The Equal Employment Opportunity Commission (“EEOC”) requests oral argument. The record contains sufficient direct and circumstantial evidence of national-origin and pregnancy discrimination to support a jury finding in the EEOC’s favor. Nevertheless, 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. Compounding these errors, the court rejected the EEOC’s sex-discrimination claim without acknowledging the existence or import of the Pregnancy Discrimination Act.

The EEOC believes that oral argument would help the Court address the legal issues and the record evidence. We would welcome the opportunity to answer the Court’s questions.

Statement Regarding Oral Argument.................................................... i

Table of Authorities................................................................................ v

Statement of Jurisdiction......................................................................... 1

Statement of the Issues............................................................................ 1

Statement of the Case.............................................................................. 2

A. Course of Proceedings.................................................................. 2

B. Statement of Facts.......................................................................... 3

1. “Demographics”.................................................................... 6

2. Promotion.............................................................................. 9

3. New Management Structure.............................................. 10

4. Pregnancy............................................................................ 12

5. Termination......................................................................... 13

6. Litigation.............................................................................. 20

C. District Court’s Decision............................................................. 22

Summary of Argument......................................................................... 23

Argument............................................................................................... 26

I. Standard of Review....................................................................... 26

II. A reasonable jury could find that Defendants discriminated against Villalobos because she was of Mexican origin and/or because she was pregnant............................................................... 27

A. The EEOC produced direct evidence of national-origin discrimination that, standing alone, warrants reversal of summary judgment as to this claim........................................ 27

B...... The EEOC adduced sufficient circumstantial evidence of national-origin and/or sex discrimination to support a reasonable jury finding in its favor as to both claims........... 30

1. Prima Facie Case............................................................. 31

2. Defendants’ Proffered Nondiscriminatory Reasons for Terminating Villalobos....................................................... 34

3. Pretext.............................................................................. 36

a. Discriminatory Comments Regarding National Origin............................................................................. 37

b. Discriminatory Comments Regarding Pregnancy 40

c. Suspicious Timeline.................................................. 41

d. Dubious Performance Complaints......................... 45

C. The district 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...................... 47

Conclusion.............................................................................................. 50

Certificate of Service

Certificate of Compliance

Table of Authorities

Cases

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)....................... 26, 37

Arismendez v. Nightingale Home Health Care, Inc., 493 F.3d 602

(5th Cir. 2007)......................................................................................... 49

Berquist v. Wash. Mut. Bank, 500 F.3d 344 (5th Cir. 2007)................... 33

Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503 (5th Cir. 1988)............ 33

Brown v. CSC Logic, Inc., 82 F.3d 651 (5th Cir. 1996)........................... 47

Goudeau v. Nat’l Oilwell Varco, L.P., 793 F.3d 470 (5th Cir. 2015)....... 39

Harville v. City of Houston, 935 F.3d 404 (5th Cir. 2019).......... 30, 31, 34

Haun v. Ideal Indus., Inc., 81 F.3d 541 (5th Cir. 1996).......................... 47

Laxton v. Gap Inc., 333 F.3d 572 (5th Cir. 2003).............................. 37, 48

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)....................... 30

McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995)......... 35, 36

Medina v. Ramsey Steel Co., 238 F.3d 674 (5th Cir. 2001)..................... 32

Nichols v. Loral Vought Sys. Corp., 81 F.3d 38 (5th Cir. 1996).............. 30

Outley v. Luke & Assoc., Inc., 840 F.3d 212 (5th Cir. 2016).................. 33

Patrick v. Ridge, 394 F.3d 311 (5th Cir. 2004).................................. 35, 36

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000)............ 37

Rodriguez v. Eli Lilly & Co., 820 F.3d 764 (5th Cir. 2010)............... 27-29

Romero v. City of Grapevine, 888 F.3d 170 (5th Cir 2018)..................... 26

Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893 (5th Cir. 2002) 27, 29, 37

Scott v. Harris, 550 U.S. 372 (2007)........................................................ 46

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981)................... 30

Vance v. Union Planters Corp., 209 F.3d 438 (5th Cir. 2000)........... 26, 27

Wallace v. Methodist Hosp. Sys., 271 F.3d 212 (5th Cir. 2001).............. 31

Young v. United Parcel Serv., Inc., 135 S. Ct. 1338 (2015)..................... 48

Statutes

28 U.S.C. § 1291........................................................................................ 1

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

28 U.S.C. § 1343........................................................................................ 1

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

Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k).................... 48-49

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq...... 1

§ 2000e-5(f)(3)................................................................................. 1

§ 2000e(k)................................................................................ 48-49

Rule

Federal Rule of Appellate Procedure 4(a)(1)(B)(ii)............................... 1

Statement of Jurisdiction

The EEOC brought this enforcement action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Magali Villalobos intervened. The district court had jurisdiction under 28 U.S.C. §§ 1331, 1343, 1345, and 42 U.S.C. § 2000e-5(f)(3). On July 18, 2019, the district court entered final judgment for Defendants, disposing of all parties’ claims. (ROA.2897.) The EEOC and Villalobos both filed timely notices of appeal pursuant to Rule 4(a)(1)(B)(ii) of the Federal Rules of Appellate Procedure on September 13, 2019. (ROA.2898, 2901.) This Court has jurisdiction under 28 U.S.C. § 1291.

Statement of the Issues

1. Did the EEOC introduce sufficient direct and circumstantial evidence of discrimination to support a jury finding that Defendants fired Villalobos because of her national origin and/or pregnancy in violation of Title VII?

2. Did the district court erroneously conclude that Defendants could not have discriminated against Villalobos because Villalobos was “Hispanic when she became property manager,” and because her predecessor and successor were both women?

Statement of the Case

A. Course of Proceedings

This is an appeal from the district court’s award of summary judgment on the EEOC’s Title VII enforcement action against Ryan’s Pointe Houston, L.L.C. (“Ryan’s Pointe”) and Advantage Property Management, L.L.C. (“Advantage”). The EEOC filed its complaint on September 24, 2015 (ROA.13.), and Magali Villalobos filed an intervenor complaint on December 14, 2015. (ROA.61.)

