UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION,

Plaintiff-Appellant,

v.  No. 00-2167

TOWN & COUNTRY TOYOTA,

INCORPORATED,

Defendant-Appellee. 

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Carl Horn III, Chief Magistrate Judge.

(CA-98-276-3-H)

Argued: February 26, 2001

Decided: April 13, 2001

Before WILLIAMS and MICHAEL, Circuit Judges, and

Cynthia Holcomb HALL, Senior Circuit Judge of the

United States Court of Appeals for the Ninth Circuit,

sitting by designation.

Reversed and remanded by unpublished per curiam opinion. 

COUNSEL

ARGUED: Robert John Gregory, Senior Attorney, EQUAL

EMPLOYMENT OPPORTUNITY COMMISSION, Washington,

D.C., for Appellant. William Porter Farthing, Jr., PARKER, POE,
ADAMS & BERNSTEIN, L.L.P., Charlotte, North Carolina, for

Appellee. ON BRIEF: C. Gregory Stewart, General Counsel, Philip

B. Sklover, Associate General Counsel, Lorraine C. Davis, Assistant

General Counsel, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Appellant. Jonathan M. Crotty,

John B. Anderson, PARKER, POE, ADAMS & BERNSTEIN,

L.L.P., Charlotte, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

This case involves a claim of disability discrimination under the

Americans with Disabilities Act ("ADA") brought by the Equal

Employment Opportunity Commission ("EEOC") at the behest of

Brian Mickles against his former employer, Defendant Town &

Country Toyota ("Town & Country"). The district court granted summary judgment for Town & Country. The district court held that the

EEOC failed to establish a prima facie case of discrimination, and

even if it had established a prima facie case, Town & Country offered

legitimate, non-discriminatory reasons for firing Mickles that the

EEOC failed to rebut. For the reasons that follow, we reverse and

remand for further proceedings. 

I.

To make out a prima facie case, the EEOC must demonstrate that:

(1) Mickles was in the protected class (disabled); (2) he was discharged; (3) at the time of discharge, he was performing his job at a

level that met his employer’s legitimate expectations; and (4) his discharge occurred under circumstances that raise a reasonable inference

of unlawful discrimination. See Ennis v. National Ass’n of Business

and Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995). 

2 EEOC v. TOWN & COUNTRY TOYOTA
There are three ways to be disabled for the purposes of the ADA.

An individual is disabled if: (1) she has a physical or mental impairment that substantially limits a major life activity; (2) she has "a

record of such an impairment"; or (3) she is "regarded as having such

an impairment." 42 U.S.C. § 12102(2). Under the ADA’s third definition of disability, it is not enough for the EEOC to show that Town

& Country regarded Mickles as impaired; they must show that Town

& Country regarded him as disabled within the meaning of the ADA.

See Colwell v. Suffolk County Police Dept., 158 F.3d 635, 646 (2d

Cir. 1998). Thus, the EEOC must show that Town & Country

regarded Mickles as having an impairment that substantially limited

a major life activity. See id.1

Construing all of the evidence and factual inferences in favor of the

EEOC, there is sufficient evidence in the record to conclude that

Town & Country regarded Mickles as substantially impaired in the

major life activity of walking. Mickles’s supervisor, Dennis Koenig,

made several comments demonstrating that he regarded Mickles as

disabled. The district court found that these comments established

only that Koenig understood that Mickles had difficulty and experienced pain when walking; they did not demonstrate a discriminatory

animus. The district court also explained that it found Koenig’s

alleged statements unpersuasive because Koenig hired Mickles with

"full knowledge" of his impairment. 

The district court erred in not assigning more probative value to

Koenig’s alleged comments. First, the facts do not show that Koenig

hired Mickles with complete knowledge of his physical difficulties.

Koenig admitted that he did not even review the part of Mickles’

employment application regarding his history of disability. Although

Koenig explained that it was obvious from the moment he hired

Mickles that Mickles had trouble walking, Koenig may not have realized the severity of Mickles’ impairment until after he had been hired

and had been walking around the sales lot selling cars. In fact, he

1The EEOC has waived any argument that Mickles actually has a substantially limiting impairment. The EEOC contends that Mickles is also

disabled for the purposes of the ADA based on a record of impairment.

We do not need to address this issue because we hold that Mickles satisfies the "regarded as" definition of disability under the ADA. 

EEOC v. TOWN & COUNTRY TOYOTA 3
asked Mickles a week after he was hired why he had such trouble

walking. 

