INTHE UNITED STATES DISTRICT .E013RT FOR THE DISTRICT OF NEW MEXICO’

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
Vo
BCI COCA-COLA BOTTLING COMPANY OF LOS ANGELES, d/b/a PHOENIX COCA-COLA BOTTLING COMPANY and COCA-COLA BOTTLING COMPANY OF ALBUQUERQUE,
Defendant.

CIV-02-164 4 LH LFG
CIV-
COMPLAINT JURY TRIAL DEMANDED

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 race, and to provide appropriate relief to Charging Party Stephen Peters who was adversely affected by such practices. As alleged with greater particularity in paragraph seven below, BCI Coca-Cola Bot.tling Company of Los Angeles, which does business under the names of Phoenix Coca-Cola Bottling Company and Coca-Cola Bottling Company of Albuquerque ("Defendant"), subjected Stephen B. Peters to disparate treatment in the terms, conditions, and privileges of employment because of his race, African American. The Commission also alleges that Defendant discharged Mr. Peters because of his race, African 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(0(1) and (3) of

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5 (f)(1) and (3) ("Title VII") and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981A.
2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the District of New Mexico.
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, BCI Coca-Cola Bottling Company of Los Angeles, a Delaware corporation, which does business under the trade names of Phoenix CocaCola Bottling Company and Coca-Cola Bottling Company of Albuquerque, has continuously been and is now doing business in the State of New Mexico and the City of Albuquerque, and has at all relevant times had at least fifteen employees. 5. At all relevant times, Defendant has continuously been and is now an employer engaged in an industry affecting commerce within the meaning of 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, Stephen B. Peters filed a charge with the Commission alleging violations of Title VII by Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. Since at least October 1999, Defendant engaged in unlawful employment practices at its Albuquerque, New Mexico facility, in violation of Section 703(a) of Title VII, 42
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U.S.C. § 2000e-2(a). These practices include: a. disparate treatment of Stephen B. Peters in the terms, conditions, and privileges of his employment, including, threatening Mr. Peters with harsh discipline for not working a scheduled day off, failing to apply progressive discipline policies to Mr. Peters, and applying different attendance standards to Mr. Peters because of his race, African American; and b. discharging Stephen B. Peters because of his race, African American. 8. The effect of the practices complained of in paragraph seven above has been to
deprive Stephen B. Peters of equal employment opportunities and otherwise adversely affect his status as an employee because of his race, African American.
The unlawful employment practices complained of in paragraph seven above were intentional.
10. The unlawful employment practices complained of in paragraph seven above were done with malice or with reckless indifference to the federally protected rights of Stephen B. Peters.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in any employment practice which discriminates on the basis of race. B. Order Defendant to institute and carry out policies, practices, and programs which provide equal employment opportunities for African Americans, and which eradicate the effects of its past and present unlawful employment practices.
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C. Order Defendant to make whole Stephen B. Peters, by providing appropriate back pay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to front-pay in lieu of reinstatement.
D. Order Defendant to make whole Stephen B. Peters, by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraph seven above, including, but not limited to, compensation for the financial losses to Mr. Peters related to early withdrawal from his 401K Plan, in amounts to be determined at trial.
E. Order Defendant to make whole Stephen B. Peters by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of in paragraph seven above, including, but not limited to, emotional pain, suffering, inconvenience, mental anguish, humiliation, loss of enjoyment of life, and other non-pecuniary losses, in amounts to be determined at trial.
F. Order Defendant to pay Stephen B. Peters punitive damages for its malicious and reckless conduct described in paragraph seven above, in amounts to be determined at trial.
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 fact raised by its Complaint.
DATED this 30th day of December, 2002.
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Respectfully submitted,
GWENDOLYN YOUNG REAMS Acting General Counsel
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, NW Washington, D.C. 20507
MARY JO O’NEILL Regional Attorney
C. EMANU~L SMITH Supervisory Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Phoenix District Office 3300 N. Central Avenue Suite 690 Phoenix, Arizona 85012
~ERONICA MOLIN£ -/ | Trial Attorney
LORETTA MEDINA Senior Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Albuquerque District Office 505 Marquette NW, Suite 900 Albuquerque, New Mexico 87102 (505) 248-523 l
Attorneys for Plaintiff
5

 
 IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

v.

No. CIV-02-1644 JB/RHS

BCI COCA-COLA BOTTLING COMPANY OF LOS ANGELES, d/b/a PHOENIX COCACOLA BOTTLING COMPANY and COCACOLA BOTTLING COMPANY OF ALBUQUERQUE,

Defendant.

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on the Defendant’s Opposed Motion to Dismiss

Claims Due to Lack of Subject Matter Jurisdiction. The issue is whether the Plaintiff, the Equal

Employment Opportunity Commission (“EEOC”), fulfilled the statutory prerequisites that permit it

to bring this action. Because the Court concludes that the scope of the EEOC’s case is broader than

the charge, the EEOC’s Letter of Determination, and the conciliation efforts, the Court grants the

motion to dismiss the claims contained in paragraph 7(a) of the Complaint that do not involve the

terms and conditions of employment contemporaneous with or immediately before the termination.

FACTS AND CASE HISTORY

BCI Coca-Cola Bottling Company of Los Angeles (“BCI”) terminated Charging Party

Stephen Peters (“Peters”) on October 2, 20011. Peters filed an employment discrimination charge

1 BCI styles its motion as one under rule 12(b)(1) of the Federal Rules of Civil Procedure. “[E]xhaustion is jurisdictional in this circuit.” Welsh v. City of Shawnee, 1999 U.S. App. LEXIS
1

with the EEOC on October 11, 2001, alleging discrimination based on his race, African American,
in violation of Title VII of the Civil Rights Act of 1964. See Charge of Discrimination ¶ III. Peters
alleged that BCI discriminated against him when it fired him from his job, which he had held for over
six years. See id. at ¶ II. Peters also compared his allegedly unlawful treatment by BCI to that of
“non-African Americans,” whose treatment by BCI was different, less harsh. See id. at ¶ II.
Specifically, Peters charged:
I. STATEMENT OF HARM: I was employed with the Respondent for approximately six and one-half years when I was terminated from my position on October 2, 2001.
II. RESPONDENT’S ACT, POLICY OR PRACTICE ALLEGEDLY RESULTING IN DISCRIMINATION: The reason given for my termination was insubordination. I had been scheduled to work for what was usually my day off. Because I called in sick that day I was told it was insubordination for not coming in. This was the first time I called in sick in six and one-half years. Other non AfricanAmericans call in sick two to three times a month or do not even call in (no-call, noshow), and they are not terminated.
Id. at ¶¶ I, II (emphasis added).
The EEOC investigated Peters’allegation of discrimination. During the investigation, the
EEOC requested from BCI evidence related to Peters’ allegations. The information requested
included information related to “non-African Americans” and the discipline that BCI imposed for
various infractions.
The information that BCI provided included information about an employee whom BCI had
11251, *7 n.2 (10th Cir. June 1, 1999)(citing Jones v. Runyon, 91 F.3d 1398, 1399 & n.1 (10th Cir. 1996). BCI attached the Charge and Letter of Determination as exhibits to its motion; the EEOC then referred to both exhibits. Both parties, thus, submitted or referred the Court to, materials that were outside the pleadings. All material facts can be found in written documents that are of public record. The parties have not pointed the Court to any issue of material fact in their briefing, nor argued that the Court could not or should not decide the issues raised herein because of lack of discovery or because of factual issues.
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hired in October 1999. This particular employee’s discipline history with BCI provided in part
support for the EEOC’s eventual finding in this case. Upon concluding the administrative
investigation of Peters’charge, the EEOC issued its Determination on August 5, 2002.
The EEOC’s Determination included findings of disparate treatment in the terms and
conditions of employment and discriminatory discharge. The letter summarized the EEOC’s
investigation and findings in this matter. See EEOC Letter of Determination at 1 (issued Aug. 5,
2002). First, the letter set forth Peters’allegations: “The Charging Party alleges that the Respondent
engaged in an employment practice made unlawful by Title VII when he was terminated from his
employment on October 2, 2001.” Id. (emphasis added). The EEOC discussed BCI’s response:
“Respondent denies the allegation and has maintained that Charging Party was terminated for
insubordination after being directed by the District Sales Manager to work an overtime schedule on
a scheduled day off.” Id. (emphasis added). The letter then described the EEOC’s investigation
results:
The Commission’s investigation revealed that Respondent’s contention that Charging Party was terminated for insubordination is not well founded. The investigation revealed that Charging Party notified Respondent prior to his scheduled day off that he would be unable to work due to illness. Based on its investigation, the Commission concludes that similarly-situated, non-African American employees were not subjected to the same terms and conditions of employment as Charging Party and were not discharged from employment as Charging Party was.
Id. (emphasis added). The finding in the Determination was that:
Based on this analysis, I have determined there is reasonable cause to believe Respondent has violated Title VII of the Civil Rights Act of 1964, as amended, when it subjected Charging Party to disparate treatment in the terms and conditions of his employment and discriminatory discharge because of his Race, Black (African American).
Id..
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The EEOC invited BCI to participate in conciliation. A conciliation conference was held on or about August 25, 2002. BCI’s representative participated in the conciliation conference.
The conference focused exclusively upon the facts, circumstances, and alleged motivations surrounding Peters’termination. The EEOC did not, formally or informally, at any time during the administrative pendency of this matter, notify BCI of its intention to seek redress for any alleged violations other than the termination. The parties did not resolve the dispute, and the EEOC provided appropriate notification to BCI.
The EEOC filed its Complaint fifteen months after the acts that gave rise to the cause of action. The EEOC brought this case pursuant to Title VII of the Civil Rights Act of 1964. See Complaint (filed Dec. 30, 2002). Paragraph 7 of the Complaint states:
7. Since at least October 1999, Defendant engaged in unlawful employment practices at its Albuquerque, New Mexico facility, in violation of Section 703(a) of Title VII, 42 U.S.C. § 2000e-2(a). These practices include:
a. disparate treatment of Stephen B. Peters in the terms, conditions and privileges of his employment, including, threatening Mr. Peters with harsh discipline for not working a scheduled day off, failing to apply progressive discipline policies to Mr. Peters, and applying different attendance standards to Mr. Peters because of his race, African American; and b. discharging Stephen B. Peters because of his race, African American. Complaint, ¶ 7, at 2-3 (emphasis added). BCI contends that it was surprised to read paragraph 7(a) of the Complaint in this case, in which the EEOC alleges, for the first time, that BCI engaged in disparate treatment of Peters with respect to the terms and conditions of his employment “since at least October 1999.” Complaint ¶ 7, at 2. The EEOC asserts these “terms and conditions” allegations as distinct grounds for relief in this action, separate and apart from the wrongful termination claim. See Complaint ¶¶ 8-10 and
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Prayer for Relief ¶¶ D-F, at 3 and 4. The EEOC also contends in its Complaint that “all conditions
precedent to the institution of this lawsuit have been fulfilled.” Complaint ¶ 6, at 2.
BURDEN OF PROOF
The EEOC has the burden of proving compliance with Title VII’s conditions precedent. See
Dinkins v. Charoen Pokhand USA, Inc., 133 F. Supp. 2d 1237, 1241 (M.D.Ala. 2001. See also
Wright v. Olin Corp., 697 F.2d 1172, 1177 (4th Cir. 1982)(rejecting as insufficient a “vague and
conclusory” stipulation that the EEOC complied with “administrative and procedural requirements
of Title VII material to this action and with all conditions precedent to bringing this action” and
requiring that each claim be the subject of a cause determination).
PREREQUISITES TO EEOC CIVIL ACTION
Congress has entrusted to the EEOC the primary responsibility for enforcing Title VII. See
EEOC v. Shell Oil Co., 466 U.S. 54, 61-62 (1984). The Supreme Court of the United States has
explained EEOC’s enforcement procedure as follows:
In its current form, Title VII sets forth “an integrated, multistep enforcement procedure” that enables the Commission to detect and remedy instances of discrimination. (internal citation omitted). The process begins with the filing of a charge with the EEOC alleging that a given employer has engaged in an unlawful employment practice. . . . [The statute] require[s] the Commission to “serve a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) on [the] employer . . . within 10 days” of the filing of the charge. 42 U.S.C. 2000e-5(b). . . . After a charge has been filed, the EEOC conducts an investigation of the allegations contained therein. . . . If, after completing its investigation, the EEOC determines that there is “reasonable cause to believe that the charge is true,” it must “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” 2000e5(b). If those methods prove ineffectual, the Commission is empowered to bring a civil action against the employer. 2000e-5(f)(1).
EEOC v. Shell Oil Co., 466 U.S. at 62-64. Subsequent amendments to Title VII did not alter these
5

procedures. There are, therefore, a number of conditions precedent to the EEOC bringing a lawsuit:
Conditions precedent for the EEOC to file a lawsuit include: (1) filing with the Commission of a timely charge of discrimination at least 30 days before the suit is filed; (2) notice of the charge served on the Respondent; (3) an investigation of the charge; (4) a determination by the Commission that reasonable cause exists to believe that the charge is true; (5) an attempt by the EEOC to eliminate the unlawful employment practices by informal methods of conference, conciliation and persuasion; and (6) inability of the Commission to secure from the Respondent a conciliation agreement acceptable to the EEOC.
EEOC v. Premier Operator Servs., Inc., 75 F. Supp. 2d 550, 562 (N.D. Tex. 1999) (internal citations
omitted). These separate stages are important to the statute’s enforcement structure because of the
different roles that the EEOC plays in the management of discrimination charges: administrator,
investigator, mediator, and, finally, enforcer.
In the course of this procedure, a “reasonable cause” determination is important:
The statute directs the EEOC to notify the respondent of the charge within 10 days, to investigate the charge, and to determine “as promptly as possible . . . whether there is reasonable cause to believe that the charge is true.” 42 U.S.C. § 2000e-5(b). If the EEOC finds no reasonable cause, then it must dismiss the charge. See id. If the EEOC finds reasonable cause, then it must attempt to resolve the dispute “by informal methods of conference, conciliation, and persuasion.” Id. “If within thirty days after a charge is filed . . . the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against . . . [the] respondent . . . .” Id. 2000e-5(f)(1).
Martini v. Federal Nat’l. Mortgage Ass’n, 178 F.3d 1336, 1340 (D.C. Cir. 1999). It is the
determination that there is a “reasonable cause” that initiates the conciliation process and opens the
door to suit by the EEOC if conciliation fails.
If “reasonable cause” is found, the EEOC must pursue conciliation. “If the EEOC finds
reasonable cause to believe discrimination occurred, it must endeavor to eliminate any such alleged
unlawful employment practice by informal methods of conference, conciliation, and persuasion.”
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EEOC v. Frank’s Nursery & Crafts, Inc., 177 F.3d 448, 455 (6th Cir. 1999)(internal quotation marks
and citation omitted). Thus, “Congress established that the EEOC may only file suit if it has been
unable to secure a conciliation agreement[.]” EEOC v. Hearst Corp., 103 F.3d 462, 468-69 (5th Cir.
1997). And entry into the conciliation process is in turn dependent on a finding of “reasonable
cause.” Id.
“[E]ach step in the Commission’s administrative process is designed to be a prerequisite to
the following step and, ultimately, to suit.” EEOC v. American Nat’l Bank, 652 F.2d 1176, 1185 (4th
Cir. 1981)(internal quotation marks and citation omitted). Numerous courts have addressed the
importance of a reasonable cause determination and conciliation as prerequisites to suit by the EEOC.
As the United States Court of Appeals for the Ninth Circuit has stated:
The Commission’s functions of investigation, decision of reasonable cause and conciliation are crucial to the philosophy of Title VII. It is difficult to believe that Congress directed the Commission to make a determination of reasonable cause on the merits of a charge and nevertheless contemplated that the Commission could institute such litigation before it makes such a determination. Similarly, it is difficult to conclude that Congress directed the Commission to conciliate and then authorize it to initiate adversary proceedings before the possibility of voluntary compliance has been exhausted. Genuine investigation, reasonable cause determination and conciliation are jurisdictional conditions precedent to suit by the EEOC.
EEOC v. Pierce Packing Co., 669 F.2d 605, 608 (9th Cir. 1982).
Courts have read Title VII to “require that a particular charge of discrimination be the subject
of the reasonable cause determination and conciliation before being subject to suit by the EEOC.”
EEOC v. American Nat’l Bank, 652 F.2d at 1186. See EEOC v. Motorola, Inc., 468 F. Supp. 857,
859 (N.D. Ill. 1987) (holding that conditions precedent to suit will not have been met unless the
EEOC has exhausted the possibilities of conciliation “with respect to each issue it seeks to litigate”);
EEOC v. Sherwood Medical Indus., Inc., 452 F. Supp. 678, 684 (M.D. Fla. 1978) (holding that,
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where EEOC’s investigation exceeds the scope of the charging party’s charge of discrimination, but EEOC fails to include its additional findings in its reasonable cause determination and conciliation efforts, its suit on these additional matters is premature). There are important reasons that the employer should be on notice of the charges against it:
This requirement, for example, protects an employer charged in the reasonable cause determination with race discrimination in hiring against being surprised by a subsequent suit including charges of race discrimination in layoffs or promotion, or sex discrimination. There would have been no prior notice to the employer that practices relating to these charges were suspect nor an opportunity for the employer to remedy the problems out of court. EEOC v. American Nat’l. Bank, 652 F.2d at 1186. “[T]he reasonable cause and conciliation prerequisites [are] necessary to provide notice of the specific practice the EEOC had determined to be unlawful – hiring, layoff, promotion, etc. – not just the manner in which the EEOC had determined the employer’s practices to be unlawful – discrimination, harassment, retaliation, etc.” EEOC v. American Home Prods. Corp., 165 F. Supp. 2d 886, 909 (N.D. Iowa 2001) (emphasis in original)(citing American Nat’l. Bank, 652 F.2d at 1185).
THE EEOC DID NOT EXHAUST THE ADMINISTRATIVE PROCESS BEFORE FILING SUIT
Any subsequent lawsuit is limited to allegations of discrimination that the EEOC develops in the course of a reasonable EEOC investigation of that charge. See General Tel. Co. v. EEOC, 446 U.S. 318, 331 (1980), EEOC v. Wal-Mart Stores, Inc., 1999 U.S. App. LEXIS 33144, *11 (10th Cir. Dec. 21, 1999)(“Judicial consideration of claims ‘not expressly included in an EEOC charge is appropriate where the conduct alleged would fall within the scope of an EEOC investigation which would reasonably grow out of the charges actually made.’”) (quoting Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1416 n. 7 (10th Cir. 1993)). While it is true that the scope of the
8

EEOC’s investigation is not limited to the specific facts presented in the charge, the EEOC’s power to sue depends upon ascertainment of a violation, i.e., upon a “reasonable cause”determination that a violation has occurred. See EEOC v. Waffle House, Inc., 193 F.3d 895, 810 (4th Cir. 1999)(citing General Tel. Co. v. EEOC, 446 U.S. at 331), rev’d on different grounds, 534 U.S. 279 (2002); EEOC v. Delight Wholesale Co., 973 F.2d 664, 668-69 (8th Cir. 1992)(“The original charge is sufficient to support EEOC action, including a civil suit, for any discrimination stated in the charge or developed during a reasonable investigation of the charge, so long as the additional allegations of discrimination are included in the reasonable cause determination and subject to a conciliation proceeding.”)(citing EEOC v. Brookhaven Bank & Trust Co., 614 F.2d 1022, 1025 (5th Cir. 1989)).
The employer must have notice that there are other charges. The Determination Letter here does not give BCI reasonable notice that the EEOC would pursue anything other than the discharge claim and the terms and conditions of employment in the immediate timeframe of the termination.
In EEOC v. American Home Products Corp., the court addressed a situation similar to that presented here. The EEOC attempted to bring an enforcement action based upon claims outside the scope of its reasonable cause determination of retaliatory discharge. The court refused to permit the EEOC to sue on a claim of retaliation with respect to stock options, despite that the EEOC charge had been amended to include this allegation and that the EEOC had investigated the additional allegation. See 165 F. Supp. 2d at 910. The court based its decision upon the fact that the reasonable cause determination made no mention of retaliatory assignment of stock options, but referred only to a finding of retaliatory termination:
Here, the EEOC found reasonable cause as to only one practice, retaliatory termination. The EEOC cannot "parlay" that reasonable cause determination into satisfaction of the prerequisites for suit with regard to other practices, involving
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post-termination retaliation, without a separate "reasonable cause" determination as to the additional allegations of retaliation. Id. at 912 (emphasis in original). Similarly, in this case, the statute does not permit the EEOC to use its specific and limited reasonable cause determination of discriminatory termination to bring suit on all acts of discrimination allegedly committed by BCI against Peters over a two year period before his termination. Peters did not file any charge encompassing any alleged discriminatory incident other than his termination, nor did the EEOC reach a determination regarding other allegedly discriminatory acts. When an EEOC investigation, reasonable cause determination, and conciliation have actually taken place, as in this case, the subsequent litigation is limited to the actual scope of those events. See National Ass’n of Government Employees v. City Pub. Serv. Bd. of San Antonio, Texas, 40 F.3d 698, 712 (5th Cir. 1994). See also EEOC v. Continental Oil Company, 393 F. Supp. 167, 171 (D. Colo. 1975) (noting that EEOC’s finding of reasonable cause determines the proper scope of an employment discrimination action). Rather than searching for any support whatsoever in the Letter of Determination, the Court is obligated to review the material facts set forth in the Charge of Discrimination and the Letter of Determination that the EEOC issued to determine whether the EEOC has met the conditions precedent. Peters’ charge of discrimination relates solely to his termination, listing a single date for the alleged discriminatory conduct -- October 2, 2001, the date of the termination. See Charge of Discrimination ¶ I. The charge makes no reference to any prior alleged discriminatory treatment by BCI. He did not file any other charge encompassing any alleged discriminatory incident other than his termination. The Letter of Determination contains no specific reference to any alleged discriminatory
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incidents or discriminatory conduct by BCI other than the alleged wrongful discharge. The Letter did not address or reasonably suggest that the EEOC’s investigation revealed further violations, other than the termination, occurring in the two years before Peters’discharge. See Cheeks v. Western & Southern Life Ins. Co., 31 F.3d 497, 503 (7th Cir. 1994)(“Ordinarily, a claim for sexual harassment cannot be reasonably inferred from allegations in an EEOC charge of sexual discrimination.”). The entire thrust of the conciliation effort was to resolve the discriminatory termination charge, not events going back to 1999.
The process could have dealt with both sets of allegations at the same time, but the parties did not deal with the separate allegations regarding the terms and conditions of Peters’employment during the two years prior to his discharge. Both Peters and the EEOC had opportunities during the administrative pendency of this matter to amend the charge or the Letter of Determination. They did not do so. Conciliation in the manner and form that Congress contemplated occurred for the termination claim and for the claim regarding the terms and conditions of employment immediately surrounding that termination, but not for anything else. The Court should therefore not consider the distinct claims of discrimination before the termination set forth in paragraph 7(a) unless and until the EEOC completes the statutory prerequisites with respect to such claims.
During the administrative pendency of this litigation, the EEOC, by its Letter of Determination, represented to BCI that any enforcement action undertaken in this matter would be limited to the alleged discriminatory discharge. EEOC representatives did not reasonably alert BCI to the possibility that litigation might encompass additional, separate acts of alleged discrimination dating back as far as two years before the termination. BCI may have relied upon the EEOC’s representations regarding the scope of the matter at issue in making decisions regarding conciliation.
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Evidence or connections with witnesses necessary to the defense of this action that might have been more easily secured before this litigation may no longer be available. Congress has entrusted the EEOC with the responsibility to be aware of the ramifications of failing to genuinely and fully disclose an intended cause of action to a respondent during conciliation of a charge that it has selected for judicial enforcement.
The EEOC correctly contends that the Letter of Determination contains general language that is arguably consistent with the Complaint filed in this action. The Determination included a terms and conditions finding, as well as discriminatory discharge finding. See EEOC Letter of Determination (stating that BCI “subjected Charging Party to disparate treatment in the terms and conditions of his employment . . . .”). The EEOC based its terms and conditions finding on the EEOC’s investigation of Peters’allegation in the EEOC charge. Peters’Charge of Discrimination does not address, however, events well before termination, see Peters’Charge of Discrimination, and so this allegation in the Determination, if it is meant to convey something different from the discriminatory discharge, would be a new allegation. The more reasonable interpretation would be that the Determination’s finding relates -- not to events two years before the termination -- but to terms and conditions contemporaneous or near in time to the termination.
The EEOC did not properly place BCI on notice of the additional claims, as Title VII requires. BCI therefore did not have an opportunity to investigate and assess such claims or to conciliate such claims before litigation. The EEOC did not exhaust the administrative process and cannot maintain claims for which it did not meet the prerequisites for a lawsuit. THE EEOC DOES NOT COME UNDER THE EXCEPTION FOR RELATED CLAIMS
The EEOC acknowledges that the exhaustion of administrative remedies is a jurisdictional
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prerequisite to bring suit under Title VII. See Response at 3 (“[E]xhaustion of remedies is a
jurisdictional prerequisite to bring suit under Title VII . . . .”). While the EEOC does not necessarily
concede that it failed to exhaust its remedies as to discrimination before the termination, it primarily
relies on an exception to the congressional prerequisites. See id. at 3 (“[T]here is an exception to [the
exhaustion of administrative remedies] prerequisite.”)(citing Elke Dunlap v. State of Kansas
Department of Health & Environment, 2001 U.S. Dist. LEXIS 13711, *4-5 (D. Kan. 2001)).
The United States Court of Appeals for the Tenth Circuit has recognized this exception2:
This Court has adopted a limited exception to the exhaustion rule for Title VII claims when the unexhausted claim is for “discrimination like or reasonably related to the allegations of the EEOC charge.” Ingels [v. Thiokol Corp.], 42 F.3d [616,] 625 [(10th Cir. 1988)](quoting Brown v. Hartshorne Pub. Sch. Dist. No. 1, 864 F.2d 680, 682 (10th Cir. 1988)). See Seymore v. Shawver & Sons, Inc., 111 F.3d 794, 799 (10th Cir. 1997), cert. denied, 522 U.S. 935 . . . (1997). “However, where a retaliatory act occurs prior to the filing of a charge and the employee fails to allege the retaliatory act or a retaliation claim in the subsequent charge, the retaliatory act ordinarily will not reasonably relate to the charge.” Id. (emphasis added); see also Hopkins [v. Digital Equip. Corp.], 1998 U.S. Dist. LEXIS 15762, 1998] WL 702339, at *3 [(S.D.N.Y. Oct. 8, 1998)].
Simms v. Oklahoma, 165 F.3d 1321, 1327 (10th Cir. 1999)(finding that all of the plaintiff’s
2The United States Court of Appeals for the Tenth Circuit in Welsh v. City of Shawnee declined to decide whether the scope of a reasonable EEOC investigation is a separate exception from the exhaustion rule or simply a part of the process for determining what allegations are reasonably related to claims stated in the charge. The United States Court of Appeals for the Seventh Circuit takes the latter view. See Cheek v. Western & Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994)(holding that claims not expressly stated in charge may be considered exhausted where “there is a reasonable relationship between the allegations in the charge and the claims in the complaint, and the claim in the complaint can reasonably be expected to grow out of an EEOC investigation of the allegations in the charge.”)(emphasis added). This Court does not read the Tenth Circuit cases as creating a separate exception to Congress’mandated exhaustion rule and agrees with the Seventh Circuit’s formulation of the single exception. In EEOC v. Wal-Mart, the Tenth Circuit referred to “a” limited exception, discussed the “reasonably related” exception, and then quoted Martin v. Nannies and the Newborns, Inc., 3 F.3d at 1416 n.7. The EEOC states it is relying on the “reasonably related” exception and does not argue that there are two exceptions with different elements, instead treating the cases as creating one exception.
13