The EEOC alleged that Defendants terminated Villalobos because of her national origin and sex (specifically, because she was pregnant). (ROA.21.) In support of these claims, the EEOC introduced evidence that the decisionmakers made discriminatory comments regarding Villalobos’s national origin and pregnancy, and, immediately upon hiring a new supervisor, ordered the supervisor to “work toward” Villalobos’s termination in order to replace her with “Ken and Barbie.” (ROA.2145, 2232, 2325, 2328-29.) That supervisor hired Villalobos’s replacement—who was white and not pregnant—only four weeks later. The district court granted summary judgment for Defendants on July 18, 2019. (ROA.2897.)

B. Statement of Facts

Defendant Ryan’s Pointe purchased a run-down, 280-unit apartment complex (“the Property”) in June 2011. (ROA.902, 906-07, 1192, 1310.) Acting through a parent company, Hayman Holdings L.L.C., Robert Hayman, Michael Treiman, and Julian Blum created Ryan’s Pointe for the sole purpose of making this purchase, intending to renovate the Property and sell it for a profit. (ROA.289, 1214, 1532-33.) All three individuals were part-owners. (ROA.289.) Hayman was the majority owner, controlling partner, and CEO; Treiman was the chief operating officer and general counsel; and Blum was the direct asset manager. (ROA.941, 961, 1527, 1605.)

One month before the change in ownership, Intervenor-Plaintiff Magali Villalobos applied to the previous owner, CNC Investments (“CNC”),[1] for a job as assistant property manager. (ROA.710.) Villalobos, who was born in Mexico, had previously been a leasing agent, an assistant manager, and a manager at various sites, and she had a total of eight to ten years of experience in property management. (ROA.1696, 1898-99.)

Property manager Tawana Rowghani already knew Villalobos. They had worked together running a 500-unit apartment complex for MBS Management, where Rowghani had been the property manager and Villalobos had been her assistant. (ROA.1296, 1298, 1452.) Having seen her in action, Rowghani believed that Villalobos was “an exemplary employee” who “did a great job.” (ROA.908, 1299.) Her performance at MBS Management, Rowghani said, was “excellent.” (ROA.1453.) Although Rowghani looked at Villalobos’s resume when she interviewed her, she did not rely on it in deciding to hire her. (ROA.1358.) Rowghani testified that there was “no reason” for her to rely on Villalobos’s resume when she already knew that Villalobos was “a very good assistant manager” and that they worked well together. (ROA.1357-58.)

The only available position when Villalobos applied to CNC was leasing agent. (ROA.1698.) Villalobos took the job with the hope that she would be promoted to assistant manager. (ROA.1721.) Notwithstanding Human Resources records to the contrary (ROA.710.), Villalobos testified that by the time Ryan’s Pointe took over, she had become an assistant manager. (ROA.1693.)

With the change of ownership, Blum took charge of managing the Property. (ROA.961.) Previously, he had always relied on outside management companies, and he acknowledged that he “didn’t have any experience with this, pure and simple.” (ROA.1221.) Blum left CNC’s management team in place, making Rowghani the property manager and Villalobos the assistant manager. (ROA.1149.) He quickly gave Rowghani additional responsibilities, and Rowghani served in a dual role as apartment manager of the Property and regional manager over several of Hayman’s additional properties. (ROA.1424.) Villalobos continued to report to Rowghani, and Rowghani reported to Blum. (ROA.1069, 1717.)

1. “Demographics”

Hayman, Treiman, and Blum poured money into interior and exterior renovations at the Property. (ROA.967, 973.) They wanted to increase occupancy, decrease delinquencies, reduce crime, and raise rents. (ROA.1087, 1174, 1200, 1257, 1638.) They were eager for quick change and became frustrated when this did not happen. (ROA.1385.) “I don’t think that [Blum] understood that ... cleaning up a community that was run down that far was going to take a lot more time than he thought or [than] he anticipated,” Rowghani said. (ROA.1341.)

Hayman, Treiman, and Blum frequently talked about the need to “change the demographics” of the community. (ROA.1256.) They testified that they used the word “demographics” to refer only to the financial profile of the tenants. (ROA.1055-56, 1263, 1598-99.) However, most of the tenants were Hispanic or black, and most of the staff was Hispanic. (ROA.907-08, 1353, 1732.) Witnesses testified that the owners really used the word “demographics” to refer to national origin and race. (ROA.1329-31, 2099.)

Rowghani testified that Blum told her Hayman was “really pissed off” that the entire office staff was “Mexican.” (ROA.1353-54, 1385, 1387.) She reported that he said this “over and over and over again.” (ROA.1386.) Hayman and Blum deny these allegations. (ROA.1167, 1572, 1574.)

Rebecca Johnson, who ultimately replaced Villalobos as manager, testified that Hayman described one tenant to her as “just a trashy Mexican.” (ROA.1971.) She also testified that Hayman told her, “We just need to get the n****rs out of here, Mexicans out of here, so we can change the demographics.” (ROA.1976.) Hayman also referred to tenants as “riffraff,” she said. (ROA.1975.) Hayman admits that he might have used the word “riffraff” (ROA.1574.), but denies the rest of these allegations. (ROA.1571-74.)

Multiple witnesses testified about Blum’s discriminatory comments. Rowghani testified that Blum repeatedly asked her, “[W]hen are we going to get all these blacks and Mexicans out of here?” and said, “I don’t like blacks. They bring down the value of the property.” (ROA.1334-36, 1445.) Once, when Blum witnessed a black family applying for an apartment, he told Rowghani, “I thought we were cleaning this place up.” (ROA.1338.) Blum denies these allegations. (ROA.1249-50, 1252.)

Villalobos said that she repeatedly heard Blum call the tenants “riffraff,” “purple monkeys,” and “tires.” (ROA.1777-78.) Blum denies this. (ROA.1189.)

Finally, Johnson testified that Blum told her “[h]e wanted to get rid of all the Mexican people residing there and clean up the demographics,” and that “[h]e didn’t want anybody of color.” (ROA.1971.) He also said, “Oh, that’s a dumb Mexican,” and “[t]here’s a n****r living up there.” (ROA.1972.) He called the tenants monkeys and purple monkeys, and he called the black tenants n****rs on a regular basis,” Johnson testified. (ROA.1975.) One time, she said, Blum told her that “he didn’t know if—how these wetbacks would qualify.” (ROA.1976.) Blum denies these allegations. (ROA.1189, 1249.)

