TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES.......................................................................... ii

INTRODUCTION.......................................................................................... 1

ARGUMENT................................................................................................. 4

CONCLUSION............................................................................................. 27

CERTIFICATE OF COMPLIANCE............................................................. 28

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

CASES Page(s)

Bouman v. Block,

940 F.2d 1211 (9th Cir. 1991).................................................................. 7

Douglas v. Donovan,

559 F.3d 549 (D.C. Cir. 2009).................................................................. 7

Chambers v. Wynne School District,

909 F.2d 1214 (8th Cir. 1990)................................................................. 24

Culpepper v. Vilsack,

664 F.3d 252 (8th Cir. 2011)................................................................... 23

Deneen v. Northwest Airlines,

132 F.3d 431 (8th Cir. 1998)................................................................... 10

EEOC v. Goodyear Aerospace Corp.,

813 F.2d 1539 (9th Cir. 1987)................................................................. 20

EEOC v. Harris Chernin,

10 F.3d 1286 (7th Cir. 1993)................................................................... 20

EEOC v. Joe’s Stone Crabs,

296 F.3d 1265 (11th Cir. 2002)............................................................... 21

EEOC v. Wal-Mart Stores,

477 F.3d 561 (8th Cir. 2007).............................................................. 26-27

General Telephone Co. v. EEOC,

446 U.S. 318 (1980)........................................................................... 19-20

Green v. City of St. Louis,

507 F.3d 662 (8th Cir. 2007).............................................................. 24-25

Griggs v. Duke Power Co.,

401 U.S. 424 (1971).......................................................................... 14, 16

International Union v. Johnson Controls,

499 U.S. 187 (1991)....................................................................... 9, 11-12

Jackson v. UPS,

643 F.3d 1081 (8th Cir. 2011)............................................................ 24-25

Kratzer v. Rockwell Collins,

398 F.3d 1040 (8th Cir. 2005)................................................................. 22

Makky v. Chertoff,

541 F.3d 205 (3d Cir. 2008)............................................................... 14-16

McCullough v. University of Arkansas for Medical Sciences,

559 F.3d 855 (8th Cir. 2009)................................................................. 4-5

McClure v. Career Systems Development Corp.,

447 F.3d 1133 (8th Cir. 2006)................................................................. 23

McDonnell Douglas v. Green,

411 U.S. 792 (1973)......................................................................... passim

Moore v. Forrest City School District,

524 F.3d 879 (8th Cir. 2008)................................................................. 6, 8

Okruhlik v. University of Arkansas,

395 F.3d 872 (8th Cir. 2005)................................................................. 6, 8

O’Neal v. City of New Albany,

293 F.3d 998 (7th Cir. 2002)................................................................... 20

Perry v. Kunz,

878 F.2d 1056 (8th Cir. 1989)...................................................... 15-16, 19

Price Waterhouse v. Hopkins,

490 U.S. 228 (1989)........................................................................... 10-12

Ridout v. JBS USA,

716 F.3d 1079 (8th Cir. 2013).................................................................. 4

Rizzo v. Amerada Hess Corp.,

No. 99-168, 2000 WL 1887533 (N.D.N.Y. Dec. 29, 2000),

aff’d, 26 Fed. App’x 51 (2d Cir. Nov. 8, 2001)................................. 14-15

Scott v. Coca-Cola Bottling Co.,

583 F. Supp. 191 (E.D. Mo. 1984).......................................................... 22

Shannon v. Ford Motor Co.,

72 F.3d 678 (8th Cir. 1996)................................................................ 25-26

Teamsters v. United States,

431 U.S. 324 (1977)............................................................................. 23-25

Texas Dep’t of Community Affairs v. Burdine,

450 U.S. 248 (1981)................................................................................ 25

Wright v. Stone Container Corp.,

524 F.2d 1058 (8th Cir. 1975)........................................................... 14, 16

Zeinali v. Raytheon Co.,

636 F.3d 544 (9th Cir. 2011).............................................................. 14-16

STATUTES

Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. §§ 2000e et seq................................................................ passim

42 U.S.C. § 2000e-2(e)(1)......................................................................... 9

42 U.S.C. § 2000e-2(m)........................................................................... 10

IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

______________________

No. 13-1720

______________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellant,

AUDRAIN HEALTH CARE, INC.,

Defendant-Appellee.

_______________________________________________

On Appeal from the United States District Court

for the Eastern District of Missouri

_______________________________________________

REPLY BRIEF

_______________________________________________

INTRODUCTION

This is a case where the parties’ briefs reflect completely different versions of the facts and applicable law. The Commission alleges that Audrain violated Title VII by refusing to consider David Lunceford — or any other male nurse interested in OR nursing — for a vacant posted position as circulating nurse in the operating room (OR), simply because he is a man. Linda Brooks, the hiring official and, incidentally, also Lunceford’s supervisor, responded to Lunceford’s inquiry about the vacancy by telling him in no uncertain terms that she would not consider him — or, presumably, any other man — because she intended to fill the position with a woman. After that discussion, Lunceford decided not to bother applying for the position.