allegations of pre-1995 retaliation concerned facts occurring before the filing of the second EEOC complaint and that the plaintiff does not qualify for the “reasonably related” exception). See Welsh v. City of Shawnee, 1999 U.S. App. LEXIS 11251 at *11 (holding that exhaustion exception did not save claims; “[c]laims falling within the reasonably related exception generally arise after another claim has been filed, but here, all of the acts of harassment occurred prior to the filing of Welsh’s charges.”).3
The Tenth Circuit has emphasized the limits of the exception. Its use appears primarily to bring in claims arising subsequent to an EEOC charge, not to events occurring before the EEOC charge. See Seymore v. Shawver & Sons, 111 F.3d at 799-800 (finding that the plaintiff failed to exhaust administrative remedies on the retaliation claim because she was aware of the facts constituting that claim at the time of her EEOC filing.); Aramburu v. Boeing Co., 112 F.3d 1398, 1409-10 (10th Cir. 1997)(finding hostile work environment claims were not reasonably related to wrongful discharge claim, which was the only claim listed in the original EEOC discrimination charge). The Tenth Circuit has not previously applied this exception to find claims not stated in the charge, but based on facts known before the charge was filed, to be “reasonably related” to claims actually delineated in the charge. This Court is reluctant to expand the limited exception to Congress’ exhaustion rule any more than the Tenth Circuit has indicated it will go and will not do so under these circumstances. This conclusion eliminates the need to make fuzzy and sometimes difficult decisions
3 These Tenth Circuit cases involved individual plaintiffs. The Tenth Circuit has also applied the exception when the EEOC was the plaintiff. See EEOC v. Wal-Mart Stores, Inc., 1999 U.S. App. LEXIS 33144 (10th Cir. Dec. 21, 1999)(applying exception to save “improper inquiry” claim in case brought under the Americans with Disabilities Act for “failure to hire”because the “improper inquiry” claim was necessarily reasonably related to the “failure to hire” claim where the inquiry was the asserted basis for the failure to hire).
14

whether the unexhausted claim for discrimination is like or reasonably related to the allegations in the administrative charge. The Court should not consider claims that arose before the charge that are not necessarily and reasonably included in an EEOC charge, Letter of Determination, and conciliation process. Even where additional claims are likely or reasonably related to the claims asserted in the original charge, and could be reasonably expected to grow out of the investigation of the original charge, there should nonetheless be a determination of reasonable cause as to these claims and the opportunity for conciliation before the EEOC may include those claims in the suit. See American Home Prods. Corp., 165 F. Supp. 2d at 909.
In addition, while the Court is reluctant to take on the task of trying to decide what is reasonably related to the allegation of discriminatory discharge, even if the limited “reasonably related”exception applies to events occurring before the charge, it is unavailable here. All claims set forth under Title VII against a single employer may not be related to one another. The allegations in paragraph 7(a) are not specific and may involve separate, discrete acts of discriminatory conduct occurring as long as two years before the termination. See Welsh v. City of Shawnee, 1999 U.S. App. LEXIS 11251, *10 (“Because her harassment claims are based on completely different allegations from her gender discrimination claims, the two types of claims are not reasonably related.”); Aramburu v. Boeing Co., 112 F.3d at 1409-10 (holding that hostile work environment claim was not reasonably related to wrongful discharge claim contained in EEOC charge where claims were based on different allegations of impermissible conduct.).
BCI contends that the management and supervisory chains of command of the facility where Peters worked changed during this two-year period. BCI contends other employees at the facility where Peters worked have left BCI’s employ since 1999. It is unclear whether the discriminatory acts
15

described in paragraph 7(a) involved the same individuals who participated in the termination decision. See Cheek v. Western & Southern Life Ins. Co., 31 F.3d at 501 (holding that, for claim to be reasonably related, EEOC charge and judicial complaint “must, at a minimum, describe the same conduct and implicate the same individuals.”)(emphasis in original). Given the lack of specificity of the allegations in paragraph 7(a), BCI may not be able to defend itself now -- without some prejudice -- against what may be stale claims.
If the EEOC intends to rely on an exception to the exhaustion requirement, it must establish that the two claims are related. The EEOC has not met its burden of establishing that all the claims set forth in paragraph 7(a) are reasonably related to Peters’wrongful termination claim. There is no evidence that permits this Court to reasonably conclude that these alleged discrete acts of discrimination are related to one another or to the termination. That these issues were not raised during the administrative pendency of this matter supports the conclusion that the alleged occurrences are not related to the termination. Accordingly, the Court will dismiss claims for terms and conditions of employment that did not occur temporally with the discharge.
By doing so, the Court does not question that the EEOC’s investigation of an employee’s unlawful termination will necessarily, at times, include an inquiry whether the employer treated the employee differently as compared to similarly situated employees. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)(setting forth burden-shifting analysis for Title VII discrimination claims; discrimination proved by a showing that charging party is a member of a class protected by Title VII, that the charging party was qualified or performing his/her position satisfactorily, that the charging party was terminated; the charging party must then refute the defendant’s nondiscriminatory reason for termination, by putting forth evidence such as similarly situated employees were treated
16

differently.). If the EEOC discovers during its investigation of the charge that there are other forms of discrimination “reasonably related” to the initial charge, the EEOC may proceed with claims beyond those claims in the initial charge. The subject matter of an EEOC charge may be enforced beyond the actual words of the charge. In considering the treatment of similarly situated employees and considering the treatment of the charging party, it would logically follow that the EEOC could find that the employer treated the charging party differently from the similarly situated employees and, therefore, the EEOC could make a finding that the investigation revealed disparate treatment in the terms and conditions of employment in addition to unlawful termination from employment. “It is beyond peradventure that the scope of the civil action is not cabined by the original complaint. Instead, the employee’s complaint provides EEOC with a ‘jurisdictional springboard to investigate whether the employer is engaged in any discriminatory practices.’” Dinkins v. Charoen Pokphand U.S.A., Inc., 133 F. Supp. 2d at 1245 (citations omitted). Moreover, “[t]o determine whether an allegedly discriminatory action falls within the scope of the claim, the administrative complaint must be construed liberally in order to further the remedial purposes of applicable legislation and a plaintiff may seek relief for any discrimination that grows out of or is like or reasonably related to the substance of the allegations in the administrative charge.” McMahon v. Henderson, 2001 U.S. Dist. LEXIS 9236, *11 (D. Neb. 2001). But once new acts of discrimination are discovered, they must be meaningfully part of the charging, determination and conciliation process. That was not done here.
This holding also does not bar the EEOC from litigating the events asserted as the basis for Peters’termination – whether BCI threatened Peters with harsh discipline for not working on the scheduled day for which he was fired, for failing to apply progressive discipline policies to Peters for
17

calling in sick on that day, and for applying different attendance standards to Peters because of what he did that day. Those terms and conditions of employment are properly at issue. The Court’s holding does, however, prohibit the EEOC from pursuing further claims into as-yet unspecified discriminatory conduct in the terms and conditions of Peters’employment before the events on which his termination was based.
WHEREFORE, IT IS ORDERED that the Defendant’s Opposed Motion to Dismiss Claims Due to Lack of Subject Matter Jurisdiction is granted and the claims contained in paragraph 7(a) of the Complaint that do not involve the terms and conditions of employment contemporaneous with or immediately before the termination are hereby dismissed.
_____________________________ James O. Browning United States District Judge Counsel: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Mary Jo O’Neill C. Emanuel Smith Phoenix District Office Phoenix, Arizona Veronica A. Molina Loretta F. Medina Albuquerque District Office Albuquerque, New Mexico For Plaintiff MILLER & MARTIN, LLP
18

E. Todd Presnell Kara E. Shea Nashville, Tennessee MOODY & WARNER, P.C. Christopher M. Moody Albuquerque, New Mexico For Defendant
19

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
BCI COCA-COLA BOTTLING COMPANY OF LOS ANGELES, d/b/a PHOENIX COCA-COLA BOTTLING COMPANY and COCA-COLA BOTTLING COMPANY OF ALBUQUERQUE,
Defendants.

No. CIV 02-1644 JB/RHS

MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on the Plaintiff’s Opposed Motion to Strike Affirmative Defenses (Dkt. No. 6). The issue presented is whether the Court should strike four of the Defendant BCI Coca-Cola Bottling Company of Los Angeles’affirmative defenses that relate to paragraph 7(a) of the Complaint. Because the Court has already dismissed at least some of the claims in paragraph 7(a) about which BCI Coca-Cola Bottling Company of Los Angeles (“BCI”) complains, the Court grants the motion to strike.
STANDARDS FOR DECIDING A MOTION TO STRIKE Affirmative defenses are pleadings and, as such, are subject to the pleading requirements of the Federal Rules of Civil Procedure. Affirmative defenses must set forth a short and plain statement of the defense. See Fed. R. Civ. P. 8(c). If an affirmative defense is insufficient on its face, the Court should strike the affirmative defense. See 2 MOORE’S FEDERAL PRACTICE § 12.37[4] at 12-98 (Matthew Bender 3d ed. 1997).

A court may properly strike from a pleading insufficient defenses and redundant, immaterial, impertinent, or scandalous matters. See Hill v. Cray Research, Inc., 864 F. Supp. 1070, 1073 (D.N.M. 1991); Fed. R. Civ. P. 12(f). “[T]he district court could properly grant the motion to strike for the purpose of streamlining the ultimate resolution of the action and focusing the jury’s attention on the real issues in the case.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (citation omitted), rev’d on other grounds, 510 U.S. 517 (1994). “[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial . . . .” Sidney-Vinstein v. A.H. Robins, Co., 697 F.2d 880, 885 (9th Cir. 1983) (citations omitted).
Courts have recognized the efficacy of motions to strike, especially where the defense interposed is clearly insufficient. See, e.g., Fabrica Italianc Lavorazione Materi Organiche, S.A.S. v. Kaiser Aluminum & Chem. Corp., 684 F.2d 776, 779 (11th Cir. 1982) (granting motion to strike because defense, as a matter of law, was insufficient) (citations omitted); Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1057-58 (5th Cir. 1982) (holding that a motion to strike is appropriate when a defense is insufficient as a matter of law), cert. denied, 459 U.S. 1105 (1983). Rule 1 of the Federal Rules of Civil Procedure, the governing rule for civil matters before federal court, supports striking insufficient affirmative defenses. See Fed. R. Civ. P. 1 (requiring the federal rules be “construed and administered to secure the just, speedy, and inexpensive determination of every action.”). Should a defendant be allowed to maintain clearly insufficient affirmative defenses, a “just, speedy and inexpensive determination” will be thwarted, because it will be necessary for, at a minimum, the plaintiff to conduct discovery on these defenses.
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The standard for a motion to strike, however, is high. At this early stage of the proceedings, BCI may not know all the facts that might support application of each of these defenses. The law does not require BCI to demonstrate at this juncture all the particular facts and circumstances supporting application of these defenses, nor is the Plaintiff, Equal Employment Opportunity Commission (“EEOC”), entitled to seek elimination of these defenses simply because there are disputed issues of fact or law regarding their application to the issues in this case. See, e.g., Etienne v. Wal-Mart Stores, Inc., 197 F.R.D. 217, 219-223 (D. Conn. 2000) (refusing to strike affirmative defense for insufficiency when parties clearly disputed legal sufficiency of affirmative defense); Gorwin v. Local 282, I.B.T., 838 F. Supp. 116, 118 (S.D.N.Y. 1993) (“A Rule 12(f) motion to strike an affirmative defense is generally disfavored. Even when a motion presents a purely legal question, a court should be reluctant to resolve the issue on a motion to strike, and should prefer to address such issues after discovery and a hearing.”). The Court may grant a rule 12(f) motion to strike an affirmative defense only if the defense is patently defective and could not succeed under any set of circumstances. See Hayes v. City of Des Plaines, 182 F.R.D. 546, 549 (N.D. Ill. 1998). Striking a pleading is a drastic remedy, and the Court should resort to it only when required for the purpose of justice. See Friends of Santa Fe County v. Lac Minerals, 892 F. Supp. 13333, 1343-44 (D.N.M. 1995) (refusing to strike defenses of laches, estoppel, and statute of limitations asserted against governmental entity).
FOUR AFFIRMATIVE DEFENSES In its response, BCI states: “The assertion of the defenses that are subject of the present motion arises from paragraph 7(a) of the Complaint, in which the plaintiff, Equal Employment Opportunity Commission (‘EEOC’), asserts claims which are untimely and beyond the scope of the
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charge of discrimination upon which this litigation is based.” Response at 1. See id. at 3 (“BCI properly asserted several defenses based upon certain objections to the claims contained in Paragraph 7(a).”). The Court has dismissed the claims in paragraph 7(a) about which BCI complained. See Memorandum Opinion and Order (filed August 19, 2003). There is thus no longer a need for these four affirmative defenses. I. THE REMAINING CLAIMS WERE TIMELY FILED.
In paragraph 13, BCI states: “BCI affirmatively asserts that it did not subject Stephen B. Peters to an adverse employment action because of his race during his employment, and that any such allegation is barred by the applicable statute of limitation.” Answer ¶ 13, at 2. The first part of this affirmative defense is a recitation of its general denial to the Plaintiff’s Statement of Claims, specifically paragraphs 7(a) and 7(b) of the Complaint. Because this is a denial, it should not be pled as an affirmative defense. Because this part of the defense is redundant, the Court will strike it.
With regard to the statute of limitations, the EEOC’s claims are brought on behalf of Stephen Peters pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(1) & (3). Title VII contains no statute of limitations provision. Courts, however, discuss the time for the filing of an administrative charge of discrimination with the EEOC as somewhat analogous to the traditional statute of limitations. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394 (1982). The Court assumes BCI intends to raise the issue whether Peters timely filed his charge.
In a deferral state,1 such as New Mexico, charging parties have 300 days from the date of the discriminatory act(s) to file a charge of discrimination with either the EEOC or the state fair
1 A deferral state is one “[w]here the EEOC defers to the enforcement efforts of a state agency empowered to undertake employment discrimination investigations.” Mascheroni v. Board of Regents of the University of California, 28 F.3d 1554, 1557 n.3 (10th Cir. 1994).
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employment agency. See Mascheroni v. Board of Regents of the University of California, 28 F.3d 1554, 1557 (10th Cir. 1994). BCI terminated Peters from his position on October 5, 2001. See Employee Termination Notice for Peters; Affidavit of Veronica Molina (executed April 11, 2003). Peters signed his charge of employment discrimination with the EEOC on October 10, 2001, only five days later. See Peters’Charge of Discrimination.
In this case, BCI could only have a defense based on timeliness or a “statute of limitations” theory if there were some evidence that Peters did not contact the EEOC within 300 days of the alleged discrimination. That is not the case. The Court will strike BCI’s first affirmative defense.
BCI contends that the timeliness defense is needed because the EEOC also seeks recovery for separate incidents of alleged discriminatory treatment against Peters dating back to October 1999. Discrete discriminatory acts under Title VII are not actionable if time-barred, even when they are related to acts alleged in timely filed charges. See National RR Passenger Corp. v. Morgan, 536 U.S. 101, 112-113 (2002). Each discrete discriminatory act starts a new clock for filing charges alleging that act. The employee must, therefore, file his charge within the 300-day time period after the discrete discriminatory act occurred. See id. at 113.
The EEOC has not alleged either the existence of a hostile work environment, nor a pattern or practice of discrimination by BCI. The EEOC has not pled any other facts to support a theory that might arguably permit adjudication of alleged violations occurring outside the 300-day period. Even if Peters’ October 10, 2001 charge could be read to include occurrences other than the alleged wrongful termination, it would not be timely with respect to events occurring before the 300-day cutoff, which would be approximately mid-December 2000. The Court, however, has already dismissed claims occurring in that time frame, because the EEOC did not meet the statutory
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requirements for bringing a suit for such occurrences. Thus, BCI no longer needs to assert this affirmative defense. II. BECAUSE THE COURT HAS ALREADY DISMISSED THE CLAIMS IN 7(a),
PARAGRAPH 14 OF BCI’s ANSWER IS UNNECESSARY. Paragraph 14 of BCI’s Answer is based on Peters’failure to exhaust administrative remedies with respect to the claims in paragraph 7(a) of the Complaint. Because the Court has dismissed the claims in paragraph 7(a) of the Complaint that do not involve the terms and conditions of employment contemporaneous with or immediately before the termination, this defense is no longer necessary. The Court will strike the second affirmative defense. III. BCI’S ASSERTION OF THE DOCTRINES OF LACHES, UNCLEAN HANDS, ESTOPPEL, AND/OR WAIVER ARE BASED ON THE CLAIMS IN 7(a). BCI presents no facts in support of the affirmative defense in paragraph 18. BCI’s assertion of the doctrines of laches, unclean hands, estoppel, and waiver are based upon the same facts and circumstances related to the claims in 7(a). BCI does not point to any other incidents that arguably implicate the equitable doctrines of estoppel, waiver, and unclean hands, and justifies the assertion of these affirmative defenses in this action. The Court will strike paragraph 18 of BCI’s Answer. IV. THE AFFIRMATIVE ASSERTIONS IN PARAGRAPH 23 ARE NO LONGER NECESSARY. In paragraph 23, BCI states: BCI affirmatively asserts neither it nor its attorneys has had the opportunity to fully investigate or participate in discovery and, as such, BCI reserves the right to amend this answer or include in any pretrial order such further affirmative defenses that may be applicable following completion of its investigation and discovery. Answer ¶ 23, at 4. This is not an affirmative defense. See BLACK’S LAW DICTIONARY at 60 (6th ed. 1990). BCI’s failure to conduct any investigation would not be a defense to this claim.
-6-

BCI makes this statement because it contends more information will come to light if the EEOC is permitted to go forward with the claims in paragraph 7(a). Because the Court has dismissed the claims in paragraph 7(a) that do not involve the terms and conditions of employment contemporaneous with or immediately before the termination , the EEOC is no longer bringing an action based upon claims that were not subject to investigation or discovery during the administrative phase of this proceeding. The statements in paragraph 23 of the Answer are now unnecessary, and the Court will strike them. V. PREJUDICE IS POSSIBLE IF THESE DEFENSES REMAIN.
If defenses without any bases remain in a case, they may deny the parties a speedy and inexpensive resolution of the matter. Peters and the EEOC may be prejudiced, because their time and resources could be diverted from Peter’s termination claim. They might be forced to conduct discovery on the insufficient defenses or otherwise respond to them. Moreover, the inclusion of these defenses at trial would unnecessarily divert the attention of the jury from the real issues in this case and might require a lengthier trial than is necessary. See, e.g., Fantasy, Inc. v. Fogerty, 984 F.2d at 1527. See also SEC v. Toomey, 866 F. Supp. 719, 722 (S.D.N.Y. 1992) (“Increased time and expense of trial may constitute sufficient prejudice to warrant granting plaintiff’s Rule 12(f) motion.”); FDIC v. Eckert Seamans Cherin & Mellott, 754 F. Supp. 22, 23 (E.D.N.Y. 1990) (holding that, when “the defense is insufficient as a matter of law, the defense should be stricken to eliminate the delay and unnecessary expense from litigating the invalid claim.”).
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WHEREFORE, IT IS ORDERED that the Plaintiff’s Opposed Motion to Strike Affirmative Defenses is granted and that the affirmative defenses found in paragraphs 13, 14, 18 and 23 of Defendant BCI Coca-Cola Bottling Company of Los Angeles’Answer are stricken.
________________________________ UNITED STATES DISTRICT JUDGE
Counsel: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Mary Jo O’Neill C. Emanuel Smith Phoenix District Office Phoenix, Arizona Veronica A. Molina Loretta F. Medina Albuquerque District Office Albuquerque, New Mexico For Plaintiff MILLER & MARTIN, LLP E. Todd Presnell Kara E. Shea Nashville, Tennessee MOODY & WARNER, P.C. Christopher M. Moody Albuquerque, New Mexico For Defendant
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
BCI COCA-COLA BOTTLING COMPANY OF LOS ANGELES, d/b/a PHOENIX COCACOLA BOTTLING COMPANY and COCACOLA BOTTLING COMPANY OF ALBUQUERQUE,
Defendant.

No. CIV-02-1644 JB/LFG

MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on the Plaintiff’s Opposed Motion for Clarification of Court’s Memorandum Opinion and Order Entered on August 19, 2003 (Doc. No. 35). The primary issue is whether the Court’s prior ruling will have any effect on the introduction of evidence of comparative treatment that occurred on some date before the Charging Party’s termination. Because the Plaintiff Equal Employment Opportunity Commission (“EEOC”) does not seek clarification of this Court’s ruling but rather seeks an advisory opinion on the admissibility of as yet unidentified evidence at the trial of this matter, the Court denies the motion.
ANALYSIS On August 19, 2003, this Court entered an order granting Defendant’s Opposed Motion to Dismiss Claims Due to Lack of Subject Matter Jurisdiction and dismissing claims contained in paragraph 7(a) of the Complaint. See Memorandum Opinion and Order at 19 (Doc. No. 28).

Specifically, the Court stated: “[T]he claims contained in paragraph 7(a) of the Complaint that do not involve the terms and conditions of employment contemporaneous with or immediately before the termination are hereby dismissed.” Memorandum Opinion and Order at 19. The remaining claims involve allegations of disparate treatment.
The EEOC anticipates the need at trial of this case to offer evidence regarding the treatment of similarly situated non-African American employees. The EEOC contends that the dismissal of those claims asserted in paragraph 7(a) of the Complaint should not preclude the admission of otherwise admissible evidence regarding time, attendance, and leave issues relative to other employees. Out of an abundance of caution, the EEOC seeks clarification whether the prior ruling in this case regarding paragraph 7(a) has any effect on evidence of comparative treatment that occurred on some date before the Charging Party’s termination. Specifically, the EEOC requests this Court clarify whether the Court’s dismissal of paragraph 7(a) of the EEOC’s complaint will limit the EEOC’s discovery or use of comparative evidence in the prosecution of the remaining claim. In its reply, the EEOC states: “[T]he intended result of the Plaintiff’s motion is that the Court’s Order not preclude the admission of otherwise admissible evidence.” Reply at 1.
The EEOC styles its motion as one to clarify, but moves under rule 59(e) of the Federal Rules of Civil Procedure, which allows for motions to alter or amend the judgment to be filed within ten days of entry of judgment. See Fed. R. Civ. P. 59(e). Under rule 54, “judgment” includes a decree or order from which an appeal lies. See Fed. R. Civ. P. 54. No appeal lies from the Order in this case under rule 54(b), because the Court did not direct entry of judgment on the dismissed claims upon an express determination that there was no just reason for delay. See Fed. R. Civ. P. 54(b). Accordingly, rule 59(e) is not available to the EEOC at this stage. See 12 James W. Moore, Moore’s Federal Practice § 59.31[5] (3d ed. 1997)(noting that a “judgment” under rule 59(e) is one fitting the

requirements of rule 54). In any case, motions to alter or amend the judgment are appropriately made where they
involve “reconsideration of matters properly encompassed in a decision on the merits.” White v. N.H. Dep’t of Employment Sec., 455 U.S. 445, 451 (1982)(emphasis added). The Court finds that changing or altering its judgment is inappropriate and unnecessary here because the Court did not make any discovery or evidentiary rulings in its August 19th Order, nor were any discovery or evidentiary matters properly before the Court at that time. There is nothing to clarify, because the Court in its prior order did not make any ruling on what the EEOC could discover or what it could do with evidence at trial.
What the EEOC in fact seeks is for the Court for the first time to make a discovery ruling or an evidentiary ruling. There is, however, no such dispute before the Court. Until the parties file some motion regarding a specific discovery dispute or attempt to introduce some evidence, there is no need for a ruling on those issues.
“It is fundamental that federal courts do not render advisory opinions and that they are limited to deciding issues in actual cases and controversies.” United States v. Burlington Northern R.R., 200 F.3d 679, 699 (10th Cir. 1999). See United Public Workers of Am. v. Mitchell, 330 U.S. 75, 89 (1947)(“As is well known the federal courts established pursuant to Article III of the Constitution do not render advisory opinions.”). This maxim applies here. The Defendant has not indicated whether it will oppose discovery on these issues or whether it will oppose introduction of any evidence discovered. The EEOC has not brought to the Court’s attention any specific pieces of evidence potentially subject to discovery that are currently in dispute.
The Court does not have any briefing or context to decide whether discovery on these issues would be appropriate or whether any particular evidence should be admitted at trial. Counsel usually

learn where the Court stands on evidentiary issues by serving discovery, filing motions to compel, and filing motions in limine. The Court does not have those usual tools in front of it in this situation to make an informed decision.
The EEOC seeks this Court’s opinion on evidentiary matters that are not yet in actual controversy, not ripe for adjudication, and may never be. A ruling on evidentiary matters at this stage of this litigation is premature. See Norvell v. Sangre de Cristo Devel. Co., 519 F.2d 370, 375 (10th Cir. 1975)(“A justiciable controversy is distinguished from a difference or dispute of a hypothetical character or from one that is academic. The controversy must be one admitting to specific relief through a decree of a conclusive character, subject to judicial review.”). The Court reserves any evidentiary rulings until an appropriate discovery motion is filed or until trial.
The EEOC indicates that it sought clarification of this matter at this time because the Court’s opinion would result in judicial economy as the scope of the Court’s ruling would be clear. The Court fears, however, that a ruling on discovery or evidence without a concrete dispute before it could be confusing and perhaps lead to error. Moreover, such a ruling would violate the prohibition against issuing advisory opinions on potential future controversies not yet ripe for adjudication.
To assist the parties and to maximize judicial efficiency, however, the parties are directed to bring any discovery disputes in this matter directly to the attention of the United States District Judge by calling his courtroom deputy who will then set up a telephone conference. If the Court cannot quickly resolve the matter over the telephone, it will ask for letters on a short time deadline. This procedure will obviate the need to file motions or to go before a magistrate that did not write the prior opinion and will not be trying the case.

IT IS ORDERED that the Plaintiff’s Motion for Clarification of the Court’s Memorandum
Opinion and Order Entered on August 19, 2003 is denied.
____________________________________ UNITED STATES DISTRICT JUDGE
Mary Jo O’Neill C. Emanuel Smith Equal Employment Opportunity Commission Phoenix, Arizona
--and–
Veronica A. Molina Loretta F. Mediana Equal Employment Opportunity Commission Albuquerque, New Mexico
Attorneys for the Plaintiff
E. Todd Presnell Kara E. Shea Miller & Martin LLP Nashville, Tennessee
Christopher M. Moody Moody & Warner, P.C. Albuquerque, New Mexico
Attorneys for Defendant

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

No. CIV 02-1644 JB/RHS

)

BCI COCA-COLA BOTTLING COMPANY

)

OF LOS ANGELES,

)

d/b/a PHOENIX COCA-COLA BOTTLING

)

COMPANY and COCA-COLA BOTTLING

)

COMPANY OF ALBUQUERQUE,

)

)

CONSENT DECREE

Defendant.

)

)

The United States Equal Em ployment Opportunity Commission (the “Com mission” or

“EEOC”) filed this action against BCI Coca-Cola Bottling Company of Los Angeles, which does

business under the nam es of Phoenix Coca-Cola Bottling Com pany and Coca -Cola Bottling

Company of Albuquerque (“Defendant”) to enforce Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. §2000e et seq. (Title VII). In the Com plaint the Commission alleged that

defendant subjected Stephen B. Peters to disparaet treatment in the terms, conditions and privileges

of employment because of his race, African American, in violation of Title VII. The Commission

also alleges that Defendant discharged Mr. Pe ters because of his race, African Am erican, in

violation of Title VII.