2. Promotion

Blum talked to Rowghani about taking on additional responsibilities even before Ryan’s Pointe purchased the Property. (ROA.1420.) In anticipation of being promoted, Rowghani spoke with Villalobos informally in April or May about filling the manager position that she expected to be vacating. (ROA.1420.) Rowghani ended up serving in dual roles, however, and did not give up the manager position until the end of the year. (ROA.1419.) Between June and December, Villalobos learned to perform Rowghani’s property manager functions. (ROA.1359-60, 1382.) “She was a pretty quick study,” Rowghani testified. (ROA.1382.)

In November or December, Rowghani became aware that Hayman and Treiman were dissatisfied with her performance and planned to replace her. (ROA.1355.) Accordingly, she interviewed Villalobos for the position of property manager. (ROA.1355, 1357.) “I would not have asked [Villalobos] or considered [Villalobos] for that position as a manager at Ryan’s Pointe,” she testified, “had I not felt confident that she could do it, because that would ... hurt me.” (ROA.1454.)

Rowghani felt that Villalobos was qualified in part because of Villalobos’s performance as assistant manager and in part because Villalobos had previously worked at a larger property. (ROA.1359.) It was “not uncommon,” she noted, “to take an assistant manager from a larger property and promote them to a manager on a smaller property.” (ROA.1359.) Moreover, Rowghani had personally trained Villalobos in all the functions of a property manager. (ROA.1359-60.) Rowghani did not need anyone’s approval for the promotion (ROA.1225, 1355, 1422.), and she offered Villalobos the job. (ROA.1357.) After a transition period, during which Rowghani prepped Villalobos to take over, Villalobos became property manager on January 1, 2012. (ROA.1360, 1418.)

3. New Management Structure

At the beginning of 2012, Hayman and Treiman fired Rowghani and stripped Blum of his role as direct asset manager. (ROA.1158, 1260.) Defendant Advantage, which Hayman and Treiman owned, took over Blum’s management role. (ROA.289, 964.)

Blum left to work at an apartment complex that he owned independently, taking Rowghani with him. (ROA.1157.) However, he remained a part-owner of Ryan’s Pointe. Thus, even after leaving, he continued to visit the Property on a regular basis and to participate in decision-making. (ROA.1241-42, 1383, 2061-62, 2170.) He was usually part of the owners’ weekly conference calls. (ROA.2312.) Moreover, he maintained a desk at Hayman Holdings in Los Angeles, and he would “go sit there and hang around.” (ROA.1241.)

Hayman and Treiman hired Bobbie Dusek on February 9 to replace Rowghani as regional manager. (ROA.2171.) They authorized Dusek to conduct a thirty-day review of the Property to assess the best way to manage it going forward. (ROA.981, 2174-75.) Dusek testified that this was her typical practice, as it allowed her to get to know the employees and see how the property was functioning. (ROA.2167, 2174.) As regional manager, Dusek became Villalobos’s supervisor. (ROA.1799.) Dusek reported directly to Treiman, and Treiman reported to Hayman. (ROA.954.)

4. Pregnancy

In late January, Villalobos told everyone, including Blum, that she was pregnant. (ROA.1710, 1713.) Blum expressed dismay to Rowghani. “He was upset,” Rowghani testified, and “the reason he was upset was because she would ask for the full [Family and Medical Leave Act] time off, that all Mexicans do that.” (ROA.1394-95.) Blum denies making this statement or even knowing that Villalobos was pregnant. (ROA.1182.)

Shortly after Dusek became her supervisor, Villalobos told her that she was pregnant. (ROA.1673, 2221.) She testified that Dusek told her “she thought it would be in my best interest to get an abortion because ... my job was taking off.” (ROA.1797.) She added that Dusek told her that she, too, had been pregnant, but had had an abortion because having a baby would have set her back professionally. (ROA.1797.) Dusek denies urging Villalobos to have an abortion, although she admits revealing that she had had one herself. (ROA.2221, 2310.) She testified that Villalobos asked for a day off to have an abortion, and that she gave her leave for that purpose. (ROA.2221-22.) Villalobos, however, stated, “I was very clear with her that I had no interest in getting an abortion and had no intention of doing so.” (ROA.1673; see also ROA.1710, 1798.) Villalobos did not have an abortion, and she gave birth to her daughter in September. (ROA.1772.)

5. Termination

Dusek testified that at the outset of her employment, Hayman and Treiman instructed her to “start ‘working toward’ [Villalobos’s] termination.” (ROA.2145, 2232.) Hayman and Treiman explained that they wanted to “change the demographic of the community and the staffing,” she said (ROA.2145.), and Hayman asked her to “look for people that were very fit, tall, thin, blonde hair.” (ROA.2323.) Dusek asked, “[S]o you’re wanting Ken and Barbie?” and Hayman responded, “[Y]es, that is what I want.” (ROA.2323.) She understood this to mean that Hayman wanted to replace Villalobos with a white employee. (ROA.2145.) Later, she said, Hayman specifically 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.) Hayman and Treiman deny these allegations. (ROA.1239, 1569, 1571.)

Believing that she would “absolutely” be fired if she did not terminate Villalobos (ROA.2297.), Dusek posted a “SUPER CONFIDENTIAL” request for a new apartment manager with a headhunter on February 28. (ROA.2393-94.) At that point, Dusek was only nineteen days into her thirty-day review, and Villalobos had been property manager for only eight weeks. The headhunter’s inquiry about the job opening contained a location for Dusek to indicate degree requirements, certification requirements, and required skills, but Dusek left all of these categories blank. She indicated only that she wanted “a strong, mature solid B manager that can bring a team with her ....” (ROA.2394.)

On March 1, Dusek interviewed Rebecca Johnson, a fifty-two-year-old woman who appeared to be white. (ROA.1091, 1484, 1963, 2393.) There is no suggestion in the record that Johnson was pregnant. With Hayman and Treiman’s approval, Dusek offered her the job on March 8 (ROA.1986.); she accepted the next day. (ROA.1032.)

Hayman and Treiman did not see Johnson before she was hired. (ROA 1986, 2145.) Dusek testified that the first time Hayman saw her, “he stated, ‘she was not exactly what I was looking for, but she will make a good interim manager until I can get the property turned around and can get what I wanted.’” (ROA.2145.) Blum, who was not involved in the hiring decision, remarked that he considered Johnson to be “too f***ing old” for the position. (ROA.2065.)