Second, a reasonable jury could interpret Koenig’s comments as

convincing proof that Koenig regarded Mickles as substantially

impaired in the major life activity of walking. Koenig told Mickles

that he needed to "be on disability." An employer’s comments referring to a plaintiff as "disabled" are probative evidence that the

employer regarded the plaintiff as disabled. See McInnis v. Alamo

Comm. College Dist., 207 F.3d 276, 281 (5th Cir. 2000). He also said

that it made "anybody kind of feel [a] little bad just watching [Mickles] get around." While this comment may be interpreted as a simple

expression of sympathy for the plaintiff, it may also reflect Koenig’s

personal discomfort with Mickles’ presence and the discomfort he

perceived among Town & Country’s customers. In a letter to the

EEOC responding to Mickles’ initial charge of discrimination,

Koenig wrote: "I found it difficult to employ someone who is obviously in such pain and misery in performing their job, especially

when one is expected to interface with the public in a cheerful manner."2

Koenig’s statement to the EEOC can be interpreted as proof that he

regarded Mickles as disabled. See H.R. Rep. No. 101-485(II), 101st

Cong., 2d Sess. 53 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 335-

36 (stating that the "regarded as" prong is triggered by evidence that

the employer has a "fear of the ‘negative reactions’ of others to the

individual"). When the facts are viewed in the light most favorable to

Mickles, they show that a reasonable juror could conclude that he was

"regarded as" disabled by Town & Country. 

Mickles was discharged, satisfying the second prong of the prima

facie case. The third step in the prima facie case requires the EEOC

to show that Mickles was performing his job at a level that met Town

& Country’s legitimate expectations. See Ennis, 53 F.3d at 58. 

2Town & Country argues that the statements in the response letter do

not create a material issue of fact because the response letter was actually

prepared by Barry Davis and that person signed Koenig’s name. Even if

this is true, Town & Country admits that Davis reviewed the response

with Koenig over the telephone and Koenig approved its contents, so

there is no reason not to attribute the letter to Koenig. 

4 EEOC v. TOWN & COUNTRY TOYOTA
The district court concluded that the EEOC failed to prove that

Mickles was meeting Town & Country’s reasonable expectations. It

cited deposition testimony from Koenig and an affidavit from Stewart

Abbott, another sales manager at Town & Country. The sales managers faulted Mickles for lacking effective sales skills, lacking knowledge of products and financing options, and requiring too much help

in closing a sale. 

While this evidence is important to this case, it should be evaluated

in the context of Town & Country’s burden of production once the

EEOC states a prima facie case. See EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1192-94 (10th Cir. 2000) ("subjective

qualifications . . . are more properly considered at the second stage

of the McDonnell Douglas analysis"); Valentino v. United States

Postal Serv., 674 F.2d 56, 71 n.24 (D.C. Cir. 1982) ("[s]ubjective

qualifications" are "appropriately introduced on rebuttal"). Town &

Country argues that these cases do not apply because they involved

claims under anti-discrimination statutes other than the ADA. This

Court has held, however, that the McDonnell Douglas scheme of

proof does apply to ADA claims. 

Leaving aside the subjective criticisms of Mickles’ performance,

the objective evidence shows that he sold six and one-half cars in the

month he was employed. Koenig admitted that six cars "is not a terrible number for the first month" for a new salesperson. Town & Country can point to no written evidence, prepared at the time of Mickles’

employment, of subpar sales performance. Cf. Ennis, 53 F.3d at 61

(finding that third prong of prima facie case was not satisfied when

undisputed contemporaneous evidence in the record such as internal

memoranda and regular performance evaluations showed that

employer was dissatisfied with employee’s performance). Koenig did

not refer to any deficiencies in Mickles’ sales abilities until after he

had been fired. In fact, in his response letter to the EEOC, Koenig

stated that "Mickles’ selling skills seemed satisfactory." The objective

evidence shows that Mickles was performing satisfactorily. 

For the final prong of the prima facie case, the EEOC must show

that the circumstances of Mickles’s discharge would allow a reasonable jury to infer that he was discharged because he was regarded as

disabled. "Plaintiff’s evidence must be such that, if the trier of fact

EEOC v. TOWN & COUNTRY TOYOTA 5
finds it credible, and the employer remains silent, the plaintiff would

be entitled to judgment as a matter of law." Ennis, 53 F.3d at 59. 

In discussing this aspect of the EEOC’s case, the district court reiterated that it was unimpressed with Koenig’s alleged comments

regarding Mickles’ disability. According to the district court, these

comments only showed that Koenig was aware of Mickles’ difficulty

walking and "sought to soften the termination message by suggesting

to him that a career without so much walking might be a better

choice." Although the district court’s interpretation of Koenig’s comments is plausible, a reasonable trier of fact could interpret Koenig’s

comments in a less benign manner. In making a prima facie case, the

EEOC does not have to carry its burden on the ultimate issue of discrimination. It just has to provide sufficient evidence to support an

inference of discrimination. The same evidence used to show that

Mickles was "regarded as" disabled is germane here. Because

Koenig’s comments could be interpreted as proof that Town & Country fired Mickles because it regarded him as disabled, Koenig’s comments are sufficient to satisfy the final prong of the prima facie case.

II.

Once the plaintiff states a prima facie case of disability discrimination, the burden shifts to the employer to offer evidence that the plaintiff was rejected for a legitimate, non-discriminatory reason. See

Reeves v. Sanderson Plumbing Products, Inc., 120 S. Ct. 2097, 2106

(2000). This is a burden of production, not persuasion. See id. Town

& Country offers evidence from Koenig and Abbott that Mickles was

fired because of his poor sales techniques and lack of familiarity with

important sales concepts. This evidence is enough to satisfy Town &

Country’s burden. 

