IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 12-40424

_______________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellant,

DYNMcDERMOTT PETROLEUM OPERATIONS COMPANY,

Defendant-Appellee.

________________________________________

On Appeal from the United States District Court

For the Eastern District of Texas

The Honorable Thad Heartfield, District Judge

________________________________________

STATEMENT OF JURISDICTION

The Commission brought this suit under the Age Discrimination in Employment Act, 29 U.S.C. §§621 et seq. (“ADEA”), and Title I of the Americans with Disabilities Act, 42 U.S.C. §§12101 et seq. (“ADA”). The district court had jurisdiction under 28 U.S.C. §§1331, 1337, and 1345; 29 U.S.C. §626(b); and 42 U.S.C. §§2000e-5(b) & 12117(a). On February 15, 2012, in an Amended Memorandum Opinion and Order, the district court granted summary judgment to the defendant. District court docket, volume 10, page USCA5-3533 (“v11:USCA5-3533”); see also v10:USCA5-3507 (Memorandum Opinion and Order). Final judgment was entered the same day. v10:USCA5-3559. The Commission filed a timely notice of appeal, Fed. R. App. P. 4(a)(1)(B), on April 16, 2012. v11:USCA5-3821. This Court has jurisdiction under 28 U.S.C. §1291.

STATEMENT OF ISSUES

1. Did the district court err, in this ADEA and ADA failure-to-hire case, in holding that statements by a high-level manager — for example, that the company had an “aging workforce” problem and should not hire the charging party because he was “too old” and his wife had cancer and might die — were mere “stray remarks” that should not be considered in granting summary judgment?

2. Did the district court err in holding that the evidence, viewed as a whole in the light most favorable to the Commission, would not support a finding that the proffered reasons for defendant’s failure to hire the charging party were unworthy of credence?

3. Did the district court err in granting summary judgment for the defendant on the Commission’s request for liquidated and/or punitive damages?

STATEMENT OF THE CASE

1. Nature of the Case and Course of Proceedings

This is an appeal from a final judgment of the United States District Court for the Eastern District of Texas, dismissing the Commission’s enforcement action under the ADEA and ADA. In August 2010, the Commission brought suit against DynMcDermott Petroleum Services (“DM”) alleging that the defendant illegally refused to hire the charging party because of his age and/or the fact that his wife has cancer. v1:USCA5-21. In July 2011, the defendant filed an amended motion for summary judgment (v2:USCA5-668), which the Commission opposed. v6:USCA5-1894 (Amended Response). In December 2011, the district court granted DM’s motion for summary judgment. The court held that comments and statements regarding the charging party’s age and ailing wife, as well as references to the “aging workforce” at DM, were mere “stray remarks,” and other evidence casting doubt on the employer’s proffered reason for its decision was insufficient to support a finding for the Commission. See v10:USCA5-3533 (February 15, 2012, amended decision).

2. Statement of Facts

New Orleans-based DynMcDermott contracts with the Department of Energy (“DOE”) to manage the country’s Strategic Petroleum Supply. See, e.g., v6:USCA5-2042-43 (describing project and field storage sites). The events of this case took place at DM’s Big Hill field storage site in Winnie, Texas.[1]

(a) The Vacancy

DM normally employs three maintenance planner/schedulers at its Big Hill facility. Employees holding this non-managerial position are responsible for ensuring that all necessary maintenance equipment, materials, and labor are where they are needed, when they are needed, in the quantities that are needed. See v6:USCA5-1933. Among other things, the work requires knowledge of hundreds of codes and acronyms, as well as heavy use of a specially designed application of the SAP computer program. Id. According to the Lead Scheduler, June Dubois, it normally would take a new employee up to a year and a half to become fully proficient in the job. v6:USCA5-1938 (Dubois).

In January 2008, one of the three planner/schedulers was terminated. The position was “classified as Essential” and its “responsibilities” were deemed “vital and critical for mission readiness.” See, e.g., v6:USCA5-2193 (job description); see id. at 2194-95 (minimum qualifications include high school or equivalent and two years’ specialized experience). Ray Wood, who supervised the planner/schedulers, stated that Dubois and Danelle Houston, the other incumbent planner/scheduler, “were really good at their jobs,” but, he stressed, he “needed a third person.” v3:USCA5-820. Accordingly, DM promptly began advertising and screening applications to fill the vacancy. See, e.g., v3:USCA5-897-900 (job postings).

Under DM’s practices, Wood, as Maintenance Manager, would normally serve as “hiring manager” for the vacancy. v3:USCA5-833. With Wood’s approval, therefore, Dubois contacted Mike Swafford, then age 56, to suggest that he apply for the position. v6:USCA5-1934 cf. v3:USCA5-804 (Wood: advising Dubois that Swafford would have to apply).

Swafford had worked for DM as a planner/scheduler for over two years between 1998 to 2000. During that time, his performance was “above expectations”; he also had an excellent attendance record and had helped train his own successor. v6:USCA5-1977-78 (Swafford); v6:USCA5-1934 (Dubois: “excellent” employee, “meticulous” in his work); v3:USCA5-813 (Wood: told Swafford during interview he had “an excellent attendance record”); see also v6:USCA5-2212-2215 (planner/scheduler performance evaluations). He left the position when he transferred to a higher-paying I&C Tech position in December 2000 and, as the least experienced employee in the section, was laid off in a RIF in 2003. v6:USCA5-1974, 1984; cf. v7:USCA5-2569-70, 2572-75 (“satisfactory” I&C Tech performance evaluations, commenting that Swafford “display[ed] a very conscientious attitude toward his assigned tasks,” and that it was “a pleasure to work with someone that has this degree of interest in his work”).

Even after leaving DM, however, Swafford stayed in touch with Dubois and other DM employees. At some point, Dubois — and others — learned that Swafford’s wife had been diagnosed with an advanced stage of cancer in the fall of 2007. v6:USCA5-1934. Then self-employed, Swafford indicated that he was interested in returning to his old job at DM. v3:USCA581.