Defendant denies that it engaged in any discriminatory practice with respect to Mr. Peters

and denies all of the allegations contained in the Com plaint. The Court previously dismissed the

Commission’s claims that it subjected Stephen B. Peters to disparate treatm ent in the term s,

conditions and privileges of employment because ofhis race, African American, in violation of Title

VII. The parties now enter this Decree in orde r to resolve the rem aining disputed claim that

Defendant discharged Mr. Peters because of his race, African American, in violation of Title VII

and avoid continued litigation.

The parties do not object to the jurisdiction of the Court over this action and waive their rights to a hearing and the Entry of Findings of Fact and Conclusions of Law.
IT IS HEREBY ORDERED, ADJUDGED AND DECREED: 1. This Decree resolves all claims of the Commission against the Defendant, including back pay, interest, injunctive relief, attorney's fees and costs arising out ofthe issues in this lawsuit. 2. The Defendant and its managing agents at its Albuquerque facility (hereinafter referred to as “Albuquerque facility”) areenjoined for the duration of the decree fromdiscriminating against any employee based on his or herrace, and from retaliating against any employee who: (a) opposes practices made unlawful by Title VII or a state equal employment statute, (b) makes a charge of discrimination or assists or participates in an investigation or proceeding under Title VII or a state equal employment statute, or (c) files an internalcomplaint of discrimination. This injunction will remain in effect for the duration of the decree at Defendant’s Albuquerque facility. 3. Within fifteen (15) days of the entry of this Consent Decree, Defendant shall pay Stephen B. Peters the total sum of $250,000. Defendant will m ake this payment directly to Mr. Peters via certified mail at the address provide d by EEOC. Of this amount ten thousand dollars ($10,000.00) will be designated as back wages and the remainder will be compensatory damages. Within ten days of issuance of the settlement funds to Mr. Peters, Defendant will submit a copy of the check and any related correspondence to the Regional Attorney, Equal Employment Opportunity Commission, Albuquerque District Office, 505 Marquette NW, Suite 900, Albuquerque, NM 871022189. For am ounts designated as back pay, Defendant shall be responsible for paying the employer’s share of FUTA and FICA and will not be taken from the settlement amount. For the amount designated as compensatory damages, Defendant will issue a United States Internal Revenue Service Form 1099 to Mr. Peters as required by law. 4. Em ployment inquiries or ref erence checks concerning Stephen B . Peters w ill be handled consistent with Defendant’s practice as follows: Prospective em ployers requesting a reference for Peters should cont act The Work Number. The Work Number will provide Peters’ actual dates of em ployment, total tim e with the Com pany, and job title. If verification of
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employment and income is requested regarding Peters, The Work Number will confirm, in addition to the foregoing, rate of pay, pay frequency, grossyear-to-date earnings, and past two years income history.
5. Defendant shall convert Stephen Pet ers’ involuntary term ination to a voluntary resignation and shall expunge fromthe personnel fileof Charging Party all references to the charge of discrimination filed against Defendant and to any involuntary termination.
6. The Defendant shall not take any retaliatory action against Stephen B. Peters or any witness in this case for filing a charge of employment discrimination or for participating, assisting or testifying in this action.
7. Defendant shall not condition the receipt of this individual relief on Stephen B. Peters’ agreement to keep the term s of the recovery or the allegations raised in this lawsuit confidential or waive his statutory right to file acharge with any federal or state anti-discrimination agency in the future.
8. Defendant will carry out policies a nd practices at its Albuquerque facility that promote a work environment free from race di scrimination, including policies and practices to prevent race discrimination of its employees, and thatallow employees and other individuals to raise concerns or complaints about matters made unlawful by Title VII, whether alleged, perceived or actual without retaliation. To assist Defendant in its effort to promote a work environment free of race discrimination and retaliation, defendant shall take the actions provided for in Paragraphs 11 through 13.
9. W ithin fifteen (15) days of entry of the Decree, Defendant shall review its existing policies on race discrimination for its Albuquerquefacility, and make any changes necessary so that its policies comply with Title VII. W ithin fifteen days of reviewing and m aking any necessary revisions to its policies, defendant shall distribute a copy of its policy(s) to each of its current full and part-time employees of its Albuquerque f acility, and to each new em ployee hired for its Albuquerque facility for the duration of this d ecree. Defendant shall distribute a copy of its policy(s) to each new employee hired for its Albuquerque facility within ten days of hire.
10. Within fifteen (15) days of entry ofthe Decree, Defendant shall provide its employees of its Albuquerque facility with written policy statements and procedures regarding reporting and
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prevention of race discrim ination. The policy and procedure statem ents that are provided to Defendant’s employees should be designed to present easily understood, convenient, confidential and reliable procedures for reporting incidents of race discrimination in Defendant’s Albuquerque facility.
11. Defendant shall post within ten (10) days of the entry of this Consent Decree, and continuously for a period of twenty- four months, in a prominent place frequented by employees in Defendant’s Albuquerque facility, the Notice attached tothis decree as Exhibit A. This Notice shall be the same type, style and size as in Exhibit A.
12. Defendant shall provide training on race discrimination and retaliation according to the following terms:
A. Defendant shall provide four training sessoi ns training session during the termof this decree. All managers, supervisors and employees of Defendant’s Albuquerque facility will attend the training. Duplicative sessions may be held to accommodate staffing needs. Defendant shall be responsible for all costs associated with this training;
B. Defendant shall select a qualified trainer and shall submit the trainer’s name, resume, training agenda and the date(s) of the proposed atrining to the Regional Attorney of the Albuquerque Area Office of the Equal Employment Opportunity Commission within forty-five days of the entry of this decree. The Commission shall have thirty days from the date of receipt of the information described above to accept or reject the proposed c onsultant/lecturer and/or the contents of the seminar. In the event the Commission does not approve Defendant’s designated consultant/lecturer, Defendant shall, within forty-five days, submit an alternative consultant/lecturer to the Commission which will have thirty days from the date of receipt of the information to, in good faith, accept or reject the proposed alternative consultant/lecturer. In the event the Commission does not, in good faith, approve Defenda nt’s designated consultant/lecturer, the Com mission shall designate the consultant/lecturer at a cost not to exceed $3,000.00per seminar-training session which shall be paid by Defendant.
C. The training session shall include a minimum of three hours of instruction. All
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personnel designated in Paragraph A shall both regi ster and attend the training. The registry of attendance shall be retained by Defendant at least for the duration of the decree;
D. The training, at a minimum, shall include the subjects of: 1. that race discrimination in the hiring, firing, com pensation, assignment or other terms, conditions or privileges of employment and retaliation violates Title VII;
2. how to prevent race discrimination and retaliation;
3. how to provide a work environment free race discrimination and retaliation; and
4. to whom and by what means employees may complain, including the EEOC, if they feel they have been subjected to race discrimination and retaliation.
E. Immediately following the training sessions, Defendant’s highest ranking managerial official for its Albuquerque facility shall speak tothe employees about: (1) potential discipline that can be taken against supervisors, managers and employees who commit acts of race discrimination or retaliation, or who allow race discrim ination or retaliation to occur in the workplace; (2) t he importance of maintaining an environment free of race discrimination and retaliation; and (3) the employer’s policies regarding race discrimination and retaliation. This time shall not be counted toward the training required in paragraph 12C.
F. For the duration of this decree, at oraround the time of hire, employees hired for its Albuquerque facility after the training is presented, shall view a video tape of the training and/or a professional training tape which covers the topicsset forth in paragraph 12D and shall be given any written material disseminated at the training.
13. Defendant shall report in afidavit form to the Regional Attorney of the Commission's Albuquerque Area Office at 505Marquette NW, Suite 900, Albuquerque, New Mexico 87102-2189 beginning six months from the date of the entry of this decree, and thereafter every six months for the duration of the decree the following information:
A. Any changes, modifications, revocations, or revisions to its policies and procedures which concern or affect the subject of race discrimination and retaliation.
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B. The registry of persons attending each of the seminar-training sessions required in paragraph 12 of this decr ee and a list of current em ployees on the day of the sem inar-training session. C. An affidavit by Defendant stating the Notice required in paragraph 11 of this decree was posted and the location where it was posted.
14. Each party shall bear its costs and attorney's fees incurred as a result of this action through the filing of this decree.
15. The duration of this decree shall be two (2) years from its entry. This Court shall retain jurisdiction of this action for the duration of the decree, during which the Commission may petition this Court for non-compliance with this decree. Should the Court determine that Defendant has not complied with this decree, appropriate re lief, including extension of this decree for such period as may be necessary to remedy its non-compliance, may be ordered.
16. This decree shall expire by its own term s at the end of two (2) year after entry, without further action by the parties.
17. The parties agree to entry of this decree and judgment subject to final approval by the Court.
ENTERED AND ORDERED this 11th day of April, 2008.
__________________________________ UNITED STATES DISTRICT JUDGE
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APPROVED AND CONSENTED TO:
/s/ Mary Jo O’Neill by Loretta Medina Mary Jo O’Neill Regional Attorney
/s/ Sally C. Shanley by Loretta Medina Sally C. Shanley Supervisory Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
3300 N. Central Ave., Suite 690 Phoenix, Arizona 85012
/s/ Veronica A. Molina Veronica A. Molina Trial Attorney
Loretta Medina Senior Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Albuquerque Area Office 505 Marquette N.W., Suite 900 Albuquerque, NM 87102 Telephone: (505) 248-5231
For BCI Coca-Cola Bottling Company of Los Angeles
/s/ Robbin Dodson Robbin Dodson Sales Center Manager BCI Coca-Cola Bottling Company of Los Angeles Albuquerque, New Mexico
/s/ Christopher M. Moody Christopher M. Moody, Esq. MOODY & WARNER, P.C.
4169 Montgomery Boulevard Albuquerque, New Mexico 87109
(505) 944-0034
/s/ E. Todd Presnell E. Todd Presnell, Esq. MILLER & MARTIN PLLC 150 Fourth Avenue North Suite 1200 Nashville, Tennessee 37219 (615) 744-8447
Attorneys for BCI Coca-Cola Bottling Company of Los Angeles
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NOTICE TO ALL EMPLOYEES OF BCI COCA-COLA BOTTLING COMPANY OF LOS ANGELES, d/b/a PHOENIX COCA-COLA BOTTLING COMPANY and COCA-COLA BOTTLING COMPANY OF ALBUQUERQUE
This Notice is posted pursuant to a Consent Decree entered into between BCI Coca-Cola Bottling Company of Los Angeles, d/b/a Phoenix Coca-Cola Bottling Company and Coca-Cola Bottling Company of Albuquerque (“BCI Coca-Cola”) and the Equal Employment Opportunity Commission (EEOC).
It is unlawful under the federal law (Title VII of the Civil Rights Act of 1964 and state law to discriminate against an employee on the basis of race in hiring, firing, compensation or other terms, and conditions or privileges of employment.
BCI Coca-Cola prohibits all forms of race discrimination. BCI Coca-Cola also prohibits any form of harassment of persons because of race.
BCI Coca-Cola shall not discriminate on the basis of race and shall not retaliate against any employee who opposes a practice made unlawful under federal law, files, assists or participates in the filing of a charge of discrimination or participates in any investigation under Title VII, or who files a grievance alleging discrimination.
If you believe you have been discriminated against because of race or retaliated against in your workplace, you always have the right to seek assistance from:
Equal Employment Opportunity Commission (EEOC) [505 Marquette, Suite 900, Albuquerque, New Mexico 87102]
1-800-669-4000 or
[New Mexico Department of Labor, Human Rights Division, 1596 Pacheco St., Suite 300, Santa Fe, New Mexico 87505(505) 827-6838]
You have the right to file a charge with the EEOC or the Department of Labor if you believe you are being discriminated against.
Exhibit A
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 E.E.O.C. v. BCI Coca-Cola Bottling Co. of Los Angeles, Not Reported in F.Supp.2d (2004)

2004 WL 3426757 Only the Westlaw citation is currently available.
United States District Court, D. New Mexico.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
BCI COCA-COLA BOTTLING COMPANY OF LOS ANGELES, d/b/a Phoenix Coca-Cola Bottling Company and Coca-Cola Bottling Company of Albuquerque, Defendant.
No. Civ.02-1644 JB/RHS. | June 10, 2004.
Attorneys and Law Firms
Mary Jo O’Neill, C. Emanuel Smith, Equal Employment Opportunity Commission, Phoenix District Office, Phoenix, Arizona and Veronica A. Molina, Loretta F. Medina, Equal Employment Opportunity Commission, Albuquerque District Office, Albuquerque, New Mexico, for the Plaintiff.
E. Todd Presnell, Kara E. Shea, Miller & Martin, LLP, Nashville, Tennessee and Christopher M. Moody, Moody & Warner, P.C., Albuquerque, New Mexico, for the Defendant.
Opinion
MEMORANDUM OPINION AND ORDER
BROWNING, J.
*1 THIS MATTER comes before the Court on the Defendant’s Motion for Summary Judgment, filed February 19, 2004 (Doc. 65). The primary issue is whether the Plaintiff Equal Employment Opportunity Commission (“EEOC”) has demonstrated that there is a genuine issue of material fact whether Defendant BCI Coca-Cola Bottling Company of Los Angeles (“BCI”) terminated Stephen Peters from his employment because he is African American. Because the Court finds that the EEOC has not established a genuine issue of material fact, it will grant BCI’s Motion for Summary Judgment and dismiss the EEOC’s claims.
FACTUAL BACKGROUND

BCI is a wholly owned subsidiary of Coca-Cola Enterprises, Inc., the world’s largest bottler of Coca-Cola® products. See Declaration of Patricia K. Edgar ¶ 2, at 1-2 (executed February 2, 2004). BCI does business in Albuquerque as the Coca-Cola Bottling Company of Albuquerque. See id. Peters worked as a merchandiser in the Albuquerque facility under the supervision of Cesar Grado, a District Sales Manager. See Declaration of Cesar Grado ¶¶ 1, 5, at 1-2 (executed February 3, 2004).
Merchandisers are hourly employees whose job duties include product placement and cleaning, arranging, and rotation of displays and promotional materials in retail grocery or other outlets. See id. ¶ 2, at 1. Peters was one of six merchandisers working under Grado’s supervision. See id. Grado also supervised two account sales representatives or “account managers.” See id.
Account managers are salaried sales employees responsible for selling Coca-Cola products to accounts. See id. At all relevant times, Jeff Katt was an account manager under Grado’s supervision. See id. ¶ 7, at 3. According to Peters, Katt supervised his day-to-day work activities. See Affidavit of Stephen Peters ¶ 9, at 2 (executed March 17, 2004).
Grado was responsible for scheduling merchandisers to cover all accounts in his territory. See Grado Decl. ¶ 2, at 1. Merchandisers work five days each week with two days off. See id. ¶ 3, at 2. Because BCI services its accounts seven days a week, none of the merchandisers had the same two days off. See id.
Grado occasionally required merchandisers to work on their scheduled days off to provide extra coverage for routes during particularly busy times and/or when other employees are absent. See id. ¶ 4, at 2. An example of a busy time requiring additional coverage would be when one or more accounts is running an “ad” that is offering special prices on Coca-Cola products which results in increased volume of sales and thus requires more frequent deliveries. Id. When Grado needed extra help covering routes, he first requested volunteers and then asked merchandisers to come in on their days off on a rotating basis. See id. Peters disputes that Grado used this method to find coverage for routes. See Peters Aff. ¶ 15, at 2-3 (“Mr. Grado just picked people to work.”).
*2 Because Peters was the most senior merchandiser under Grado’s supervision, he had Saturday and Sunday as his scheduled days off. See Grado Decl. ¶ 5, at 2. During the first nine months of 2001, Peters worked on his days off on 8 occasions, including three Sundays and five Saturdays. See id. During the same 34-week period, merchandiser Frank Ortiz (Hispanic) worked on his
1

E.E.O.C. v. BCI Coca-Cola Bottling Co. of Los Angeles, Not Reported in F.Supp.2d (2004)

scheduled days off 12 times, merchandiser Donald Connor (white) worked on his scheduled days off 10 times, merchandiser Arturo Lopez (Hispanic) worked on his scheduled days off 9 times, and a later hire, merchandiser Robert Espinosa (Hispanic), worked on his scheduled days off 7 times in 21 weeks. See id.
According to Peters, he never received a written reprimand for job performance problems or attendance problems during his employment with BCI. See Peters Aff. ¶ 1, at 1. Peters states that he was considered a “good merchandiser” and was awarded a certificate for his five years of “service, dedication and commitment” to the company. Id. ¶¶ 2-3, at 1. Peters’ personnel file indicates, however, that Peters’ supervisor gave him a final warning for an act of insubordination which involved refusing to work on a scheduled day off. See Disciplinary Status Notice (September 17, 1999).
Grado was responsible for monitoring the employees working under his supervision, and when an employee had an attendance, performance, and/or disciplinary issue, he was responsible for bringing the issue to the attention of the BCI Human Resources Department. See Grado Decl. ¶ 6, at 3. The Human Resources representative would then make a decision about which workplace policy, if any, applied to the situation and the appropriate action to take based upon what had occurred. See id.; Deposition of Cesar Grado at 31:24 to 32:3 (taken December 3, 2003); Deposition of Sherry Pedersen at 30:19 to 31:4 (taken December 4, 2003).
The top-ranking BCI Human Resources representative at the Albuquerque facility during the relevant period was Senior Human Resources Administrator Sherry Pedersen. See Declaration of Sherry Pedersen ¶ 1, at 1 (executed February 3, 2004). With the exception of terminations, Pedersen authorized all disciplinary actions with respect to employees at the Albuquerque facility. See id. ¶ 2, at 1-2. Patricia Edgar, who was the Employee Relations Manager for BCI at all relevant times, had to authorize all terminations. See id.; Edgar Decl. ¶ 3, at 2. Edgar’s office was based in Phoenix, Arizona and her responsibilities included overseeing human resource functions at BCI facilities in multiple states. See Edgar Decl. ¶ 1, at 1. At all relevant times, Pedersen reported directly to Edgar. See id.; Pedersen Decl. ¶ 1, at 1.
BCI contends that Grado did not have authority to discipline or terminate employees working under his supervision. See Grado Decl. ¶ 6, at 3. Peters contends that Grado gave employees the impression that he had the authority to fire employees. See Deposition of Jeff Katt at 71:21 to 72:13 (taken March 8, 2004); Affidavit of Michael Wilson ¶ 8, at 2-3 (executed March 12, 2004). When BCI terminated Peters’ employment, Katt assumed that Grado was the one who had made the decision. See Katt Depo. at 70:24 to 71:4.

*3 In addressing employee disciplinary issues, BCI Human Resources personnel consult written policies setting forth workplace rules and regulations, which are divided into three categories according to the severity of the infraction. See Pedersen Decl. ¶ 3, at 2. Group A violations address the most serious workplace issues, such as insubordination, and are sufficient to result in immediate discharge, although discharge is not a mandatory result. See id. Group B and C violations, on the other hand, are generally dealt with according to a progressive discipline policy, depending on the nature of the infraction. See id. Group C includes the lowest level violations, including attendance issues. See id. “No call/no show” violations, which occur when an employee fails to report for a scheduled shift without notifying his or her immediate supervisor in accordance with BCI policy, are handled under a separate written policy and are not a basis for immediate termination. Id. BCI contends that Human Resources personnel retain discretion in applying these rules and policies, as BCI must assess each situation on an individualized basis. See id.
BCI Human Resources personnel uses a very specific and narrow definition of the term insubordination.
Insubordination does not mean a situation where an employee has failed to carry out normal job responsibilities or failed to meet performance expectations. Nor is insubordination simply failing or even refusing to follow a supervisor’s instructions. Rather, insubordination occurs when the employee knows that he is considered to be defying a direct order of the supervisor and that his conduct could lead to termination.
Edgar Decl. ¶ 9, at 4. Peters disputes this definition, because he contends that BCI’s policy does not define insubordination. Peters also contends that there is inconsistent testimony about what constitutes insubordination. Donald Bateluna, Grado’s supervisor, testified that insubordination occurs when an employee fails to follow a direct order after being warned that failure to obey can be considered insubordination. See Deposition of Donald R. Bateluna at 47: 8-19 (taken January 29, 2004). Bateluna also testified that insubordination occurs when the employee follows through with his or her refusal to perform the act a supervisor has ordered him or her to do, not when the employee refuses to obey. See id. at 48:25 to 49:9.
During the weekend of Saturday, September 29, 2001, and Sunday, September 30, 2001, three of the chain stores in Grado’s area were running ads. See Grado Decl. ¶ 7, at
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E.E.O.C. v. BCI Coca-Cola Bottling Co. of Los Angeles, Not Reported in F.Supp.2d (2004)

3. Accordingly, Grado needed extra merchandisers to service the accounts. One of the merchandisers, Joseph Rivera, had previously told Grado that he had a commitment which prevented him from coming in on Sunday, September 30, 2001. See id. Grado asked Katt, to relay a message to Peters that Grado needed him to work on one of his days off that weekend. See id.; Katt Depo. at 40:10-14. Katt told Grado that he did not believe Peters would be willing to work on Sunday. See Grado Decl. ¶ 7, at 4; Katt Depo. at 40:20-21 (“[H]e’s not going to work six days this week.”). It is Grado’s recollection that Katt told him he believed Peters was going to call in sick that weekend. See Grado Decl. ¶ 7, at 4.
*4 Peters asserts that he never told Katt that he planned to call in sick. See Peters Aff. ¶ 25, at 4. Peters had worked all his scheduled days that week and had not been out sick. See Grado Decl. ¶ 7, at 4. Peters had not, however, been feeling well all week; Peters’ plans were to go out of town for the weekend, but because he had not been feeling well, he was going to go to the doctor and postpone his travel plans. See Deposition of Stephen Brian Peters at 122:12-25 (taken December 2, 2003).
On Friday, September 28, 2001, Grado learned that one of the “floater” merchandisers, Damian Mirabal, had suffered an on-the-job injury and could not return to work for a week. See Grado Decl. ¶ 7, at 3. Mirabal typically covered Peters’ routes on Peters’ scheduled days off. See id. ¶ 7, at 4. The remaining merchandisers were already scheduled to work that weekend, except Rivera, who was unavailable, and so Grado was now a person short and had no one left to bring in except Peters. See id. Grado claims that he checked with other District Sales Managers to see if they had anyone available to help him, but they did not. See id.
Based on his conversation with Katt, Grado understood around mid-day on Friday, September 28, that he was going to have to require Peters to come in to work that weekend, so he decided to seek advice from the BCI Human Resources Department. See id. ¶ 8, at 4. Ordinarily, Grado would have spoken with Pedersen regarding the situation, but she was out of the office, and so he called Edgar in Phoenix. See id. Grado explained to Edgar that he needed Peters to work on his day off that weekend because of a high volume work situation and a manpower shortage, and asked whether he could order Peters to come in to work. See id.; Edgar Decl. ¶ 4, at 2. Edgar asked Grado if he had looked into every other way of getting the routes covered, and he said he had. See Grado ¶ 8, at 4.
Edgar told Grado he could require Peters to come in to work. See Grado Decl. ¶ 8, at 4; Edgar Decl. ¶ 5, at 3. Edgar asked Grado if there were some compelling reason Peters could not come in to work, and Grado told her that he had not spoken with Peters yet, but had heard he was

going to call in sick. See Edgar Decl. ¶ 5, at 3. Edgar told Grado that it was not acceptable for Peters to plan to call in sick two days before his shift. See id.1

1

Peters objects that Grado’s statement-“but had heard he

was going to call in sick”-is inadmissible hearsay. The

Court disagrees. BCI is not offering it for the truth of

the statement, but as evidence of what Grado said to

Edgar. See Fed.R.Evid. 801(c)(“ ‘Hearsay’ is a

statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to

prove the truth of the matter asserted.”).

BCI policy requires employees to call in sick to their immediate supervisor at least one-half hour before their regular starting time on each day of absence. See id. BCI policy also states that employees do not need to call in on each day of an absence if other arrangements have been made. Edgar instructed Grado to call Peters and find out what the situation was. See Edgar Decl. ¶ 6, at 3.
Edgar told Grado that, if he encountered resistance from Peters, unless Peters presented some compelling reason why he could not work on the day in question, he needed to explain to Peters that he was being given a direct order to come to work and that failure to comply with the order could be insubordination and could lead to termination. See Grado Decl. ¶ 8, at 4; Edgar Decl. ¶ 6, at 3. After Grado got off the telephone with Edgar, he paged Peters, and Peters called him back. See Grado Decl. ¶ 9, at 4.
*5 BCI contends that Grado told Peters he needed him to work that weekend, and Peters said he could not work because he had plans. See id. ¶ 9, at 4-5; Peters Depo. at 121:1-5. BCI maintains that Grado asked Peters what his plans were, but Peters told Grado that his plans were none of Grado’s business. See Grado Decl. ¶ 9, at 5. Peters denies that Grado asked him what his plans were. See Peters Aff. ¶ 28, at 4. Peters also claims that he told Grado he had not been feeling well all week. See Peters Depo. at 121:5-6.
Grado then told Peters: “I’m not asking you to come to work, I’m telling you to come to work. If you do not come to work, it could lead to insubordination and could lead to termination.” Id. at 121:11-14; Grado Decl. ¶ 9, at 5; Grado Depo. at 259:17-21. Peters responded to Grado’s statement by telling Grado: “[D]o what [you’ve] got to do, and I’ll do what [I’ve] got to do.” Peters Depo. at 121:25 to 122:1; Grado Decl. ¶ 9, at 5. While Peters does not deny that he and Grado made these statements during their telephone conversation, he insists that he was not refusing to work on Sunday, September 30. See Peters Aff. ¶ 29, at 4. Peters maintains that his statement to Grado was for the purpose of ending the conversation with Grado so that it would not become a confrontation. See id. ¶ 6, at 2. Peters also asserts that Grado never told him that
3

E.E.O.C. v. BCI Coca-Cola Bottling Co. of Los Angeles, Not Reported in F.Supp.2d (2004)

his conduct during the telephone call was insubordination. See id. ¶ 29, at 4.
After he spoke with Peters on Friday afternoon, Grado called Edgar back and told her what had happened. Grado Decl. ¶ 10, at 5; Edgar Decl. ¶ 7, at 3-4. Peters does not dispute that Grado told Edgar these details. At that point, Edgar believed that there was sufficient evidence to find that Peters had committed the offense of insubordination, a Group A offense subject to immediate discharge. See Deposition of Patricia K. Edgar at 38:12-17 (taken December 4, 2003). Edgar states that Peters’ conduct on Friday, September 28, 2001, standing alone, would have warranted termination under BCI policy. See Edgar Decl. ¶¶ 8, 10 at 4.
At that point, Edgar understood that Peters had left for the day, because merchandisers’ regular shifts usually end at 2 p.m. See id.; Edgar Depo. at 41:20-25. Peters disputes that he left work at 2:00 p.m., because on Friday, September 28, 2001, Peters worked over 11 hours, starting at 5:00 a.m. See Peters Aff. ¶ 30, at 4. In any case, Edgar told Grado they would deal with the situation on Monday. See Edgar Decl. ¶ 10, at 4-5; Grado Decl. ¶ 10, at 5.
Because, based on his conversation with Peters, Grado believed that Peters would not be coming to work on Sunday, Grado spoke with Katt again on Friday afternoon to make arrangements to cover all the routes on Sunday. See Grado Decl. ¶ 11, at 5; Katt Depo. at 28:3:16. Because no merchandisers were available, Grado and Katt planned to cover the routes themselves. See Grado Decl. ¶ 11, at 5.
*6 Either Friday afternoon or Monday morning, Edgar spoke with Pedersen about the situation involving Peters. See Edgar Decl. ¶ 11, at 5. According to standard practice, Pedersen had reviewed Peters’ personnel file after learning of the situation. See id .; Pedersen Decl. ¶ 5, at 2-3. At the hearing on this motion, BCI informed the Court that this file was located in the Albuquerque office. See Transcript of Motion Hearing at 19:6-19 (April 7, 2004) (“Transcript”).2 The EEOC did not dispute that assertion. Pedersen informed Edgar that Peters’ personnel file contained a Disciplinary Status Notice related to a previous incident of insubordination in September 1999.3 BCI stated at the hearing that Pedersen faxed the two page Disciplinary Status Notice to Edgar. See Transcript at 19:17-25. The EEOC did not dispute that assertion.