The Commission argued in its opening brief (EEOC Brief) that Brooks’s statements to Lunceford should be considered “direct evidence” because, a jury could find, they demonstrate that, to Brooks, being a woman was an unwritten requirement for the job; men would not be considered. The district court’s contrary decision was error. The court held that the statements — although made by a “decisionmaker” concerning the position in question and reflecting “discriminatory bias” — were not direct evidence because Lunceford never formally applied for the job. Thus, the court concluded, the company never rejected his application, and there could not have been an adverse action. The Commission argued, however, that refusing to consider an individual for a position, based on his or her gender, is an adverse action within the meaning of Title VII. And, the Commission argued, a jury could find that Lunceford’s failure to apply should be excused since Brooks’s statements deterred him (and would have deterred any other man) from submitting an application. Moreover, the Commission argued, the jury could find a Title VII violation since Audrain suggests that Brooks’s refusal to consider male applicants was justified but concedes that being a woman is not a BFOQ for the position. Finally, the Commission argued that the district court erred in analyzing the case under the framework set forth in McDonnell Douglas v. Green, 411 U.S. 792 (1973). That framework is unnecessary and inapplicable where, as here, the direct evidence would permit the jury to find that Brooks openly and unapologetically based her decision on gender.

Audrain’s opposition brief (Audrain Brief) never cites or, indeed, mentions the Commission’s brief. Nor does its respond in any meaningful way to the Commission’s arguments. In fact, the brief never acknowledges even in passing that Brooks expressly told Lunceford that she would consider only a woman for the OR position. Instead, the brief largely urges this Court to repeat the district court’s mistakes. It endorses the court’s assessment of the evidence, without explaining why the Commission’s countervailing analysis is wrong. Then, again without citing the Commission’s brief or quoting any relevant evidence, the company asserts and reasserts — at least 17 times — that it is “undisputed” that Lunceford was “unqualified” and “ineligible” for the OR position. See Audrain Brief at i, 1, 2, 12, 13, 17, 20, 22, 23, 24, 26, 27. Yet, even a cursory review of the Commission’s brief reveals that the Commission in fact does dispute that Lunceford was unqualified and ineligible.

Further, even if Lunceford were “unqualified” and “ineligible,” the company never points to any evidence that such factors were actually considered by Brooks when she took the relevant adverse action or that, in informing Lunceford that men would not be considered for the OR nursing position, Brooks was motivated by anything other than gender. Indeed, as the Commission pointed out, Brooks conceded that she would not have considered Lunceford regardless of his qualifications. Audrain’s brief simply ignores that key fact.

Nor, in fact, does the brief account for other key evidence favorable to the Commission. The brief also misstates evidence and urges the Court to draw inferences from the evidence in Audrain’s favor, rather than the Commission’s, even though, as non-movant, the Commission is entitled to “the benefit of all reasonable inferences.” See Ridout v. JBS USA, 716 F.3d 1079, 1083 (8th Cir. 2013). Viewing all of the evidence and applying proper legal standards, summary judgment should be reversed.

ARGUMENT

1. In its opening brief, the Commission argued that the district court erred in failing to recognize and credit the “direct evidence” — that is, the evidence providing a “strong causal link” between the alleged “discriminatory bias to hire a woman” of a “decisionmaker,” OR Director Linda Brooks, and the relevant adverse employment action. See EEOC Brief at 26-28 (citing Memorandum and Order (Order) at 8-9, Apx-203-04) (citing McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855, 860 (8th Cir. 2009)). The district court reasoned that, because Lunceford never formally requested a transfer into the vacant position, “there was no adverse employment action as Audrain never made a decision to deny Lunceford the OR nurse vacancy.” So Brooks’s statements were not direct evidence. See Order at 9, Apx-204. We agreed with the court that Brooks, the applicable hiring official (as well as David Lunceford’s then-supervisor), was a “decisionmaker.” We also agreed that Brooks’s statements to Lunceford, in response to his inquiry whether she would consider him for the vacant OR nurse position, related to the position in question and demonstrated discriminatory gender bias. Indeed, she told him flatly that she did not want a man in that position.

We argued, however, that the district court erred in holding that, as a matter of law, there was no adverse action. Based on the evidence, we argued, a jury could find that Brooks’s categorical refusal to consider any male nurse, including Lunceford, for the vacancy deprived Lunceford and others of the opportunity even to compete for the position. A jury could find that this constitutes an adverse action directly related to Brooks’s statements. Thus, we argued, contrary to the district court’s decision, Brooks’s statements should be considered direct evidence of gender-based discrimination. See EEOC Brief at 26-28.