According to Dubois, as well as Bernadette Nelson, a DOE employee based at Big Hill, and Tim Lewis, the site director of the Big Hill facility, as of early February, Wood wanted to hire Swafford. v6:USCA5-1934-35 (Dubois: Wood said Swafford would be a “good choice”); v9:USCA5-3197 (Nelson: remembers Wood saying he “wanted” Swafford); v6:USCA5-2075 (Lewis: Wood was recommending Swafford for the job). In fact, according to Lewis, Wood described Swafford as the “best” candidate for the job. v6:USCA5-2246. On January 31, Wood asked DM’s recruiter, Michelle Hughes, whether Swafford had applied, explaining that he “ha[d] been a scheduler here before and knows the job.” v6:USCA5-2251 (email). Swafford submitted his resume the next day, and the recruiter then forwarded it to Wood. v6:USCA5-2252 (email); v6:USCA5-1987 (resume). In pertinent part, Swafford’s resume indicates that he had two years of scheduling experience at DM, holds an AA degree in a technical field, and was honorably discharged after six years in the Texas Army National Guard. v6:USCA5-1988-89.

However, Lewis, who as the site director was Wood’s boss, favored filling the position with someone younger who did not have a disabled spouse — perhaps even someone “just out of high school.” See, e.g., v6:USCA5-1935. Lewis had overall responsibility for “all operations, maintenance, and any ancillary functions” at the facility (v6:USCA5-2140), and, in that capacity, had become concerned that DM had an “aging workforce.” In light of this “aging workforce” problem, Lewis decided that Swafford was a poor choice for the vacant planner/scheduler position. In Lewis’s view, Swafford was too old. Moreover, having learned that Swafford’s wife had cancer, Lewis believed that if she was still alive, Swafford would miss too much work caring for her. See, e.g., v6:USCA5-1935 (Dubois: Lewis said Swafford was too old and asked if his wife was “dead yet”).

Beginning in early February, Lewis expressed these views repeatedly, both orally and in emails, to, among other people, Dubois, Houston, Deborah Hojem (Lewis’s boss), HR Director Dione Heusel, and Wood. For example, on February 4, Lewis sent a “confidential” email to Hojem, who was based in New Orleans, stating that he might “need to get Mike Swafford as a temp to help out” until a “new hire” could be found. v6:USCA5-2232. But, the email continued, although Wood “wanted to hire [Swafford] permanently,” Lewis had “put the nix” on that because, Lewis asserted, Swafford’s wife “has cancer and requires [a] lot of his time at home,” Swafford “is at least 56 and has his own medical problems,” and Swafford “had a bad attendance record when he was riffed.” Id. The email adds that the other applicants also “seem[] to be at least in their 50s,” but Lewis “need[ed] to have someone” that would be there “for a long, long time.” v6:USCA5-2232.

Hojem did not respond to this email. Nor did she react to one Lewis sent two days later, on which she was cc’d, stating in pertinent part: “I stopped the hiring of a person who used to work here several years ago and was riffed. He also had a bad attendance record and a very ill spouse (cancer).” See v6:USCA5-2234-36 (email chain). Hojem testified that she did not recall receiving either email. v7:USCA5-2551-52.

(b) The February 7 Meeting and Its Aftermath

Lewis again expressed these views, this time very openly, at the managers’ regular morning meeting on February 7. In his departmental report, Wood volunteered that he was about to start reviewing resumes and choosing who to interview for the “scheduling person.” v6:USCA5-2010. In front of a roomful of other DM and DOE managers, Lewis stated flatly: “I don’t want you to hire Mike Swafford because of his age and his wife has cancer and he would probably be missing too much work.” Id.; see also v6:USCA5-2024 (Nelson: Lewis said Swafford’s “wife had cancer or was going to die”). Wood answered, “if those are the requirements,” Lewis “could do the hiring” himself because the requirements were “against the law.” v6:USCA5-2012.

As Wood’s boss, Lewis’s duties included preparing Wood’s performance evaluations, on which Wood’s raises (and continued employment) depended. v6:USCA5-2050-51. Although Lewis and Wood had once been friends, Hojem, at least, was aware that the relationship had soured. See, e.g., v3:USCA5-836 (Hojem: acknowledging “long-standing” issues). Since then, Wood stated, Lewis had been marginalizing him — removing certain duties and refusing to communicate with him so that Wood lacked information that he needed to pass along to his subordinates. Wood had even heard that Lewis wanted to get rid of him altogether. v6:USCA5-1999-2000, 2005-07.

Wood’s public rejection of Lewis’s directive not to hire Swafford exacerbated this feud. v6:USCA5-2012 (Lewis’s face “got redder and redder”). Lewis considered Wood’s statements to be a refusal to do Wood’s job. When the meeting ended soon thereafter, Lewis sent out an email to various people including Wood, Dubois, and Hojem, announcing that Lewis “would be on the ‘hiring board’ for the new scheduler” position. v6:USCA5-2238. In addition, after one or more angry exchanges, Lewis informed Wood that he would be getting a Corrective Action Memo (“CAM”), with a suspension. v3:USCA5-806. As drafted, the CAM stated that Wood’s “insubordination in saying [he] would not hire a planner/scheduler (as a result of [Lewis] not wanting to hire a person you wanted) ... will absolutely not be tolerated. Failure to perform required duties ..., i.e., hiring personnel you deem essential, is totally unacceptable. In the future, you will perform all duties assigned to a manager and bring problems of the nature you feel you had today to me [privately]. Failure to follow these instructions will result in further disciplinary action up to and including termination.” v6:USCA5-2242.

Lewis described or showed a copy of this CAM to Wood, and then forwarded the draft to Hojem and HR for approval by headquarters. v6:USCA5-2086, 2241 (email). Heusel responded by thanking him for “keeping [her] in the loop” and asking that he “[p]lease let [her] know if/how [she and others] could support [him].” v6:USCA5-2243.

Shortly after the morning meeting, Nelson, who attended on behalf of DOE, emailed Lewis a web link to EEOC guidance on age discrimination, adding “I felt the need to send this to you.” v6:USCA5-2237. She later explained that there is a “law,” Lewis was the “leader of our facility,” and “I didn’t want such a comment to be misinterpreted as the way we, the [DOE], do business.” v9:USCA5-3193.

In response, Lewis wrote, with cc’s to Hojem and Heusel, that “actually” he “kn[e]w about this.” v6:USCA5-2239 (email). However, he explained, he had the responsibility to staff the section with “folks who can be around for a while and continue to contribute,” and “any company with an aging workforce, as we have,” needs to “look to the future relative to whom we hire.” Id. (adding that he had “cc’d [his] boss and the HR Director just to keep them informed of this”).

Although Nelson, a DOE/client employee, had signaled her concern over Lewis’s age-related statements by initiating this exchange, there is no evidence that either Hojem or Heusel responded to Lewis’s email. Hojem admitted that she never spoke to Nelson about the incident. v6:USCA5-2126.