Dusek said that even though she had already offered Villalobos’s job to Johnson, she warned Villalobos both verbally and in writing to improve her performance. (ROA.2181.) The original documentation of her verbal warning was dated March 14 (ROA.1029.), but, in litigation, Defendants produced a replacement document dated March 8. (ROA.1509, 2267-68.) Dusek acknowledged changing the date. (ROA.2218, 2267-68.) She testified that on or about March 14, she actually gave Villalobos a written warning for failing to correct problems they had allegedly discussed on March 8. (ROA.1508, 2220-21, 2229, 2260-61.) The written warning says that Villalobos “refused to sign.” (ROA.2391.) Villalobos testified, however, that she never received either a verbal or a written warning. (ROA.1802, 1873.) “No one ever criticized my work,” she said. (ROA.1802.)

When asked why she would have warned Villalobos to improve her performance after she had already offered her job to Johnson, Dusek initially testified that she was considering demoting Villalobos rather than terminating her. (ROA.2281.) She later acknowledged, however, that it was not her decision whether to demote or terminate Villalobos. Hayman had instructed Dusek to “work toward” terminating Villalobos, not to demote her. (ROA.2145, 2232.) Dusek said that she gave Villalobos “the opportunity I was given to give her.” (ROA.2281.)

Villalobos testified that on March 14, the day Dusek purportedly gave her a written warning, she was out of the office on vacation. (ROA.1823, 1837.) Dusek suggested that she might have been confused about the date, and that she might have provided the written warning one day earlier or later. (ROA.2216.) However, Villalobos’s children were on spring break the entire week of March 12-16, and Villalobos testified that she took the whole week off to be with them. (ROA.1838.)

Dusek fired Villalobos on Wednesday, March 21, two days after Villalobos returned from vacation. (ROA.1674, 1760, 1825.) Thus, Villalobos had only Monday and Tuesday after the alleged written warning to show improved performance. Dusek was in California both of those days. (ROA.1674, 1816.) There is no evidence that she investigated how Villalobos had performed while she was away.

According to Dusek, she fired Villalobos because Hayman and Treiman told her to do so. (ROA.2230.) Dusek testified that Hayman and Treiman ultimately directed the termination solely because she told them that Villalobos was a poor performer who was not amenable to training. (ROA.2198, 2342-43.) However, she also testified that, once she “dug in” to her review, she realized that there were problems with the assistant manager and “it wasn’t necessarily due to the manager [Villalobos] herself.” (ROA.2176.)

Dusek testified that she considered Villalobos a poor performer largely because she failed to decrease delinquencies, increase occupancy, or submit timely invoices. (ROA.2175, 2188, 2359-60.) But record evidence calls this testimony into question.

Dusek claims to have relied upon the January, February, and March reports to determine that Villalobos had not decreased delinquencies. (ROA.2370.) However, the January report said delinquencies were $11,588.31, and the February report said they had fallen to $7,128.40. (ROA.2396-99.) A report dated March 25 indicates that delinquencies rose that month to $12,224.60 (ROA.1505.), but that report did not exist when Dusek terminated Villalobos on March 21.

With respect to occupancy, Dusek contradicted herself about the condition of the vacant units. At one point, she testified that there were none available to show because they had not been made ready after prior tenants had left. (ROA.2193.) She also testified, however, that she knew this was not the case—she was aware that some of the vacant units were, in fact, in good condition. (ROA.2193.)

Likewise, Dusek contradicted herself regarding invoices. She initially testified that Villalobos’s failure to submit invoices caused utilities to be cut off to the Property. (ROA.2188-89.) Later, however, she conceded that she could not be sure the utilities had been actually been cut off during Villalobos’s tenure. She was certain only that they had been cut off several times after Villalobos’s termination. (ROA.2255-57.)

Treiman testified that he fired Villalobos based solely on Dusek’s judgment that she could not manage a major renovation. (ROA.1039-40, 1043.) He acknowledged that he might not have decided on his own that Villalobos was a poor performer. (ROA.985.) He said that Rowghani had remained involved with the Property even after Villalobos was promoted to manager, and testified, “I don’t know if I would have been totally clear that [Villalobos] was performing all of the managerial functions where [Rowghani] was still performing some of them. I think 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.)

Although she insisted that Villalobos was terminated solely because of her performance (ROA.2342-43.), Dusek believed that Hayman and Treiman might have fired her anyway because she was Hispanic. (ROA.2233.) Johnson testified that Dusek later explained to her, “she was told to terminate Maggie Villalobos because she was Hispanic, and I guess she was expecting as well.” (ROA.1992.)

6. Litigation

Villalobos filed a charge with the EEOC, alleging that Defendants had terminated her because of her national origin and/or her sex. (ROA.702.) When the EEOC was unable to resolve the charge through conciliation, it filed suit under Title VII. Defendants moved for summary judgment, arguing that Villalobos was unqualified and incompetent.

For the first time in litigation, Defendants offered two additional reasons why Villalobos was not qualified to be a property manager. They did not suggest that they were aware of either of these issues at the time they fired Villalobos.

First, Defendants argued, Villalobos mishandled her vacation of March 12-16, even though, as a manager, she should have known better. (ROA.269.) They maintained that Villalobos reported on her time sheet that she had worked the entire week when she was actually on vacation, and that she falsely claimed she was entitled to paid vacation time when she was not because she had not worked at the Property for one year. (ROA.270.) The time sheet, however, had no spot to indicate that an employee was taking paid leave. (ROA.685.) Moreover, Advantage had not yet established any policies regarding leave (ROA.1761, 2346.), and there is no indication that it required employees to wait one year before taking a paid vacation. Villalobos testified that she submitted a written leave request one month in advance, and that Rowghani, Blum, and Dusek had all approved it. (ROA.1746-48, 1809-10.)

Second, Defendants said, Villalobos lied on her resume when Ryan’s Pointe hired her and also when she applied for previous and subsequent jobs. (ROA.267-68.) If she had not misrepresented her experience, they said, she never would have obtained a job as a property manager because no one would have considered her qualified. (ROA.267-68.) However, Rowghani testified that she did not hire Villalobos based on her resume; she hired her based on her previous experience working with her. (ROA.1357-58.) Moreover, Dusek never reviewed either Villalobos’s resume or her employment file. (ROA.2182.) Defendants admit that they did not learn anything about Villalobos’s previous employment until this litigation. (ROA.385.)