Audrain’s opposition brief does not respond to or even acknowledge the Commission’s argument. Rather, the brief simply echoes and defends the district court’s decision. See Audrain Brief at 18-19; compare Order at 8-9, Apx-203-04. According to the company, Brooks’s “comment,” which Audrain never identifies,[1] is not direct evidence because, since Lunceford never submitted a formal application — and indeed told Kari Wilson that he was not interested in the position — “Audrain never had the opportunity to consider Lunceford for the OR position and never made a decision to deny Lunceford the job.” Audrain Brief at 19. Thus, the argument goes, there was no “adverse employment action,” so Brooks’s “comment” was not “causally linked” to anything. See id. at 18-19 (citing Okruhlik v. Univ. of Ark., 395 F.3d 872, 880-81 (8th Cir. 2005) (no adverse action where professor challenging tenure denial withdrew application before the final level of review); Moore v. Forrest City Sch. Dist., 524 F.3d 879, 885 (8th Cir. 2008) (no adverse action where teacher chose not to apply for one position and another position did not exist)).

This reasoning suffers from the same flaws as the district court’s reasoning. See EEOC Brief at 30-33. The argument simply assumes that the company could have violated Title VII only by unlawfully denying a formal application. But cf. Audrain Brief at 2 (noting that alleged unlawful employment practice was “refusing to consider” Lunceford). But that is incorrect. Here, the Commission argues that Brooks took adverse action by informing Lunceford that she would not consider him (or any other male nurse) for the position because they are men; deterring him (and other male prospective applicants) from applying because they are men; and thus denying them the opportunity even to compete for the position, again, because they are men. See, e.g., Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009) (noting that “if an employee is denied the opportunity to compete for a [position], she has suffered an adverse employment action”); Bouman v. Block, 940 F.2d 1211, 1229 (9th Cir. 1991) (same). Audrain never explains why a jury could not find that that conduct was an adverse action.

There is a certain irony to Audrain’s suggestion that Lunceford’s failure to apply somehow deprived the company of the “opportunity to consider [him] for the OR position.” Audrain Brief at 19. As the district court recognized, Audrain delegated to Brooks (who could not recall having had any EEO training (Apx-113)) the authority to fill the OR vacancy. Brooks then made it clear that the position was limited to female applicants, so it would be futile for a man to apply. Even now, Audrain does not repudiate that explicit gender-based limitation. See Audrain Brief at 6-8 (suggesting policy-based reasons for limitation). A jury could therefore find that the company has only itself to blame for any “opportunity” that it lost.

As for Audrain’s cited cases, they are inapposite. The plaintiff in Okruhlik was challenging a non-final tenure denial. See 395 F.3d at 879-80 (also stressing the great deference accorded to tenure decisions as compared to “employment decisions generally”). Here, in contrast, the Commission is challenging Brooks’s refusal to consider any man, including Lunceford, an ordinary employment decision not entitled to any special deference. Moore is even less apt. That case involved a bench trial where the district court found that the plaintiff was deterred from applying for one position, not by discrimination, but by its lower pay and prestige, while the other position she complained about was simply unavailable. 524 F.3d at 885. Here, in contrast, the case was decided on summary judgment, the vacancy was posted, and, as we have argued, a jury could find that Lunceford’s failure to apply was directly attributable to Brooks’s explicit discriminatory statements.

In short, once the alleged discriminatory conduct is correctly identified, Brooks’s statements clearly could qualify as direct evidence of discrimination. Based on the record, a jury could find that Brooks’s statements provide a “strong causal link” between her alleged gender bias and the adverse action the Commission is challenging. Audrain’s brief never addresses this argument.

2. In the Commission’s opening brief, we then argued that summary judgment was inappropriate because a jury, based on the evidence, could find that Audrain, through Brooks, expressly limited the OR nursing vacancy to female candidates. We also noted that neither Brooks nor Audrain denied this unwritten but explicit job requirement; rather, they suggest that it was justified. See EEOC Brief at 27-30.

We further explained that where, as here, an employer takes the position that overt gender discrimination is justified, the employer must prove that gender is a bona fide occupational qualification (“BFOQ”) for the particular position. See EEOC Brief at 27-29, 36 (citing, e.g., 42 U.S.C. § 2000e-2(e)(1); Int’l Union v. Johnson Controls, 499 U.S. 187, 197, 200 (1991) (adding that even a “beneficent” purpose does “not undermine the conclusion that an explicit gender-based policy is sex discrimination,” defensible “only as a BFOQ”). We noted, however, that Audrain did not attempt to prove that being a woman was a BFOQ for the position but rather expressly disavowed a BFOQ defense. EEOC Brief at 29 (citing Defendant’s Opposition to EEOC’s Motion for Partial Summary Judgment at 12). Thus, we argued, the evidence amply supports a finding that Audrain violated Title VII by refusing to consider male nurses, including Lunceford, for the circulating nurse vacancy, while acknowledging that female gender was not a BFOQ for the position.