While there is no written documentation of any subsequent events, Hojem testified that at some point, she spoke to Lewis, and he attempted to explain what happened at the meeting. v3:USCA5-833. She also testified that she told Lewis that his conduct was “inappropriate” and “against all our rules and regulations.” v6:USCA5-2109-10 (emphasis added); compare id. at 2117-18 (Hojem: had she seen the February 4 and 6 emails, she would have “done exactly the same thing [she] did ... tell [Lewis] that his actions were inappropriate, that he would not participate in the hiring; and that the issues that were long-standing at Bighill[sic], which predate this event, were going to come a stop”) (emphasis added). In addition, although the second-level manager normally has the “option” of being on the hiring committee (v3:USCA5-833), Hojem told Lewis that he would not be on the committee. v6:USCA5-2109-10. Further, on seeing the draft CAM, Hojem commented that “this [expletive] was going to stop, this CAM is inappropriate, it made no sense.” v3:USCA5-839 (also stated that “there’d be no further actions with Ray Wood”).

According to Hojem, Lewis then called her a second time. v6:USCA5-2557. In that call, Lewis was “remorseful for the comments,” which he recognized were “stupid.” However, he continued to be “annoyed” with Wood and his insubordination. v6:USCA5-2557.

Lewis then sent out another email (an event neither he nor Wood recalled when they were deposed) stating that Lewis would not be on the hiring committee. v6:USCA5-2238 (email). See v3:USCA5-872 (Lewis: never “formally” withdrew from committee); v6:USCA5-808 (Wood: “never saw anything in paperwork” or “received any document” but assumed from Hojem that Lewis would not be on the hiring board). In his deposition, Lewis stated that he no longer needed to be on the committee once he learned that Wood was going to “do his job.” v3:USCA5-872.

Wood testified that, following his confrontation with Lewis after the morning meeting, Wood drafted a summary of the incident and then called Hojem. v6:USCA5-2015; 2024 (summary). Hojem testified that she told Wood they would address the incident in more detail the following week when he was in New Orleans on a previously scheduled visit. v3:USCA5-840. She stated that she recognized Wood was concerned that Lewis would “tak[e] adverse action against him,” explaining that “this was a long-standing issue between the two of them[, and Wood] was afraid that it would affect his performance reviews, his employment, [and] his general life” at Big Hill. Id.; v7:USCA5-2555.

According to Hojem, both then and in New Orleans, she discussed the incident and these concerns with Wood. She assured him that there would be “no backlash” or CAM and he should not “worry about that” or let that “come into play in carrying out his duties.” v3:USCA5-840; v3:USCA5-807 (Wood). Finally, she assured him that she would sit in on the hiring interviews to be sure that “it was fair and square for all of the applicants.” v3-USCA-838 (Hojem). However, Hojem did not document any of her conversations with Wood. v6:2128. Nor, she conceded, did she ever again specifically discuss this incident with Wood. Instead, she occasionally touched base with him, asking generally “how was his life at the site going.” v7:USCA5-2557.

Despite Hojem’s conversation with Lewis and her assurances to Wood about the CAM, Lewis sent Hojem two more emails on February 11. In the first email, Lewis stated that he was giving Wood the CAM, along with another document, reminding Wood that his “insubordination on February 7 had ZERO to do with any failure of [Lewis’s] to communicate with [him]” and that Lewis would expect Wood to “do [his] job — all of it” as well as to “take responsibility and be accountable for [his] own mistakes and deficiencies.” v6:USCA5-2245 (document). Lewis stressed to Hojem that the CAM was “honestly not revenge”; rather, in the last few years, Wood had been a “very disruptive influence.” v6:USCA5-2244.

In the second email, which he cc’d to HR Director Heusel, DM’s CEO, and DM’s general counsel, Lewis stated that he had given the CAM to Wood. “As expected,” Wood had again “accused [him] of telling him to commit a felony . . . by not hiring a person due to age when he was the best candidate.” v6:USCA5-2246. The email acknowledges that Lewis “DID say that we needed to keep age in mind in order to have folks around after we leave,” adding that he also mentioned Swafford’s wife’s cancer. The email explains, however, that Lewis was acting “‘in good faith’ to help [the] ‘aging workforce’ problem” since [b]oth of the other schedulers [were] planning to retire in the next two years.” Id.

Neither Hojem nor Heusel — nor the CEO or general counsel — responded to this email. Wood later denied receiving or even seeing the CAM, notwithstanding the emails indicating that he had. v3:USCA5-807. It was evidently not in the personnel file DM produced to EEOC. Lewis later explained that he “did not pursue” the CAM because Wood “at some point in time decided he was going to do it.” v6:USCA5-2075; see also v7:USCA5-2563 (Lewis: explaining that CAM was not in Wood’s file because it “died a natural death. I never checked on it again.”).

Hojem testified that at some point she, the CEO, and the general counsel explored possible responses to Lewis’s statements and actions. One “obvious[]” option, she explained, was to “do nothing” — to have “just forgotten it.” Concluding that that would be “the wrong thing to do,” however, they decided on a simple verbal warning with no documentation in Lewis’s file. v7:USCA5-2557. Hojem stated that she gave the warning to Lewis while she was at Big Hill for the interviews. However, she was unclear as to when she had this discussion with Lewis. Compare v3:USCA5-842 (Hojem: met with Lewis “[i]n the morning ... before the interviews took place” ) with v6:USCA5-2119 (“It was the day of the interviews, the afternoon of the interviews.”). Hojem did not have notes or anything else in writing from the meeting. v6:USCA5-2119.

Hojem admitted that she did not “do anything specifically to deal with this issue that Mr. Lewis seemed to believe that there was an aging workforce problem that needed to be addressed.” v6:USCA5-2130. Evidence suggests that others at DM shared his focus on the “aging workforce.” Hojem acknowledged that the term was used in connection with the need to “capture knowledge from all employees regardless of age.” v6:USCA5-2130-31. Dubois and Houston also attested that they had attended meetings and trainings where high-level managers, including Heusel, had discussed the “aging workforce” and its effect on the workplace, including the rising cost of employee benefits. v6:USCA5-1941 (Dubois); v6:USCA5-1956 (Houston). Indeed, DM had even taken the trouble to calculate the “average age” of its workforce. v1:USCA5-91 (Amended Answer) (over 50).

