Table of Authorities................................................................................ ii

Argument................................................................................................. 1

I. ... Viewing the evidence in the light most favorable to the EEOC, as required on summary judgment, a reasonable jury could find that Defendants discriminated against Villalobos because she was of Mexican origin and/or because she was pregnant.. 3

A... Defendants ignore vast portions of the record containing evidence favorable to the EEOC............................................ 4

B.... Defendants distort the record and mischaracterize genuine disputes of material fact as having been proven in their favor.......................................................................................... 8

C.... Defendants wrongly insist that Dusek is a “disinterested” witness whose testimony must be credited as a matter of law.......................................................................................... 11

II..... As the Supreme Court has held, after-acquired evidence is irrelevant to liability under federal anti-discrimination law.. 13

III. A reasonable jury could also infer discrimination from Defendants’ shifting explanations for Villalobos’s termination........................................................................................................ 14

Conclusion.............................................................................................. 15

Certificate of Service

Certificate of Compliance

Table of Authorities

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)..................... 2, 3, 12

Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003)........................................ 4

McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995)............... 14

Nall v. BNSF Ry. Co., 917 F.3d 335 (5th Cir. 2019)........................... 4, 12

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000)............ 11

Roberson v. Alltel Info. Servs., 373 F.3d 647 (5th Cir. 2004).................. 12

Scott v. Harris, 550 U.S. 372 (2007).......................................................... 2

Squyres v. Heico Cos., L.L.C., 782 F.3d 224 (5th Cir. 2015)................... 15

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993).............................. 15

Argument

In its opening brief, the EEOC urged this Court to vacate and remand for further proceedings because the record contains sufficient evidence of national-origin and pregnancy discrimination to support a jury finding in the EEOC’s favor. As we explained, the district court ignored virtually all of the EEOC’s evidence, uncritically accepted Defendants’ version of the facts, and made inferences in favor of Defendants instead of the EEOC. Additionally, the court erroneously allowed Defendants to justify their adverse employment action based on evidence that they did not discover until after the fact. Finally, the court wrongly inferred that Defendants would not have discriminated against Villalobos because she was “Hispanic” when she was hired, and because her predecessor and successor were both women. The court did not acknowledge the existence or import of the Pregnancy Discrimination Act.

Because Defendants cannot explain away the compelling record evidence of national-origin and/or pregnancy discrimination, they mischaracterize and distort the record to support their own story. They wrongly insist that this Court must believe Dusek even when other evidence flatly contradicts her testimony. Suspiciously, they have abandoned almost all of their previous justifications for Villalobos’s termination, although they continue to rely, impermissibly, on after-acquired evidence. Nor do Defendants advance here the district court’s theories about Villalobos being Hispanic when she was hired, or being preceded and succeeded by women—recognizing, perhaps, that these facts are irrelevant to whether or not they engaged in national-origin or pregnancy discrimination. See Opening Br. at 47-49.

Defendants may be right that a reasonable jury could find for them, but that is not the issue before this Court. A genuine issue of material fact precluding summary judgment is one that would allow a reasonable jury to find for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). At summary judgment, the Court must view all evidence in the light most favorable to the EEOC and make all reasonable inferences in its favor. Scott v. Harris, 550 U.S. 372, 378 (2007). On this record, a reasonable jury could find that Hayman and Treiman were motivated, at least in part, by national-origin and/or pregnancy discrimination when they fired Villalobos. Accordingly, this case should proceed to trial.

I. Viewing the evidence in the light most favorable to the EEOC, as required on summary judgment, a reasonable jury could find that Defendants discriminated against Villalobos because she was of Mexican origin and/or because she was pregnant.