2

The Court’s citations to the transcript of the hearing

refer to the Court Reporter’s original, unedited version.

Any finalized transcript may contain slightly different

page and/or line numbers.

3

Peters objects to the admissibility of the Disciplinary

Status Notice, contending that it is inadmissible

hearsay. Again, BCI is not offering the Notice as

evidence of the truth about the incident in 1999, but for

its influence on Edgar’s state of mind.

The 1999 incident involved a supervisor, other than Grado, who wrote Peters up for insubordination because he refused to work on a scheduled day off. See Disciplinary Status Notice (1999). BCI suspended Peters and issued him a final written warning that further instances of insubordination could lead to termination. See id .; Pedersen Decl. ¶ 5, at 2-3. Grado did not supervise Peters in 1999. Peters disputes that he received such a final warning in 1999. Peters Aff. ¶ 5, at 2. BCI contends that Peters’ prior similar incident with a different supervisor contributed to Edgar’s conclusion that Grado had presented an accurate account of events with respect to Peters’ conduct. See Edgar Decl. ¶ 11, at 5; Edgar Depo. at 41:6-9.
On Saturday, September 29, 2001, Peters went to a Presbyterian Medical Center clinic because he was still not feeling well. See Peters Depo. at 146:4-25. Peters reported to the clinic staff that he was not feeling well, including headache, sinus pain, and fatigue. See id. at 148:6-9. The doctor diagnosed a sinus infection and, after Peters told her he had to go to work on Sunday, she told him he was exhausted and overworked. The doctor offered to write Peters an excuse from work, but Peters told her he did not need one unless he missed 2-3 days. The doctor did, however, give Peters a prescription for medication. See id. at 149:10-11; id. at 151:8-11.
Peters called Katt on Saturday evening to tell him he was sick, he had been to the doctor, and to request permission to stay home on Sunday. Katt gave Peters permission and told Peters to call him if for any reason he felt better in the morning. See id. at 194:15 to 195:18. Katt attempted to contact Grado once or twice, but did not get a response back from Grado. See Katt Depo. at 25:14-23. Katt testified that, because it was a weekend, it was not unusual for Grado not to call him back. See id. Because Peters was not feeling well, he stayed home on Saturday, September 29, 2001 and Sunday, September 30, 2001. See Peters Aff. ¶ 7, at 2; Grado Decl. ¶ 12, at 5. After the conversation with Grado on Friday afternoon, Peters had no further communication with Grado until Monday, October 1, 2001. Peters reported for work as scheduled on Monday morning, October 1, 2001. See Grado Decl. ¶ 12, at 5.
*7 On Monday, October 1, 2001, Edgar had at least two telephone meetings with Grado and Pedersen to discuss the situation involving Peters. See Edgar Decl. ¶ 12, at 5. During these conversations, Grado gave no opinion or

4

E.E.O.C. v. BCI Coca-Cola Bottling Co. of Los Angeles, Not Reported in F.Supp.2d (2004)

recommendation as to what he thought should happen to Peters. See Grado Decl. ¶ 13, at 5; Edgar Decl. ¶ 15, at 7.4 Grado reported that Peters had not come to work on Sunday, September 30, 2001, and had not attempted to contact him. See Edgar Decl. ¶ 12, at 5. Edgar asked Grado to check to make sure Peters had not made any attempt to contact him over the weekend. See id.; Grado Decl. ¶ 13, at 5. Grado checked and confirmed that Peters had made no attempt to contact him directly, but learned that Peters had called in sick to Katt on Saturday night. See Grado Decl. ¶ 13, at 6; Edgar Decl. ¶ 12, at 5-6.

4

Peters disputes this fact because Edgar stated at her

deposition that Grado does have authority to

recommend discipline. See Edgar Depo. at 195:24 to

196:7. The EEOC, however, has not presented evidence

that Grado gave an opinion or recommendation during

his conversations with Edgar.

By the end of the day on Monday, October 1, 2001, Edgar made the decision to terminate Peters’ employment for insubordination. See Edgar Decl. ¶ 13, at 6. Peters disputes that Edgar made the decision. Peters asserts that Grado made the decision to terminate Peters’ employment and that Edgar authorized Grado’s decision.
Edgar states that her decision was based on several factors, but first and foremost was Peters’ conduct towards Grado on Friday, September 28, 2001. See id. There was no question in Edgar’s mind that Peters had committed the offense of insubordination that day. See id. The prior incident of insubordination, and the final warning BCI issued to Peters in 1999, also factored into Edgar’s decision to terminate his employment. See id. Edgar understood that Peters had already been given more chances than the policy required on this issue, and that any action short of termination could set a bad precedent for BCI’s stance on insubordination. See id. Peters’ failure to come to work on Sunday also contributed, to a lesser extent, to Edgar’s decision to terminate Peters’ employment, insofar it represented the continuation of the act of insubordination which Peters commenced on Friday, September 28, 2001. See id. ¶ 14, at 6.
Peters worked all day Monday from 5:00 a.m. to 5:00 p.m. and then saw Grado at a health insurance meeting on Monday evening. On Monday evening, Grado told Peters to be at the plant at 8:00 a.m. the next day, to which Peters responded “okay.” Peters Depo. at 134:2 to 136:20.
At the meeting on Tuesday October 2, 2001, Grado asked Peters if he knew why he was there (in Pedersen’s office), and Peters responded that he did not know. See id. at 138:7-10. Pedersen and Bateluna, Grado’s supervisor, were also in present at the meeting. See id. at 137:18-24. Grado told Peters that he had been terminated for insubordination. See id. at 138:11-14. Peters informed

Grado that he had “reported off work” to his immediate supervisor, Jeff Katt, because he had been sick, and that Katt had approved his absence. Id. at 138:24 to 139:4. Peters was discharged immediately and did not receive an exit interview. Peters contends that his immediate dismissal without an exit interview and investigation was against company policy. Edgar testified that Peters should have received an exit interview and that she does not know why he did not receive one. See Edgar Depo. at 185:18-22.
*8 Edgar stated that she did not learn that Peters was African American until Pedersen called her after the termination meeting on Tuesday, October 2, 2001. See Edgar Decl. ¶ 17 at 7-8. Pedersen stated that she did not know that Peters was African American until he walked into her office for the termination meeting on Tuesday, October 2, 2001. See Pedersen Decl. ¶ 10 at 3. The EEOC contends that both Edgar and Pedersen did have knowledge that Peters is African American based on their access to information disclosing Peters’ race. See Plaintiff Equal Employment Opportunity Commission’s Response in Opposition to Defendant’s Motion for Summary Judgment at 14, filed March 17, 2004 (Doc. 73). Peters’ personnel file contained documents that revealed that he was African American. Included in his file were two “Confidential Employee Supplemental Data Sheets” where Peters had marked his race as “black.” The EEOC also contends that Edgar had direct access to information concerning employee ethnicity.
Peters contends that BCI treated him differently than other employees in similar situations. See Peters Aff. ¶ 16 at 3. According to Peters, other employees missed more days in one year than Peters missed in six and a half years. See Peters Depo. at 162:21 to 163:9. Peters missed two days in six and a half years: one with a doctor’s excuse and one time when his fiancé’s son was killed and he missed work to attend the funeral (the 1999 incident). See id.
The EEOC has proffered evidence that Grado treated African Americans less favorably than he treated employees of other racial groups or otherwise harbored racial bias toward African Americans. Three BCI employees submitted affidavits containing statements that Grado treated African American employees worse than he treated non-African Americans and made racial remarks at work. See Affidavit of James Young ¶ 6, at 2 (executed March 12, 2004); Wilson Aff. ¶ ¶ 5, 7, at 1-2; Affidavit of Bryan Esquibel ¶¶ 5-7, at 1-2 (executed March 12, 2004). Katt also testified that Grado may have called Peters a “nigger.” Katt Depo. 62:19 to 65:2. Katt also went to great lengths, however, to clarify that he was not sure that Grado actually made that statement. See id.
The EEOC directed the Court’s attention to four BCI employees that it contends were treated more favorably
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E.E.O.C. v. BCI Coca-Cola Bottling Co. of Los Angeles, Not Reported in F.Supp.2d (2004)

than Peters. Damian Mirabal is a non-African American merchandiser who worked under Grado’s supervision from December 2000 to November 2001. Mirabal received a verbal warning for having missed work five times in a six month period. Arturo Lopez, a Hispanic merchandiser, refused to return a page from his supervisor and was threatened with insubordination and termination. BCI did not terminate Lopez because he did not return to work and therefore “abandoned his job.” Supplemental Declaration of Sherry Pedersen ¶ 2, at 1-2 (executed March 30, 2004). Oran Sage was a non-African American employee who was not under Grado’s direct supervision.5 BCI disciplined Sage for leaving the premises without his supervisor’s approval. See Deposition of Oran Sage at 36:3-18. Monica Lovato, a Hispanic merchandiser under Grado’s supervision, failed to report for work on a scheduled day off. Lovato voluntarily terminated her employment in 2002. See Pedersen Decl. ¶ 14 at 5.

5

At times, the parties also refer to Mr. Sage as “Kelly”

Sage.

*9 BCI contends that Peters never made any formal complaints to anyone at BCI at any time during his employment that he was subjected to discrimination based on his race. See Peters Depo. at 87:5-16. In his affidavit, Peters states that he complained to James Young, a BCI employee, on several occasions that he felt he was being treated differently because he was African American. See Peters Aff. ¶ 16, at 3. Peters brought no formal complaints of race discrimination to the attention of the Human Resources Department during his employment at BCI. See Pedersen Decl. ¶ 8 at 3.

pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).
In ruling on a summary judgment motion, the Court examines the factual record and all reasonable inferences therefrom in the light most favorable to the nonmoving party. See Allen v. Muskogee, Oklahoma, 119 F.3d at 839-40. The Court’s role in deciding a motion for summary judgment is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. See Ulissey v. Shvartsman, 61 F.3d 805, 808 (10th Cir.1995).
“[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 247-48 (emphasis in original). “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248 (citing 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2725, at 93-95 (1983)). If the evidence is merely colorable, or is not significantly probative, summary judgment is appropriate. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50.

SUMMARY JUDGMENT STANDARD IN EMPLOYMENT CONTEXT
Under rule 56, any party may move for summary judgment. See Fed.R.Civ.P. 56(a) and (b). The moving party initially carries the burden of pointing out to the trial court that there is an absence of evidence to support the nonmoving party’s case, although the moving party “need not affirmatively negate the nonmovant’s claim in order to obtain summary judgment.” Allen v. Muskogee, Oklahoma, 119 F.3d 837, 840 (10th Cir.1997)(citing Celotex v. Catrett, 477 U.S. 317, 322-23 (1986), cert. denied, 528 U.S. 1148 (1998)). Once the movant has met this burden, the nonmoving party must go beyond the pleadings and show that a genuine issue of material fact exists that would require a trial. The nonmoving party may not avoid summary judgment by resting upon only the allegations or denials in the pleadings. See Bacchus Indus ., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The Court must grant the motion “if the

*10 A claim of intentional disparate treatment based on race can survive summary judgment only when the plaintiff has presented sufficient evidence to show that there is a genuine issue of material fact whether the plaintiff’s race actually motivated the allegedly discriminatory conduct. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141 (2000)(“[L]iability depends on whether the protected trait ... actually motivated the employer’s decision.”). “A plaintiff alleging discrimination on the basis of race may prove intentional discrimination through either direct evidence of discrimination (e.g., oral or written statements on the part of a defendant showing a discriminatory motivation) or indirect (i.e., circumstantial) evidence of discrimination.” Kendrick v. Penske Transp. Services, Inc., 220 F.3d 1220, 1225 (10th Cir.2000)(citing Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1207 (10th Cir.1999); Elmore v. Capstan, Inc., 58 F.3d 525, 529 (10th Cir.1995)). In cases involving circumstantial evidence of discrimination, courts should apply the analysis that the Supreme Court of the United States set forth in
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E.E.O.C. v. BCI Coca-Cola Bottling Co. of Los Angeles, Not Reported in F.Supp.2d (2004)

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Kendrick v. Penske Transp. Services, Inc., 220 F.3d at 1225.
Under the McDonnell Douglas framework, the plaintiff, here the EEOC, “must carry the initial burden under the statute of establishing a prima facie case of racial discrimination.” McDonnell Douglas Corp. v. Green, 411 U.S. at 802. “Once the plaintiff has established a prima facie case, ‘[t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason’ for its employment action.” Kendrick v. Penske Transp. Services, Inc., 220 F.3d at 1226 (quoting McDonnell Douglas Corp. v. Green, 411 U.S. at 802). “If the defendant makes this showing, the plaintiff must then show that the defendant’s justification is pretextual.” McDonnell Douglas Corp. v. Green, 411 U.S. at 804.

LEGAL ANALYSIS
The sole claim remaining in this case is the EEOC’s allegation that BCI terminated Peters’ employment because of his race. It is an “unlawful employment practice for an employer ... to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Both parties agree that this case does not involve direct evidence of discrimination and that the McDonnell Douglas analysis applies.6

6

“In the absence of direct evidence of discrimination, a

Title VII claimant may prove his case by inference.”

Response at 5. Both parties relied upon the McDonnell

Douglas analysis in their briefs.

BCI does not dispute that the EEOC has met its burden to establish a prima facie case of discriminatory discharge. And while the EEOC disputes whether BCI has come forward with a legitimate nondiscriminatory reason for its conduct, the Court believes that BCI’s burden is one of production and not of persuasion. Thus, BCI need only articulate a legitimate nondiscriminatory reason for discharging Peters. The EEOC’s arguments with respect to the legitimacy of BCI’s proffered reason are more appropriately directed toward to the question of pretext. Because the Court finds that the EEOC has not created a genuine issue of material fact with respect to the question whether BCI’s stated reason for its decision is mere pretext for discrimination, the Court will grant BCI’s motion for summary judgment.

I. THE EEOC HAS ESTABLISHED A PRIMA FACIE CASE OF DISCRIMINATORY DISCHARGE. *11 In the United States Court of Appeals for the Tenth Circuit, a plaintiff must demonstrate four elements to establish a prima facie case of discriminatory discharge: (i) he belongs to a protected class; (ii) he was qualified for his job; (iii) despite his qualifications, he was discharged; and (iv) the job was not eliminated after his discharge. See Kendrick v. Penske Transp. Services, Inc., 220 F.3d at 1229 (citing Perry v. Woodward, 199 F.3d 1126, 1138 (10th Cir.1999)). In this case, BCI does not dispute that the EEOC satisfies these four elements. See Memorandum in Support of Defendant’s Motion for Summary Judgment at 16, filed February 19, 2004 (Doc. 66)(“BCI does not dispute that Plaintiff can establish a prima facie case of discriminatory discharge.”). BCI’s acknowledgment of a prima facie case means that, for purposes of this motion, the Court will accept the following elements of proof as true: (i) Peters was, at all relevant times, in a protected racial class; (ii) Peters was, at all relevant times, qualified for his position with BCI; (iii) despite Peters’ qualifications, BCI discharged him; and (iv) BCI did not eliminate Peters’ position after discharging him. See Kendrick v. Penske Transp. Services, Inc., 220 F.3d at 1229.
The Tenth Circuit has stated that, when a plaintiff establishes a prima facie case under the McDonnell Douglas analysis, he or she creates “a rebuttable presumption that [the] employer unlawfully discriminated against [the plaintiff].” Perry v. Woodward, 199 F.3d at 1138 n. 8 (citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254-55 (1981)).
When viewed against a backdrop of historical workplace discrimination, an employee who belongs to a racial minority and who eliminates the two most common, legitimate reasons for termination, i.e., lack of qualification or the elimination of the job, has at least raised an inference that the termination was based on a consideration of impermissible factors. The firing of a qualified minority employee raises the inference of discrimination because it is facially illogical for an employer to randomly fire an otherwise qualified employee and thereby incur the considerable expense and loss of productivity associated with hiring and training a replacement.
Perry v. Woodward, 199 F.3d at 1140. Thus, in this case, the EEOC has created a rebuttable presumption that BCI discriminated against Peters by terminating his

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E.E.O.C. v. BCI Coca-Cola Bottling Co. of Los Angeles, Not Reported in F.Supp.2d (2004)

employment because of his race.
II. BCI HAS ARTICULATED A LEGITIMATE, NONDISCRIMINATORY REASON FOR TERMINATING PETERS’ EMPLOYMENT. Once a plaintiff establishes a prima facie case of racial discrimination, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its employment action. See Kendrick v. Penske Transp. Services, Inc., 220 F.3d at 1226. “This burden is one of production, not persuasion; it ‘can involve no credibility assessment.” ’ Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. at 142 (quoting St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 509 (1993)). BCI can meet this burden by offering admissible evidence sufficient for the trier of fact to conclude that it based its decision to terminate Peters’ employment on a legitimate factor other than race. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. at 142 (“Respondent met this burden by offering admissible evidence sufficient for the trier of fact to conclude that petitioner was fired because of his failure to maintain accurate attendance records.”).
*12 BCI asserts that it terminated Peters’ employment because of his insubordinate conduct toward Grado. See Memorandum in Support of Defendant’s Motion for Summary Judgment at 16 (“BCI terminated Mr. Peters for insubordination.”). “[I]nsubordination could serve as a legitimate non-discriminatory reason for discharge to rebut the plaintiff’s prima facie case.” Brown v. Parker-Hannifin Corp., 746 F.2d 1407, 1411 (10th Cir.1984)(citing Ray v. Safeway Stores, Inc., 614 F.2d 729, 731 (10th Cir.1980)). Thus, BCI has satisfied its burden to articulate a legitimate, nondiscriminatory reason for the employment action that it took with respect to Peters.
The EEOC contends that BCI’s proffered reason for Peters’ termination fails for several reasons: (i) Peters was not actually insubordinate; (ii) BCI’s claim that the decision-maker did not know Peters’ race is without merit; and (iii) substantial evidence exists that Grado, rather than Edgar, was the decision-maker behind Peters’ termination. See Response at 8-18. These arguments, even if accurate, do not affect BCI’s ability to meet its burden to set forth a legitimate, nondiscriminatory reason for its decision.
The defendant need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff’s [termination]. The explanation

provided must be legally sufficient to justify a judgment for the defendant. If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity.
Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 254-55 (internal citations and footnotes omitted). “The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Id. at 253 (citations omitted). Accordingly, the Court believes that it is more appropriate to address the EEOC’s arguments in a pretext analysis.
III. THE EEOC HAS NOT CREATED A GENUINE ISSUE OF MATERIAL FACT WITH RESPECT TO THE ISSUE OF PRETEXT. Once the employer articulates a legitimate, nondiscriminatory explanation for its decision, the presumption of discrimination disappears. See id. at 255 (“If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted[.]”). “[T]he plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” Id. at 253. “A plaintiff establishes pretext by revealing ‘such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence.” ’ Equal Employment Opportunity Commission v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1198 (10th Cir.2000)(quoting Bullington v.. United Air Lines, Inc., 186 F.3d 1301, 1317 (10th Cir.1999)). The EEOC has raised several arguments in an effort to create a genuine issue of material fact concerning pretext.
*13 Three of the EEOC’s arguments were mentioned above: (i) Peters was not actually insubordinate; (ii) BCI’s assertion that Edgar did not know Peters’ race before making her decision is without merit; and (iii) substantial evidence exists that Grado, rather than Edgar, was the decision-maker behind Peters’ termination. See Response at 8-18. In its briefing directly addressing the pretext issue, the EEOC also argued that: (i) BCI acted contrary to a written policy when it terminated Peters; (ii) BCI acted contrary to an unwritten company policy or practice by treating similarly situated individuals of a different class differently from Peters; (iii) evidence of Grado’s racial bias supports a finding of pretext; and (iv) statistical evidence concerning the racial composition of BCI’s
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E.E.O.C. v. BCI Coca-Cola Bottling Co. of Los Angeles, Not Reported in F.Supp.2d (2004)

work force supports a finding of pretext. See id. at 18. For the reasons stated on the record in open court during the hearing on this matter, and for the reasons set forth below, the Court finds that the EEOC has not demonstrated that there is a genuine issue of material fact that would require a trial.
A. NO GENUINE ISSUE OF MATERIAL FACT EXISTS WHETHER BCI’S STATED REASON FOR TERMINATING PETERS’ EMPLOYMENT IS FALSE. The EEOC argues that BCI’s proffered reason for terminating Peters’ employment is a pretext for discrimination because Peters was, in fact, not insubordinate. The EEOC maintains that, to establish that Peters was insubordinate, BCI “must articulate an occasion when Stephen Peters resisted authority, refused to obey, used objectionable language or was abusive toward a supervisor.” Response at 8 (citing Webster’s Third New Dictionary at 999 (1981); 48 Am. Jur.2d Labor and Labor Relations § 2259). The EEOC contends that BCI is unable to articulate any of these conditions.
“[D]istrict courts, when analyzing the pretext issue, do not sit as ‘super-personnel departments’ free to second-guess the business judgment of an employer.” Bullington v. United Airlines, Inc., 186 F.3d at 1318 n. 14, overruled in part on other grounds by National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). The relevant inquiry is not whether BCI’s proffered reasons were “wise, fair or correct,” but whether BCI “honestly believed those reasons and acted in good faith upon those beliefs.” Bullington v. United Airlines, Inc., 186 F.3d at 1318 (citing Sanchez v. Philip Morris Inc., 992 F.2d 244, 247 (10th Cir.1993)(“Title VII is not violated by the exercise of erroneous or even illogical business judgment.”); Kariotis v. Navistar Int’l Transp. Corp., 131 F.3d 672, 677 (7th Cir.1997)( “[A]rguing about the accuracy of the employer’s assessment [of plaintiff’s performance] is a distraction, because the question is not whether the employer’s reasons for a decision are right but whether the employer’s description of its reasons is honest.” (internal quotation marks and citations omitted.))). Further, “a challenge of pretext requires [the Court] to look at the facts as they appear to the person making the decision to terminate plaintiff.” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d at 1231.
*14 Thus, in this case, Peters’ subjective belief whether he committed insubordination is not relevant. The Court must analyze the pretext issue by determining whether a genuine issue of material fact exists whether BCI honestly believed that Peters had committed insubordination and whether that was the true reason for its decision to terminate his employment. The EEOC has been unable to dispute, by competent evidence, that Patricia Edgar, the

Employee Relations Manager responsible for deciding all termination issues, believed that Peters’ conduct on Friday, standing alone, warranted termination. See Edgar Decl. ¶ 10, at 4 (“I made the determination on Friday, September 28, 2001, that Mr. Peters was insubordinate.”). The EEOC has also been unable to point to evidence in the record which contradicts that Edgar made the decision to terminate because she believed that Peters’ conduct met BCI’s definition of insubordination. See id. ¶ 9, at 4 (“[I]nsubordination occurs when the employee knows that he is considered to be defying a direct order of the supervisor and that his conduct could lead to termination.”). It is BCI’s definition of “insubordination” that controls. Although the EEOC argues for a different definition, Tenth Circuit law states that the Court must evaluate a pretext challenge by reference to “the facts as they appear to the person making the decision to terminate plaintiff.” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d at 1231.
And while the EEOC challenges BCI’s ultimate conclusion that Peters was insubordinate, it does not challenge the facts underlying that conclusion. In fact, Peters admitted those facts at his deposition. Grado called Peters on Friday to discuss Peters coming in to work on Sunday and told Peters: “I’m not asking you to come to work, I’m telling you to come to work. If you do not come to work, it could lead to insubordination and could lead to termination .” Peters Depo. at 121:11-14. Rather than agree to come in to work on Sunday, Peters told Grado to “do what [you’ve] got to do, and I’ll do what I[‘ve] got to do.” Id. at 121:23 to 122:1. According to BCI, Peters’ statement during that telephone conversation was an act of insubordination.
The EEOC argues that the Court should find a genuine issue of material fact with respect to pretext because it is unclear when Peters’ insubordination, if any, occurred. According to the EEOC, Peters could not have committed insubordination on Friday, September 28, 2001 because Grado did not order him to take any action on Friday. The order from Grado required Peters to report to work on Sunday. The EEOC also argues that Peters did not commit insubordination on Sunday, September 30, 2001 because he stayed home from work with Katt’s permission. The EEOC has not introduced evidence into the record, however, to contradict Edgar’s stated reasons for the decision to terminate Peters’ employment.
By the end of the day Monday, October 1, 2001, I had made a final decision to terminate the employment of Stephen Peters. This decision was based on several factors. First and foremost was the conduct of Mr. Peters towards Mr. Grado on Friday, September 28, 2001. There was no question in my mind that Mr. Peters
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E.E.O.C. v. BCI Coca-Cola Bottling Co. of Los Angeles, Not Reported in F.Supp.2d (2004)

had committed the offense of insubordination that day. A single offense of insubordination is sufficient to warrant termination under BCI policy. However, this was not Mr. Peters’ first offense of insubordination. The fact that Mr. Peters had previously been written up for insubordination and had already been given a final warning on this issue also contributed to my decision to terminate his employment. Mr. Peters had already been given more chances than the policy required on this issue, and I felt that any action short of termination at that juncture could set a bad precedent on the issue of BCI’s stance with respect to insubordination.
*15 Edgar Decl. ¶ 13, at 6.
Thus, while the EEOC argues that insubordination did not occur on Friday, the EEOC has not provided evidence to contradict BCI’s evidence that Peters engaged in the conduct that BCI attributes to him. The EEOC’s argument that BCI somehow misinterpreted that conduct is insufficient to create a genuine issue of material fact on the issue of pretext. “[A] challenge of pretext requires [the Court] to look at the facts as they appear to the person making the decision to terminate the plaintiff.” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d at 1231. There is no evidence to support the contention that BCI did not honestly believe that Peters was insubordinate on Friday.
The EEOC also argues that insubordination did not occur on Sunday because Peters missed work with Katt’s permission. It is undisputed that Peters called in sick to Katt on Saturday evening. According to Edgar, however, that call did not justify Peters’ absence or preclude a determination that Peters was insubordinate.
The fact that Mr. Peters called in sick to Jeff Katt on Saturday night had no impact whatsoever on my assessment of the situation, for several reasons. First, in my opinion, the timing of Mr. Peters’ alleged sickness was highly suspect. I knew that he worked his scheduled shifts on Friday, September 28, 2001 and Monday, October 1, 2001, which led me to conclude he could have come to work on Sunday if he wished to do so. I also found it particularly suspicious that Mr. Peters chose to call in sick to Mr. Katt, rather than Mr. Grado, given the fact

that Mr. Peters had been warned by Mr. Grado the day before that if he did not come to work he would be subject to termination. In my opinion, which I formulated prior to my decision to terminate, if Mr. Peters had genuinely been sick, and unable to work, and was genuinely interested in preserving his employment relationship with BCI, he would have called in to explain the situation directly to Mr. Grado.