While these incidents were playing out, Wood and DM’s recruiter, Michelle Hughes, were exchanging emails about potential candidates for the planner/scheduler position. As noted above, Hughes forwarded Swafford’s resume to Wood following his request on January 31. On February 8, Hughes forwarded Wood the resume of Mark Thomas. v6:USCA5-2253. On the resume, the recruiter noted that it “might be a bit of a stretch of what [Wood was] looking for” but suggested that Wood review it and get back to her if he was interested. Id. The resume states that Thomas had a BA degree in philosophy and had recently been discharged from the Army, where in later years he had done some planning and scheduling work. SAP is not mentioned. v6:USCA5-2026 (resume). The resume does indicate that Thomas’s employment history began in 1996, suggesting he was in his 30’s. Id. Wood did not respond to the recruiter’s note.

On February 18, Wood asked Hughes if there were other applications since he had seen only two candidates “with scheduler/planner background” — Swafford and another man, Ray Kuykendal. Two days later, Wood wrote that a third candidate, Stephen Sajewicz, “look[ed] good.” v7:USCA5-2257. On February 25, Hughes emailed Wood saying that Kuykendal wanted too much money, so they were left with only Swafford and Sajewicz. Id. at 2260. Thus, as of February 25, Wood had not identified Thomas as a viable candidate.

Two days later, on February 27, with no further email exchanges, Wood and Dubois interviewed Swafford, Sajewicz — and Thomas. Hojem was present but did not participate in the hiring decision. See, e.g., v6:USCA5-2112. Lewis testified that he was not involved in the interview or selection process. v7:USCA5-2564.

Swafford, who lived locally, was interviewed in person. He estimated that it would take him at most four months to fully refamiliarize himself with the job. v3:USCA5-855 (Swafford: it would take 3-4 months); v6:USCA5-1937 (Dubois: it would take 2-4 months).

Swafford also told the interviewers that, although his wife had to go to Houston at least once a month for cancer treatments, these trips would not affect his attendance because they had plenty of support from family and friends. v3:USCA5-853. There is conflicting evidence as to who first raised this issue. Swafford and Dubois testified that Wood asked Swafford if his wife’s cancer would interfere with his work attendance. v6:USCA5-1937 (Dubois); v3:USCA5-854 (Swafford). Wood and Hojem said that Swafford himself broached the subject. v6:USCA5-2135-36 (Hojem); v3:USCA5-813 (Wood).

Thomas, who lived in Virginia, was interviewed by phone. At his deposition, Thomas testified that he did not remember any of the questions asked except whether he would mind taking orders from a woman. v10:USCA5-3352. He did recall, however, that no one asked him about his education or discussed the differences between the version of the SAP program he had used in the Army and the one in use at DM. v10:USCA5-3351-53. Wood testified that he asked Thomas about his SAP experience. Compare v3:USCA5-817-18 (Wood) with v10:USCA5-3464-65 (Thomas: reading from Wood’s deposition). After being asked to read an excerpt from Wood’s deposition describing the interview, Thomas was willing to assume that he had been asked whatever Wood said he was asked, but admitted that he had no independent recollection of the questions. v10:USCA5-3468.

Sometime between February 25 and early morning on February 27, Hojem approved a request for Thomas to “come down to have a face-to-face interview.” v6:USCA5-2261 (email conveying Hojem’s approval, sent at 7:19 a.m. on February 27). She stated that bringing Thomas down for a second interview was a “collective decision” of all three interviewers (including Dubois), made at the end of Thomas’s phone interview. v10:USCA5-3386. However, the email noting Hojem had approved the call-back was time-stamped on February 27, at 7:19 a.m., before any of the interviews would have taken place. See v6:USCA5-2261 (email). No other candidate received a second “interview.”

Thomas’s site visit took place on March 10. v10:USCA5-3445. Wood gave him a tour of the facility and told Houston to show him their work. From this, Houston “surmised” that the hiring decision had already been made because their work was confidential and should not be observed by an outsider. v6:USCA5-1954-55. Dubois was on sick leave and stated that she was “completely unaware” of the visit before returning to work. v6:USCA5-1938. She also testified that she had never heard of DM paying for an on-site interview of a non-management applicant or to relocate such a new hire. Id.

At some point after the interviews, on the Candidate Evaluation Form, each candidate was rated either “1” or “2” on six criteria: education, experience, technical skills, communication skills, interpersonal skills, and customer-service skills. There was also a space on the ratings form for comments. v6:USCA5-2023 (form, stating that “1” means meets minimum requirements while “2” means meets minimum and preferred requirements). Thomas was rated one point higher than Swafford on education; otherwise their scores were the same. The ratings form notes that Swafford “interview[ed] very well” and “knows [the] SAP system.” The form also notes that Thomas “interviewed very good,” was “very willing and ha[d] done scheduling with [an]other system,” and was a “VET.” Id.

On March 11, Wood signed and dated the ratings form, recommending Thomas. Id. He then forwarded the form to HR, where it would be reviewed to determine whether the scoring seemed acceptable (v3:USCA5-834-35). Thomas was then 34 years old. v10:USCA5-3353.

There is conflicting evidence as to who completed the ratings form, which is signed only by Wood. See id. Wood testified that after each interview, he and Dubois separately rated the candidate, compared their scores, agreed on the ratings, and then completed the “master” ratings form. v3:USCA5-813-14; v6:2020-21 (Wood: also explaining how they compromised if their ratings disagreed on particular criteria). Wood also testified that if he had been aware that Dubois disagreed, he would not have hired Thomas. v3:USCA5-820.

In contrast, while Dubois agreed with Wood that Thomas had interviewed well, she testified that she had never seen the ratings form or assisted in its completion. v6:USCA5-1936; cf. v10:USCA5-3386 (Hojem: after each interview, they went right on to the next one). Dubois also denied telling Wood that she was glad Thomas had been hired because it would keep Lewis off their backs for a while. v6:USCA5-1939. To the contrary, Dubois stated that Swafford was the “most qualified applicant for the position.” Id. She further stated that she would not have recommended hiring Thomas because, in her view, he lacked the necessary skills, background, and experience for the job. Id. at v6:USCA5-1938-39 (never said or thought Thomas was “the most qualified applicant”). In fact, she told Wood the hiring was “a mistake.” Id.

Thomas accepted DM’s offer on March 25. v10:USCA5-3388 (offer and acceptance email). He started work on May 7, 2008. v10:USCA5-3358. Wood initially stated that Thomas got “up to speed . . . very quickly” — in “maybe a week [or a] week and a half.” v6:USCA5-2018. When pressed, however, he retreated, stating that Thomas was “working in the system in about a week and a half” although he still needed to learn “shortcuts and that type stuff.” Id. Thomas estimated that it took him “six to nine months to get [the] gist of the job.” v10:USCA5-3455.