Audrain’s brief simply ignores the Commission’s argument. Indeed, the brief does not even mention BFOQ. Instead, the company asserts, without analysis, that if Brooks’s statements are considered direct evidence, the appropriate defense is “mixed motives,” within the meaning of Price Waterhouse v. Hopkins, 490 U.S. 228, 240-41 (1989). Under that defense, the argument goes, summary judgment was appropriate because the company would not have selected Lunceford if he had applied. Audrain Brief at 20-23.

We agree that a mixed-motives defense may be appropriate, for example, where there is direct evidence of discrimination but the defendant argues (and can prove) that non-discriminatory factors also actually motivated the employer “at the moment” the challenged decision was made. See Price Waterhouse, 490 U.S. at 241 (indicating that “mixed-motives” defense applies where “a mixture of legitimate and illegitimate considerations” actually motivated the challenged decision “at the moment” it was made); see also Deneen v. NW Airlines, 132 F.3d 431, 435 (8th Cir. 1998) (a “mixture of legitimate and illegitimate motives”); 42 U.S.C. § 2000e-2(m) (statutory codification of mixed-motives framework).

That is not this case. To the contrary, Audrain points to nothing suggesting, much less proving, that when Brooks informed Lunceford — and everyone else within earshot — of her decision to consider only female candidates for the vacancy, she was thinking about anything other than the fact that Lunceford was a man. She never mentioned qualifications or experience or the Transfer Policy or any other factor besides gender.

Without fully developing the argument, Audrain implies that the gender-explicit requirement is justified by considerations of patient privacy and comfort as well as company policy and Medicare regulations. See, e.g., Audrain Brief at 6-9; see also Order at 6-7, Apx-201-02 (noting that hospital is “subject to federal regulations” regarding, for example, patient privacy). We agree, of course, that patient privacy and comfort are valid concerns. They are not, however, a separate cognizable defense. To the extent such concerns might justify limiting the OR nursing position to female nurses, the company must prove that being a female is a BFOQ. As noted above, Audrain expressly opted not to do so.

Furthermore, Brooks testified that because of the specific role a circulating nurse plays in comforting patients and alleviating pre-operative anxiety, she strives to place a female nurse with female patients. Audrain Brief at 7-8. However, male patients presumably experience similar pre-operative anxiety and, accordingly, might well benefit from having a male circulating nurse. Yet, as noted in the Commission’s opening brief, after Garrett Wilson left Audrain in 2011, there were no male nurses in the OR. See EEOC Brief at 15, 38.

Finally, Audrain notes that Lunceford did not believe that Brooks “intended to be mean or harmful.” Audrain Brief at 9. Johnson Controls confirms, however, that good intentions do not excuse unlawful conduct. 499 U.S. at 200. What matters is what Brooks’s words unambiguously conveyed — that men need not apply for the position.[2]

3. Notwithstanding the evidence that Brooks was considering only gender when she discussed the OR vacancy with Lunceford, Audrain declares that the Commission “could not survive judgment” under a Price Waterhouse mixed-motives theory because it is “undisputed” that Lunceford was “unqualified” and “ineligible.” Audrain also contends that the Commission “admits” that this is true. See Audrain Brief at 20-23; see also id. at 24-27 (same under McDonnell Douglas theory). Indeed, Audrain’s short brief asserts at least 17 times that Lunceford was “unqualified” and “ineligible” as a matter of law and, in most cases, either that the Commission “conceded” these “facts” and/or they were “undisputed” or based on “uncontested evidence.” See, e.g., Audrain Brief at i, 1, 2, 12, 13, 17, 20, 22, 23, 24, 26, 27.

Despite Audrain’s repetition of these supposed “facts,” the Commission does not “concede” that Lunceford was either “unqualified” or “ineligible” for the OR position. Such “facts” are very much “disputed.” See, e.g., SA57 ¶47 (Statement: “[Lunceford] was not eligible for a transfer . . .” Answer: “Disputed.”). Indeed, as the Commission’s opening brief points out, even Brooks agreed that Lunceford satisfied all of the requirements listed in the job announcement for the OR nursing position. EEOC Brief at 8 (citing Apx-188 (job announcement), Apx-110 (Brooks)). OR experience was not listed in the announcement, yet anyone satisfying those requirements was “encouraged” to apply. See Apx-188. Nor did Brooks mention experience to Lunceford in response to his inquiries about the position. Moreover, Brooks admitted that she had, in the past, hired and trained nurses without OR experience. EEOC Brief at 9 (citing Apx-117). A jury could therefore find that Lunceford was at least minimally qualified to apply for the OR position.