Edgar Decl. ¶ 14, at 6-7. Thus, reference to Peters’ Saturday evening telephone call to Katt does not create a genuine issue of material fact whether Edgar believed Peters was insubordinate on Sunday.
The EEOC argues that the Disciplinary Status Notice creates a genuine issue of material fact whether BCI terminated Peters for failure to report to work on Sunday rather than for his conduct toward Grado on Friday. The Notice shows a violation date of September 30, 2001 and contains the following narrative: Group A: Insubordination: On Friday 9-28-01 you were given a direct order to come into work on Sunday 9-30-01 due to business necessity. I also explained how this was a direct order and failure to comply with the directive would be considered insubordination and would result in termination. You explained how you had plans and that I “should do whatever I had to do.” You did not report to work on Sunday 9-30-01, therefore your employment is being terminated for insubordination.

*16 Disciplinary Status Notice (September 30, 2001). Although the Notice mentions Peters’ failure to report to work on Sunday, September 30, 2001, the Court does not believe that it creates a genuine issue of material fact on the issue of pretext. It is consistent with Edgar’s declaration.

Edgar has stated that Peters’ failure to report to work played a role in her decision to terminate Peters’ employment. See Edgar Decl. ¶ 14, at 6. Edgar viewed Peters’ “failure to come to work on Sunday not as an isolated attendance issue, but as the fulfillment of his stated intention the previous Friday to defy Mr. Grado’s direct order.” Id. Edgar viewed Peters’ conduct on Friday and Sunday as parts of the same chain of events. Thus, that the Notice lists Peters’ conduct on Sunday, September 30, 2001 as the reason for his termination is not inconsistent with BCI’s stated position and does not create a genuine issue of material fact.7

7

The EEOC’s characterization of Peters’ termination as

10

E.E.O.C. v. BCI Coca-Cola Bottling Co. of Los Angeles, Not Reported in F.Supp.2d (2004)

one for failure to report to work serves as the basis for its later argument that BCI treated Peters differently than other similarly situated individuals. The EEOC has not been able to dispute, however, that BCI terminated Peters’ employment because of insubordination rather than attendance violations. See Edgar Decl. ¶ 16, at 7 (“Mr. Peters was terminated solely for insubordination. Mr. Peters was not terminated because he did not show up for work on Sunday, except to the extent this conduct is viewed in context with his exchange with Mr. Grado on Friday, September 28, 2001, as the fulfillment of Mr. Peters stated intention to defy a direct order from Mr. Grado.”). The fact that Grado’s order to Peters involved coming into work does not automatically transform Peters’ violation from insubordination into an attendance violation; the attendance violation was incidental to Peters’ insubordination. Thus, Peters is not similarly situated with other employees whom BCI disciplined for violation of various attendance rules.
B. NO GENUINE ISSUE OF MATERIAL FACT EXISTS WHETHER GRADO, RATHER THAN EDGAR, MADE THE DECISION TO TERMINATE PETERS’ EMPLOYMENT. The parties dispute whether Edgar or Grado made the decision to terminate Peters’ employment. The EEOC argues that “Edgar relied on ‘facts’ obtained from Grado. Based on the ‘facts’ as reported by Grado, Edgar authorized Grado to terminate Mr. Peters.” Response at 15 (emphasis in original). In support of its argument that Grado was the decision-maker, the EEOC also points out that it was Grado that anticipated a decision needed to be made and contacted Edgar; that Edgar did not conduct an independent investigation of the facts she received from Grado; and that Grado gave employees the impression that he had the authority to make termination decisions.
The EEOC argues that Edgar unduly relied on Grado’s version of the facts because she did not perform an independent investigation into Peters’ conduct. There was no evidence, however, either before Edgar or before this Court, to raise the inference that Grado relayed misleading information to Edgar. To the contrary, the evidence is that Peters engaged in the conduct that BCI attributes to him.
Moreover, Edgar did take some steps to more closely evaluate the situation. She met with Pedersen by telephone to learn more information about Peters’ disciplinary history. It was during that conversation that she learned that one of Peters’ former supervisors had written Peters up for insubordination in 1999 based on his refusal to work a scheduled day off. See Edgar Decl. ¶ 11, at 5. That Peters had a similar incident with a different supervisor contributed to Edgar’s conclusion that Grado’s

version of events was accurate. See id.
The EEOC produced evidence that Grado made representations in the workplace that he had the authority to terminate employees under his supervision. See Katt Depo. at 72:7-13. During his employment with BCI, Katt assumed that Grado was the one who made decisions to terminate employees. See id. at 71:21 to 72:5. Other employees also believed that Grado had the ability to fire the individuals he supervised. See Wilson Aff. ¶ 8, at 2-3. Peters also testified that he believed Grado had the authority to discipline and fire employees. See Peters Aff. ¶ 18, at 3.
*17 Grado’s statements, however, and employees’ subjective beliefs, do not create a genuine issue of material fact whether Grado had the authority to terminate employees. With respect to Grado’s actual authority, the evidence is undisputed. Edgar had to authorize “all terminations.” Edgar Decl. ¶ 3, at 2 (emphasis in original). See also Pedersen Decl. ¶ 2, at 2. Grado did not have independent authority to discipline or terminate employees working under his supervision. See Grado Decl. ¶ 6, at 3 (“All such disciplinary actions must be authorized by our Human Resources Department. It is my responsibility to deliver or communicate all disciplinary actions-whether verbal or written-to employees working under my supervision.”). When an employee had an attendance, performance, or disciplinary issue, Grado brought those facts to the attention of the Human Resources Department, which would in turn decide which company polices applied to the situation and the appropriate action to take under the circumstances. See id.8

8

The EEOC also brings Grado’s training in discipline to

the Court’s attention. See Response at 16 n. 3

(“Moreover, Cesar Grado was required to attend

training on “discipline and dismissal decisions,” and a

supervisor’s “role in discipline.” )(emphasis in

original). That Grado participated in such training,

however, does not create a genuine issue of material

fact whether Grado was the decision-maker behind

Peters’ termination. It is logical that Grado would

attend such training because he is the supervisor who

must use professional judgment in determining whether

to bring certain conduct to the Human Resources

Department’s attention.

BCI has produced admissible evidence that Edgar was the final decision making authority on terminations generally. See Edgar Decl. ¶ 3, at 2; Pedersen Decl. ¶ 2, at 2. It has also produced competent evidence that Edgar was the decision-maker specifically with respect to Peters’ termination. See Edgar Decl. ¶ 15, at 7 (“I was solely responsible for making the decision to terminate Mr. Peters’ employment. At no point during my meetings with
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E.E.O.C. v. BCI Coca-Cola Bottling Co. of Los Angeles, Not Reported in F.Supp.2d (2004)

Mr. Grado did I ask-or did Mr. Grado offer-an opinion or recommendation as to what should be done with Mr. Peters.”). See also Grado Decl. ¶ 13, at 5 (“During these conversations, I simply reported the facts to Ms. Edgar and gave no opinion or recommendation as to what I thought should happen to Mr. Peters.”).
In response to the evidence that Edgar, rather than Grado, made the final decision to terminate Peters’ employment, the EEOC argues that “a defendant may be held liable if the manager who discharged the plaintiff merely acted as a rubber stamp, or the ‘cat’s paw,’ for a subordinate employee’s prejudice, even if the manager lacked discriminatory intent.” Kendrick v. Penske Transp. Services, Inc., 220 F.3d at 1231.9 Edgar, however, did not act as a “rubber stamp” or “cat’s paw” for Grado’s prejudice. The EEOC does not dispute with any competent evidence that Grado did not express an opinion or recommendation to Edgar about what he thought BCI should do about Peters. See Grado Decl. ¶ 13, at 5.

9

Although the EEOC cites Kendrick v. Penske Transp.

Services, Inc. for this proposition, the Court notes that

Kendrick does not say that the Tenth Circuit accepts

that test. It only says that “[o]ther circuits have

recognized” that test and then explains why it failed to

assist the plaintiff in Kendrick. Similarly, while this

Court does not decide the appropriateness of the test, it

does not believe that the test assists the EEOC in

establishing a genuine issue of material fact on pretext.

Cases in which other circuits have recognized this “rubber stamp” theory involved situations in which a decision-maker accepted the recommendations of a biased supervisor without conducting an independent investigation. See e.g., Long v. Eastfield College, 88 F.3d 300, 307 (5th Cir.1996)(“If, on the other hand, Aguero did not conduct his own independent investigation, and instead merely ‘rubber stamped’ the recommendations of Clark and Kelley, the causal link between Long and Reavis’s protected activities and their subsequent terminations would remain intact.”); Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir.1990)(“Lehnst not only set up Shager to fail by assigning him an unpromising territory but influenced the committee’s deliberations by portraying Shager’s performance to the committee in the worst possible light. Lehnst’s influence may well have been decisive. The committee’s deliberations on the question whether to fire Shager were brief, perhaps perfunctory; no member who was deposed could remember having considered the issue.”). In this case, Grado did not make any recommendations to Edgar. Furthermore, Edgar attempted to do at least some independent investigation by consulting with Pedersen regarding Peters’ disciplinary history.
*18 Even if the Court were to analyze this case under the

“rubber stamp” theory, the EEOC has not directed the Court’s attention to any evidence in the record linking Grado’s potential bias to his decision to involve Edgar in the situation with Peters. The EEOC has not presented evidence that Grado would not have called Edgar if Peters was Anglo or Hispanic. It is undisputed that Grado believed he needed to consult Human Resources and that Pedersen was unavailable.
The only arguably similar incident involved another merchandiser, Monica Lovato, not reporting to work on a day off as requested. See Katt Depo. at 118:1 to 119:23. Because that situation was different in two significant ways, the Court does not believe that Grado’s failure to contact Human Resources in Lovato’s situation supports an inference that he makes such decisions based on the employee’s race. First, unlike Peters, Lovato did not refuse to work the day off as requested, but rather agreed to work and then failed to report to work. Second, once Lovato failed to report to work, her violation was an attendance violation rather than insubordination.
Evidence of Grado’s racial bias and comments, standing alone, is insufficient to support an inference that he made the decision to contact Edgar because of Peters’ race. Although the Court finds that Grado was not the decision-maker in this case, case law discussing racial bias on the part of a decision-maker is informative on this area of proof. “Although [racial] comments may serve as circumstantial evidence of discrimination, the plaintiff must still show some nexus between the statements and the defendant’s decision to terminate the employee. Isolated comments, unrelated to the challenged action, are insufficient to show discriminatory animus in termination decisions.” Shorter v. ICG Holdings, Inc., 188 F.3d at 1209-10 (citations and internal quotation marks omitted). Thus, if the EEOC were attempting to show that Grado improperly influenced or initiated Peters’ termination, it would need to demonstrate some causal connection between his racial bias and his decision to involve Edgar. The EEOC has not presented such evidence.
Finally, the EEOC argues that there is a genuine issue of material fact whether Grado was the decision-maker because the Disciplinary Status Notice BCI issued to Peters at the time of his termination does not identify Edgar as the decision-maker, and BCI did not identify Edgar as the decision-maker during administrative proceedings. The Court does not believe that these omissions create a genuine issue of material fact whether Grado was the decision-maker because they are not inconsistent with the evidence BCI has produced in favor of summary judgment. Grado stated that it is his responsibility to “deliver or communicate all disciplinary actions ... to employees working under [his] supervision.” Grado Decl. ¶ 6, at 3.
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E.E.O.C. v. BCI Coca-Cola Bottling Co. of Los Angeles, Not Reported in F.Supp.2d (2004)

C. NO GENUINE ISSUE OF MATERIAL FACT EXISTS WHETHER PETERS’ RACE PLAYED A ROLE IN THE DECISION TO TERMINATE HIS EMPLOYMENT. *19 Grado knew that Peters was African American. Because the Court has found, however, that the record shows that Grado did not make the decision to terminate Peters’ employment, it is necessary to examine whether the actual decision-maker knew of Peters’ race and possessed any racially discriminatory motivation. The EEOC raises two arguments in an effort to create a genuine issue of material fact on this issue. First, the EEOC argues that Edgar had knowledge of Peters’ race because she had access to documents containing that information. Second, the EEOC argues that other BCI management officials who acted in concert with Edgar had knowledge that Peters is African American.
Neither of the EEOC’s arguments assumes that Edgar had actual knowledge of Peters’ race. The EEOC’s first argument attempts to impute knowledge to Edgar because she had the ability to discover the information if she chose to do so. The EEOC contends that documents disclosing Peters’ race were available to Edgar through Peters’ personnel file, which Pedersen reviewed in Albuquerque and discussed with Edgar. These documents, however, were located in Albuquerque, not Phoenix. The EEOC also asserts that Edgar also could have learned of Peters’ race by accessing information that BCI maintains as part of its Human Resources management.
The EEOC’s argument does not create a genuine issue of material fact because, although it establishes that Edgar had the opportunity to learn Peters’ race, there is no evidence that she availed herself of that opportunity. It is undisputed that Edgar worked in Phoenix, rather in than Albuquerque, and that she did not meet Peters before she made the decision to terminate him. See Edgar Decl. ¶ 18, at 8. Her communications with Grado and Pedersen were all by telephone. Further, there is no evidence to contradict Edgar’s sworn testimony that she did not know that Peters was African American until after the termination. See id. ¶ 17-18, at 7-8 (“Race played no part whatsoever in my decision to terminate the employment of Stephen Peters. I did not even know he was African American when I made the decision to terminate his employment.”). She was not present when Grado told Peters that BCI had terminated him.
The EEOC’s second argument also does not create a genuine issue of material fact that BCI’s stated reason for terminating Peters’ employment was pretextual. The EEOC points out that other BCI management officials in Albuquerque, who were directly involved in Peters’ termination, were aware that he is African American. Grado, Pedersen, and Bateluna were each present during the meeting when Grado informed Peters of the termination. The EEOC contends that each of those three

people knew that Peters was African American. The Court cannot attribute this knowledge to Edgar, however, because there is no evidence that any of those three people conveyed their knowledge of Peters’ race to Edgar. Edgar’s sworn testimony is that she did not know Peters’ race.
*20 Pedersen testified that she did not realize that Peters was African American until he entered the meeting where Grado announced the termination. See Pedersen Decl. ¶¶ 9-10, at 3. There is no evidence to contradict that assertion. If Pedersen learned of Peters’ race at the time of the termination, there was no basis for her to attempt to change Edgar’s decision merely because of Peters’ race. Edgar made the decision based on other factors and any new information concerning race was irrelevant.
The EEOC also argues that Grado’s knowledge of Peters’ race creates a genuine issue of material fact on pretext. Grado was the supervisor who decided to seek guidance from Edgar on Friday, September 28, 2001. The EEOC contends that this decision was the “first and most critical decision made concerning Peters’ termination.” Response at 15. The Court assumes that the EEOC believes Grado’s decision to involve Edgar was critical because the EEOC also argues that Grado was biased against African Americans. According to the EEOC, it was this alleged racial bias that motivated Grado to initiate the process of Peters’ termination.
The Court believes that the EEOC has created a genuine issue of fact whether Grado was biased against African Americans. It has introduced the affidavits of several employees, including Peters, who believe that Grado treated African Americans less favorably than he treated employees of other races. The Court does not believe, however, that this issue is material. The record shows that Edgar, not Grado, made the determination that Peters was insubordinate and was the decision-maker behind Peters’ termination. There is no evidence that Grado communicated his racial bias to Edgar. Edgar did not know that Peters was African American and did not receive any recommendation from Grado as to how to discipline Peters. Furthermore, there is no evidence that the information Grado communicated to Edgar, and on which Edgar relied to make her decision, was false.
Accordingly, the Court does not believe that Grado’s, Pedersen’s, and Bateluna’s knowledge of Peters’ race creates a genuine issue of material fact whether BCI’s stated reason for terminating Peters’ employment was a pretext for discrimination. Also, the EEOC has not created a genuine issue of material fact whether Edgar knew Peters’ race. Aside from the arguments of counsel, there is nothing before the Court to support the inference that Edgar knew Peters is African American.10 If the Court were to allow this case to proceed to a jury, and the evidence was what it is in the record, the Court would still
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E.E.O.C. v. BCI Coca-Cola Bottling Co. of Los Angeles, Not Reported in F.Supp.2d (2004)

be confronted with a situation in which the decision-maker did not know the race of the employee.

10

The EEOC also argues that statistical evidence

concerning the racial composition of BCI’s work force

supports a finding of pretext. In April 2002, only three

of the 200 employees in BCI’s Albuquerque facility

were African American. See Current Albuquerque

Employee Roll (dated April 24, 2002). The Court does

not believe that this fact, under the circumstances

present in this case, is sufficient to create a genuine

issue of material fact on the issue of pretext, and the

EEOC does not explain how it does.

D. NO GENUINE ISSUE OF MATERIAL FACT EXISTS WHETHER BCI ACTED CONTRARY TO AN UNWRITTEN COMPANY POLICY BY TREATING SIMILARLY SITUATED INDIVIDUALS DIFFERENTLY THAN IT TREATED PETERS.11

11

The EEOC also alleges that BCI acted contrary to its

written policies when it terminated Peters’

employment. For example, BCI did not provide Peters

with an exit interview after his termination. This fact,

however, does not create a genuine issue of material

fact whether BCI’s stated reason for the termination

was pretextual. Edgar made the decision to terminate

Peters’ employment without knowledge of his race. The

lack of an exit interview does not change that

undisputed fact.

The EEOC also argues that the Court should find a genuine issue of material fact on the issue of pretext because BCI treated Peters differently than other similarly situated individuals of different racial classes. “An employee is similarly situated to the plaintiff if the employee deals with the same supervisor and is subject to the ‘same standards governing performance evaluation and discipline.” ’ Kendrick v. Penske Transp. Services, Inc., 220 F.3d at 1232 (quoting Aramburu v. Boeing Co., 112 F.3d 1398, 1404 (10th Cir.1997)). “The burden is on the plaintiff to demonstrate he is similarly situated to the employees to whom he is comparing himself.” Kelley v. Goodyear Tire and Rubber Co., 220 F.3d 1174, 1178 (10th Cir.2000)(citing Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526, 532 (10th Cir.1994)).
*21 The EEOC identifies four individuals that it alleges committed rule violations of comparable seriousness to Peters: (i) Arturo Lopez; (ii) Monica Lovato; (iii) Damian Mirabal; and (iv) Oran Sage. With respect to each individual, however, there is some differentiating or mitigating circumstance that distinguishes him or her from Peters. For example, Sage was not a merchandiser

and did not report to Grado. Sage failed to follow his supervisor’s order to reload his truck and take out a delivery, then left the premises without his supervisor’s permission. See Pedersen Decl. ¶ 15, at 5. Pedersen determined that, although Sage had violated company policy, he had not committed insubordination because there was no evidence to suggest that his supervisor had told him that his conduct was insubordination and could lead to termination. See id. Accordingly, Pedersen gave Sage a written warning for a Group B violation and suspended him without pay for three days. See id.
Damian Mirabal had attendance and work performance issues. Mirabal received progressive discipline addressing these Group C violations, and BCI ultimately terminated him for unsatisfactory performance. See id. ¶ 13, at 4. Mirabal did not refuse to obey a direct order, and Grado did not tell Mirabal that his conduct was insubordinate. See Grado Decl. ¶ 17, at 7. Other than Peters, Grado states that he has “never had a situation where an employee refused a direct order, and, after being told his conduct was insubordinate and that he could be fired, told [him] to ‘do what [he has] to do.” ’ Id. ¶ 18, at 7.
Like Mirabal, Lopez also had performance and attendance issues, and also received progressive discipline. See id. ¶ 17, at 6-7. There was one incident involving Lopez that the EEOC argues is comparable to Peters’ situation. On Lopez’ last day of employment with BCI, he refused to return pages both from Katt and from Grado. Grado then sent Lopez a text message telling him that if he refused to return the page he may be terminated. See id. ¶ 19, at 7. Lopez did not return the page, but also did not return to work at BCI. See id. Thus, because Lopez was no longer with the company, Grado did not bring his insubordination to Pedersen’s or Edgar’s attention. See id. And, if Lopez had returned to work, Grado would have reported his behavior just as he did in Peters’ case. See id.
Lovato’s conduct also involves attendance violations rather than insubordination. She did not have any disciplinary problems during her employment. See Pedersen Decl. ¶ 14, at 5. She did not refuse a direct order from Grado, and Grado did not tell her that her conduct was insubordinate and could lead to termination. See Grado Decl. ¶ 20, at 8. Any rule violations that Lovato may have committed were attendance violations that were not subject to immediate termination.
These individuals are not similarly situated to Peters because they all committed attendance violations. Peters, on the other hand, did not.
*22 Mr. Peters was terminated solely for insubordination. Mr. Peters was not terminated for performance issues. Mr. Peters was not terminated for attendance violations. Mr. Peters was

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E.E.O.C. v. BCI Coca-Cola Bottling Co. of Los Angeles, Not Reported in F.Supp.2d (2004)

not terminated because he called in sick to Mr. Katt instead of Mr. Grado. Mr. Peters was not terminated because he did not show up for work on Sunday, except to the extent this conduct is viewed in context with his exchange with Mr. Grado on Friday, September 28, 2001, as the fulfillment of Mr. Peters’ stated intention to defy a direct order from Mr. Grado.

Edgar Decl. ¶ 16, at 7. Because the conduct of the other employees did not rise to the level of insubordination, the EEOC cannot compare their conduct with that of Peters. Accordingly, the Court finds that the EEOC has not established that a genuine issue of material fact exists with respect to pretext, and the Court will grant BCI’s motion for summary judgment.12

12

Because the Court finds that there is no genuine issue

of material fact whether BCI intentionally

discriminated against Peters on the basis of his race, it

is unnecessary to address the EEOC’s request for

injunctive relief.

CONCLUSION
Although there is evidence in the record that Grado may have harbored racial bias against African Americans, there is no evidence to suggest that such bias influenced Edgar’s decision to terminate Peters’ employment. The EEOC has not presented evidence to suggest that Grado would not have contacted Edgar regarding the situation if Peters had been Anglo or Hispanic. Grado relayed accurate information to Edgar about Peters’ conduct, and Edgar then independently made the decision to terminate Peters without any recommendation from Grado. And while Grado may have had the authority to recommend discipline, the undisputed evidence in the record is that he did not make any recommendations to Edgar. In addition to the information she received from Grado, Edgar’s decision included consideration of Peters’ 1999 incident of insubordination with a different supervisor. Edgar did not know that Peters was African American at the time she made the decision to terminate him. Accordingly, there is no evidence that racial animus motivated BCI’s termination of Peters.
IT IS ORDERED that the Defendant’s Motion for Summary Judgment is granted and all claims against BCI are dismissed with prejudice.

	  

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APPEAL, CLOSED, REFER
U.S. District Court District of New Mexico - Version 3.0 (Albuquerque) CIVIL DOCKET FOR CASE #: 1:02-cv-01644-JB-RHS

EEOC v. BCI Coca-Cola, et al Assigned to: District Judge James O. Browning Referred to: Magistrate Judge Robert Hayes Scott Demand: $0 Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 12/30/2002 Date Terminated: 04/11/2008 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by C Emanuel Smith EEOC 3300 N Central Ave #690 Phoenix, AZ 85012 (602) 640-5033 Fax: 640-5009 TERMINATED: 02/15/2008 LEAD ATTORNEY

Gwendolyn Young Reams EEOC Legal Counsel Office 1801 L Street, NW Washington, DC 20507 (202) 663-4669 Fax: 663-4639 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Loretta F Medina EEOC 505 Marquette, NW #900 Albuquerque, NM 87102 (505) 248-5230 Fax: (505) 248-5217 Email: loretta.medina@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary Jo O'Neill EEOC Phoenix District Office 3300 North Central Avenue

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V. Defendant BCI Coca-Cola Bottling Company of Los Angeles doing business as Phoenix Coca-Cola Bottling Company
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#690 Phoenix, AZ 85012-2504 (602) 640-5000 Fax: (602) 640-5009 Email: mary.oneill@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sally C Shanley EEOC Phoenix District Office 3300 North Central Avenue #690 Phoenix, AZ 85012-1848 602-640-5032 Fax: 602-640-5009 Email: sally.shanley@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Veronica A Molina Equal Employment Opportunity Commission Legal Unit 505 Marquette N.W., Suite 900 Albuquerque, NM 87102 (505) 248-5231 Fax: (505) 248-5217 Email: veronica.molina@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher M. Moody 4169 Montgomery Blvd. NE Albuquerque, NM 87109 505-944-0033 Fax: 505-944-0034 Email: moody@nmlaborlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric Todd Presnell Miller & Martin LLP 1200 One Nashville Place 150 Fourth Avenue North Nashville, TN 37219
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Defendant
Coca-Cola Bottling Company of Albuquerque

615-244-9270 Fax: 615-256-8197 Email: tpresnell@millermartin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kara E Shea Miller & Martin, LLP 150 Fourth Avenue North #1200 One Nashville Place Nashville, TN 37219 615-244-9270 Fax: 615-256-8197 Email: kshea@millermartin.com TERMINATED: 06/10/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 12/30/2002 02/25/2003 03/17/2003 03/19/2003 03/24/2003 03/24/2003 04/11/2003 04/11/2003 04/25/2003

#

Docket Text

1 COMPLAINT for civil rights w/jury demand (0 Summons(es) issued) (referred to Magistrate Judge Lorenzo F. Garcia) (ed) (Entered: 12/31/2002)
SUMMONS issued as to Corporation Service Company (mlk) (Entered: 02/27/2003)
2 RETURN OF SERVICE of s/c executed upon Corporation Service Company on 2/27/03 (mlk) (Entered: 03/19/2003)
3 ANSWER by defendant BCI Coca-Cola [1-1]; jury demand (mlk) (Entered: 03/20/2003)
4 MINUTE ORDER: Case referred from Chief Magistrate Judge Lorenzo F. Garcia to Magistrate Judge Robert H. Scott (cc: all counsel*) (sl) (Entered: 03/24/2003)
5 ENTRY OF APPEARANCE for defendant BCI Coca-Cola by Christopher M. Moody, E. Todd Presnell & Kara E. Shea (mlk) (Entered: 03/26/2003)
6 OPPOSED MOTION by plaintiff to strike affirmative defenses (sl) (Entered: 04/14/2003)
7 MEMORANDUM by plaintiff in support of motion to strike affirmative defenses [6-1] (sl) (Entered: 04/14/2003)
8 NOTICE by defendants of disclosure statement * (sl) (Entered: 04/25/2003)

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04/25/2003 04/30/2003
05/05/2003 05/05/2003 05/12/2003 05/16/2003 05/28/2003 06/05/2003
06/19/2003 06/23/2003 06/30/2003 06/30/2003
06/30/2003 07/03/2003
08/01/2003 08/12/2003 08/12/2003