Wood testified that he was looking for the “most qualified person . . . somebody [with] scheduling, planning, and background that knew how to do that job and had the experience to do it.” v3:USCA5-812. In response to repeated questioning, he stated that he chose Thomas for several reasons. Compared to Swafford, Thomas had more education, both a BA degree and relevant course work in the Army, whereas Swafford had only an AA degree. However, Thomas testified, Wood never asked about his education or coursework during his interview. v10:USCA5-3351. Further, it is undisputed that the resume misrepresents Thomas’s education; he in fact did not have any college degree, even in philosophy. Id.

According to Wood, Thomas also indicated that he had been “doing the same job for like eight straight years now” and had used SAP during that time. v3:USCA5-814-18 (“8½ years” experience to Swafford’s 2 years). However, Thomas’s resume indicates that he had three or four years of scheduling/planning/ logistics experience. v6:USCA5-818 (2004-2007); see also v6:USCA5-2026-27 (resume).

Wood also stated that it appeared from Thomas’s resume that he had “used the SAP system.” v6:USCA5-811. But Wood later admitted that the resume does not indicate any SAP experience. v3:USCA5-817-18. Further, Thomas testified that Wood never discussed the differences between the version of the SAP system used at Big Hill and the one Thomas had used in the Army. v10:USCA5-3433, 3354. Although Wood asserted that “the scheduling[,] planning[, and] logistics modular[s] are basically the same” in any version of SAP (v3:USCA5-817), Thomas stated that there are, in fact, material differences. At DM, he explained, they “use [SAP] to initiate, produce, track work projects that are needed on the site to address procurement of parts and track hours and costs.” v10:USCA5-3347. In contrast, Thomas continued, “The military’s program was laid out a lot different. The codes, the nomenclature, the abbreviations were different. We used different functions of it. We didn’t produce work orders. We produced parts requests and receipts and used [SAP] to track costs.” v10:USCA5-3348.

Wood also opined that Thomas was “energetic” and “outgoing.” In contrast, Wood recalled that Swafford had been an “average” performer at DM and had not been “aggressive, basically” about seeking new assignments (v3:USCA5-819), although he denied saying that Swafford was rejected because he lacked “initiative.” v3:USCA5-816; cf. v6:USCA5-2068 (Lewis: Wood also “mentioned that he thought [Swafford] had missed a little bit too much work, but he did not”).

Further, Wood stated, Thomas interviewed better than Swafford. v3:USCA5-814. Wood acknowledged that, except for education, the ratings form scores the two men the same in every category including communication skills. Wood explained that “1” and “2” were his only real choices. Since, he stated, there was no way to further distinguish the candidates’ ratings, he kept their other differences “in his mind.” v6:USCA5-814-16.

Wood indicated that initially he was concerned about Lewis and the threatened disciplinary action if he hired Swafford. But, according to Wood, after Hojem assured him that she would attend the interviews, he felt “more comfortable” that nothing would happen to him “at that time.” v3:USCA5-809; see also id. (responding to a question whether he thought he might be subjected to some kind of disciplinary action if Lewis didn’t like [his] decision: “After – I was assured by [Hojem] and I felt more comfortable that away[sic]”). Accordingly, Wood stated, Lewis’s comments about Swafford’s age and ailing wife, as well as the “aging workforce,” “did not have any effect at all” on his decisionmaking. v3:USCA5-821. Indeed, he “did not have any concern about whether he must hire someone of Lewis’s choosing.” v3:USCA5-819.

3. District Court’s Decision

The district court dismissed the suit, holding that the Commission failed to present “sufficient direct or circumstantial evidence to overcome summary judgment.” v10:USCA5-3557.

The court first addressed the Commission’s argument that Lewis’s comments are relevant direct evidence of discrimination. In the court’s view, Lewis’s comments did not satisfy this Court’s test for direct evidence, set out in Brown v. CSC Logic, 82 F.3d 651, 655 (5th Cir. 1996). v10:USCA5-3540-41. The court reasoned that “Wood was the final decisionmaker,” Hojem had “removed Lewis from the hiring process,” and there was no evidence that he had “insinuated himself back in.” v10:USCA-3547. Finding no evidence that Lewis played any role in the decision not to hire Swafford, the court held that the comments were mere “stray remarks.” v10:USCA5-3546.

The court further found no evidence that Lewis had any influence or control over Wood’s decisionmaking. v10:USCA5-3547. The court noted that when Hojem learned of the February 7th incident, she assured Wood that “there would be no repercussions” from the incident with Lewis.” v10:USCA5-3544. And, the court found, Wood never received the threatened CAM. Id. In addition, Hojem attended the interviews to ensure that Lewis did not participate, and she followed up by asking Wood periodically “how everything ... was going.” v10:USCA5-3547. Crediting Wood’s testimony, the court found that “[a]fter receiving these assurances, [he] did not have any concerns about who he would hire due to Lewis’s statements and actions, nor did he believe that he had to hire whomever Lewis wanted to hire.” v10:USCA-3534-35.

The court next analyzed the case under the burden-shifting framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), for circumstantial evidence. The court noted that DM “assumes that the EEOC has presented a prima facie case of discrimination,” and that DM met its burden of production by proffering reasons for Wood’s refusal to hire Swafford. v10:USCA-3548-50 (listing reasons). The court acknowledged that several of the proffered reasons — ones focused on Wood’s “beliefs” about the men’s relative communication and interview skills, Thomas’s energetic personality, and Swafford’s employment history — are arguably too subjective to rebut the prima facie case. But, the court concluded, the other reasons — Thomas’s more recent scheduling, planning, and logistics experience; Thomas’s more recent and continuing experience using SAP; and the fact that Thomas scored one point higher on the ratings form than Swafford — are sufficient. v10:USCA5-3549-50.

The court then concluded that the Commission did not carry its burden of showing pretext, which, the court stated, would require a showing that “the reasons given [were] false or that Swafford [was] ‘clearly better qualified’ for the scheduler position.” v10:USCA5-3550. The court found no circumstantial evidence that Lewis influenced the decisionmaking, reasoning that, although Wood initially feared retaliation, he testified that after talking to Hojem, he “no longer had any concern about who to hire.” v10:USCA5-3550-51 & n.3 (quoting testimony).

The court also rejected the argument that Wood had already decided to hire Swafford before the February managers’ meeting. Among other evidence, the Commission supported this argument with Nelson’s testimony that at the managers’ meeting, Wood stated that he had already interviewed several candidates and wanted to hire Swafford. Citing only Nelson’s testimony, the court concluded that, because the record evidence indicates that the interviews occurred much later, “Nelson’s imprecise recollection does not raise a fact issue about whether Lewis influenced Wood’s decision” such that DM’s reasons for hiring Thomas are pretextual. v10:USCA5-3552.