C. District Court’s Decision

The district court held that the EEOC could not establish a prima facie case of discrimination because Villalobos was not qualified for her position. (ROA.2894.) According to the court, Ryan’s Pointe hired Villalobos only because she misrepresented her previous managerial experience. (ROA.2894.) Moreover, the court held, even if the EEOC could show that Villalobos was qualified, defendants fired her for “objective, measurable, work-related, nondiscriminatory reasons.” (ROA.2895.)

Those reasons, the court explained, were uncovered during Dusek’s thirty-day review of the staff. “Upon discovering Villalobos’s work habits and history,” the court said, “Dusek shared her dissatisfaction with Villalobos and advised her to consider improving her performance. Villalobos simply did not think she needed to change. Dusek then decided that Villalobos was not competent to manage the property, and Villalobos was fired.” (ROA.2895.)

The court acknowledged that the owners made discriminatory comments about the tenants, but said, “these comments have nothing to do with Villalobos, her national origin, or her job performance.” (ROA.2895.) The court observed, “Villalobos was Hispanic when she became property manager at Ryan’s Pointe.” (ROA.2895.) As to the pregnancy discrimination claim, the court noted, “[s]he was preceded by a woman and succeeded by one.” (ROA.2896.) Moreover, the court said, Dusek was understanding and allowed Villalobos to take off work because of her pregnancy. (ROA.2896.)

Summary of Argument

The EEOC presented sufficient evidence of discrimination to support a jury finding in its favor. The record contains both direct and circumstantial evidence of national-origin discrimination, and circumstantial evidence of sex discrimination. Nevertheless, the district court did not mention any evidence supporting the EEOC. Instead, the court uncritically accepted Defendants’ version of the facts and made inferences in favor of Defendants.

Hayman’s and Treiman’s instruction that Dusek start “working toward” Villalobos’s termination because they wanted to hire “Ken and Barbie” is direct evidence of national-origin discrimination. So are their later clarifications that they wanted to hire “white” employees.

The EEOC also presented circumstantial evidence that Defendants terminated Villalobos because she was from Mexico and/or because she was pregnant. Hayman and Blum repeatedly made negative comments about Mexican employees and tenants, supporting a finding of national-origin discrimination. Likewise, Blum and Dusek made negative comments about Villalobos’s pregnancy, supporting a finding of sex discrimination.

The suspicious timeline surrounding Johnson’s hiring and Villalobos’s termination is further circumstantial evidence of national-origin and/or sex discrimination. Hayman and Treiman instructed Dusek to “work toward” Villalobos’s termination, and Dusek followed through. A jury could find that her cursory review of Villalobos’s performance was a sham, intended only to provide cover for Hayman and Treiman. Although Dusek claims to have uncovered performance deficiencies justifying the termination, a jury could credit evidence suggesting that she did not believe her own assertions.

The district court made several additional errors in its abbreviated opinion. First, it wrongly justified Defendants’ termination decision based, in part, on evidence that Defendants acquired only after the termination. Defendants could not have acted based on knowledge they did not have at the time. After-acquired evidence, the Supreme Court has held, may limit relief but cannot affect liability. Second, the court usurped the jury’s role by inferring that Defendants could not have engaged in national-origin discrimination against someone who was “Hispanic when she became property manager.” Finally, the court failed to understand that pregnancy discrimination is a form of sex discrimination prohibited by Title VII. Contrary to the court’s reasoning, the EEOC is helped, not hurt, by the fact that Villalobos was preceded and succeeded by women who were not pregnant.

Argument

I. Standard of Review

This Court reviews a grant of summary judgment de novo, applying the same standard as the district court. Romero v. City of Grapevine, 888 F.3d 170, 175 (5th Cir. 2018). Summary judgment is proper only if “‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Id. (citation omitted). A material fact is one that would allow the jury to return a verdict for the non-movant. Id. “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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

Plaintiffs may prove discrimination through direct evidence, circumstantial evidence, or both. See Vance v. Union Planters Corp., 209 F.3d 438, 444 (5th Cir. 2000) (plaintiff’s “circumstantial evidence, with the direct evidence … provides sufficient evidence that she was discriminated against because of sex”). Here, the EEOC presented both types of evidence, which alone or together should have been enough to withstand summary judgment.

II. A reasonable jury could find that Defendants discriminated against Villalobos because she was of Mexican origin and/or because she was pregnant.

A. The EEOC produced direct evidence of national-origin discrimination that, standing alone, warrants reversal of summary judgment as to this claim.

Direct evidence “is evidence that, if believed, proves the fact of discriminatory animus without inference or presumption.” Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002). Evidence is direct if it is “(1) related to [a protected characteristic]; (2) proximate in time to the [employment action]; (3) made by an individual with authority over the employment decision at issue; and (4) related to the employment decision at issue.” Rodriguez v. Eli Lilly & Co., 820 F.3d 759, 764 (5th Cir. 2010); see also Vance, 209 F.3d at 442 (same).

Because the district court ignored much of the record, it did not acknowledge that the EEOC adduced direct evidence of national-origin discrimination. The court did not mention that Hayman and Treiman instructed Dusek to start “working toward” Villalobos’s termination because they wanted to hire “Ken and Barbie.” (ROA.2145, 2232, 2323.) Nor did it mention that Hayman explicitly told Dusek that he wanted to hire “white” employees, and that Treiman told her to hire white staff in relaying Hayman’s wishes. (ROA.2325, 2328-29.) All of these comments satisfy Rodriguez’s four-part direct-evidence test.

First, the comments are related to a protected characteristic. See Rodriguez, 820 F.3d at 764. Hayman was outspoken about his dislike for Mexicans. (ROA.1354, 1385, 1387.) When he and Treiman directed Dusek to make room for a white apartment manager, they did so specifically based on Villalobos’s national origin.

Second, the comments were proximate in time to the employment action. See Rodriguez, 820 F.3d at 764. Dusek hired Villalobos’s replacement only four weeks after Hayman and Treiman told her to start “working toward” that goal. (ROA.1986, 2393-94.) Hayman and Treiman terminated Villalobos twelve days later. (ROA.1511, 2230.)

Third, the comments were made by the individuals with authority over the employment decision. Rodriguez, 820 F.3d at 764. Dusek could not have fired Villalobos without Hayman’s and Treiman’s approval. (ROA.2230.)