Defendants now insist that their “undisputed, non-discriminatory ‘real reason’” for terminating Villalobos was her failure to reduce excessively high delinquencies—a point they claim to have “conclusively proved,” entitling them to summary judgment. Appellee Br. at iii, 25. For all of the reasons discussed in the EEOC’s opening brief, this asserted justification for her termination is neither “undisputed” nor “conclusively proved.” Not only would the record support a finding that Villalobos actually reduced delinquencies during her short tenure as property manager, but it also reveals falsehoods and behaviors casting doubt on Defendants’ explanation. Only the jury can weigh this competing evidence and determine whether Defendants’ justification is a pretext for discrimination. See Anderson, 477 U.S. at 255 (“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict.”); Nall v. BNSF Ry. Co., 917 F.3d 335, 340 (5th Cir. 2019) (“In reviewing the evidence, we must draw all reasonable inferences in favor of the nonmoving party, and avoid credibility determinations and weighing of the evidence. In so doing, we must disregard all evidence favorable to the moving party that the jury is not required to believe.”) (quoting Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002)).

A. Defendants ignore vast portions of the record containing evidence favorable to the EEOC.

Defendants erroneously criticize the EEOC for providing insufficient direct evidence of national-origin discrimination. Appellee Br. at 16. As explained in our opening brief, the EEOC disagrees with Defendants’ characterization of both the facts and the law on this point. See Opening Br. at 27-29. Regardless, direct evidence is not necessary to the EEOC’s case. As the Supreme Court has explained, “[c]ircumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.” Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) (quoting Rogers v. Mo. Pac. R.R. Co. 352 U.S. 500, 508 n.17 (1957)).

Whether characterized as direct or circumstantial, the evidence here is more than sufficient to defeat summary judgment with respect to both national-origin and pregnancy discrimination. Hayman and Treiman directed Dusek to “work toward” Villalobos’s termination because they wanted to replace her with “Ken and Barbie.” (ROA.2145, 2232, 2323.) Dusek testified that she understood this to mean that they wanted to hire a white employee. (ROA.2145.) Defendants suggest that Dusek was only speculating about Hayman’s and Treiman’s intentions, Appellee Br. at 24, but Dusek testified that, later, Hayman plainly told her that he wanted to hire “white” staff, and Treiman also told her to hire white staff in relaying Hayman’s wishes. (ROA.2325, 2328-29.) From these comments alone, a jury could find that national-origin animus played a role in Villalobos’s termination.

This inference is compounded by the owners’ expressly discriminatory statements about national origin. Hayman, Treiman, and Blum frequently talked about the need to “change the demographics” of the primarily Hispanic and black community.[1] Although they testified that they used the word “demographics” to refer only to the financial profile of the tenants (ROA.1055-56, 1263, 1598-99.), Rowghani testified that, “in our industry, people, when they say ‘I want to change the demographics,’ that’s what they mean…. You’re saying race, I’m saying demographics. It means the same thing … in this context.” (ROA.1331.) Hayman and Blum often specifically disparaged Mexicans, and they complained that the entire office staff was Mexican. Opening Br. at 7-8.

Blum and Dusek also expressed pregnancy-related animus. When Villalobos told them that she was expecting a baby, Blum complained that she “would ask for the full [Family and Medical Leave Act] time off, that all Mexicans do that.” (ROA.1394-95.) Dusek, in turn, urged Villalobos to have an abortion “because [her] job was taking off.” (ROA.1797.)

Other evidence strengthens the inference of national-origin and/or pregnancy discrimination. Defendants do not address the suspicious timeline surrounding Villalobos’s termination. Less than three weeks after Hayman and Treiman instructed Dusek to “work toward” firing her, Dusek posted a “SUPER CONFIDENTIAL” request with a headhunter for a new property manager. (ROA.2393-94.) She interviewed Johnson, Villalobos’s replacement, on March 1 and, with Hayman and Treiman’s approval, secretly offered her the job on March 8. (ROA.1986, 2395, 2584, 2590.)

By her own account, Dusek gave Villalobos a verbal warning that same day and a written warning one week later. (ROA.1508.) A jury could find that these warnings were pretextual because Dusek had already hired Villalobos’s replacement, and because there is no evidence that she ever investigated whether the written warning had any effect on Villalobos’s performance before firing her. In the alternative, a jury could find that the warnings were fabricated. Villalobos denies having received them (ROA.1802, 1873.), and she was on vacation with her family when Dusek claims to have presented her with the written warning. (ROA.1823, 1837-38.) Dusek admits to having back-dated her documentation of the verbal warning. (ROA.2218, 2267-68.)