III.

Once the defendant satisfies its burden of production, the presumption created by the prima facie case drops out and the plaintiff bears

the ultimate burden of proving that he has been the victim of intentional discrimination. Texas Dept. of Comm. Affairs v. Burdine, 450

U.S. 248, 253 (1981); Ennis, 53 F.3d at 58. The district court held that

even if the EEOC had established a prima facie case, the EEOC’s evi6 EEOC v. TOWN & COUNTRY TOYOTA
dence of intentional discrimination was not enough to carry this burden. The district court noted that the law creates a strong presumption

against discrimination when the hirer and the firer are the same individual and the disability is known to the employer at the outset of the

employment relationship. See Tyndall v. National Educ. Ctrs, 31 F.3d

209, 214-15 (4th Cir. 1994) (applying presumption in ADA case);

Proud v. Stone, 945 F.2d 796, 798 (4th Cir. 1991) (explaining that

same hirer/firer presumption only applies to the "third stage of the

analysis," i.e., when the plaintiff is trying to rebut the nondiscriminatory explanation for the employment action advanced by

the employer). 

It is true that Koenig both hired and fired Mickles. As discussed

earlier, however, it is debatable whether Koenig knew the extent of

Mickles’ disability from the moment Mickles was hired. See Tyndall,

31 F.3d at 215 (emphasizing that firer hired plaintiff with "full knowledge" of her condition). Koenig admitted that he did not review Mickles’ application for information on his medical history. It is plausible

that Koenig noticed Mickles’ limp when he decided to hire him, but

did not realize the extent of his disability until he began to work and

walk around the car lot. Because the evidence on this point is unclear,

we leave it to the trier of fact to determine if Koenig fully perceived

the extent of Mickles’ disability on the date of his hiring. If not, the

presumption against discrimination set out in Tyndall and Proud does

not apply. 

The EEOC offered sufficient evidence for a reasonable juror to

conclude that Town & Country intentionally discriminated against

Mickles. There are contradictions between the non-discriminatory

rationale for firing Mickles currently propounded by Town & Country

and the statements allegedly made by Koenig during Mickles’

employment and in his response letter to the EEOC. Town & Country’s contention in its Motion for Summary Judgment that Mickles

was fired because he "lacked basic sales skills and abilities and

required excessive amounts of assistance from sales managers to

close his sales" does not jibe with Koenig’s statement to Mickles on

the day he was fired ("[I’m] not saying you’re not a good salesman.")

or Koenig’s written response to Mickles’ EEOC charge ("Mr. Mickles’ selling skills seemed satisfactory."). Contradictions between an

employer’s proffered explanation and the contemporaneous stateEEOC v. TOWN & COUNTRY TOYOTA 7
ments of the employer are convincing evidence of pretext. See, e.g.,

Alvarado v. Board of Trustees of Montgomery Comm. College, 928

F.2d 118, 122-23 (4th Cir. 1991) (noting conflict between reason

given by employer at trial for firing plaintiff and reason given by

employer at time plaintiff was terminated as it found that the former

was pretextual). Evidence showing that the employer’s proffered

explanation for the discharge is pretextual, combined with plaintiff’s

prima facie case, can be enough to permit the trier of fact to conclude

that the employer unlawfully discriminated. See Reeves, 120 S. Ct. at

2109. 

Moreover, Town & Country offers no evidence contemporary with

Mickles’ employment to show that he really did lack adequate sales

skills and required excessive amounts of assistance from sales managers. See Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir.

1998) (noting that "[a]ll of the evidence supporting the employer’s

proffered reasons came from statements, depositions, and declarations

prepared after the employment decision was made and while this litigation was in progress" as it reversed summary judgment for the

employer). The short duration of Mickles’ employment does not

explain why he was never given verbal warnings or told upon his termination that his performance was substandard. In contrast, the

EEOC has presented evidence roughly contemporaneous with Mickles’ period of employment: Koenig’s response letter to the EEOC and

Mickles’ account of what Koenig said to him while he worked for

Town & Country. Given the contradictions in Town & Country’s evidence and the timeliness of the EEOC’s evidence, a reasonable juror

could conclude that Town & Country discriminated against Mickles

because of his disability. 

IV.

The district court held that even if the EEOC could establish liability, any back pay award would be de minimis because Mickles failed

to mitigate damages when he rejected a job offer from a second car

dealer within a few days of his termination at Town & Country. A

decision on back pay is premature at this stage of the litigation. There

are disputed issues of material fact on the mitigation issue that made

the district court’s grant of summary judgment inappropriate. It is

possible that Mickles’ decision not to work for the second car dealer

8 EEOC v. TOWN & COUNTRY TOYOTA
was not voluntary, but rather the product of emotional trauma from

his discharge from Town & Country. Accordingly, the back pay issue

is remanded back to the district court. 

The district court decision is reversed and the entire case is

remanded for trial.

REVERSED AND REMANDED

EEOC v. TOWN & COUNTRY TOYOTA 9