Finally, the comments directly “related to the employment decision at issue.” See Rodriguez, 820 F.3d at 764. Dusek believed she would “absolutely” be fired if she did not comply with Hayman’s and Treiman’s wishes. (ROA.2297.) It was clear to her that Hayman and Treiman wanted Villalobos gone, so she made it happen.

A defendant cannot obtain summary judgment when a plaintiff provides direct evidence of discrimination. Rodriguez, 820 F.3d at 764. This is because direct evidence, if believed, proves the fact of discriminatory animus. Sandstad, 309 F.3d at 897. Thus, Hayman’s and Treiman’s statements are, standing alone, enough to warrant reversal.

B. The EEOC adduced sufficient circumstantial evidence of national-origin and/or sex discrimination to support a reasonable jury finding in its favor as to both claims.

Circumstantial evidence allows the factfinder to infer discrimination through a three-part, burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973); Harville v. City of Houston, 935 F.3d 404, 409 (5th Cir. 2019). First, the plaintiff must establish a prima facie case of discrimination, which requires her to show that she (1) belongs to a protected class; (2) was qualified for her position; (3) was subjected to an adverse employment action; and (4) was replaced by someone outside her protected class or was treated less favorably than a similarly situated individual who was not in her protected class. Harville, 935 F.3d at 409-10. The Supreme Court and this Court have long described the plaintiff’s evidentiary burden in demonstrating a prima facie case as “not onerous,” see, e.g., Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981), or “very minimal,” see, e.g., Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996) (internal citation and quotation marks omitted).

By establishing a prima facie case, the plaintiff raises a presumption of discrimination. Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219 (5th Cir. 2001). The burden then shifts to the employer to articulate a legitimate, non-discriminatory explanation for the adverse employment action. Finally, the burden returns to the plaintiff to prove that the employer’s stated reason is a pretext for discrimination. Harville, 935 F.3d at 410.

1. Prima Facie Case

The parties agree that the EEOC has established three of the four elements of a prima facie case for national-origin and/or sex discrimination: Villalobos was a pregnant woman who was originally from Mexico; she was subjected to an adverse employment action; and she was replaced by a non-pregnant, non-Mexican woman. The district court held that the EEOC could not establish a prima facie case solely because Villalobos was not qualified for her job as apartment manager.

Villalobos had eight to ten years of experience in property management. (ROA.1696, 1898-99.) Ryan’s Pointe argues that she did not have experience with major renovations (ROA.261.), but the “SUPER CONFIDENTIAL” request for a replacement manager that it posted with a headhunter did not require such experience. The section of the job announcement for degree, certification, and skill requirements was blank. The only stated requirement was “a strong, mature solid B manager that can bring a team with her ….” (ROA.2394.) This is a vague, subjective standard that is insufficient to defeat summary judgment. “While subjective criteria like [substantial sales experience] ‘may serve legitimate functions, they also provide opportunities for unlawful discrimination’ because the criteria itself may be pretext for … discrimination.” Medina v. Ramsey Steel Co., 238 F.3d 674, 681 (5th Cir. 2001) (quoting Lindsey v. Prive Corp., 987 F.2d 324, 327 (5th Cir. 1993)).

The district court, like Defendants, erroneously conflated purported performance deficiencies with qualifications for the job. Alleged performance issues after Villalobos became manager are irrelevant to whether she was qualified for the job in the first place.

This Court has explained that when an employee possessed the same qualifications when she was terminated as when she was promoted, she need not show that her performance was satisfactory to show that she was qualified. Berquist v. Wash. Mut. Bank, 500 F.3d 344, 350 (5th Cir. 2007) (age discrimination case); see also Outley v. Luke & Assoc., Inc., 840 F.3d 212, 216 (5th Cir. 2016) (“[W]e agree with the district court’s inference that her initial hiring demonstrates her qualification.”). Ordinarily, an employee is “qualified” for purposes of her prima facie case unless she has “suffered physical disability or loss of a necessary professional license or some other occurrence that rendered [her] unfit for the position for which [she] was hired.” Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1506 & n.3 (5th Cir. 1988) (age discrimination case). Villalobos suffered no such occurrence here.

The district court accepted Defendants’ argument that they never would have hired Villalobos in the first place if she had not misrepresented her experience. (See ROA.2893. (“[s]he was hired as an assistant manager based on her misrepresentation that she had been an assistant manager for [CNC]”)). Villalobos testified that she did not misrepresent her previous experience, and that she was, in fact, an assistant manager for CNC. (ROA.1693.) Moreover, Rowghani testified that she initially hired Villalobos for CNC, and then promoted her at Ryan’s Pointe, because she considered Villalobos an “exemplary employee,” not because of her resume. (ROA.908, 1299, 1357-58.) It is disingenuous for Defendants now to claim that Villalobos was unqualified based on purported misrepresentations on a resume that no one considered.

2. Defendants’ Proffered Nondiscriminatory Reasons for Terminating Villalobos

Because the EEOC has established a prima facie case of national- origin and/or sex discrimination, the burden shifts to Defendants to articulate a nondiscriminatory reason for Villalobos’s termination. Harville, 935 F.3d at 410. Defendants offer three reasons, none of which warrants summary judgment.

First, at the litigation stage, Defendants argued for the first time that Villalobos had lied about her previous work experience. (ROA.267-68.) The district court inferred from this that she was terminated in part because she had “a history of lying.” (ROA.2895.) However, Defendants admit that they did not learn about Villalobos’s work history until discovery in this case. (ROA.385.)

Defendants also argued for the first time in litigation that Villalobos mishandled her vacation leave. (ROA.269.) However, as explained supra at 16, the leave in question occurred the week prior to Villalobos’s termination, and Defendants do not suggest that they were aware of any irregularities at the time they fired her. To the contrary, Villalobos testified that she submitted a written leave request one month in advance, and that Rowghani, Blum, and Dusek had all approved it. (ROA.1746-48, 1809-10.)

The Supreme Court has instructed that liability under the anti-discrimination statutes depends on the employer’s motives when it took an adverse employment action, not on evidence that it acquires after the fact. McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 360 (1995) (“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.”); see also Patrick v. Ridge, 394 F.3d 311, 318 (5th Cir. 2004) (employer that claims another candidate was more qualified than plaintiff must show that it knew of relative qualifications at the time of decision). After-acquired evidence is not wholly irrelevant to a discrimination claim, but it only implicates “the specific remedy to be ordered,” generally precluding reinstatement or front pay and potentially affecting backpay. McKennon, 513 U.S. at 360-62.