In asserting, to the contrary, that the Commission concedes that Lunceford is unqualified, Audrain is selectively reading the record. See, e.g., Audrain Brief at 21 (citing SA58-59, ¶¶52-53). The Commission has agreed that Lunceford had no prior experience as an OR nurse and, so, would need training in the specialized skills needed for that position.[3] But that in no way establishes as a matter of law that Lunceford failed to meet the minimum qualifications needed even to apply for the job. Furthermore, while this theoretically could have been a legitimate nondiscriminatory reason for refusing to consider Lunceford, Audrain points to no evidence showing that, at the moment she deterred Lunceford from applying, Brooks was actually thinking about his need for specialized OR training — or anything else besides Lunceford’s gender. Lunceford’s lack of such training thus does not preclude a finding that Audrain is liable for discriminating against Lunceford based on his gender.

In any event, the ban on male nurses was not limited to Lunceford. Evidence strongly suggests that Brooks would not have hired any male applicant regardless of qualifications or experience. See EEOC Brief at 14 (Apx-126 (Brooks)). Audrain’s brief simply ignores this evidence.

4(a). While it never really develops the argument, Audrain cites a string of cases to support its view that summary judgment was proper under a mixed-motives theory in light of Lunceford’s supposed lack of qualifications. Audrain Brief at 20-21 (citing Makky v. Chertoff, 541 F.3d 205 (3d Cir. 2008); Zeinali v. Raytheon Co., 636 F.3d 544 (9th Cir. 2011); Rizzo v. Amerada Hess Corp., No. 99-168, 2000 WL 1887533 (N.D.N.Y. Dec. 29, 2000), aff’d, 26 Fed. App’x 51 (2d Cir. Nov. 8, 2001); Griggs v. Duke Power Co., 401 U.S. 424 (1971); Wright v. Stone Container Corp., 524 F.2d 1058 (8th Cir. 1975)). In particular, Audrain highlights Makky, 541 F.3d at 215-16, an out-of-circuit decision where the plaintiff, due to his Arab/Muslim background, had been denied security clearance that was needed for his job. See Audrain Brief at 20-21. Audrain cites Makky for the proposition that a “mixed-motives plaintiff failed to establish a submissible claim under Title VII where unchallenged objective evidence proved the employee did not possess the minimal qualifications for the position sought.” See id.; see also id. (citing Zeinali, 636 F.3d at 553 (noting that a plaintiff might often be unable to “succeed on a discriminatory termination claim if he fails to meet basic job qualifications”); Rizzo, 2000 WL 1887533 at *6 (even if he had had direct evidence, plaintiff could not show he was qualified to manage a complex facility where he had managed only a simple one)). According to Audrain, even where there is direct evidence, “the plaintiff cannot prevail if the plaintiff is simply unqualified for the position at issue.” Audrain Brief at 20.

This argument is unavailing for several reasons. As noted above, BFOQ, rather than “mixed motives,” is the proper defense in this case. Furthermore, even if this were a mixed-motives case, the rule in Makky (if it is one) is inapplicable. To withstand summary judgment, a plaintiff in this Circuit need not show that he or she is qualified where there is direct evidence showing that the plaintiff’s age — or here, gender — was a determining factor in the decision. EEOC Brief at 42 (citing, e.g., Perry v. Kunz, 878 F.2d 1056, 1060-61 (8th Cir. 1989)). As the Commission’s opening brief points out, Perry reversed a summary judgment for the defendant in a case where the district court had rejected an age claim on the ground that, despite direct evidence of discrimination, the plaintiff could not show that she was meeting her employer’s legitimate expectations — in essence, that she was unqualified. See id. at 1060. This Court explained, “[i]f the employer fired [the plaintiff] because of her age, or the jury believes that it did, it makes no difference whether she was a good employee or a bad one . . . .” Id. at 1061. The same principle should apply in this context where the employer’s asserted non-discriminatory reason for refusing to consider an applicant is that he is unqualified for the position. Audrain does not attempt to distinguish Perry but, again, simply ignores this authority.

In any event, the evidence here would support a finding that Lunceford would have satisfied the Makky rule. Brooks agreed that he met the requirements listed in the job announcement. The fact that the announcement expressly encourages nurses meeting those requirements to apply (Apx-188) strongly suggests that those requirements constitute what Makky called the “minimum” “objective” qualifications for the position (or, in Zeinali’s terms, the “basic job qualifications”).

Audrain also cites Griggs, 401 U.S. at 430-31, and Wright, 524 F.2d at 1063, for the unsurprising proposition that Title VII does not require an employer to hire unqualified employees merely because they belong to a protected class. See Audrain Brief at 20-21. We, of course, do not disagree; the Commission is not asking for that outcome. But the Commission’s position is equally irrefutable: absent proof of a BFOQ, an employer cannot refuse to hire individuals, regardless of their qualifications, merely because of their protected status. Based on the evidence — including Brooks’s own words — a jury could find that that is what has happened here. Brooks had decided to reject male applicants for the OR nursing position, regardless of qualifications, merely because of their gender. Lunceford would therefore not have been selected, whether or not he was qualified, simply because he is a man.