9 RESPONSE by defendants to pltf's motion to strike affirmative defenses [6-1]* (sl) (Entered: 04/25/2003)
10 INITIAL SCHEDULING ORDER by Magistrate Judge Robert H. Scott Rule 16 scheduling conference set for 6/30/03 at 2:00 pm; provisional discovery plan and IPTR due on 6/23/03 (cc: all counsel*) (sl) (Entered: 04/30/2003)
11 MOTION by deft BCI Coca-Cola to dismiss claims for lack of subject matter jurisdiction (seal) (Entered: 05/05/2003)
12 MEMORANDUM by deft BCI Coca-Cola in support of mtn to dismiss claims for lack of subject matter jurisdiction [11-1] (seal) (Entered: 05/05/2003)
13 REPLY by plaintiff to defts response to motion to strike affirmative defenses [6-1] (sl) (Entered: 05/13/2003)
14 NOTICE by plaintiff of completion of briefing on motion to strike deft's affirmative defenses (sl) (Entered: 05/16/2003)
15 RESPONSE by plaintiff to motion to dismiss claims for lack of subject matter jurisdiction [11-1] (sl) (Entered: 05/29/2003)
16 NOTICE by defendant BCI Coca-Cola of completion of briefing on motion to dismiss claims due to lack of subject matter jurisdiction * (sl) (Entered: 06/05/2003)
17 CERTIFICATE of service by plaintiff of initial disclosures to counsel on 6/19/03 * (sl) (Entered: 06/19/2003)
18 PROVISIONAL DISCOVERY PLAN by parties (sl) (Entered: 06/23/2003)
19 ORDER by Magistrate Judge Robert H. Scott re initial scheduling conference held on 6/30/03 Discovery cutoff 12/1/03 (cc: all counsel*) (sl) (Entered: 06/30/2003)
20 ORDER by Magistrate Judge Robert H. Scott setting settlement conference for 8/12/03 at 9:00 am in Albuquerque, NM (cc: all counsel*) (sl) (Entered: 06/30/2003)
21 CLERK'S MINUTES: before Magistrate Judge Robert H. Scott ; Rule 16 scheduling conference held (sl) (Entered: 07/01/2003)
22 INITIAL PRE-TRIAL REPORT by District Judge C. LeRoy Hansen and Magistrate Judge Robert H. Scott ; Discovery set for 12/1/03 ;mtn filing ddl set for 1/19/04 ; proposed pretrial order due 4/5/04 ; Estimated # of Trial Days: 4-5; Chances of Settlement: fair (cc: all counsel) (sl) Modified on 08/05/2003 (Entered: 07/03/2003)
23 ORDER by Magistrate Judge Robert H. Scott vacating and resetting settlement conference for 9/18/03 at 9:00 am (cc: all counsel*) (sl) (Entered: 08/01/2003)
24 MINUTE ORDER: Case reassigned from Senior Judge C. LeRoy Hansen to District Judge James O. Browning (cc: all counsel*) (sl) (Entered: 08/12/2003)
25 AMENDED MINUTE ORDER: Case reassigned to District Judge James O. Browning (cc: all counsel*) (sl) (Entered: 08/12/2003)

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08/12/2003 08/15/2003
08/19/2003
08/22/2003 08/22/2003 08/22/2003 08/22/2003 08/28/2003 08/29/2003 08/29/2003 09/04/2003 09/16/2003 09/18/2003
09/18/2003

26 ORDER by Magistrate Judge Robert H. Scott resetting settlement conference for 9/24/03 at 9:00 am in Albuquerque, NM (cc: all counsel*) (sl) (Entered: 08/12/2003)
27 NOTICE of hearing before Judge James O. Browning on motion to dismiss claims for lack of subject matter jurisdiction [11-1] and motion to strike affirmative defenses [6-1] at 1:30 pm on 9/16/03 in Albuquerque, NM (cc: all counsel*) (sl) (Entered: 08/18/2003)
28 MEMORANDUM, OPINION, AND ORDER: by District Judge James O. Browning granting deft's motion to dismiss claims for lack of subject matter jurisdiction [11-1] dismissing claims contained in paragraph 7(a) of the complaint (cc: all counsel*) (sl) (Entered: 08/19/2003)
29 NOTICE of hearing Pretrial conference set for 4/26/04 at 9:00 am; Jury trial set for 5/3/04 at 9:00 am, both before Judge Browning in Albuquerque, NM (cc: all counsel*) (vv) (Entered: 08/22/2003)
30 MINUTE ORDER that discovery matters should be referred to District Judge James Browning, the settlement conference remains scheduled before Magistrate Judge Scott on 9-24-03 (cc: all counsel*) (jrm) (Entered: 08/22/2003)
31 CERTIFICATE of service by plaintiff of response to deft's first set of interrogatories to counsel on 8/22/03* (sl) (Entered: 08/25/2003)
32 CERTIFICATE of service by plaintiff of answers to deft's first set of request for production of documents to counsel on 8/22/03 (sl) (Entered: 08/25/2003)
33 MEMORANDUM, OPINION, AND ORDER: by District Judge James O. Browning granting pltf's motion to strike affirmative defenses [6-1] (cc: all counsel*) (sl) (Entered: 08/29/2003)
34 MINUTE ORDER: by Judge James Browning vacating motion hearing set for 9/16/03 because motions decided (cc: all counsel*) (sl) Modified on 09/03/2003 (Entered: 08/29/2003)
35 MOTION by plaintiff to clarification of Court's memorandum, opinion and order entered on 8/19/03 * (sl) (Entered: 08/29/2003)
36 RESPONSE by defendant BCI Coca-Cola to pltf's motion to clarification of Court's Memorandum, Opinion and Order entered on 8/19/03 [35-1]* (sl) Modified on 09/09/2003 (Entered: 09/04/2003)
37 ORDER by Magistrate Judge Robert H. Scott vacating and resetting settlement conference for 11/7/03 at 10:00 am (cc: all counsel*) (sl) (Entered: 09/16/2003)
38 NOTICE of hearing before Judge James Browning on motion for clarification of Court's Memorandum, Opinion and Order entered on 8/19/03 [35-1] at 9:00 am on 10/2/03 in Albuquerque, NM (cc: all counsel*) (sl) Modified on 09/24/2003 (Entered: 09/18/2003)
39 REPLY by plaintiff to deft's response to motion to clarification of Court's Memorandum, Opinion and Order entered on 8/19/03 [35-1] (sl) Modified on 09/24/2003 (Entered: 09/18/2003)

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09/25/2003 09/29/2003 10/01/2003
10/16/2003 10/16/2003 10/17/2003 11/07/2003 11/21/2003 12/09/2003 12/10/2003 12/17/2003
12/18/2003 12/29/2003 12/29/2003 12/29/2003 12/30/2003
12/31/2003 01/07/2004

40 CERTIFICATE of Service by pltf of answers to 1st set of production of documents to counsel on 8/22/03* (pr) (Entered: 09/25/2003)
41 CERTIFICATE of service by plaintiff of second request for production of documents to defts and counsel on 9/29/03* (sl) (Entered: 09/30/2003)
42 MEMORANDUM, OPINION, AND ORDER: by District Judge James O. Browning denying pltf's motion to clarification of Court's memorandum, opinion and order entered on 8/19/03 [35-1] (cc: all counsel*) (sl) (Entered: 10/01/2003)
43 CERTIFICATE of service by plaintiff of first request for production of documents to counsel on 9/25/03* (sl) (Entered: 10/16/2003)
44 CERTIFICATE of service by plaintiff EEOC of first set of non-uniform interrogatories to counsel on 9/25/03* (sl) (Entered: 10/16/2003)
45 CLERK'S MINUTES: before District Judge James O. Browning telephonic conference held on discovery matters (sl) (Entered: 10/22/2003)
46 SETTLEMENT CONFERENCE held before Magistrate Judge Robert Scott (sl) (Entered: 11/10/2003)
47 CERTIFICATE of service by plaintiff of first supplemental initial disclosures to counsel on 11/20/03* (sl) (Entered: 11/21/2003)
48 MOTION by plaintiff to extend time to file motions until 12/18/03 * (sl) (Entered: 12/09/2003)
49 CERTIFICATE of service by plaintiff of third request for production of documents to counsel on 10/8/03* (sl) (Entered: 12/10/2003)
50 ORDER by District Judge James O. Browning granting pltf's motion to extend time to file motions until 12/18/03 [48-1] (cc: all counsel) (sl) (Entered: 12/17/2003)
51 MOTION by plaintiff to extend time to file motions to compel discovery answers until 12/31/03 * (sl) (Entered: 12/18/2003)
52 NOTICE by plaintiff of withdrawal of motion for extension of time to file motions to compel [51-1]* (sl) (Entered: 12/29/2003)
53 MOTION by plaintiff to extend time to file motions to compel discovery responses * (sl) (Entered: 12/29/2003)
54 CERTIFICATE of service by plaintiff of fourth request for production of documents to counsel on 12/29/03 * (sl) (Entered: 12/29/2003)
55 ORDER by District Judge James O. Browning granting pltf's motion to extend time to file motions to compel discovery [53-1] until 12/31/03 (cc: all counsel) (sl) (Entered: 12/30/2003)
56 CERTIFICATE of service by plaintiff EEOC of first request for admissions to counsel on 12/31/03 * (sl) (Entered: 12/31/2003)
57 AMENDED INITIAL PRE-TRIAL REPORT District Judge James O. Browning and Magistrate Judge Robert H. Scott ; Discovery set for 1/31/04 ;mtn filing ddl set for 2/6/04 (cc: all counsel) (sl) (Entered: 01/07/2004)

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01/26/2004 02/05/2004 02/05/2004 02/06/2004 02/10/2004
02/10/2004
02/10/2004 02/19/2004 02/19/2004 03/02/2004 03/02/2004 03/08/2004
03/11/2004
03/12/2004
03/17/2004 03/17/2004 03/19/2004

58 CERTIFICATE of service by plaintiff of second supplemental initial disclosures to counsel on 1/26/04* (sl) (Entered: 01/26/2004)
59 MEMORANDUM by plaintiff in support of the production of Jeff Katt's statement (sl) (Entered: 02/05/2004)
60 MEMORANDUM by defendant Coca-Cola Bottling in opposition to production of statement of Jeff Katt (sl) (Entered: 02/05/2004)
61 MOTION by defendant Coca-Cola Bottling to extend discovery and pretial motion deadlines (sl) (Entered: 02/09/2004)
62 ORDER by District Judge James O. Browning granting deft's motion to extend discovery and pretial motion deadlines [61-1] Discovery cutoff 2/13/04 ; Motion Filing cutoff 2/20/04 (cc: all counsel) (sl) (Entered: 02/10/2004)
63 ORDER by Magistrate Judge Robert H. Scott granting pltf's memorandum for the production of Jeff Katt's statement [59-1] (cc: all counsel*) (sl) (Entered: 02/10/2004)
64 NOTICE by defendant Coca-Cola Bottling of filing of certificates of service (sl) (Entered: 02/11/2004)
65 MOTION by defendant Coca-Cola Bottling for summary judgment (sl) (Entered: 02/19/2004)
66 MEMORANDUM by defendant Coca-Cola Bottling in support of motion for summary judgment [65-1] (sl) (Entered: 02/19/2004)
67 MOTION to vacate trial setting of 4/26/04 by parties (sl) (Entered: 03/02/2004)
68 MOTION by plaintiff to extend time to respond to deft's motion for summary judgment until 3/17/04 * (sl) (Entered: 03/02/2004)
69 ORDER by District Judge James O. Browning granting pltf's motion to extend time to respond to deft's motion for summary judgment until 3/17/04 [68-1] (cc: all counsel) (sl) (Entered: 03/08/2004)
70 NOTICE of hearing before Judge James Browning on motion for summary judgment [65-1] at 1:30 pm on 4/9/04 in Albuquerque, NM (cc: all counsel*) (sl) (Entered: 03/11/2004)
71 ORDER by District Judge James O. Browning granting parties motion to vacate trial setting of 4/26/04 [67-1] ; Pretrial conference reset for 5/25/04 at 9:00 am ; Jury trial reset for 6/7/04 at 9:00 am (cc: all counsel) (sl) (Entered: 03/12/2004)
72 MOTION by plaintiff to exceed page limitation for response and exhibits in its opposition to deft's motion for summary judgment * (sl) (Entered: 03/18/2004)
73 RESPONSE by plaintiff to deft's motion for summary judgment [65-1] * (sl) (Entered: 03/18/2004)
74 APPENDIX filed by plaintiff re response [73-1] (sl) Modified on 03/22/2004 (Entered: 03/19/2004)

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03/19/2004 03/23/2004 03/31/2004 03/31/2004 04/05/2004 04/14/2004 06/10/2004
06/30/2004 07/09/2004 07/14/2004 07/28/2004 07/29/2004 08/05/2004 08/27/2004 08/27/2004 09/03/2004

75 ORDER by District Judge James O. Browning granting pltf's motion to exceed page limitation for response and exhibits in its opposition to deft's motion for summary judgment [72-1] all counsel) (sl) (Entered: 03/19/2004)
76 OPPOSED MOTION by plaintiff to exceed page limitation for exhibits in its opposition to deft's motion for summary judgment * (sl) (Entered: 03/23/2004)
77 REPLY by defendant BCI Coca-Cola to response to motion for summary judgment [65-1] (sl) (Entered: 04/01/2004)
78 NOTICE by defendant BCI Coca-Cola of completion of briefing on motion for summary judgment and memorandum in support thereof (sl) (Entered: 04/01/2004)
79 MINUTE ORDER: resetting hearing on motion for summary judgment [65-1] @ 1:30 p.m., on 4/7/04 before Judge Browning in Albuquerque (cc: all counsel*) (pr) (Entered: 04/06/2004)
80 CLERK'S MINUTES: before District Judge James O. Browning hearing held on deft's motion for summary judgment [65-1] C/R: Danna Everett (sl) (Entered: 04/14/2004)
81 MEMORANDUM, OPINION, AND ORDER: by District Judge James O. Browning granting deft BCI'a motion for summary judgment [65-1] dismissing with prejudice deft Coca-Cola Bottling Company of Los Angeles (BCI) (cc: all counsel*) (sl) Modified on 06/14/2004 (Entered: 06/14/2004)
82 FINAL JUDGMENT: by District Judge James O. Browning dismissing case (cc: all counsel*) (sl) (Entered: 06/30/2004)
TRANSCRIPT OF PROCEEDINGS of motion hearing before District Judge James O. Browning held on 04/07/04; (re [80-1] ) lodged in separate file folder (pg) (Entered: 07/12/2004)
83 MOTION by defendant Coca-Cola Bottling to tax costs in the amount of $11,741.20 (sl) (Entered: 07/15/2004)
84 RESPONSE by plaintiff to motion to tax costs in the amount of $11,741.20 [83-1]* (sl) (Entered: 07/28/2004)
85 APPENDIX filed by plaintiff re response to motion to tax costs [84-1] (sl) (Entered: 07/29/2004)
86 ERRATA by plaintiff to response to motion to tax costs [84-1] (sl) (Entered: 08/05/2004)
87 NOTICE OF APPEAL by pltf from Dist. Court decision [82-2] and [81-1]; Fees not necessary - Distribution as required. (cc: all counsel) (mjr) (Entered: 08/27/2004)
LETTER to USCA re; transmitting PROA on 8/27/04 (mjr) (Entered: 08/27/2004)
ACKNOWLEDGEMENT of receipt of preliminary record by USCA on 09/03/04 - USCA Number: 04-2220 (pg) (Entered: 09/03/2004)

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07/25/2007 10/15/2007
11/27/2007

88 ORDER by the Clerk of Court re motion [83-1] settling costs, costs are taxed against pltf in the amount of $3,800.20 (cc: all counsel)* (sl) (Entered: 09/08/2004)
89 MOTION by plaintiff for stay of further proceedings on Clerk's Order Settling Costs pending Appeal * (pr) (Entered: 09/13/2004)
90 RESPONSE by defendant to motion for stay of further proceedings on Clerk's Order Settling Costs pending Appeal [89-1] * (sl) (Entered: 09/24/2004)
91 TRANSCRIPT Order Form (TOF) from Appellant. Transcript is already on file re [87-1] (pg) (Entered: 09/29/2004)
LETTER sent to USCA record complete transcript of proceedings on file [87-1] (pg) (Entered: 09/29/2004)
92 REPLY by plaintiff to response to motion for stay of further proceedings on Clerk's Order Settling Costs pending Appeal [89-1] * (sl) (Entered: 10/13/2004)
93 CERTIFIED Copy of judgment from USCA reversing and remanding the Decision of the District Court [Appeal [87-1] (case re-opened 08/02/06 cc: KS) (pg) Modified on 08/03/2006 (Entered: 08/03/2006)
94 COPY of USCA Order: Statement of Costs are taxed in favor of appellant $562.25 (pg) (Entered: 08/03/2006)
95 ORDER by District Judge James O. Browning granting pltf's mtn for stay of further proceedings on Clerk's Order Settling Costs pending Appeal [89-1] (cc: all counsel)* (jm) (Entered: 10/02/2006)
96 LETTER re Petition for Writ of Certiorari was granted (pg) (Entered: 03/12/2007)
97 LETTER transmitting original case file in four volumes to the U.S. Supreme Court (pg) (Entered: 03/08/2007)
99 NOTICE by Equal Employment Opportunity Commission of Unavailability 7/30/07-8/10/07 (Molina, Veronica) Modified re: add dates on 6/28/2007 (jm). (Entered: 06/27/2007)
100 NOTICE of Status Conference scheduled on 7/20/2007 at 11:00 AM in Albuquerque - 460 Vermejo Courtroom before District Judge James O. Browning. THIS IS A TEXT ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (ks) (Entered: 07/11/2007)
101 Clerk's Minutes from Status Conference held 7/20/2007 before District Judge James O. Browning (Tape #FTR-Vermejo). (ks) (Entered: 07/25/2007)
102 Joint MOTION to Extend (other) Discovery and Motions Deadlines and to Vacate the Motions Hearing and Pre-Trial Conference by BCI Coca-Cola Bottling Company of Los Angeles, Coca-Cola Bottling Company of Albuquerque. (Moody, Christopher) (Entered: 10/15/2007)
103 FILED IN ERROR - ACKNOWLEDGEMENT OF SERVICE Executed Subpoena to depose James Young Acknowledgement filed by Coca-Cola Bottling Company of Albuquerque. (Moody, Christopher) Modified on 11/28/2007 (JM).

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11/27/2007
11/27/2007
11/28/2007 11/28/2007 12/04/2007 12/04/2007 12/04/2007 12/04/2007 12/04/2007 12/06/2007 12/07/2007 12/07/2007 12/07/2007

(Entered: 11/27/2007)
104 FILED IN ERROR - ACKNOWLEDGEMENT OF SERVICE Executed Subpoena to depose Michael Wilson Acknowledgement filed by Coca-Cola Bottling Company of Albuquerque. (Moody, Christopher) Modified on 11/28/2007 (JM). (Entered: 11/27/2007)
105 FILED IN ERROR - ACKNOWLEDGEMENT OF SERVICE Executed Subpoena to depose Bryan Esquibel Acknowledgement filed by Coca-Cola Bottling Company of Albuquerque. (Moody, Christopher) Modified on 11/28/2007 (JM). (Entered: 11/27/2007)
106 NOTICE OF DEFICIENCY sent to Attorney Christopher Moody re 104 Acknowledgment of Service, 105 Acknowledgment of Service, 103 Acknowledgment of Service (jm) (Entered: 11/28/2007)
107 MOTION to Quash Subpoena and/or Motion For Protective Order And Request For Expedited Ruling by Equal Employment Opportunity Commission. (Attachments: # 1 # 2)(Molina, Veronica) (Entered: 11/28/2007)
108 NOTICE by Equal Employment Opportunity Commission of Non-Appearance at Deposition (Esquibel) (Molina, Veronica) (Entered: 12/04/2007)
109 NOTICE by Equal Employment Opportunity Commission of Non-Appearance at Deposition (Wilson) (Molina, Veronica) (Entered: 12/04/2007)
110 NOTICE by Equal Employment Opportunity Commission of Non-Appearance at Deposition (Young) (Molina, Veronica) (Entered: 12/04/2007)
111 ORDER by Judge W. Daniel Schneider Settlement Conference set for 12/11/2007 09:00 AM in Albuquerque - 720 Judge W. Daniel Schneider Chambers before Magistrate Judge W. Daniel Schneider. (mm) (Entered: 12/04/2007)
112 RESPONSE in Opposition re 107 MOTION to Quash Subpoena and/or Motion For Protective Order And Request For Expedited Ruling filed by BCI Coca-Cola Bottling Company of Los Angeles. (Stanford, Repps) (Entered: 12/04/2007)
113 ORDER vacating the Settlement conference set for 12/11/2007 by Judge W. Daniel Schneider (mm) (Entered: 12/06/2007)
114 SCHEDULING ORDER by Judge James O. Browning. (ks) (Entered: 12/07/2007)
115 ORDER by District Judge James O. Browning granting the Joint Motion to Extend Discovery and Motions Deadlines and to Vacate the Motions Hearing and Pre-trial Conference 102. (ks) (Entered: 12/07/2007)
116 MINUTE ORDER, pursuant to the direction of District Judge James O. Browning, rescheduling the motion hearing on 12/19/2008 to 2/1/2008 at 01:30 PM; rescheduling the Pretrial Conference on 12/28/2007 to 2/21/2008 at 09:00 AM; vacating the Jury Selection/Jury Trial scheduled on the Court's trailing docket commencing 1/14/2008 and rescheduling on the Court's trailing docket commencing 3/10/2008 at 09:00 AM. The Plaintiff shall provide the Pretrial Order to the Defendant by 2/13/2008 and the Defendant shall provide the Pretrial Order to the Court by 2/20/2008. All events will take place in Albuquerque - 460

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12/12/2007
12/12/2007 12/19/2007 12/28/2007 12/28/2007 12/28/2007 12/28/2007 12/28/2007 12/28/2007 12/28/2007 12/28/2007 01/02/2008

Vermejo Courtroom before District Judge James O. Browning. THIS IS A TEXT ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (ks) (Entered: 12/07/2007)
117 REPLY to Response to Motion re 107 MOTION to Quash Subpoena and/or Motion For Protective Order And Request For Expedited Ruling filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Molina, Veronica) (Entered: 12/11/2007)
118 NOTICE of Briefing Complete by Equal Employment Opportunity Commission re 107 MOTION to Quash Subpoena and/or Motion For Protective Order And Request For Expedited Ruling filed by Equal Employment Opportunity Commission (Molina, Veronica) (Entered: 12/12/2007)
119 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission of Plaintiff's Fifth Supplemental Initial Disclosure (Molina, Veronica) (Entered: 12/12/2007)
120 NOTICE by Equal Employment Opportunity Commission of Unavailability 12/24/07-1/4/08 (Molina, Veronica) Modified re: add dates on 12/21/2007 (JM). (Entered: 12/19/2007)
121 MOTION in Limine to Exclude All Evidence Concerning Claimant's Familial Circumstances by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A)(Molina, Veronica) (Entered: 12/28/2007)
122 Opposed MOTION in Limine to Exclude Evidence Concerning Claimant's Familial Circumstances by Equal Employment Opportunity Commission. (Attachments: # 1 # 2)(Molina, Veronica) (Entered: 12/28/2007)
123 Opposed MOTION in Limine to Exclude Evidence Concerning Claimant Taken Into Custody for Loitering by Equal Employment Opportunity Commission. (Attachments: # 1)(Molina, Veronica) (Entered: 12/28/2007)
124 Opposed MOTION in Limine to Exclude All Evidence Concerning Claimant Not Seeking Professional Counseling by Equal Employment Opportunity Commission. (Attachments: # 1)(Molina, Veronica) (Entered: 12/28/2007)
125 Opposed MOTION in Limine to Exclude Evidence of Collateral Source Income by Equal Employment Opportunity Commission. (Attachments: # 1)(Molina, Veronica) (Entered: 12/28/2007)
126 Monthly MOTION in Limine to Exclude All Evidence Concerning Claimant's Prior Discipline by Equal Employment Opportunity Commission. (Attachments: # 1)(Molina, Veronica) (Entered: 12/28/2007)
127 MOTION in Limine by BCI Coca-Cola Bottling Company of Los Angeles. (Stanford, Repps) (Entered: 12/28/2007)
128 MOTION in Limine by BCI Coca-Cola Bottling Company of Los Angeles. (Stanford, Repps) (Entered: 12/28/2007)
129 ORDER SETTING SETTLEMENT CONFERENCE by Judge Robert Hayes Scott. Status Report (confidential settlement letter) due by 1/28/2008. Settlement Conference set for 2/4/2008 09:00 AM in Albuquerque - 620 Judge Robert H.

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01/14/2008 01/14/2008 01/14/2008 01/14/2008 01/14/2008 01/14/2008

Scott Chambers before Magistrate Judge Robert Hayes Scott. (ce) (Entered: 01/02/2008)
130 First MOTION for Sanctions Defendant's Motion to Exclude Certain Witnesses From Testifying at Trial by Coca-Cola Bottling Company of Albuquerque. (Moody, Christopher) (Entered: 01/10/2008)
131 MEMORANDUM in Support re 130 First MOTION for Sanctions Defendant's Motion to Exclude Certain Witnesses From Testifying at Trial Brief In Support of Defendant's Motion to Exclude Witnesses From Testifying at Trial filed by Coca-Cola Bottling Company of Albuquerque. (Moody, Christopher) (Entered: 01/10/2008)
132 RESPONSE in Opposition re 124 Opposed MOTION in Limine to Exclude All Evidence Concerning Claimant Not Seeking Professional Counseling Defendant's Response in Opposition to Plaintiff's Motion in Limine to Exclude Evidence Concerning Claimant Not Seeking Professional Counseling filed by Coca-Cola Bottling Company of Albuquerque. (Moody, Christopher) (Entered: 01/11/2008)
133 RESPONSE to Motion re 122 Opposed MOTION in Limine to Exclude Evidence Concerning Claimant's Familial Circumstances Defendant's Response to Plaintiff's Motion in Limine to Exclude Evidence Concerning Claimant's Familial Circumstances filed by BCI Coca-Cola Bottling Company of Los Angeles, Coca-Cola Bottling Company of Albuquerque. (Moody, Christopher) (Entered: 01/14/2008)
134 MOTION to Bifurcate Trial by BCI Coca-Cola Bottling Company of Los Angeles, Coca-Cola Bottling Company of Albuquerque. (Moody, Christopher) (Entered: 01/14/2008)
135 BRIEF re 134 MOTION to Bifurcate Trial by BCI Coca-Cola Bottling Company of Los Angeles, Coca-Cola Bottling Company of Albuquerque (Moody, Christopher) (Entered: 01/14/2008)
136 RESPONSE in Opposition re 126 Monthly MOTION in Limine to Exclude All Evidence Concerning Claimant's Prior Discipline filed by BCI Coca-Cola Bottling Company of Los Angeles, Coca-Cola Bottling Company of Albuquerque. (Moody, Christopher) (Entered: 01/14/2008)
137 RESPONSE to Motion re 125 Opposed MOTION in Limine to Exclude Evidence of Collateral Source Income filed by BCI Coca-Cola Bottling Company of Los Angeles, Coca-Cola Bottling Company of Albuquerque. (Moody, Christopher) (Entered: 01/14/2008)
138 RESPONSE to Motion re 123 Opposed MOTION in Limine to Exclude Evidence Concerning Claimant Taken Into Custody for Loitering filed by BCI Coca-Cola Bottling Company of Los Angeles, Coca-Cola Bottling Company of Albuquerque. (Moody, Christopher) (Entered: 01/14/2008)
139 RESPONSE in Opposition re 128 MOTION in Limine by Defendant to Exclude Evidence of Mr. Peter's Then Undisclosed Explanation For His 1999 Insubordination filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F)(Molina, Veronica) (Entered: 01/14/2008)