B. Defendants distort the record and mischaracterize genuine disputes of material fact as having been proven in their favor.

On appeal, Defendants focus exclusively on Villalobos’s purported failure to reduce delinquencies, incorrectly asserting that “the evidence regarding the excessive delinquencies ... was conclusively proved, as a matter of law.”[2] Appellee Br. at 25. This statement ignores Johnson’s testimony that delinquencies were “not too bad” when she took over from Villalobos. (ROA.2014.) It also ignores the copious other evidence suggesting that Defendants’ asserted reliance on delinquencies was a pretext for discrimination. See Appellee Br. at 26 (characterizing EEOC’s evidence as “nonsense upon stilts”).

It is true that delinquencies went up and down during Villalobos’s tenure (ROA.1803.), but uncontroverted evidence shows that Villalobos achieved a net decrease of almost $4,500 between January 25 and February 25. (ROA.2396-99.) The March numbers were not available at the time of her termination and are therefore irrelevant because they could not have influenced the termination decision. (ROA.1505.)

Defendants misstate Villalobos’s tenure as property manager to argue that she should have lowered delinquencies even further. Although they claim that she became the property manager in mid-2011, Appellee Br. at 5, she actually did not take over until Rowghani left the Property in January 2012. (ROA.1418-19.) Before that time, Rowghani served in dual roles as property manager and regional manager over several of Hayman’s additional properties. (ROA.1424.) But see Appellee Br. at 18 (“Villalobos had many months to correct [excessive rental delinquencies].”).

It is disingenuous for Defendants to blame Villalobos for the high delinquencies that occurred on Rowghani’s watch. Even Treiman acknowledged that “it would have been unfair to impute to [Villalobos] that ... at the time that [Dusek] was brought on board, that the performance of the asset was exclusively due to her abilities as a property manager.” (ROA.983-84.)

Defendants now tout Johnson’s subsequent ability to bring down delinquencies from $8,000 to $1,000, characterizing the eight months that she took in doing so as “quick[ ] and effective[ ].” Appellee Br. at 14. This assessment undermines their argument that Villalobos took too long, because Villalobos was the property manager for less than three months.

Defendants also falsely claim that they replaced Villalobos with an employee who is “half Hispanic.” (Appellee Br. at 24.) Johnson testified that she is not Hispanic (ROA.1990.), and Hayman testified that he thought she was “probably” white. (ROA.1559.)

Additionally, Defendants misquote their job posting as seeking a candidate with “rehab experience,” and falsely accuse the EEOC of “erroneously” claiming otherwise. (Appellee Br. at 13.) In fact, the word “rehab” appears only in the headhunter’s description of the Property itself, not in any description of the candidate or skill set being sought. (ROA.2394.) The headhunter’s form has a specific place for employers to list “required skills,” but Defendants left this box blank. (ROA.2394.) A reasonable jury could find that, if it had been so important to Defendants to hire a candidate with “rehab experience,” they would have included an express requirement to that effect in their job posting.

C. Defendants wrongly insist that Dusek is a “disinterested” witness whose testimony must be credited as a matter of law.

Remarkably, Defendants argue that Dusek’s stated reasons for why she recommended Villalobos’s termination must be believed because Dusek is a “disinterested witness” whose testimony is “uncontradicted and unimpeached.” Appellee Br. at 21-22. Whether or not Defendants are correct that Dusek is “disinterested,” her testimony is anything but uncontroverted. Accordingly, this Court need not and should not give her testimony any special weight. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000) (“[T]he court should give credence to the evidence favoring the nonmovant as well as that ‘evidence supporting the moving party that is uncontradicted and unimpeached….’”) (citation omitted); Roberson v. Alltel Info. Servs., 373 F.3d 647, 653 (5th Cir. 2004) (same). Where evidence is contradicted, determining its weight and credibility is solely a jury function. Anderson, 477 U.S. at 255; Nall, 917 F.3d at 340.