Turning to the Commission’s argument concerning the ratings form, the court noted that Wood rated Thomas one point higher than Swafford in the category of education, based on Thomas’s resume stating that he had a bachelor’s degree whereas Swafford had only an associate’s degree. The court acknowledged that Thomas had no bachelor’s degree, but held that Wood’s failure to verify Thomas’s education did not raise an issue as to whether the higher rating was really a reason for preferring Thomas over Swafford. The court reasoned that Wood testified that he also considered Thomas’s military training. In addition, the court stated, there is no evidence that Wood verified the information on any of the candidates’ resumes. And, the court continued, the relevant inquiry is what Wood knew when he decided to hire Thomas. v10:USCA5-3553-54.

In any event, the court stated, differences in qualifications are generally insufficient to raise a genuine fact issue unless the plaintiff can show that he was “clearly better qualified” than the successful applicant. The court concluded that while Swafford was certainly qualified for the job, his qualifications were not “of such a weight and significance that no reasonable person in the exercise of impartial judgment could have chosen [Thomas].” v10:USCA5-3554-55 (citations omitted).

The court then rejected EEOC’s challenge to Wood’s “recollection that Swafford was an average employee who lacked initiative.” v10:USCA5-3550. The court did not address EEOC’s argument that Swafford’s supervisor rated his performance above expectations. Id. Instead, the court stated that “Wood’s subjective belief about Swafford was merely one of the legitimate, nondiscriminatory reasons for the decision and does not raise those reasons to pretext for age or disability-association discrimination.” v10:USCA5-3556.

Further, the court rejected EEOC’s argument regarding the “aging workforce” comments made by high-level managers, as well as Lewis. The court noted that the managers’ comments “do not refer to Swafford’s age, the age of any applicant or employee, or the challenged employment decision.” And, although Lewis’s comments do “more directly relate to the hiring of a new planner/scheduler,” the court reasoned, since he “did not have any influence over the hiring decision,” his statements “cannot raise a genuine issue of pretext.” v10:USCA5-3556-57.

Finally, having found insufficient evidence of intentional discrimination to “overcome” summary judgment on liability, the court decided that summary judgment was also “proper on the EEOC’s claims for liquidated and punitive damages.” Without further analysis, the court therefore granted defendant’s motion for summary judgment on this issue. v10:USCA5-3557.

STANDARD OF REVIEW

Summary judgment is appropriate only “where, considering all the allegations in the pleadings, depositions, . . . and affidavits, and drawing all inferences in the light most favorable to the nonmoving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Dediol v. Best Chevrolet, 655 F.3d 435, 439 (5th Cir. 2011) (movant’s burden to demonstrate); see also Lindsey v. Prive Corp., 987 F.2d 324, 326 (5th Cir. 1993); Fed. R. Civ. P. 56. “If the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party, then there is no genuine issue for trial.” Dediol, 655 F.3d at 439. This Court reviews the grant of summary judgment de novo, applying the same standards as the district court applied. Id.

SUMMARY OF ARGUMENT

The key question in this appeal is whether the record evidence supports a finding that DM refused to hire Swafford for a vacant planner/scheduler position because of his age (56) and/or the assumption that he would miss too much work caring for his wife, who was disabled by cancer. The district court dismissed the case, finding insufficient evidence. Viewed under proper summary judgment standards, however, there was ample evidence to send the case to a jury.

The evidence showed that when a planner/scheduler position became vacant in January 2008, Wood (the hiring manager) wanted to fill it with Swafford. As Wood explained, since Swafford had previously held the position for 2+ years, he “knew the job” — its duties, jargon, and the critically-important specialized version of the SAP program that planner/schedulers used. Moreover, his performance, including his attendance, was “above expectations.”

However, Lewis (the site director and Wood’s boss) disagreed. He therefore began stating orally and in emails — to Hojem (his boss), and to DM’s HR Director, CEO, and general counsel — that Swafford should not be hired because he was too old, he had a bad attendance record, and if his wife were not already dead, he would likely miss a lot of work caring for her. At a February 7 managers’ meeting, Lewis also explicitly ordered Wood not to hire Swafford for those reasons. When Wood resisted, Lewis told him he would be disciplined for insubordination.

The district court erroneously refused to consider Lewis’s comments, describing them as mere “stray remarks,” because, the court found, Lewis was not involved in the hiring process. In reaching this decision, the court credited Hojem’s testimony (there is no corroborating documentation) that, after learning of the incident, she removed Lewis from the process and reassured Wood that he would suffer no retaliation. The court also credited Wood’s testimony that after talking to Hojem, he no longer was concerned that he must make a decision that would satisfy Lewis.

Under this Court’s precedent, however, Lewis’s comments and threats are highly relevant circumstantial evidence of discrimination. Based on the record, a jury could find that they influenced Wood’s decisionmaking and caused him to hire someone meeting Lewis’s requirements. Long before this incident, the relationship between Lewis and Wood had been acrimonious. A jury could find that, despite Hojem’s assurances, after and because of Lewis’s comments, Wood’s conduct changed. For example, Wood, who initially had been ready to hire Swafford, began pressing the recruiter for additional applications. He also began contriving flaws in Swafford. He told Lewis that Swafford had attendance problems and stated that he was an “average” performer. Wood even asked Swafford point-blank whether his wife’s cancer would affect his attendance. In short, he began sounding like Lewis and, in fact, ultimately selected Thomas, age 34, with no known disabled relatives.

Wood gave several reasons for preferring Thomas over Swafford. Although the court credited these reasons, a jury could find them post-hoc rationalizations unworthy of credence. For example, Wood testified that Thomas had more, and more recent, experience than Swafford. Wood grossly inflated Thomas’s experience, however, stating that he had done the job for “like eight years” whereas his resume reflects three or four. And Wood had previously stated that Swafford really “knew the job.”

Wood also stated that Thomas had used SAP during this period. But the ratings form that Wood completed states that Swafford knew the SAP system whereas Thomas had experience in “another system.” Wood also indicated that Thomas was functioning well after about ten days, but Thomas testified it took him six to nine months to “get the gist” of the job. Furthermore, while Wood stated that Thomas communicated better than Swafford, Wood made no distinction on the ratings form, commenting that each man interviewed “very good/very well.”