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140 RESPONSE in Opposition re 127 MOTION in Limine to Exclude Evidence of Stray Remarks and Unsupported Conclusions of Racial Animus filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Molina, Veronica) (Entered: 01/14/2008)
141 MEMORANDUM in Support re 134 MOTION to Bifurcate Trial filed by BCI Coca-Cola Bottling Company of Los Angeles, Coca-Cola Bottling Company of Albuquerque. (Moody, Christopher) (Entered: 01/15/2008)
142 MINUTE ORDER, pursuant to the direction of District Judge James O. Browning, vacating the motion hearing scheduled on 2/1/2008 and rescheduling on 2/14/2008 at 01:30 PM. THIS IS A TEXT ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (ks) (Entered: 01/28/2008)
143 Plaintiff's REPLY to Defendant's Response re 124 Opposed MOTION in Limine to Exclude All Evidence Concerning Claimant Not Seeking Professional Counseling, 132 Response in Opposition to Motion, filed by Equal Employment Opportunity Commission. (Molina, Veronica) (Entered: 01/28/2008)
144 RESPONSE in Opposition re 130 First MOTION for Sanctions Defendant's Motion to Exclude Certain Witnesses From Testifying at Trial filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5)(Molina, Veronica) (Entered: 01/28/2008)
145 NOTICE of Briefing Complete by Equal Employment Opportunity Commission re 124 Opposed MOTION in Limine to Exclude All Evidence Concerning Claimant Not Seeking Professional Counseling filed by Equal Employment Opportunity Commission (Molina, Veronica) (Entered: 01/29/2008)
146 NOTICE of Briefing Complete by Equal Employment Opportunity Commission re 122 Opposed MOTION in Limine to Exclude Evidence Concerning Claimant's Familial Circumstances filed by Equal Employment Opportunity Commission (Molina, Veronica) (Entered: 01/29/2008)
147 NOTICE of Briefing Complete by Equal Employment Opportunity Commission re 123 Opposed MOTION in Limine to Exclude Evidence Concerning Claimant Taken Into Custody for Loitering filed by Equal Employment Opportunity Commission (Molina, Veronica) (Entered: 01/29/2008)
148 NOTICE of Briefing Complete by Equal Employment Opportunity Commission re 125 Opposed MOTION in Limine to Exclude Evidence of Collateral Source Income filed by Equal Employment Opportunity Commission (Molina, Veronica) (Entered: 01/29/2008)
149 RESPONSE in Opposition re 134 MOTION to Bifurcate Trial Plaintiff's filed by Equal Employment Opportunity Commission. (Molina, Veronica) (Entered: 01/31/2008)
150 REPLY to Response to Motion re 126 Monthly MOTION in Limine to Exclude All Evidence Concerning Claimant's Prior Discipline filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Molina, Veronica) (Entered: 01/31/2008)

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01/31/2008 02/04/2008 02/12/2008 02/12/2008 02/12/2008 02/12/2008 02/12/2008 02/14/2008 02/14/2008 02/15/2008 02/25/2008 02/25/2008 02/25/2008

151 NOTICE of Briefing Complete by Equal Employment Opportunity Commission re 126 Monthly MOTION in Limine to Exclude All Evidence Concerning Claimant's Prior Discipline filed by Equal Employment Opportunity Commission (Molina, Veronica) (Entered: 01/31/2008)
152 Clerk's Minutes for proceedings held before Judge Robert Hayes Scott : Settlement Conference held on 2/4/2008. THIS IS A TEXT ONLY ENTRY. NO DOCUMENTS ARE ATTACHED. (ce) (Entered: 02/04/2008)
153 "FILED IN ERROR" ORDER by District Judge James O. Browning granting the Plaintiff's Motion in Limine to Exclude All Evidence Concerning Claimant Taken Into Custody for Loitering 123. (ks) Modified on 2/12/2008 (sl). (Entered: 02/12/2008)
154 ORDER by District Judge James O. Browning granting the Plaintiff's Motion in Limine to Exclude All Evidence Concerning Collateral Source Income 125. (ks) (Entered: 02/12/2008)
155 "FILED IN ERROR" ORDER by District Judge James O. Browning granting the Plaintiff's Motion in Limine to Exclude All Evidence Concerning Claimant Taken Into Custody for Loitering 123. (ks) Modified on 2/12/2008 (sl). (Entered: 02/12/2008)
156 ORDER by District Judge James O. Browning granting the Plaintiff's Motion in Limine to Exclude All Evidence Concerning Claimant's Familial Circumstances 121. (ks) (Entered: 02/12/2008)
157 ORDER by District Judge James O. Browning granting the Plaintiff's Motion in Limine to Exclude All Evidence Concerning Claimant Taken Into Custody for Loitering 123. (ks) (Entered: 02/12/2008)
158 MEMORANDUM OPINION AND ORDER by District Judge James O. Browning granting in part and denying in part Plaintiff's Motion to Quash Subpoena and/or Motion for Protective Order and Request for Expedited Ruling 107. (nh) (Entered: 02/14/2008)
159 MEMORANDUM OPINION AND ORDER by District Judge James O. Browning denying Plaintiff's Motion in Limine to Exclude All Evidence Concerning Claimant Not Seeking Professional Counseling 124. (nh) (Entered: 02/14/2008)
160 NOTICE of Attorney Substitution: Sally C Shanley substituted for C Emanuel Smith (Shanley, Sally) (Entered: 02/15/2008)
161 ORDER by District Judge James O. Browning denying Defendant's Motion in Limine to Exclude Evidence of Stray Remarks and Unsupported Conclusions of Racial Animus 127. (nh) (Entered: 02/25/2008)
162 ORDER by District Judge James O. Browning denying Defendant's Motion to Exclude Certain Witnesses from Testifying at Trial 130. (nh) (Entered: 02/25/2008)
163 ORDER by District Judge James O. Browning denying Defendant's Motion to Bifurcate Trial 134. (nh) (Entered: 02/25/2008)

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164 Clerk's Minutes from motion hearing held 2/14/2008 before District Judge James O. Browning regarding motions as itemized herein (Court Reporter Danna Everett). (ks) (Entered: 03/03/2008)
165 MINUTE ORDER, pursuant to the direction of District Judge James O. Browning, vacating the Jury Selection/Jury Trial scheduled on the Court's trailing docket commencing 3/10/2008 and rescheduling on 4/28/2008 at 09:00 AM (firm setting); vacating the Pretrial Conference scheduled on 2/21/2008 and rescheduling on 4/4/2008 at 01:30 PM; the Plaintiff shall provide the Pretrial Order to the Defendant by 3/20/2008; and the Defendant shall provide the Pretrial Order to the Court by 4/3/2008. All events will take place in Albuquerque - 460 Vermejo Courtroom. THIS IS A TEXT ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (ks) (Entered: 03/03/2008)
166 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission of Plainitff's Sixth Initial Disclosures (Molina, Veronica) (Entered: 03/10/2008)
167 MEMORANDUM OPINION AND ORDER by District Judge James O. Browning denying Plaintiff's Motion in Limine to Exclude All Evidence Concerning Claimant's Prior Discipline 126 and Defendant's Motion in Limine to Exclude Evidence of Mr. Peter's Then Undisclosed Explanation for his 1999 Insubordination 128. (nh) (Entered: 03/20/2008)
168 NOTICE by Equal Employment Opportunity Commission Of Unavailability of counsel from 3/24-27/2008 (Molina, Veronica) Modified text on 3/21/2008 (dmw) (Entered: 03/20/2008)
169 Clerk's Minutes for proceedings held before Judge James O. Browning : Pretrial Conference (not held - case settled) on 4/4/2008. (Court Reporter Danna Everett.) (dmw) (Entered: 04/09/2008)
170 CONSENT DECREE by District Judge James O. Browning (dmw) (Entered: 04/11/2008)

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 450 F.3d 476 (2006)
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v.
BCI COCA-COLA BOTTLING COMPANY OF LOS ANGELES, doing business as Phoenix Coca-Cola Bottling Company; Coca-Cola Bottling Company of Albuquerque, Defendants-
Appellees.
No. 04-2220.
United States Court of Appeals, Tenth Circuit.
June 7, 2006.
477 *477 Susan R. Oxford (Eric S. Dreiband, General Counsel, Carolyn L. Wheeler, Acting Associate General 478 Counsel, Vincent J. *478 Blackwood, Acting Associate General Counsel, and Lorraine C. Davis, Assistant
General Counsel, with her on the briefs), Equal Employment Opportunity Commission, Washington, D.C., for Plaintiff-Appellant.
E. Todd Presnell (Kara E. Shea with him on the brief), Miller & Martin PLLC, Nashville, Tennessee, for Defendants-Appellees.
Before LUCERO, McKAY, and McCONNELL, Circuit Judges.
McCONNELL, Circuit Judge.
The Equal Employment Opportunity Commission ("EEOC") asks us to reverse the district court's decision granting summary judgment to BCI Coca-Cola Bottling Co. of Los Angeles ("BCI") on a claim of race discrimination arising from the termination of a black employee, Stephen Peters. It is undisputed that the human resources official who made the decision to terminate Mr. Peters worked in a different city, had never met Mr. Peters, and did not even know that he was black. In making the decision to terminate, however, the human resources official relied exclusively on information provided by Mr. Peters' immediate supervisor, who not only knew Mr. Peters' race but allegedly had a history of treating black employees unfavorably and making disparaging racial remarks in the workplace. Because we find that genuine issues of material fact exist as to whether BCI's proffered explanation for the termination is a pretext for racial discrimination, we reverse the decision of the district court and remand for further proceedings.
I. Factual and Procedural Background
Stephen Peters worked as a merchandiser for BCI at its Albuquerque, New Mexico facility from May 1995 through October 2001. More than 60% of the 200 employees at the Albuquerque facility were Hispanic, while fewer than 2% were black. Merchandisers are hourly employees responsible for placement of Coca-Cola products in retail outlets such as grocery stores. Their job duties include arranging, cleaning, and rotating product displays and promotional materials. They generally work five days a week, with two days off, but because grocery stores remain open seven days a week, merchandisers' schedules are staggered and they must occasionally work overtime to cover shifts. As the most senior merchandiser in the district, Mr. Peters had the most desirable schedule, with Saturdays and Sundays off. He was generally regarded as a "good merchandiser," and in 2001 he received a certificate from BCI thanking him for five years of "service, dedication and commitment to the Company." App. 143, 151. The certificate specifically thanked him for "being a team player." Id. at 151.
Mr. Peters reported to Cesar Grado, a District Sales Manager, who is Hispanic. On a day-to-day basis, Mr. Peters was supervised by a salaried Account Manager, Jeff Katt, who is white. Although both Mr. Katt and Mr. Peters both reported directly to Mr. Grado, who handled all scheduling and route assignments for merchandisers and account managers in his district, it was common for merchandisers to call in sick to the account manager who

supervised their work. Mr. Grado was responsible for monitoring and evaluating the employees under his supervision, but was not authorized to discipline or terminate anyone. Instead, Mr. Grado had broad discretion to "bring facts relating to the matter to the attention of [the] Human Resources Department," which was ultimately 479 responsible for deciding which company policy applied and whether to take any disciplinary action. App. 34. The *479 highest-ranking human resources official in the Albuquerque office was Sherry Pederson. Ms. Pederson's supervisor, Pat Edgar, worked 450 miles away in BCI's Phoenix, Arizona office. Neither Ms. Pederson nor Ms. Edgar had met or even heard of Mr. Peters until September 28, 2001, four days before his termination.
The weekend of September 29-30, 2001, Mr. Grado faced a serious scheduling crunch. Several stores in his district were running ads for Coca-Cola products, necessitating an extra merchandiser for the weekend, and on the morning of Friday, September 28 he learned that another merchandiser who ordinarily worked as a "floater" to cover extra shifts had suffered an on-the-job injury and would be out for a week. Sometime between midday and 2:00 pm on Friday, Mr. Grado directed Mr. Katt to direct Mr. Peters to work on Sunday, September 30.[1] When Mr. Katt relayed the instruction, Mr. Peters responded, "I can't do it. I've got plans." Id. at 67. According to Mr. Grado, when Mr. Katt recounted the conversation he added that Mr. Peters said he "might call in sick." Id. at 35. Both Mr. Peters and Mr. Katt, however, deny that Mr. Peters said anything about being sick during that conversation, and Mr. Katt denies passing along any such comment to Mr. Grado.
Frustrated, Mr. Grado decided to seek advice from the Human Resources Department. Ms. Pederson was out of the office on Friday afternoon, so Mr. Grado called Ms. Edgar in Phoenix. Mr. Grado said that he expected Mr. Peters was going to refuse to come to work on Sunday, and asked whether he could require Mr. Peters to come in on his day off. Specifically, he told Ms. Edgar that Mr. Peters planned to call in sick on Sunday. Ms. Edgar found that prospect "unacceptable" because, under BCI policy, an employee may not call in sick two days in advance. Id. at 23. She advised Mr. Grado to "find out what the situation was" and, unless Mr. Peters had a "compelling reason" why he could not come to work, to order Mr. Peters to work on Sunday. Id. She told Mr. Grado to characterize the instruction as a "direct order" and to say that failure to comply would amount to insubordination, which is grounds for termination. Id.
Mr. Grado then paged Mr. Peters, who called immediately. Mr. Grado ordered Mr. Peters to work on Sunday, and Mr. Peters responded that he had plans. Mr. Grado says that he asked Mr. Peters what his plans were, but that Mr. Peters angrily responded that his plans were "none of [Mr. Grado's] business," and started yelling. Mr. Peters says that Mr. Grado never asked his plans; instead, he simply told Mr. Grado that he had plans and that he had not been feeling well all week. They both agree, however, that Mr. Grado said, "I'm not asking you to come to work, I'm telling you to come to work. If you do not come to work, it could lead to insubordination and could lead to termination." Id. at 58. They also agree that the conversation ended with Mr. Peters telling Mr. Grado, "[D]o what [you] got to do and I'll do what I got to do." Id. Mr. Peters claims that he intended this statement as a way to end the conversation without a confrontation. Mr. Grado interpreted it as open defiance, and a firm intention to disobey the order to come to work on Sunday.
480 *480 Late in the afternoon on Friday, Mr. Grado again contacted Ms. Edgar in Phoenix. He related "exactly what had happened": that he had asked Mr. Peters to describe his plans, but that Mr. Peters had refused to say what his plans were, had angrily said his plans were "none of [Mr. Grado's] business," and had told Mr. Grado to "do what he needed to do." Id. at 24, 65. Ms. Edgar determined at that time that Mr. Peters' conduct in that conversation, standing alone, amounted to insubordination warranting termination. Nonetheless, because it was late in the day on Friday, she did not make the decision to terminate Mr. Peters that day.
In fact Mr. Peters was sick. On the evening of Saturday, September 29 he cancelled his plans for Sunday and went to an urgent care clinic, complaining of a headache, sinus pain, and cough. A doctor diagnosed him with a sinus infection, gave him a prescription, and directed him not to return to work until Monday, October 1. That night Mr. Peters phoned Mr. Katt and explained that he had just come from the doctor's office and probably could not work Sunday because of illness. Mr. Katt "said he didn't have any problem with that," but asked Mr. Peters to call in the morning if he felt well enough to work. Id. at 197. After hanging up, Mr. Katt repeatedly tried to page Mr. Grado to describe the conversation, but for some reason Mr. Grado never responded to the pages.

Mr. Peters did not work on Sunday, September 30. Mr. Katt and Mr. Grado personally worked routes that day to ensure coverage. Mr. Peters returned to work as usual on Monday morning.
On Monday, October 1, Ms. Edgar held a series of phone calls with Ms. Pederson (who was back in the office) and Mr. Grado concerning Mr. Peters' conduct. Mr. Grado explained that Mr. Peters had not come to work on Sunday. Also, Ms. Pederson pulled Mr. Peters' file and found a Disciplinary Status Notice describing an incident in 1999 where Mr. Peters received a two-day disciplinary suspension and "final warning" for insubordination from a different supervisor. During that incident, the supervisor had called Mr. Peters on a Friday morning and ordered him to work on his day off that weekend. Mr. Peters refused and, according to the status notice, "was rude and unprofessional in his conduct." Id. at 53. He was warned that "[a]ll Coca-Cola employees must . . . follow direct orders from their supervisors. Failure to comply is considered a direct act of insubordination. . . . subject to disciplinary action up to and including termination." Id. at 54. Although Ms. Edgar did not know it, because the file provides no further details, Mr. Peters had good reason to be upset during the 1999 incident. He had learned earlier that week that his fiancée's son 0907 whom he had raised as his own son for years 0907 had been killed in a car accident. He could not work that Saturday because he had to serve as a pallbearer at the funeral. His supervisor told him that the funeral was no excuse for refusing a direct order because "he was not your biological son." Id. at 147.
By the end of the day on Monday, Ms. Edgar made a final decision to terminate Mr. Peters for insubordination. In a declaration prepared as part of this litigation in 2004, Ms. Edgar said that her decision was based "[f]irst and foremost" on "the conduct of Mr. Peters toward Mr. Grado on Friday." Id. at 26. The 1999 incident from the file reinforced for Ms. Edgar that Mr. Peters had a track record of insubordination, and also contributed to the decision. She emphasized that "Mr. Peters was not terminated because he did not show up for work on Sunday, 481 except to the extent this conduct is viewed in context *481 with his exchange with Mr. Grado on Friday . . . as the fulfillment of Mr. Peters [sic] stated intention to defy a direct order from Mr. Grado." Id. at 27. Ms. Edgar claims that she had already learned, in a conversation with Mr. Grado, that Mr. Peters had been excused by Mr. Katt from work on Sunday, but that this information did not affect her decision. She found Mr. Peters' "alleged sickness" to be "highly suspect," and "found it particularly suspicious that Mr. Peters chose to call in sick to Mr. Katt, rather than Mr. Grado, given the fact that Mr. Peters had been warned by Mr. Grado the day before that if he did not come to work he would be subject to termination." Id. at 27.
Mr. Katt's deposition provides a different account of these events. Mr. Katt says that he did not tell Mr. Grado that Mr. Peters phoned in sick until Monday evening at 6:00 pm, during a discussion of the upcoming week's schedule. Mr. Katt asked which route Mr. Peters was going to cover, and Mr. Grado replied, "I think I'm going to terminate him." Id. at 203. Mr. Katt asked, "You do know he called in, he called in sick to me?" Id. at 204. Mr. Grado "kind of paused" and asked, "Why didn't you tell me that earlier?" Id. Mr. Katt replied, "I did. I tried to page you." Id. According to Mr. Katt, this exchange took place Monday evening, after Ms. Edgar already made her decision to terminate Mr. Peters.
Mr. Peters was terminated Tuesday morning, October 2, at a meeting attended by Mr. Peters, Mr. Grado, Mr. Grado's supervisor Don Bateluna, and Ms. Peterson. Mr. Grado began the discussion by announcing, "You've been terminated for insubordination, for not showing up for work." Id. at 193. Mr. Peters was promptly presented with a termination paper. That document said nothing about Mr. Peters raising his voice or refusing to explain his plans during the phone conversation on Friday. Instead, the notice states that Mr. Peters had been given a direct order to work on Sunday, and had been warned that "failure to comply with the directive would be considered insubordination and would result in termination." Id. at 41. It concludes, "You did not report to work on Sunday 9-30-01, therefore your employment in [sic] being terminated for insubordination." Id. The "violation date" listed is Sunday, September 30, the day Mr. Peters was supposed to come to work, not Friday, September 28, the day of the conversation with Mr. Grado. Id.
Mr. Peters explained that he had not reported to work because he was sick. He said that he had called Mr. Katt and had received permission to miss work that day "because I went to the doctor." Id. at 193. He protested that "[n]either one of [you] asked me why I didn't show up for work." Id. Mr. Peters says that after he told them about the call to Mr. Katt, "they all got quiet. And when I left they shut the door and was [sic] in there talking." Id.

Shortly after that meeting, Ms. Pederson called Ms. Edgar and asked whether she knew Mr. Peters was black. Neither Ms. Pederson nor Ms. Edgar had ever met Mr. Peters, and neither knew that he was black until the meeting on Tuesday morning. Apparently Ms. Pederson's inspection of the file was so cursory that she did not even learn basic information such as Mr. Peters' race 0907 which was noted on several documents in his personnel file 0907 even as she was taking steps toward terminating him. Ms. Edgar maintains that "[r]ace played no part whatsoever in my decision to terminate the employment of Stephen Peters." Id. at 28. Indeed, part of her job as a human resources official was to conduct affirmative action and equal employment opportunity training sessions for BCI management.
482 *482 On October 11, 2001, Mr. Peters filed a charge with the EEOC alleging that his termination was the result of racial discrimination. The EEOC filed suit on his behalf in federal court on December 30, 2002. Its theory was that, even if Ms. Edgar was the sole decisionmaker and she did not know that Mr. Peters was black, "Grado harbored racial animus toward African American employees and . . . this bias was properly imputed to BCI because of Grado's substantial involvement in the termination process as Peters' supervisor and Edgar's sole source of information about the events on which BCI alleges the termination was primarily based." Aplt. Br. 12. Relying principally on cases from other circuits, the EEOC characterized this claim as arising under a "cat's paw" or "rubber stamp" theory, whereby an employer may be liable for the acts of a biased subordinate, even if that subordinate is not the formal decisionmaker.
In support of its allegations concerning Mr. Grado's racial bias, the EEOC presented affidavits from a number of other BCI employees. Three other merchandisers who worked under the supervision of Mr. Grado 0907 two black and one Hispanic0907 stated that Mr. Grado treated black employees worse than employees of other races. App. 181 (affidavit of James Young) ("African American employees were treated worse by Cesar Grado as compared to non-African American employees."); id. at 183 (affidavit of Bryan Esquibel) ("If Grado did not like you, he treated you badly; but African American employees were treated even worse."); id. at 185 (affidavit of Michael Wilson) ("It is my belief that Cesar Grado dislikes African Americans based on his treatment of me during my employment at [BCI]."). All three cited specific examples of incidents in which Mr. Grado subjected black employees to greater scrutiny and more serious discipline than Hispanic employees.
Mr. Wilson, who is black, says that Mr. Grado "continually demeaned me and threatened to replace me" but always "treated Hispanic Merchandisers with respect." Id. at 185.
Mr. Wilson also "recall[ed] many race-based remarks made to me by Cesar Grado during work hours." Id. at 184. According to Mr. Wilson, Mr. Grado told jokes about black men dating Anglo women, and stated that "Black guys [do] not look good in trucks, they should drive Cadillacs." Id. at 185. One day, while watching Mr. Wilson clean an outdoor vending machine during the winter, Mr. Grado urged him to hurry because "brothers don't like the cold." Id. (internal quotation marks omitted). Also, Mr. Katt says that after the termination, during a drive to a work site, Mr. Grado asked, "Did you hear Steve is trying to sue me?" Id. at 212. Although he is less than "100 percent clear" about his recollection of the conversation, Mr. Katt says that Mr. Grado may have used the word "nigger" or a comparable racial epithet to describe Mr. Peters during that conversation. Id.
The EEOC also compared Mr. Grado's treatment of Mr. Peters with his treatment of Hispanic employees under similar circumstances. On one occasion, for example, Mr. Grado was short merchandisers during a busy weekend, so he directed Mr. Katt to direct Monica Lovato, a Hispanic merchandiser, to work one of her days off. Ms. Lovato planned to celebrate her birthday that weekend, and she told Mr. Katt she wanted both days off, but Mr. Katt insisted and tried to accommodate her schedule as much as possible. That weekend Ms. Lovato never showed up to work as directed, even after Mr. Katt paged her repeatedly. When he was informed that Ms. Lovato 483 had disobeyed an order to come into work, Mr. Grado never inquired about her reasons. Instead, Mr. Grado *483 remarked, "You can't make somebody work one of their days off." Id. at 211. Ms. Lovato never received any discipline0907 not even a warning 0907 as a result of the incident.
The district court granted summary judgment in favor of BCI. Operating within the McDonnell Douglas burdenshifting framework, it held that the EEOC had established a prima facie case of discrimination, but that BCI had articulated a legitimate nondiscriminatory reason for the termination: "his insubordinate conduct toward Grado." Mem. Op. & Order 19. It held that no genuine issue of material fact exists as to whether this proffered explanation

was pretextual because the pretext inquiry must focus exclusively on whether Ms. Edgar honestly believed that Mr. Peters was guilty of insubordination on Friday, September 28. Citing our statement in Kendrick v. Penske Transportation Services, Inc., 220 F.3d 1220, 1231 (10th Cir.2000), that pretext must be evaluated by "look[ing] at the facts as they appear to the person making the decision to terminate plaintiff," the district court concluded that any factual disputes concerning the Friday conversation were immaterial because Ms. Edgar correctly applied BCI's policy concerning insubordination to the facts as she understood them. Mem. Op. & Order 24-25. The district court found the termination letter ("You did not report to work on Sunday 9-30-01, therefore your employment [is] being terminated for insubordination") "consistent" with Ms. Edgar's declaration that the sole act of insubordination for which he was terminated was his conduct during the call on Friday. Id. at 26. According to the district court, the phone call and the failure to come to work formed part of the same "chain of events," and no reasonable jury could find that BCI's explanations were shifting or inconsistent.
In evaluating the EEOC's "rubber stamp" or "cat's paw" claim, the district court acknowledged that the EEOC had raised a genuine issue of fact as to whether Mr. Grado harbored racial bias against African Americans. It noted, however, that other circuits' "rubber stamp" cases "involved situations in which a decisionmaker accepted the recommendations of a biased supervisor without conducting an independent investigation." Id. at 29 (emphasis in original). Here, Mr. Grado never officially recommended that Mr. Peters be terminated; he merely provided information to Ms. Edgar, who made the final decision. Also, according to the district court, Ms. Edgar did conduct an independent investigation: she asked Ms. Pederson to pull Mr. Peters' personnel file. The issue of Mr. Grado's bias therefore was not material.
The district court granted BCI's motion for summary judgment, and the EEOC now appeals. We review the district court's decision de novo, viewing the evidence in the light most favorable to the EEOC and drawing all reasonable inferences in its favor. Fuerschbach v. S.W. Airlines Co., 439 F.3d 1197, 1207 (10th Cir.2006). We will affirm "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact" and BCI is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c).
II. Discussion
Under the McDonnell Douglas framework, a plaintiff bears the initial burden of establishing a prima facie case of racial discrimination, which "consists of a showing that (1) the plaintiff belongs to some protected class, (2) the 484 plaintiff was qualified for the position or benefit at issue, (3) *484 the plaintiff suffered an adverse employment action, and (4) the plaintiff was treated less favorably than others (e.g., the position at issue remained open after the adverse employment action)." Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1134 (10th Cir.2004). BCI concedes that the EEOC has established a prima facie case here: Mr. Peters is black, he was qualified for his job as a merchandiser, he was terminated, and the position remained open.
The burden therefore shifts to BCI to articulate a legitimate, nondiscriminatory reason for the employment action. Jaramillo v. Colo. Judicial Dep't, 427 F.3d 1303, 1308 (10th Cir.2005). The EEOC concedes that BCI has articulated a nondiscriminatory reason for its termination of Mr. Peters: his insubordination on Friday, September 28 during the phone conversation with Mr. Grado. Significantly, BCI maintains that Mr. Peters' absence on Sunday, September 30 had nothing to do with the decision, except insofar as it confirmed that Mr. Peters' statements on Friday were insubordinate. App. 27 ("Mr. Peters was not terminated because he did not show up for work on Sunday. . . . ").
The sole issue on appeal is whether the EEOC has made a sufficient showing that BCI's proffered explanation is a pretext for race discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Here, it is undisputed that Ms. Edgar, who formally made the termination decision, worked in a different city and had no idea that Mr. Peters is black. She therefore could not have acted for racially discriminatory reasons. For the EEOC to prevail, it must make not only a factual showing that Mr. Grado harbored racial animus toward black employees, but also a convincing legal claim that his racial animus should be imputed to BCI despite the fact that Mr. Grado had no power to terminate anyone.
A. Subordinate Bias Liability

