the store's management 0907 Katsekes, Haynes, Mansfield and Mrazick 0907 who undoubtedly regularly discussed personnel matters with Kiely, did know of Santana's national origin. A jury might well infer that, in these discussions, they mentioned Santana's national origin to Kiely.
Because there is evidence from which a factfinder could conclude that Katsekes made the decision to revoke the job offer, or that Kiely did know Santana's national origin, a factfinder would be entitled to reject Sears's contentions that Kiely was the sole decision-maker and that she did not know of Santana's national origin. In other words, Sears has failed to demonstrate that "no rational factfinder could conclude that" Sears's refusal to hire Santana was motivated by illegal discrimination. Reeves, 120 S.Ct. at 2109.

Nor does the lack of direct evidence of anti-Hispanic animus or the fact that Sears has hired other Hispanics compel this conclusion. Since no direct evidence of animus is necessary to prove employment discrimination, see United States Postal Bd. of Governors v. Aikens, 460 U.S. 711, 716-17, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983), its absence hardly compels a factfinder to conclude that the employer did not discriminate. Moreover, simply because Sears hired other Hispanic individuals in other departments does not mean that its failure to hire Santana was free from discriminatory intent. See Connecticut v. Teal, 457 U.S. 440, 453-55, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982) ("Congress never intended to give an employer license to discriminate against some employees ... merely because he favorably treats other members of the employees' group."); Graham v. Long Island R.R., 230 F.3d 34, 43 (2d Cir.2000) (evidence that similarly situated non-black employees were treated in the same manner as plaintiff and that one other black employee was treated more favorably was insufficient to sustain summary judgment for employer because of Title VII's focus on protecting individuals, rather than a 856 protected class as a whole). This is not to say that a trier of fact might *856 not ultimately rely on this evidence in returning a verdict for Sears. But this evidence does not compel the grant of summary judgment to Sears because it does not foreclose the possibility that a factfinder could conclude that national origin discrimination was the true reason for Sears's failure to hire Santana.
Sears's reliance on Schnabel v. Abramson, 232 F.3d 83 (2d Cir.2000), is similarly misplaced. In that case, the Legal Aid Society hired Schnabel, a lawyer, as an investigator to replace a much younger man, Sherlock, who was attending law school. Id. at 85. Three years later, after Sherlock graduated, Schnabel's supervisor discharged him and rehired Sherlock; Schnabel then sued for age discrimination. Id. at 86. The Second Circuit upheld the grant of summary judgment to Legal Aid, finding that Schnabel had "put forth the minimal proof necessary to establish a prima facie case," that Legal Aid had proffered "clear and specific" non-discriminatory reasons for his termination, namely Schnabel's "asserted contempt for Legal Aid clients, difficulty following instruction, outright insubordination, and inept performance," and that Schnabel had little evidence that these reasons were pretextual. See id. at 87-88 (internal quotation marks omitted). Moreover, the court noted that Legal Aid offered a good deal of evidence that age was not the reason for Schnabel's termination 0907 Schnabel was fired by the same man who had hired him three years earlier, when Schnabel already was 60 years old, and Schnabel was replaced by the person whom he originally had replaced after his employer "explicitly compared the performances of the two men, and found that Sherlock was a better investigator." Id. at 91.
Schnabel is distinguishable from the present case in virtually every important respect. First, while Schnabel proffered only a weak prima facie case, with his qualifications hotly disputed, Santana's prima facie case was strong 0907 unquestionably his vast experience qualified him for the job he sought. Moreover, while in Schnabel the employer put forward several "clear and specific" nondiscriminatory reasons for the discharge and Schnabel offered only very thin evidence of pretext, see id. at 88, here, Sears's proffered reasons for its failure to hire Santana have constantly changed and there is abundant evidence of pre-text. Finally, in Schnabel, the employer presented proof that illegal discrimination was not the reason for its employment decision, see id. at 91, here, by contrast, Sears has offered no such proof.
The case at hand is far more similar to a recent case from the Eleventh Circuit. In Hinson v. Clinch County, 231 F.3d 821 (11th Cir.2000), a female high school principal, who the county demoted and replaced with a lessqualified male vice-principal, established a prima facie case of sex discrimination and produced evidence that the county's proffered reasons for her demotion were not credible; the district court, however, granted summary judgment to the county because Hinson had not offered any additional evidence that the real reason for the county's decision was discrimination on the basis of sex. Id. at 826, 831-32. The Eleventh Circuit reversed, finding that the district court erred in requiring the plaintiff "to show not only pretext but also additional evidence that the Board discriminated against her based on her sex." Id. at 831. While the record contained no additional evidence that indicated gender bias, the appellate court nonetheless concluded that the plaintiff had produced enough evidence to withstand the county's motion for summary judgment, explaining: "this is a case where 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." Id. at 832 (internal quotation marks omitted). See also Blow v. City of San Antonio, 236 F.3d 293, 298 (5th Cir.2001) (summary judgment for the employer inappropriate when plaintiff had proven a prima facie case, presented evidence 857 creating a material issue of disputed fact as to *857 whether the employer's explanation was false and no