Finally, while their scores were otherwise the same, Wood gave Thomas one point more — for education. Thomas’s resume represents that he had a bachelor’s degree and coursework in the military whereas Swafford’s shows only an associate’s degree in a related field. A jury could reasonably find that Wood did not really care about Thomas’s credentials, however, but simply seized on this distinction to justify rejecting Swafford based on his age and disabled wife. Thomas testified that Wood never asked about his education — he actually has no college degree — and Wood did not independently verify Thomas’s credentials. Moreover, if EEOC’s evidence is believed, Wood completed the form himself without consulting Dubois, as he testified. Dubois testified that she would never have recommended hiring Thomas and thought that Swafford was the best candidate. Thus, if the jury found that Wood lied about how he selected Thomas, the jury could likewise find that his reasons for selecting Thomas were false.

The district court compounded its error by holding that summary judgment was appropriate because the Commission failed to show that Swafford was “clearly better qualified” than Thomas. That standard applies only where the plaintiff attempts to prove pretext mainly if not exclusively with comparative qualifications. In contrast, here, the Commission offered substantial other evidence — including the comments and DM’s woefully inadequate response to them — that Swafford was rejected for discriminatory reasons.

In any event, the jury could find that Swafford was clearly better qualified because the vacancy needed to be filled promptly. Being local, Swafford could have started immediately, and, having done the job before, he would have been up to speed before Thomas, who had to relocate and did not know the job, even started work.

Finally, the district court erred in dismissing the Commission’s claims for enhanced damages under the ADEA and ADA. The record evidence supports such relief. Moreover, the court dismissed these claims based on its dismissal of the liability claims. Since the latter ruling is infirm, the ruling on damages should likewise be reversed.

ARGUMENT

I. Summary Judgment Was Inappropriate Because the Evidence — Including the Age-Based and Disability-Related Comments — Viewed as a Whole in the Light Most Favorable to the Commission, Strongly Suggests That But For His Age and/or Disabled Wife, DM Would Have Hired Swafford For the Planner/Scheduler Position.

Federal law prohibits employers from discriminating on the basis of age as well as disability. Under the ADEA, employers may not refuse to hire an individual because of that individual’s age. 29 U.S.C. §623(a). This protection extends to individuals who are “at least 40 years of age.” 29 U.S.C. §631(a). Similarly, under the ADA, employers may not “exclud[e] or otherwise deny[] equal jobs” to a qualified individual because the individual has “a relationship or association” with someone having a known disability. 42 U.S.C. §12112(b)(4). Among other things, this provision prohibits employers from refusing to hire a qualified applicant with a disabled spouse based on speculation or assumptions that “the applicant would have to miss work ... to care for the spouse.” 29 C.F.R. Pt. 1630 App. §1630.829; see generally Questions & Answers About the Association Provision of the Americans with Disabilities Act, available at http://www.eeoc.gov/facts/association_ada.html.

Here, the Commission alleges that “but for” Swafford’s age and/or relationship to his disabled wife, DM would have hired him for the planner/scheduler position. See Lindsey, 161 F.3d at 895 (meaning that age “‘played a role in [the decisionmaking] process and had a determinative influence on the outcome’”) (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)); Gross v. FBL Financial Servs., 557 U.S. 167, 176 (2009) (same).[2]

Under both the ADEA and the ADA, plaintiffs, including the Commission, may prove claims of intentional discrimination with direct and/or circumstantial evidence. See Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000) (ADEA); cf. Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1085 (10th Cir. 1997) (ADA). Direct evidence includes “statements or documents which show on [their] face that an improper criterion served as a basis — not necessarily the sole basis, but a basis — for the adverse employment action.” Jones v. Robinson Prop. Grp., 427 F.3d 987, 993 (5th Cir. 2005).

Since true direct evidence is rare, however, plaintiffs typically prove intentional discrimination through circumstantial evidence, using the three-step, burden-shifting McDonnell Douglas framework. Under that framework, the plaintiff first makes out a prima facie case by showing, for example, that (1) he belonged to the applicable “protected class” — here, being 40 and over and/or having a known disabled spouse; (2) he applied and was qualified for a job for which the employer was seeking applicants; (3) he was rejected; and (4) the employer hired someone younger or there is other evidence raising an inference of discrimination (e.g., evidence suggesting discrimination was based on the victim’s relationship with his spouse). See, e.g., Bodenheimer v. PPG Indus., 5 F.3d 955, 957 (5th Cir. 1993) (ADEA); Den Hartog, 129 F.3d at 1085 (ADA).

Once the plaintiff carries that burden (which is not “onerous”), the burden shifts to the employer to produce evidence that the challenged employment decision was made for a “legitimate, nondiscriminatory reason.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54 (1981); Russell, 235 F.3d at 222. If the employer meets that burden of production, the burden shifts back to the plaintiff to show that the proffered explanation is pretextual — that is, false, unworthy of credence, or otherwise not the true reason for the decision. See, e.g., Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143-48 (2000) (ADEA); Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003); Den Hartog, 129 F.3d at 1085. Proof that the proffered reasons were pretextual, coupled with the prima facie case, “may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves, 530 U.S. at 148. And, where such evidence is presented, summary judgment is normally inappropriate.

In this case, the district court concluded that the first two steps of the McDonnell Douglas framework were not seriously at issue. According to the court, DM “assume[d] that the EEOC had presented a prima facie case of discrimination.” v10:USCA5-3548. In addition, whether or not its subjective reasons, standing alone, would be sufficient, DM carried its burden of production with its proffered objective reasons. Id. at 3549-50. The real focus of this appeal, therefore, is step three in the McDonnell Douglas framework.[3]

Analyzing the parties’ evidence, the district court concluded that the Commission failed to show that DM’s proffered reasons for rejecting Swafford — essentially, that he was less qualified than Thomas — were a pretext for discrimination. In reaching this conclusion, the court made two key legal errors. First, the court erroneously refused to consider Lewis’s age-based and disability-related statements, as well as the other “aging workforce” evidence. At a minimum, those statements constitute highly relevant circumstantial evidence of discrimination. Second, the court misapplied the summary judgment standard by ignoring other relevant evidence, viewing the evidence and drawing inferences in DM’s favor, and making a number of impermissible factual findings. See, e.g., Dediol, 655 F.3d at 439 (setting out summary judgment standard). Under proper legal standards, summary judgment should have been denied.

A. The age- and disability-related statements were highly relevant affirmative evidence of discriminatory motive and pretext.

The district court concluded that the age- and disability-related statements — including Lewis’s orders and threats — did not constitute direct evidence and, therefore, were mere “stray remarks,” with little if any evidentiary value. The court erred.