Other courts have recognized claims under Title VII based on the bias of a subordinate, often using the terms "cat's paw" or "rubber stamp" to describe the theory. The "cat's paw" doctrine derives its name from a fable, made famous by La Fontaine, in which a monkey convinces an unwitting cat to pull chestnuts from a hot fire. See Fables of La Fontaine 344 (Walter Thornbury trans., Chartwell Books 1984). As the cat scoops the chestnuts from the fire one by one, burning his paw in the process, the monkey eagerly gobbles them up, leaving none left for the cat. Id. Today the term "cat's-paw" refers to "one used by another to accomplish his purposes." Webster's Third New International Dictionary Unabridged 354 (2002). In the employment discrimination context, "cat's paw" refers to a situation in which a biased subordinate, who lacks decisionmaking power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action. Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1249 (11th Cir.1998). The "rubber stamp" doctrine has a more obvious etymology, and refers to a situation in which a decisionmaker gives perfunctory approval for an adverse employment action explicitly recommended by a biased subordinate. See Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 288 (4th Cir.2004) (en banc). Our sister circuits overwhelmingly have endorsed some version of these doctrines. See Galdamez v. Potter, 415 F.3d 1015, 1026 n. 9 (9th Cir.2005); Hill, 354 F.3d at 290; Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir.1999); Griffin v. Wash. Convention Ctr., 142 F.3d 485 1308, 1311-12 (D.C.Cir.1998); Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d *485 344, 354-55 (6th Cir.1998); Long v. Eastfield Coll., 88 F.3d 300, 307 (5th Cir.1996); Abrams v. Lightolier Inc., 50 F.3d 1204, 1213-14 (3d Cir.1995); Stacks v. S.W. Bell Yellow Pages, Inc., 27 F.3d 1316, 1323 (8th Cir.1994); Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir.1990) (Posner, J.) (inaugurating the descriptor "cat's-paw" for this category of claim).
Although this Court has not yet had occasion to find for a plaintiff on a subordinate bias claim, we have strongly signaled our endorsement of the theory. We have stated that "under certain circumstances, a defendant may be held liable for a subordinate employee's prejudice even if the manager lacked discriminatory intent." English v. Colo. Dep't of Corrs., 248 F.3d 1002, 1011 (10th Cir.2001). Specifically, we have described a "rubber stamp" theory of liability, noting that "[t]o recover under this theory, the plaintiff must show `that the decisionmaker followed the biased recommendation [of a subordinate] without independently investigating the complaint against the employee.'" Id. (quoting Stimpson, 186 F.3d at 1332) (alteration in original). Twice we have held that a plaintiff could not prevail because the decisionmaker had conducted an independent investigation of the facts, rather than relying entirely on the recommendation of the biased subordinate. See Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1231-32 (10th Cir.2000) (finding it "[i]mportant[ ]" that "in the course of his investigation" the decisionmaker asked the employee "to give his version of the exchange," but the employee declined to do so); English, 248 F.3d at 1011 (noting that the decisionmaker met twice with the employee and his attorney, and specifically asked for evidence rebutting or mitigating the findings of the allegedly biased subordinates). But we have described the plaintiffs' underlying theory of liability as "correct." English, 248 F.3d at 1011.
These subordinate bias theories comport with the basic agency principles incorporated by statute into Title VII. For purposes of Title VII, the term "employer" includes not only any "person engaged in an industry affecting commerce" but "any agent of such a person." 42 U.S.C. § 2000e(b). Although that language "surely evinces an intent to place some limits on the acts of employees for which employers are to be held responsible," Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 72, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), employers may be vicariously liable for the actions of their employees 0907 even intentional torts outside the scope of their employment 0907 if the employee "`was aided in accomplishing the tort by the existence of the agency relation,'" Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 758, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (quoting Restatement (Second) of Agency § 219(2)(d) (1958) [hereinafter Restatement]). In Ellerth, which involved a hostile work environment claim, the Supreme Court held that "a tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer." Id. at 762, 118 S.Ct. 2257. Citing with approval the seminal "cat's paw" opinion by Judge Posner, the Court seemed unconcerned with the possibility that the "tangible employment decision[ ]" might "be subject to review by higher level supervisors." Id. (citing Shager, 913 F.2d at 405). The "aided by the agency relation" standard applies even more clearly to subordinate bias claims, such as "cat's paw" or "rubber stamp" claims, because the allegedly biased subordinate accomplishes his discriminatory goals by misusing the authority granted to him by the employer0907 for example, the authority to monitor performance, report disciplinary infractions, 486 and recommend employment actions. See Restatement § 219(2) cmt. e (explaining *486 that the "aided by the agency relation" standard applies in situations where "the servant may be able to cause harm because of his

position"); cf. Faragher v. City of Boca Raton, 524 U.S. 775, 802-05, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (contemplating vicarious liability based on abuse of authority by supervisors, but emphasizing that the "aid" in the "aided by the agency relation" formula must amount to more than access to a pool of potential victims and "the unspoken suggestion of retaliation").
Holding employers accountable for the actions of biased subordinates also advances the purposes of Title VII. It should go without saying that a company's organizational chart does not always accurately reflect its decisionmaking process. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151-52, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (finding that the bias of a supervisor, the husband of the formal decisionmaker, could be imputed to the company because the supervisor "was the actual decisionmaker" and was "principally responsible for petitioner's firing"); Russell v. McKinney Hosp. Venture, 235 F.3d 219, 227 (5th Cir.2000) (noting that "courts will not blindly accept the titular decisionmaker as the true decisionmaker"). A biased low-level supervisor with no disciplinary authority might effectuate the termination of an employee from a protected class by recommending discharge or by selectively reporting or even fabricating information in communications with the formal decisionmaker. Recognition of subordinate bias claims forecloses a strategic option for employers who might seek to evade liability, even in the face of rampant race discrimination among subordinates, through willful blindness as to the source of reports and recommendations. Id. n. 13 (holding that employers may not insulate themselves from Title VII claims simply "by ensuring that the one who performed the employment action was isolated from the employee"). Indeed, such claims have the salutary effect of encouraging employers to verify information and review recommendations before taking adverse employment actions against members of protected groups 0907 particularly if, as we have held, an employer can escape liability entirely by performing an independent investigation. See English, 248 F.3d at 1011. Construing the definition of an "employer" to permit subordinate bias claims therefore serves Title VII's "deterrent purpose." See Ellerth, 524 U.S. at 764, 118 S.Ct. 2257 (noting that the extent of employer liability under Title VII should not depend exclusively on common-law agency principles, but also should encourage employer procedures that prevent discriminatory actions).
Despite broad support for some theory of subordinate bias liability, our sister circuits have divided as to the level of control a biased subordinate must exert over the employment decision. Some courts take a lenient approach, formulating the inquiry as whether the subordinate "possessed leverage, or exerted influence, over the titular decisionmaker." See Russell, 235 F.3d at 227. On this view, "summary judgment generally is improper where the plaintiff can show that an employee with discriminatory animus provided factual information or other input that may have affected the adverse employment action." Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1459 (7th Cir.1994) (citing Shager, 913 F.2d at 405). This standard apparently contemplates that any "influence," the reporting of any "factual information," or any form of "other input" by a biased subordinate renders the employer liable so long as the subordinate "may have affected" the employment action. Such a weak relationship between 487 the subordinate's actions and the ultimate employment decision *487 improperly eliminates a requirement of causation. See Ellerth, 524 U.S. at 745, 118 S.Ct. 2257 (construing Title VII "to accommodate the agency principle of vicarious liability for harm caused by misuse of supervisory authority" (emphasis added)). When a biased subordinate merely plays a peripheral role, it cannot be said that he has "accomplish[ed]" a tortious act and "cause[d] harm" as required under agency law principles and, accordingly, under Title VII. Restatement § 219 (2)(d) & cmt. e; see also id. cmt. a ("Rationale of liability") ("The assumption of control is a usual basis for imposing tort liability when the thing controlled causes harm."). Moreover, a lenient "may have affected" standard that punishes employers for any "input" 0907 no matter how minor 0907 weakens the deterrent effect of subordinate bias claims by imposing liability even where an employer has diligently conducted an independent investigation.
At the opposite extreme, the Fourth Circuit has held that an employer cannot be held liable even if a biased subordinate exercises "substantial influence" or plays a "significant" role in the employment decision. Hill, 354 F.3d at 291. Taking its cue from the Supreme Court's statements in Reeves that "petitioner [had] introduced evidence that [the supervisor] was the actual decisionmaker" and was "principally responsible" for his firing, Reeves, 530 U.S. at 151-52, 120 S.Ct. 2097, the Fourth Circuit held that these formulations mark "the outer contours of who may be considered a decisionmaker for purposes of imposing liability upon an employer." Hill, 354 F.3d at 289. On this view, the decisionmaker must be a "cat's paw" so completely beholden to the subordinate "that the subordinate is the actual decisionmaker." Id. at 290. The Fourth Circuit's strict approach makes too much of the phrase "actual decisionmaker" in Reeves; the Court was describing what the petitioner's evidence showed, not prescribing the "outer contours" of liability. See Reeves, 530 U.S. at 151-52, 120 S.Ct.

2097 (using the phrases "actual decisionmaker" and "principally responsible" only in Part III.B, which begins, "Applying this standard here . . ."). The Fourth Circuit's peculiar focus on "who is a `decisionmaker' for purposes of discrimination actions," Hill, 354 F.3d at 286, seems misplaced. The word "decisionmaker" appears nowhere in Title VII. Instead, the statute imposes liability for discrimination by employers and their agents, 42 U.S.C. § 2000e (b), which in accordance with agency law principles includes not only "decisionmakers" but other agents whose actions, aided by the agency relation, cause injury. Ellerth, 524 U.S. at 760, 118 S.Ct. 2257. The Fourth Circuit's standard also undermines the deterrent effect of subordinate bias claims, allowing employers to escape liability even when a subordinate's discrimination is the sole cause of an adverse employment action, on the theory that the subordinate did not exercise complete control over the decisionmaker.
We find ourselves in agreement with the Seventh Circuit, which has rejected the Fourth Circuit's approach as "inconsistent with the normal analysis of causal issues in tort litigation." Lust v. Sealy, Inc., 383 F.3d 580, 584 (7th Cir. 2004). To prevail on a subordinate bias claim, a plaintiff must establish more than mere "influence" or "input" in the decisionmaking process. Rather, the issue is whether the biased subordinate's discriminatory reports, recommendation, or other actions caused the adverse employment action. Id. This standard comports with the agency law principles that animate the statutory definition of an "employer." See Restatement § 219 (describing 488 the scope of a master's liability "for the torts of his servants" and thereby incorporating standard *488 tort concepts like causation). Both the Supreme Court and this Court require a comparable causal connection as part of analogous workplace discrimination claims. See, e.g., Clark County School Dist. v. Breeden, 532 U.S. 268, 272, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (requiring a "causal connection" between the plaintiff's protected activities and the adverse employment action in a Title VII retaliation claim); Rea v. Martin Marietta Corp., 29 F.3d 1450, 1457 (10th Cir.1994) (requiring a "causal nexus" between allegedly discriminatory workplace statements and the termination decision in an ADEA claim). We reaffirm our earlier decisions holding that, because a plaintiff must demonstrate that the actions of the biased subordinate caused the employment action, an employer can avoid liability by conducting an independent investigation of the allegations against an employee. English, 248 F.3d at 1011. In that event, the employer has taken care not to rely exclusively on the say-so of the biased subordinate, and the causal link is defeated. Indeed, under our precedent, simply asking an employee for his version of events may defeat the inference that an employment decision was racially discriminatory. Kendrick, 220 F.3d at 1231-32. Employers therefore have a powerful incentive to hear both sides of the story before taking an adverse employment action against a member of a protected class.
Finally, we address the district court's conclusion that an employer may be liable on a subordinate bias theory only if the decisionmaker receives and approves an explicit recommendation to terminate an employee. Regrettably, subordinate bias cases have suffered from an abundance of vivid metaphors. The Fourth Circuit, for example, seems to have taken the "cat's paw" metaphor too literally in deriving its total-control-over-the-actualdecision standard. Lust, 383 F.3d at 584. Likewise, the district court in this case seems to have taken the "rubber stamp" metaphor too literally, requiring that an explicit recommendation must cross the desk of the decisionmaker, regardless of whether the subordinate's discriminatory actions in fact caused the termination. That limitation of subordinate bias claims not only runs counter to the fairly broad "aided by the agency relation" principle embodied in Title VII, but would leave employees unprotected so long as a subordinate stops short of mouthing the words "you should fire him," in person or on paper, to the decisionmaker. Stripped of their metaphors, subordinate bias claims simply recognize that many companies separate the decisionmaking function from the investigation and reporting functions, and that racial bias can taint any of those functions. We see no reason to limit subordinate bias liability to situations that closely resemble the "cat's paw," "rubber stamp," "conduit," "vehicle," or other metaphors that imaginative lawyers and judges have developed to describe such claims.
With these principles in mind, we turn to BCI's decision to terminate Mr. Peters.
B. The Subordinate Bias Claim in this Case
The EEOC argues that BCI's proffered explanation for its termination decision is pretextual. To survive summary judgment on a subordinate bias theory, the plaintiff must first establish a genuine issue of material fact concerning the bias of the subordinate. It must then establish genuine issues of material fact as to whether the

proffered reason for the employment action is pretextual, which in a subordinate bias claim requires the plaintiff to demonstrate a causal relationship between the subordinate's actions and the employment decision.
489 *489 1. Mr. Grado's Racial Bias
The district court held, and we agree, that the EEOC has raised a genuine issue of fact concerning Mr. Grado's racial animus. In general, "isolated racial comments" are insufficient to establish pretext unless they "can somehow be tied to the employment actions disputed in the case at hand." Stewart v. Adolph Coors Co., 217 F.3d 1285, 1289 (10th Cir.2000) (internal quotation marks omitted). Nonetheless, at the summary judgment stage "all rational inferences from the evidence must be made in favor of the party opposing the summary judgment motion." Ortiz v. Norton, 254 F.3d 889, 896 (10th Cir. 2001). In Ortiz, we held that evidence of discrimination in employment decisions affecting other workers "could support an inference that the decision makers harbored a bias against Hispanics which might have affected other decisions, including the decisions adverse to plaintiff." Id. A plaintiff also "may show pretext `by providing evidence that he was treated differently from other similarly situated, nonprotected employees who violated work rules of comparable seriousness,'" provided the "similarly situated" employee shares the same supervisor, is subject to the same performance standards, and otherwise faces comparable "relevant employment circumstances." Green v. New Mexico, 420 F.3d 1189, 1194 (10th Cir.2005) (quoting Kendrick, 220 F.3d at 1232).
In this case, the EEOC has produced sufficient evidence to create a jury question concerning Mr. Grado's racial animus. Mr. Wilson claims that Mr. Grado directed "many race-based remarks," and offered three examples of racial jokes and put-downs. App. 184-85. In his affidavit, Mr. Katt says that Mr. Grado may have used a racial epithet to describe Mr. Peters in the immediate aftermath of the termination and lawsuit.[2]Id. at 212. These comments may have been infrequent, but they certainly were not "isolated": they were directed at other black merchandisers under Mr. Grado's supervision, suggesting a pattern of racial bias in disciplinary matters that could have affected Mr. Grado's conduct with respect to Mr. Peters' termination, and in one case concerned Mr. Peters himself.
In addition, three other merchandisers 0907 two black and one Hispanic 0907 submitted affidavits giving specific examples of Mr. Grado's disparate treatment of black and Hispanic merchandisers. Mr. Young claims that Mr. Grado "nit-pick[ed] my work" and "constantly threatened to change my days off and to change my route," but "did not . . . treat non-African American employees in this manner." App. 181. He recalls being threatened with a schedule change for leaving the back room of one of his stores "a bit messy," while Mr. Grado tolerated a non490 black merchandiser's "very messy" back room "many times." Id. Mr. Esquibel *490 named six Hispanic employees who were not fired after disobeying company directives. Id. at 183. Mr. Wilson says that Mr. Grado was "unusually picky" with black merchandisers, "often calling us back to stores that had been serviced to redo some minor detail, while the Hispanic Merchandisers were not subject to this same level of scrutiny." Id. at 185. Broadly, he claims that Mr. Grado "treated Hispanic Merchandisers with respect" but "continually demeaned me and threatened to replace me." Id.
Most importantly, the EEOC produced evidence of Mr. Grado's unfazed response to the incident involving a Hispanic merchandiser, Ms. Lovato. Like Mr. Peters, Ms. Lovato reported to Mr. Grado and was directed to work one of her days off. Like Mr. Peters, she failed to come to work, in direct violation of her instructions and in spite of considerable efforts by Mr. Katt to come to accommodate her schedule. Unlike Mr. Peters, who was fired two days later, Ms. Lovato received no discipline whatsoever as a result of the incident, with Mr. Grado reportedly saying, "You can't make somebody work one of their days off." Id. at 211. To be sure, there are factual differences between these incidents: Ms. Lovato received all of her orders through Mr. Katt whereas Mr. Peters spoke to Mr. Grado directly, and Ms. Lovato initially acquiesced in the orders (before disobeying them) whereas, according to Mr. Grado, Mr. Peters initially behaved in a defiant manner and announced an intention to disobey the orders (before being excused from work). They are similar enough, however, that in light of the dramatic difference between Mr. Grado's actions in each case, as well as the other evidence of discriminatory conduct, a reasonable jury could find the situations comparable and infer that racial animus played a role in Mr. Peters' treatment.

We do not necessarily believe that each of the incidents recounted above would support a charge of discrimination in isolation, but taken as a whole, this evidence of racial comments and disparate treatment of black merchandisers creates a genuine issue of fact regarding Mr. Grado's racial bias.
2. Pretext and Causation
To show that an employer's proffered nondiscriminatory reason for an employment action is pretextual, a plaintiff must produce evidence of "`such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.'" Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.1997) (quoting Olson v. Gen. Elec. Astrospace, 101 F.3d 947, 951-52 (3d Cir.1996)). Because the EEOC's pretext argument depends in part on a subordinate bias theory, it must establish a genuine issue of material fact as to whether Mr. Grado's bias translated into discriminatory actions that caused Mr. Peters' termination.
BCI now maintains that it fired Mr. Peters solely because of his defiant conduct on the phone with Mr. Grado on Friday, and that "Mr. Peters was not terminated because he did not show up for work on Sunday, except to the extent this conduct is viewed . . . as the fulfillment of [his] stated intention to defy a direct order from Mr. Grado." App. 27. On this theory, missing work on Sunday merely confirmed that Mr. Peters' statements on Friday were insubordinate, and did not serve as a basis for dismissal. Yet the first explanation provided by Mr. Grado at the 491 Tuesday morning meeting was, "You've *491 been terminated for insubordination, for not showing up for work." Id. at 193 (emphasis added). The Disciplinary Status Notice unequivocally states that the failure to show up for work on Sunday was the act of insubordination: "You did not report to work on Sunday 9-30-01, therefore your employment in [sic] being terminated for insubordination." Id. at 41. That document lists Sunday, not Friday, as the date of the violation that prompted the termination, indicating that the act of insubordination was the failure to come into work, not Mr. Peters' attitude during the earlier phone call. Indeed, on October 16, 2001, just two weeks after the termination, Ms. Pederson filed paperwork with the New Mexico Department of Labor stating that "Stephen was told by Cesar Grado that if he didn't show up, it would be considered insubordination." Id. at 165 (emphasis added). When asked to describe the "final incident that caused the discharge," Ms. Pederson wrote, "Stephen did not show up for work on 9/30." Id. Only later did BCI characterize its decision to fire Mr. Peters as hinging on his defiant conduct over the phone, rather than on his absence.
A jury might reasonably conclude that BCI's original explanation, that Mr. Peters was fired because he failed to show up for work on Sunday, was pretextual because Mr. Peters was excused from work that day. Mr. Peters was in fact sick, had visited an urgent care clinic, and had been diagnosed with a sinus infection and directed not to work until Monday. He phoned Mr. Katt to report the illness, and was excused from work 0907 an interaction that BCI concedes is perfectly ordinary between merchandisers and account managers. A jury could credit Ms. Edgar's statements that she knew that Mr. Peters' absence was excused and nonetheless (incorrectly, as it turns out) deemed Mr. Peters' "alleged sickness" suspicious under the circumstances. But it might just as easily credit Mr. Katt's testimony, rather than Ms. Edgar's, and conclude that neither Mr. Grado nor Ms. Edgar learned that Mr. Peters called in sick until the scheduling discussion between Mr. Katt and Mr. Grado on Monday evening, after Ms. Edgar claims she had already made the decision to fire Mr. Peters. The affidavits of Mr. Katt and Mr. Peters state that key players in the decision fell silent upon hearing that Mr. Peters' absence was excused, suggesting that they were indeed surprised by the news.
Recognizing the weakness of the original explanation, BCI has refined its position by relying entirely on Mr. Peters' purported insubordination in his conversation with Mr. Grado on Friday. A jury could conclude, however, that this reason too is a pretext for race discrimination, as the result of Mr. Grado's racial animus. It is undisputed that Ms. Edgar, and Ms. Edgar alone, made the formal termination decision. Mr. Grado has succinctly described his role in the disciplinary process: "I gather the facts and I present them to our HR department, and they decide whether it is an insubordination or not and whether there's action to be taken or not." App. 63. Surely Ms. Edgar harbored no ill will toward Mr. Peters on account of his race, because she worked in Phoenix and did not even know that he was black. Yet it is also undisputed that Ms. Edgar relied exclusively on Mr. Grado's account of the Friday phone conversation in making her decision. She conducted no independent inquiry into the events that took place that Friday, and failed to take even the basic step 0907 cited by this Court in Kendrick, 220 F.3d at

1231-32 0907 of asking Mr. Peters for his side of the story. Accordingly, Mr. Grado's report that Mr. Peters had 492 behaved in a defiant, insubordinate manner on Friday caused the termination. If the *492 jury concludes that Mr.
Grado's report was tainted by race discrimination 0907 as it might, for the reasons explained above 0907 it could also find that the proffered reason for firing Mr. Peters, which rests entirely on that report, is pretextual.
BCI argues that any factual disputes concerning the Friday conversation between Mr. Grado and Mr. Peters are immaterial because both parties agree that Mr. Peters ended the conversation by saying, "[D]o what [you] got to do and I'll do what I got to do." App. 58. We agree that this statement can only be interpreted as defiance, and if Mr. Grado had reported nothing but this closing remark to Ms. Edgar, there would be no reason to believe that racial bias on the part of Mr. Grado caused the termination. Yet Mr. Grado reported several additional facts about his conversations on Friday afternoon. First, he told Ms. Edgar that he had learned, through Mr. Katt, that Mr. Peters was already planning to call in sick two days later, in violation of company policy. Second, he reported that in their phone call Friday afternoon, he asked Mr. Peters to describe his plans, affording an opportunity for Mr. Peters to explain his scheduling conflict. Third, he reported that Mr. Peters angrily replied that it was "none of [your] business," and was "yelling" during the discussion. Id. at 36, 65.
All of those facts are disputed. Instead of crediting Mr. Grado's testimony, a jury might believe Mr. Katt, who says that he never told Mr. Grado that Mr. Peters had advance plans to call in sick on Sunday, or Mr. Peters, who says that he simply told Mr. Grado that he had been feeling sick that week, not that he planned to violate company policy. A jury might also credit Mr. Peters' version of the Friday afternoon conversation, in which Mr. Grado never bothered to ask Mr. Peters' reasons, Mr. Peters never refused to answer Mr. Grado's questions, and Mr. Peters remained calm throughout the discussion. There is good reason to believe that Ms. Edgar acted on those additional facts, not just on Mr. Peters' "do what you have to do" remark. She denounced Mr. Peters' advance plans to call in sick as "not acceptable," an abuse of the company sick leave policy. Id. at 23. Also, it was Ms. Edgar who originally insisted that Mr. Grado "find out what the situation was" and determine whether Mr. Peters had a "compelling reason" he could not come to work, which suggests that she found that information important in making her decision. Id. at 23. Taking the evidence in the light most favorable to the EEOC, it is easy to imagine that the additional details of Mr. Grado's account, in which Mr. Peters appeared to be fabricating his illness, started yelling at his supervisor, and refused to answer questions, led Ms. Edgar to characterize the conversation as "insubordination" warranting dismissal. The question is not whether Ms. Edgar could have terminated Mr. Peters because of his closing remark alone, which appears to have been permissible under BCI policy, but what actually did cause the adverse employment action. If a jury credits the testimony of Mr. Peters and Mr. Katt, and thus concludes that Mr. Grado lied to Ms. Edgar, it could also find that the additional claims about Mr. Peters' conduct caused the termination.
Finally, BCI argues, and the district court agreed, that Ms. Edgar did not rely solely on Mr. Grado but conducted an independent investigation. This investigation consisted of exactly one action: directing Ms. Pederson to pull Mr. Peters' personnel file. We find this "investigation" inadequate, as a matter of law, to defeat the inference that Mr. Grado's racial bias tainted the decision. Obviously the file contained no information about the recent incident 493 involving Mr. Grado, so it *493 is difficult to see how reading it could "independently" confirm what had happened. True, the file contained a description of a 1999 incident of insubordination, which (despite its ignoble back story) seemed consistent with Mr. Grado's version of events. The problem is that Ms. Edgar never sought any other version of events, and therefore had no reason other than Mr. Grado's report to believe that the file was relevant. Simply pulling the file therefore does not constitute an independent investigation, and a jury could conclude that Mr. Grado's factually disputed report 0907 the sole source of information on which Ms. Edgar relied 0907 caused the termination.
Because the EEOC has established genuine issues of material fact as to whether the nondiscriminatory reasons offered by BCI are pretextual, summary judgment was inappropriate.
III. Conclusion
We REVERSE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.

[1] In his declaration, Mr. Grado stated that he had already discussed the matter with Mr. Katt and Mr. Peters had already agreed to work on Sunday, September 30. It is unclear, then, why he contacted Mr. Katt to order Mr. Peters yet again to work that day. In any case, Mr. Katt denies that Mr. Grado ever contacted him before Friday at 2:00 concerning the possibility that Mr. Peters might work on Sunday.
[2] BCI argues, in a footnote and without elaboration, that Mr. Katt's testimony on this point "is clearly inadmissible pursuant to Federal Rules of Evidence 602 and 403," and therefore should be ignored. Br. of Appellee 41 n. 17. The first objection is obviously wrong. Rule 602 requires that a witness must have "personal knowledge of the matter" before testifying, but Mr. Katt's affidavit recounts a conversation he personally conducted with Mr. Grado. The second objection is difficult to discern. Rule 403 provides that evidence "may be excluded" if, in the view of the district court, "its probative value is substantially outweighed by the danger of unfair prejudice." If credited, Mr. Katt's testimony about a racial slur directed at Mr. Peters shortly after his termination is at least probative of Mr. Grado's motive at the time of the termination. Like the district court, which considered the testimony, see Mem. Op. & Order 14, we are not inclined to ignore the testimony as unduly prejudicial at this stage.
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 BCI Coca-Cola Bottling Co. of Los Angeles v. E.E.O.C., 549 U.S. 1105 (2007)

127 S.Ct. 852 Supreme Court of the United States
BCI COCA-COLA BOTTLING COMPANY OF LOS ANGELES, petitioner, v.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.
No. 06-341. | Jan. 5, 2007.
Case below, 450 F.3d 476.

Opinion Petition for writ of certiorari to the United States Court of Appeals for the Tenth Circuit granted.
Parallel Citations 127 S.Ct. 852 (Mem), 166 L.Ed.2d 681, 75 USLW 3106, 75 USLW 3339, 75 USLW 3349
	  

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 BCI Coca-Cola Bottling Co. of Los Angeles v. E.E.O.C., 549 U.S. 1334 (2007)

127 S.Ct. 1931 Supreme Court of the United States
BCI COCA-COLA BOTTLING COMPANY OF LOS ANGELES, v.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.
No. 06-341 (R46-015). | April 12, 2007.
Case below, 10 Cir., 450 F.3d 476.

Opinion
The writ of certiorari in the above-entitled case was dismissed today pursuant to Rule 46.2 of the Rules of this Court.
Parallel Citations 127 S.Ct. 1931 (Mem), 100 Fair Empl.Prac.Cas. (BNA) 384, 167 L.Ed.2d 583
	  

1