Villalobos’s work history, and any alleged misrepresentations on her resume, are after-acquired evidence within the meaning of McKennon and Patrick. Defendants could not have fired Villalobos for something they did not know when they decided to terminate her.

Finally, defendants claim that Villalobos was incompetent and that they fired her solely for performance reasons. As explained further below, the EEOC has raised a genuine issue of material fact about the truth of this assertion.

3. Pretext

In its brief opinion, the district court did not mention any of the EEOC’s circumstantial evidence of national-origin and/or sex discrimination. To the extent the court may have considered the evidence anyway, it wrongly made credibility judgments and inferences in favor of Defendants instead of the EEOC. By doing so, it usurped the jury’s function. See Anderson, 477 U.S. at 255.

As the Supreme Court has explained, “’The factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination.’” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) (citation omitted); see also Laxton v. Gap Inc., 333 F.3d 572, 579 (5th Cir. 2003) (same). For the reasons described below, a reasonable jury could find Defendants’ explanation to be “so unreasonable that it must be pretextual.” Sandstad, 309 F.3d at 899.

a. Discriminatory Comments Regarding National Origin

The district court acknowledged that “the owners of Ryan’s Pointe made comments regarding the nationality of tenants living at the property and their poor paying practices,” but said that “these comments have nothing to do with Villalobos, her national origin, or her job performance.” (ROA.2895.) In fact, the comments explicitly criticized tenants for being Mexican, which does, indeed, relate to Villalobos’s national origin. (ROA.1334, 1339, 1971-73, 1976.) Moreover, Hayman and Blum criticized the staff, as well, for being Mexican. (ROA.1353-54, 1396, 1924.)

In addition, even if this Court were not to view Hayman and Treiman’s express directive to replace Villalobos with a white employee as direct evidence, that instruction remains compelling circumstantial evidence of national-origin discrimination. So does Hayman’s long history of disparaging Mexicans. “Over and over and over again,” Hayman said he was “really pissed off” to see that the entire office staff was “Mexican.” (ROA.1354, 1385-86.) He described one tenant as “just a trashy Mexican” (ROA.1971.), and told Johnson, “We just need to get the n****rs out of here, Mexicans out of here, so we can change the demographics.” (ROA.1976.) Hayman also referred to the tenants as “riffraff.” (ROA.1574, 1975.)

Although Blum was not directly involved in Villalobos’s termination, he continued to participate in the Ryan’s Pointe owners’ weekly conference calls about the Property, even after he left to work elsewhere. (ROA.2312.) Moreover, he maintained a desk at Hayman Holdings in Los Angeles, and he would “go sit there and hang around.” (ROA.1241.) And he, too, was outspoken about his disdain for Mexicans. He repeatedly asked, “[W]hen are we going to get all these blacks and Mexicans out of here?” (ROA.1334.) Johnson testified that Blum told her “[h]e wanted to get rid of all the Mexican people residing there and clean up the demographics,” and that “[h]e didn’t want anybody of color.” (ROA.1971.) He also said, “Oh, that’s a dumb Mexican.” (ROA.1972.) One time, he told Johnson that “he didn’t know if—how these wetbacks would qualify.” (ROA.1976.) He repeatedly called the tenants “riffraff,” “purple monkeys,” and “tires.” (ROA.1977-78, 1975.)

As this Court has explained, discriminatory comments are relevant to a circumstantial case if they are made by “‘a person that is either primarily responsible for the challenged employment action or by a person with influence or leverage over the relevant decisionmaker.’” Goudeau v. Nat’l Oilwell Varco, L.P., 793 F.3d 470, 475-76 (5th Cir. 2015) (citation omitted). As the controlling partner, Hayman was primarily responsible for firing Villalobos. (ROA.1579. (“I guess I could do anything I wanted to do as the owner of the company.”)) A jury could find that Blum, as a part-owner, also influenced the decision. Thus, the district court erred by refusing to consider their discriminatory remarks as circumstantial evidence that Defendants fired Villalobos because of her national origin.

b. Discriminatory Comments Regarding Pregnancy

The EEOC also introduced evidence of pregnancy-related animus. Blum complained to Rowghani that Villalobos “would ask for the full [Family and Medical Leave Act] time off, that all Mexicans do that.” (ROA.1394-95.) Dusek, who helped facilitate Villalobos’s termination, encouraged Villalobos to have an abortion “because [her] job was taking off.” (ROA.1797.) She advised Villalobos that she had had an abortion early in her own career because having a baby would have set her back professionally. (ROA.1797.) A jury could conclude that Dusek was warning Villalobos that failure to end her pregnancy could result in losing her job.

The record does not support the district court’s assertion that Dusek “was understanding and allowed Villalobos to take off work because of her pregnancy.” (ROA.2896.) To the contrary, Dusek is the only person who testified about granting Villalobos pregnancy-related leave, and she said she granted the leave for the express purpose of ending the pregnancy, not for the purpose of supporting it. (ROA.2221-22.) Villalobos, however, did not seek leave to have an abortion. She testified that she was “very clear with [Dusek] that I had no interest in getting an abortion and had no intention of doing so.” (ROA.1673; see also ROA.1710, 1798.) Villalobos did not have an abortion, and she gave birth to her daughter in September. (ROA.1772.)

c. Suspicious Timeline

A reasonable jury could find that Defendants used Dusek’s performance review as a smokescreen for the discriminatory decision they had already made. As soon as Dusek came on board, Defendants directed her to “work toward” Villalobos’s termination. They plainly stated that they wanted Villalobos gone because they wanted to replace her with a white employee. (ROA.2145, 2232, 2323, 2325, 2328-29.) Dusek understood that she would “absolutely” be fired if she did not comply. (ROA.2297.)

Almost immediately, Dusek posted a “SUPER CONFIDENTIAL” request with a headhunter for a new property manager. (ROA.2393-94.) At that point, Villalobos had been the property manager for only eight weeks, and Dusek was only nineteen days into her thirty-day review of the staff. Dusek interviewed Johnson on March 1 and, with Hayman and Treiman’s approval, offered her the job on March 8. (ROA.1986, 2395, 2584, 2590.) Johnson accepted the offer on March 9. (ROA.1032.)

Notwithstanding the fact that she had already hired Villalobos’s replacement, Dusek claims that she subsequently issued Villalobos a verbal and then a written performance warning. (ROA.2181.) Villalobos denies having received either. (ROA.1802, 1873.)