4(b). For similar reasons, Audrain misses the mark in arguing that Lunceford was “admittedly” ineligible to transfer to the OR under the Transfer Policy rule barring transfers within six months of a previous transfer. See, e.g., Audrain Brief at 22. The Commission’s opening brief pointed to the exception whereby the directors of the transferor and transferee departments can agree to waive the six-month rule. Brooks was one of the two applicable department directors, and she had just given Lunceford an excellent performance evaluation. EEOC Brief at 6. Brooks also agreed that she had previously hired and then trained nurses who had no previous OR experience. Id. at 9. Of course, in light of Brooks’s statements, the evidence would support a finding that the Transfer Policy played no role in Brooks’s decisionmaking. But even if it had, a jury could find that Lunceford might have been allowed to transfer (at least if he had been a woman). In any case, the evidence is sufficient to create a jury question on this issue.

Audrain states that “Lunceford admitted on summary judgment that the company has never granted such an exception to an employee such as Lunceford who lacked experience in the desired position.” Audrain Brief at 22 (citing SA58 ¶¶ 48-50). This misstates the evidence. In fact, Lunceford simply agreed that he did not know of any such employees. As an ordinary nurse, there is no reason why he would have had that information.

Finally, Audrain asserts that the Transfer Policy “specifically forbade Lunceford to seek Brooks’ consideration before applying to [HR].” Audrain Brief at 19 (citing Apx-143, Apx-165). That grossly overstates the policy language. Read fairly, the policy simply advises prospective applicants how to apply for a transfer. That is, they must complete a separate transfer request form for each position in which they are interested, and then submit the form through the HR department; simply contacting the respective departments will not work. See Apx-143. Nothing in the plain language would alert employees such as Lunceford that they were “forbidden” to discuss a vacancy with their supervisor even if that supervisor happened also to be the hiring official. To the contrary, Lunceford testified that he was not even aware of the provision (Apx-45), and there was no stated procedure for seeking a waiver. Indeed, Brooks did not reprimand Lunceford for contacting her about the vacancy. Nor did she indicate that she could not discuss it with him or with any other prospective applicant.

As with Audrain’s contentions regarding Lunceford’s allegedly deficient qualifications, the argument here proves too much. Audrain would not be insulated from liability for the explicit discriminatory hiring practices of Brooks, its hiring official, merely because Lunceford talked to her (his supervisor as well as the hiring official) before going to HR. Rather, if the jury found that Brooks refused to consider any male nurses including Lunceford for the OR position, based on their gender, and Audrain cannot establish a BFOQ defense to that conduct, the company would be liable. And this is true even if Lunceford failed to follow the directions in the transfer policy by speaking to his supervisor, Brooks, about the vacancy before submitting a formal request. Cf. Perry, 878 F.2d at 1060.

In any event, the Commission, not Lunceford, is the plaintiff in this case. Particularly where, as here, the evidence suggests that Audrain would refuse to consider any man for the OR nursing position, EEOC’s enforcement interest extends beyond the possibility of just obtaining relief for Lunceford. See General Tel. Co. v. EEOC, 446 U.S. 318, 324-25, 331 (1980) (stating, e.g., that EEOC “exists to advance the public interest in preventing and remedying employment discrimination” and, in seeking to achieve the best overall result, may proceed without regard to the interests or potential claims of particular groups or individuals). A jury finding that Lunceford was less than an ideal candidate might affect the relief the Commission could obtain for him, but it should not preclude the Commission from proceeding with its claim altogether. See, e.g., EEOC v. Harris Chernin, 10 F.3d 1286, 1291-92 (7th Cir. 1993) (even though charging party had lost his separate ADEA suit, EEOC could still proceed for injunctive relief); EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539 (9th Cir. 1987) (same under Title VII). Moreover, as the Commission’s opening brief points out, courts have found that a plaintiff may be entitled to damages and other relief even if instatement, for example, was inappropriate. See EEOC Brief at 35 n.4 (citing O’Neal v. City of New Albany, 293 F.3d 998, 1003 (7th Cir. 2002)).

5. In the Commission’s opening brief, we argued that the district court erred in analyzing the case under the circumstantial proof scheme set forth in McDonnell Douglas v. Green, 411 U.S. 792 (1973). EEOC Brief at 38-44. As we explained, it is well settled that the McDonnell Douglas framework does not apply where, as here, there is direct evidence of discrimination. We further argued, however, that if that proof scheme were to be applied, the Commission could establish a prima facie case. We noted that a jury could find that Lunceford satisfied the minimum objective qualifications for the position, he was genuinely interested in the position, but he was deterred from applying by a justifiable belief (based on Brooks’s explicit discriminatory statements) that any such application would be futile. Moreover, Brooks in fact filled the position with a woman — someone outside the protected class. Cf. EEOC v. Joe’s Stone Crabs, 296 F.3d 1265, 1274 (11th Cir. 2002) (listing elements of McDonnell Douglas prima facie case for deterred applicants). We also argued that, in light of Brooks’s statements — at the very least, strong affirmative evidence of gender bias — a jury could find that any legitimate reason Audrain might proffer for its conduct was pretextual. There is, at a minimum, sufficient evidence to support a finding that gender, rather than any non-discriminatory reason, motivated the challenged conduct.