"unusual circumstances" prevented a rational fact-finder from concluding that the employer's reasons for failing to promote plaintiff were discriminatory).
The instant case is almost identical to Hinson in that there is a clear prima facie case of employment discrimination, a good deal of evidence of pretext casting serious doubt on the employer's proffered justification for its job action, and nothing to prevent a rational fact-finder from finding that the employer was motivated by discriminatory reasons. Moreover, while, as in Hinson, there is no additional evidence indicating that unlawful discrimination was the true reason for the employer's decision, there is also no evidence that precludes such a finding. See Rowe v. The Marley Co., 233 F.3d 825, 830 (4th Cir.2000). "[A]bsent such evidence [precluding a finding of discrimination], courts may not require a plaintiff who proves both a prima facie case and pretext to produce additional proof of discrimination in order to survive a defendant's motion for summary judgment." Id. In such circumstances, the factfinder is permitted "to infer the ultimate fact of discrimination from the falsity of the employer's explanation." Reeves, 120 S.Ct. at 2108; Hinson, 231 F.3d at 832.
In sum, under the rule announced in Reeves, there is sufficient evidence in this case for a trier of fact to conclude that Santana was the victim of illegal discrimination. The EEOC, on behalf of Santana, has proven a strong prima facie case of national origin discrimination and has raised significant questions as to the validity of Sears's proffered non-discriminatory reason for its failure to hire Santana. Perhaps at trial, the EEOC will be unable to convince the factfinder that discrimination was the true reason for Sears's failure to hire Santana. But on this record, we cannot hold that "no rational factfinder could conclude" that intentional discrimination was the true motivation for Sears's decision. Reeves, 120 S.Ct. at 2109. Accordingly, the district court erred in granting summary judgment to Sears.
III.
For the foregoing reasons, we reverse the judgment of the district court and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
NIEMEYER, Circuit Judge, dissenting:
It appears to me, regretfully, that the majority may have permitted the plaintiff's personal suspicions, coupled with Sears' clumsiness in giving its reasons for not hiring plaintiff, to become the prima facie case for national origin discrimination. The evidence to support national origin as a reason for not hiring the plaintiff is completely lacking. Indeed, because there is no more indication that the plaintiff was a victim of discrimination on the basis of national origin than there is that he was a victim of age discrimination or gender discrimination, the majority is incorrect in holding that a rational factfinder could conclude that Sears' decision not to hire Santana was based on national origin discrimination. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105 (2000).
Human resources specialist, Patty Haynes, first interviewed Francisco Santana, the plaintiff, in October 1996 for a position at the Morehead City (North Carolina) Sears store and, during the interview, noted Santana's accent, asking him where he was originally from. He said that he had been born in Mexico City. After the interview, Haynes offered Santana a job, albeit not the one he had originally applied for in late 1995. When he indicated that he was interested in a "loss prevention" position, as he had previously held at the Sears store in California, Haynes realized that Santana was "the guy from California" who had been an applicant since late in the previous year. Haynes took Santana to the store's operations manager, Teri Katsekes, and Katsekes offered Santana a part-time loss prevention position.
858 *858 Later, however, Sears abandoned its offer to Santana on the instruction of Patricia Kiely, the store manager. When Kiely was told by an employee that Katsekes "was getting ready to hire a guy from California with asset protection experience," Kiely told the employee she "did not want that to happen," but she did not explain why. Kiely had never met the applicant, nor did she know his name or national origin. She simply overruled Katsekes,

stating, "we're not going to go any further with this application." When Katsekes was advised of Kiely's decision, she became angry that she had been overruled.
As Kiely later explained, she had been told by a Sears regional manager several months earlier 0907 during a period when Santana had been first prosecuting his application 0907 about an unnamed "asset protection agent from California" who had "some sexual harassment issues." While Kiely recalls the conversation well and relied on it, the regional manager later confirmed a more limited recollection. The regional manager stated that early in 1996, a loss prevention agent from a California store, who had been accused of sexual harassment, was looking for work in the southeast and that she could "very well" have talked with Kiely about this agent. Kiely acknowledged that in October 1996 when Santana interviewed, she did not check whether Santana was this person; rather, she simply ended the interview process with Santana because she thought he might be the individual about whom she had heard earlier from the regional manager. Perhaps Kiely acted too cautiously or too abruptly. But there is nothing in the record to suggest that Kiely acted by reason of Santana's national origin. Indeed, when she interrupted the interview process, she did not know Santana's name or his national origin.
Not only is there a total lack of evidence in this case to support a motive based on national origin, there is also evidence that the Morehead Sears store did not discriminate by reason of national origin and was prepared to hire Hispanics. First, both Haynes and Katsekes had offered Santana a job. They had the authority to do so and obviously did not discriminate on the basis of Santana's national origin in doing so. Second, during this same period, Sears had hired other Hispanics in the store for various positions.
While it is true that various Sears employees were hesitant during discovery, indeed even inconsistent, in giving their reasons for not hiring Santana, at bottom it is apparent that the decision not to hire Santana occurred solely because of Kiely's intervention. And the only evidence about why Kiely made the decision to intervene was in response to information she had received about a California Sears employee, who was looking for a job in the southeast and who had "sexual harassment issues." While this information may not have been sufficient, without further investigation, to veto an employee's application, there is no evidence to suggest that Kiely was motivated by Santana's national origin. Accordingly, I do not believe that a question of fact has been created simply by Santana's personal belief that discrimination based on his national origin must have been the reason for his not receiving the Morehead City store job. See Reeves, 120 S.Ct. at 2108. Accordingly, I would affirm the summary judgment entered by the district court.
[1] The above facts are those related by Santana. For purposes of summary judgment, they all must be accepted as true. However, in order to understand the legal issues involved in this case, we also set forth below Sears's version of the facts.
[2] The Supreme Court has made it clear that because the facts of given cases "necessarily will vary" this formula "is not necessarily applicable ... to differing factual situations." McDonnell Douglas, 411 U.S. at 802, n. 13. See O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996). What is critical with respect to the fourth element is that the plaintiff demonstrate he was not hired (or fired or not promoted, etc.) "under circumstances which give rise to an inference of unlawful discrimination." Texas Dept. of Comty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
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