A jury could conclude that there was no reason why Dusek would have warned Villalobos to improve her performance after she had already hired Johnson. Dusek testified that she might have demoted Villalobos rather than firing her if her performance had improved (ROA.2281.), but Hayman and Treiman had plainly told Dusek to “work toward” termination. (ROA.2145, 2232.) Dusek conceded that she gave Villalobos “the opportunity I was given to give her.” (ROA.2281.) Thus, a jury could believe Villalobos’s testimony that she never received a verbal or written warning, and conclude that Dusek was not telling the truth.

Further supporting that conclusion is Dusek’s admission that she back-dated a document. Originally, her documentation of the verbal warning she claimed to have given Villalobos was dated March 14, the same date as the purported written warning. When she realized that the two documents were both dated March 14, she testified, she changed the date of the verbal warning to March 8. (ROA.1029, 2218, 2267-68.)

On March 14, Dusek testified, she actually gave Villalobos a written warning for failing to correct problems they had allegedly discussed on March 8. (ROA.1508, 2220-21, 2229, 2260-61.) A jury could find, however, that this was impossible. Villalobos testified that she was out of the office with her children the entire week of March 12-16. (ROA.1823, 1837-38.) Although Dusek suggested that she might have been confused and actually have provided the written warning one day earlier or later (ROA.2216.), both of those suggested dates would also fall within Villalobos’s leave. The written warning says that Villalobos “refused to sign.” (ROA.2391.) A reasonable jury could infer that this statement was untrue, and that her signature was missing because she had never been asked sign. (ROA.1802, 1873.)

Finally, even if a jury credited Dusek’s testimony that she provided a written warning on March 14, it could still find the timing of Villalobos’s termination suspicious. Villalobos returned to work following her vacation on Monday, March 19. That day would, accordingly, be her first opportunity to demonstrate improved performance. Dusek was out of town for two days and was therefore unable to witness Villalobos’s performance. (ROA.1674, 1816.) She fired Villalobos on Wednesday, her first day back in the office. (ROA.1674, 1760, 1816, 1825.) There is no evidence that she investigated how Villalobos had performed while she was away.

d. Dubious Performance Complaints

Dusek testified that she fired Villalobos because Hayman and Treiman instructed her to do so based on performance issues that she reported to them. (ROA.2342-43.) However, a jury could find that Dusek only told Hayman and Treiman what she knew they wanted to hear. She testified that once she “dug in” to her review, she realized that there were problems with the assistant manager and “it wasn’t necessarily due to the manager [Villalobos] herself.” (ROA.2176.) Nevertheless, she believed that Hayman and Treiman would have replaced Villalobos with a white employee regardless of what she reported (ROA.1992, 2233.), and she knew they would “absolutely” fire her as well if she did not comply with their directive to “work toward” Villalobos’s termination. (ROA.2297.)

Dusek’s own testimony reveals that she could not have believed much of what she said. She claims to have 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 decreased (ROA.2396-99.), and the March 25 report did not exist at the time of Villalobos’s termination on March 21.

Dusek also contradicted herself about Villalobos’s failure to increase occupancy or to submit invoices. With respect to occupancy, she first 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 admitted that some vacant units were, in fact, in good condition. (ROA.2193.) Regarding invoices, she initially testified that Villalobos’s failure to submit invoices caused utilities to be cut off to the Property (ROA.2188-89.), but later conceded that utilities may not have been cut off during Villalobos’s tenure, although they were cut off several times afterwards. (ROA.2255-57.)

On summary judgment, the district court was required to 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). Instead, the court ignored virtually all of the EEOC’s evidence and accepted Defendants’ version of disputed facts. This patent disregard of well-established summary judgment principles warrants reversal.

The district court placed undue importance on the fact that Villalobos “was Hispanic when she became property manager.” (ROA.2895.) Presumably, the court was relying upon the “same actor inference,” which allows a “strong inference” that discrimination did not play a role when the same individual hired and fired an employee within a short period of time. See Haun v. Ideal Indus., Inc., 81 F.3d 541, 546 (5th Cir. 1996). Here, however, Rowghani—not Hayman or Treiman—promoted Villalobos. Thus, there is no basis for applying the same-actor inference.

Even if the same-actor inference could apply, the inference is rebuttable. Id. at 541. This Court has explained that, “[b]y expressing our approval of [the same-actor] inference, we do not rule out the possibility that an individual could prove a case of discrimination in a similar situation.” Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996), abrogated in part on other grounds, Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000). The direct and circumstantial evidence of discrimination described above would allow a jury to find discrimination here.

Additionally, the fact that Villalobos was preceded and succeeded in her position by women who were not pregnant actually strengthens the EEOC’s pregnancy discrimination claim, rather than weakening it. (ROA.2896.) Even if an employer hires and promotes most women in a non-discriminatory manner, it violates Title VII by firing a woman because she is pregnant. See 42 U.S.C. § 2000e(k) (“‘because of sex’ ... include[s] … because of or on the basis of pregnancy”); Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1343 (2015) (“The Pregnancy Discrimination Act makes clear that Title VII’s prohibition against sex discrimination applies to discrimination based on pregnancy.”).

This Court has acknowledged the obvious import of the Pregnancy Discrimination Act. See Laxton, 333 F.3d at 578 (“Congress intended the [Pregnancy Discrimination Act] to provide relief for working women and to end discrimination against pregnant workers.”); see also Arismendez v. Nightingale Home Health Care, Inc., 493 F.3d 602, 606 (5th Cir. 2007) (observing in state-law case resting on Title VII principles that sex discrimination includes pregnancy discrimination).

The district court completely overlooked the existence of the Pregnancy Discrimination Act. There is no legal or logical basis for its conclusion that the EEOC’s sex discrimination claim on behalf of Villalobos was somehow undermined by the fact that neither her predecessor nor her successor was pregnant.

Conclusion

The record is replete with genuine issues of material fact, and the district court committed additional errors of law. The EEOC respectfully asks this Court to reverse 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] CNC was previously known as Bala Ram, and the record uses the names interchangeably. (See, e.g., ROA.705. (“Bala Ram”); ROA.2594. (“CNC”).) Portions of the record erroneously refer to “C&C” rather than “CNC” (see, e.g., ROA.2161.), and the district court adopted this misnomer. (ROA.2893.)