(a) While Audrain does not directly respond to the Commission’s arguments regarding the applicability of McDonnell Douglas, the company does assert that the Commission cannot establish a prima facie case, contending that we cannot show that Lunceford was qualified and applied for the OR position. Audrain Brief at 24. To begin with, the company asserts — without ever citing to our brief — that the Commission “plainly admitted” that Lunceford was not qualified, and this admission, the argument goes, “defeats” the prima facie case. Id. at 25. As already explained, however (see, e.g., supra at 12-14), the Commission admits nothing of the sort. To the contrary, we have argued that there is sufficient evidence to create a genuine issue as to whether Lunceford was qualified.

Citing Scott v. Coca-Cola Bottling Co., 583 F. Supp. 191, 196 (E.D. Mo. 1984), Audrain further suggests that Lunceford was not “qualified” for purposes of establishing a McDonnell Douglas prima facie case because he would have needed training for the OR nursing position. See Audrain Brief at 25. However, the Commission’s opening brief points out that, at the prima facie stage, the Commission must proffer sufficient evidence to support a finding that a claimant’s qualifications are “equivalent to the minimum objective criteria.” Kratzer v. Rockwell Collins, 398 F.3d 1040, 1046 (8th Cir. 2005). Here, as previously noted, Brooks acknowledged that Lunceford satisfied the requirements listed in the job announcement, which, a jury could find, constitute the “minimum objective” qualifications for the job. Moreover, Brooks agreed that she had previously hired and trained nurses who lacked OR experience. Thus, if this case were analyzed under the McDonnell Douglas proof scheme (which it should not be), the evidence would suffice to support a finding that Lunceford was qualified for purposes of establishing a prima facie case. Audrain’s brief does not address this argument.

(b) Audrain also argues that the Commission’s “claims” are “defeat[ed]” because Lunceford failed to submit a formal application for the OR position and told Kari Wilson that he no longer wanted the position — apparently, a variation in its no-adverse-action argument. Audrain Brief at 25; see also supra at 4-8. That misstates both our argument and the law.

In the Commission’s opening brief, we argued that Lunceford’s failure to apply is not dispositive because, based on the evidence, a jury could find that Lunceford was deterred by discrimination from submitting a formal application. In light of Brooks’s statements that she would not consider a male nurse for the position, Lunceford could reasonably conclude that applying for the job would be a futile gesture: she intended to (and did) hire a woman. We pointed out that both this Court and the Supreme Court have recognized that an individual’s failure to apply for a particular job “may be excused” if the “very discrimination alleged would have made it futile for [the individual] to apply” and the individual “can show that in the absence of such discrimination [he] would have applied.” Culpepper v. Vilsack, 664 F.3d 252, 257 (8th Cir. 2011) (citing Teamsters v. U.S., 431 U.S. 324, 367-68 (1977)); McClure v. Career Sys. Dev. Corp., 447 F.3d 1133, 1136 (8th Cir. 2006)). We argued that here, a jury could easily find that Lunceford’s decision not to apply flowed directly from Brooks’s statement that she intended to hire a woman. See EEOC Brief at 31-33. Indeed, when he told Kari Wilson that he was no longer interested in the position, she recognized that he had “changed his mind” after talking to Brooks. See id.; see also id. at 10-11 (citing, e.g., Apx-77 (K.Wilson 63-64)).

According to Audrain, however, we argued that Lunceford should be excused from applying “because he inquired about training for the position with Brooks.” Audrain Brief at 25. That is not correct. We argued that Lunceford’s failure to apply should be excused because Brooks made clear that it would be futile for him to bother submitting an application since she intended to (and did) hire a woman. EEOC Brief at 19-20. That is the quintessential sort of “futility” Teamsters envisions.

The company also mischaracterizes or, at least, misunderstands the applicable law. According to Audrain, a plaintiff may be excused from the application requirement “only if ‘[he] made every reasonable attempt to convey [his] interest in the job to the employer.’” Audrain Brief at 25 (emphasis added) (quoting Jackson v. UPS, 643 F.3d 1081, 1086 (8th Cir. 2011)). Audrain asserts that the Commission cannot satisfy this test because, as the district court concluded, Lunceford did not make “every reasonable attempt to convey his interest” but rather told Wilson he “did not want the position.” See id.