As explained in the EEOC’s opening brief, the record casts doubt on every one of Dusek’s asserted justifications for Villalobos’s termination. See Opening Br. at 45-46. Dusek testified that she relied upon the January, February, and March reports to determine that Villalobos had not decreased delinquencies (ROA.2370.), but the January and February reports showed that delinquencies had fallen, and the March 25 report did not exist when Dusek terminated Villalobos on March 21. (ROA.2396-99, 1505.) Dusek also claimed that there were no vacant units available to show because they had not been made ready after prior tenants had left (ROA.2193.), but later contradicted her own testimony, admitting that some vacant units were, in fact, in good condition. (ROA.2193.)

Finally, Dusek’s testimony only goes so far. Hayman and Treiman—not Dusek—were the final decisionmakers. (ROA.2230.) Even if Dusek honestly believed that Villalobos was a poor performer and recommended her termination on that basis, she cannot know why Hayman and Treiman concurred. Given their plainly stated desire to replace Villalobos with a “white” employee (ROA.225, 2328-29.), a reasonable jury could conclude that discrimination was at least one of their reasons for ordering Villalobos’s termination.

II. As the Supreme Court has held, after-acquired evidence is irrelevant to liability under federal anti-discrimination law.

Defendants impermissibly cite evidence that they could not have relied upon to justify their termination decision because they did not know it at the time. First, they argue that the March delinquency report shows that delinquencies rose again that month. (Appellee Br. at 26.) However, they did not see the March 25 delinquency report until after they fired Villalobos on March 21. (ROA.1505.) Nor were they aware at the time they fired Villalobos that Johnson, her successor, would lower the delinquency rate. As the Supreme Court has explained, such post-hoc justifications are irrelevant to liability under the anti-discrimination statutes. “The employer could not have been motivated by knowledge it did not have and it cannot now claim that the employee was fired for the nondiscriminatory reason.” McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 360 (1995).

III. A reasonable jury could also infer discrimination from Defendants’ shifting explanations for Villalobos’s termination.

On appeal, Defendants rely only on Villalobos’s purported failure to reduce delinquencies. They have abandoned all of their other asserted justifications for her termination, including Villalobos’s alleged failure to increase occupancy levels, her alleged failure to submit timely invoices, alleged misrepresentations on her resume, and alleged abuse of vacation leave. See Opening Br. at 20-22, 46 (rebutting these asserted justifications). If Defendants did, in fact, rely on these questionable grounds for termination, one would expect them to continue pressing the arguments on appeal. Instead, by walking away from the arguments, Defendants have cast doubt on their entire story.

This Court has recognized that when an employer changes its asserted grounds for an adverse action, a jury may infer that the actual reason was discrimination. Squyres v. Heico Cos., L.L.C., 782 F.3d 224, 234 (5th Cir. 2015). As the Supreme Court has explained, “[t]he factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). A reasonable jury could make that inference here.

Conclusion

As the EEOC explained in its opening brief, the record teems with genuine issues of material fact. The district court held otherwise only because it ignored most of the evidence and misunderstood the applicable law. For the reasons stated here and in the EEOC’s opening brief, the EEOC respectfully asks this Court to vacate the award of summary judgment and remand for further proceedings.

Respectfully submitted,

SHARON FAST GUSTAFSON

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

s/ Gail S. Coleman

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4055

gail.coleman@eeoc.gov

[1] Blum was not directly involved in Villalobos’s termination, but he participated in weekly management-team conference calls with Hayman and Treiman. (ROA.2312.) A reasonable jury could infer that he would have expressed his views to them about replacing the property manager.

[2] Defendants also mention in passing “issues with ‘timely submitting reports,’” ridiculing Villalobos’s testimony that some reports were late because “the Internet was broken, or whatever.” Appellee Br. at 7 n.4. Notably, they do not dispute that the Internet sometimes failed, making it impossible for Villalobos to complete her reports. Villalobos testified that Dusek was aware of the Internet problems (ROA.1804.), rendering this a dubious ground for termination.