That is neither our argument nor the applicable test in this case. As noted in the Commission’s opening brief (EEOC Brief at 33 n.3), the Jackson “all-reasonable-efforts” test, based as it is on Chambers v. Wynne School District, 909 F.2d 1214, 1217 (8th Cir. 1990), applies where a particular job opening was never posted or advertised and either the plaintiff did not timely know about the vacancy or the employer was aware of the plaintiff’s interest even though he did not apply. Chambers, 909 F.2d at 1217, cited in Jackson, 643 F.3d at 1086; accord Green v. City of St. Louis, 507 F.3d 662, 666-67 (8th Cir. 2007). Audrain, again, never acknowledges this part of the Commission’s brief. Although the company describes the Jackson test as the “only” one on this issue, the authority it cites does not say that. And the company points to nothing — and we are aware of nothing — suggesting that Jackson has somehow superseded the distinct “deterred-applicant” test. This dearth of authority is hardly surprising since, after all, the deterred-applicant test comes from Teamsters, Supreme Court precedent that has not been overruled.

6. Audrain further argues that even if the Commission could establish a prima facie case, summary judgment would still be appropriate because “Audrain provided uncontested nondiscriminatory bases for not transferring Lunceford to the OR nurse position.” Audrain Brief at 26. Specifically, the company argues, he would not have been given the position due to lack of qualifications and ineligibility under the Transfer Policy. See id. at 26-27.

This misunderstands the three-step McDonnell Douglas burden-shifting proof scheme and the employer’s burden under that scheme. The purpose of that proof scheme is to provide a means of ascertaining by inference the real reasons — discriminatory or non-discriminatory — for challenged conduct, in the absence of any affirmative evidence of motivation. See, e.g., Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Shannon v. Ford Motor Co., 72 F.3d 678, 682 (8th Cir. 1996). While an employer bears only a burden of production in this scheme, the employer must present sufficient evidence to support a finding that it was actually motivated by the proffered reason at the moment of the challenged decisionmaking. A hypothetical or post hoc reason — e.g., not the real reason but rather a reason that would theoretically have justified the decision — will not do. See EEOC v. Wal-Mart Stores, 477 F.3d 561, 570 (8th Cir. 2007) (noting that “unless the employer articulates a legitimate, nondiscriminatory reason for not hiring the plaintiff that “actually motivated the decision, the reason is legally insufficient”, adding that “a ‘post hoc rationalization for its actions at the rebuttal stage of the case” is insufficient) (citation omitted).

Here, Audrain’s proffered reasons are hypothetical and post hoc rationalizations. In fact, the company’s argument is framed in terms of what it “would” or “would not” have done, not what it actually did do. See, e.g., Audrain Brief at 26.

The conduct the Commission is challenging is Brooks’s refusal to consider men for the OR vacancy and the fact that she discouraged Lunceford (and any other interested male nurse) from even applying for the vacancy. Audrain’s obligation under the McDonnell Douglas proof scheme was to explain its real reasons for that conduct. But the company identifies no evidence — and we are aware of none — suggesting that “at the moment” she engaged in that conduct she had anything other than Lunceford’s gender on her mind. See Wal-Mart, 477 F.3d at 570. Thus, if the McDonnell Douglas proof scheme were applicable, ample evidence would support a finding that any proffered reason was pretextual. Based on Brooks’s own statements, a jury would easily find that the true reason was gender. Summary judgment for Audrain would, therefore, be inappropriate.

CONCLUSION

For the foregoing reasons and those in our opening brief, the Commission respectfully requests that the judgment of the district court be reversed and the case be remanded for further proceedings.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

LORRAINE C. DAVIS

Acting Associate General Counsel

DANIEL T. VAIL

Acting Assistant General Counsel

/s/ Barbara L. Sloan

BARBARA L. SLOAN

Attorney

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Office of General Counsel

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

Washington, DC 20507

(202) 663-4721

fax: (202) 663-7090

barbara.sloan@eeoc.gov

[1] Remarkably, although this fact is undisputed, the company never mentions that Brooks told Lunceford that she intended to hire a woman. See, e.g., Audrain Brief at 9 (stating that, in conversing with Lunceford, “Brooks noted the need to staff surgeries on female patients with female nurses”).

[2] This conduct is of particular concern to the Commission because it would screen out and deter any male prospective applicant, based on his gender. In fact, as the Commission’s opening brief noted, at least two employees besides Lunceford overheard Brooks’s statements, and word of her bias spread quickly throughout the nursing staff. See EEOC Brief at 9, 12.

[3] Audrain does state, correctly, that Brooks rejected a female applicant with no OR experience. Audrain Brief at 26, 27. However, unlike Lunceford, the female applicant had only average performance ratings (Apx-158), and since her experience was in the “psych” ward (Apx-94-95), it is unclear whether she had ever worked with anesthetized patients. Lunceford, in contrast, had extensive experience nursing anesthetized patients, both male and female.