In determining whether comments or documents constitute relevant evidence, this Court has historically used a four-part test for direct evidence enunciated in CSC Logic, 82 F.3d at 655. Statements that did not meet that test were rejected as mere “stray remarks.”

Following the Supreme Court’s reversal in Reeves, 530 U.S. at 152, however, this Court has acknowledged that statements not meeting the CSC Logic test may nevertheless be relevant circumstantial evidence of pretext and/or affirmative evidence of discrimination under the McDonnell Douglas framework. See Russell, 235 F.3d at 225-26 & n.10; see also Laxton, 333 F.3d at 583. To pass muster, such statements need only demonstrate discriminatory animus and be made by a person who has leverage over, or is otherwise in a position to influence, the challenged decision. See Laxton, 333 F.3d at 583; Palasota v. Haggar Clothing, 342 F.3d 569, 578 (5th Cir. 2003) (crediting comments from non-decisionmakers who were “in a position to influence the decision”).

Here, the Commission offered evidence that, when viewed as a whole and in the light most favorable to the EEOC, satisfied at least the latter standard. This evidence consists of (1) Lewis’s comments and threats, both oral and in emails, regarding Swafford’s age and disabled wife, as well as the “aging workforce” problem; and (2) other high-level managers’ references to the “aging workforce.” In addition, there is evidence that in Swafford’s interview, Wood asked Swafford about his wife’s illness and whether it would adversely affect his attendance. The district court rejected the first two types of evidence as “stray remarks” and completely ignored the third.

(1) Lewis’s comments and threats. While the planner/scheduler position was being filled, Lewis repeatedly stated to Wood, Hojem, and other managers that Swafford should not be hired because of his age, the fact that his wife has cancer, and the likelihood that he would miss a lot of work caring for her. These remarks and threats clearly reflect discriminatory animus; they are also proximate in time and related to the hiring decision at issue.

Furthermore, there is evidence from which a jury could find that Lewis had leverage over or otherwise influenced the decision not to hire Swafford. As site director, Lewis had control and, therefore, potential leverage over all operational decisions at the facility. He was also Wood’s boss, with control over Wood’s employment, including his performance evaluations and raises. Due to Wood’s acrimonious relationship with Lewis, Wood’s position at Big Hill was somewhat precarious. Even before the dispute over Swafford, Wood believed that Lewis had marginalized him and was looking for an excuse to fire him. See, e.g., v6:USCA6-1999-2000. Moreover, as a result of Lewis’s threats and the CAM, Wood was concerned that life at Big Hill would become even more difficult if he did not follow Lewis’s directives. Despite his assertions that Lewis’s conduct had no effect on his decisionmaking, a jury could reasonably find that Lewis’s biased statements directly or indirectly influenced Wood’s decision to reject Swafford.

Specifically, there is evidence that Wood originally intended to hire Swafford but changed his mind after — and because — Lewis intervened. The jury could consider, for example, that on January 31, Wood told the recruiter that Swafford really knew the job and indicated that she should send him Swafford’s application as soon as it arrived. v6:USCA5-2251. Similarly, Dubois, Nelson, and Lewis all testified that, as of early February, Wood wanted to hire Swafford. v6:USCA5-1034-35 (Dubois); v9:USCA5-3197 (Nelson); v6:USCA5-2075 (Lewis). Lewis’s February 4th email to Hojem stated that he had “put the nix” on the decision, suggesting it had already been made. v6:USCA5-2232. Also according to Lewis, Wood complained that Lewis was trying to stop him from hiring the “best” candidate because of his age. v6:USCA5-2246. In mid-February, however, Wood began pressing the recruiter for other applicants and, in the end, opted to hire Thomas who was younger and had no known disabled relatives.

Furthermore, and relatedly, a jury could consider the fact that Wood’s assessments of Swafford evolved over time. As noted above, Wood initially valued Swafford’s experience and considered him well-suited for the job. He even described Swafford as the “best” candidate. However, once Lewis began his campaign against hiring Swafford, Wood started sounding more like Lewis. Lewis repeatedly stated that Swafford was old, had bad attendance during his prior tenure, and also had a disabled wife and would probably miss a lot of work to care for her. After hearing Lewis’s statements, Wood contradicted his earlier assessments, describing Swafford, for example, as an “average performer” who had not “aggressively” sought out new assignments. v3:USCA5-819. Wood also told Lewis that Swafford had attendance problems. v6:USCA5-2068. Moreover, if EEOC’s version of events is believed, Wood specifically asked Swafford during Swafford’s interview about his wife’s disability and whether it would impact Swafford’s attendance. See, e.g., v6:USCA5-1937 (Dubois).

Taken as a whole, this evidence supports a finding that, just as Lewis intended, Wood was influenced by Lewis and his biases. Cf. Staub v. Proctor Hosp., 131 S. Ct. 1186, 1194 (2011) (“[I]f a supervisor performs an act motivated by [discriminatory] animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under [federal law]”).[4] Accordingly, Lewis’s statements, emails, and threats should be considered relevant evidence, whether direct or circumstantial, on the ultimate issue in this case — whether DM refused to hire Swafford because of age and/or his wife’s disability.

The district court’s contrary ruling is flawed for several reasons. First, the court made factual findings or simply ignored the Commission’s evidence where the evidence is in dispute. For example, the court found that Wood never got the threatened CAM for insubordination. In fact, however, based on Lewis’s February 11 emails, a jury could find that, despite Hojem’s alleged reassurances and notwithstanding Wood’s testimony to the contrary, Wood did in fact receive the CAM. While it was not in the personnel file produced to the Commission, the CAM might have been withdrawn or removed after Wood selected Thomas.

In addition, regarding whether Wood initially wanted to hire Swafford, the court considered only one piece of evidence — Nelson’s testimony. The court refused to credit this testimony because Nelson mistakenly also testified that the interviews had already taken place before the February 7 morning meeting. v10:USCA5-3552. However, Dubois and Lewis corroborated Nelson’s testimony (v6:USCA5-1934-35 (Dubois); v6:USCA5-2232 (Lewis)) — evidence the district court disregarded. And in any event, at summary judgment, the court may not weigh the evidence or make credibility assessments (e.g., determining whether a witness’s testimony, like Nelson’s, is truthful or reliable). See, e.g., Russell, 235 F.3d at 221 (court “may not make credibility determinations or weigh the evidence”) (discussing JMOL).

Second, in inferring that DM took Lewis’s conduct seriously, the court overlooked the fact that a jury could find that even assuming Hojem’s undocumented discussions with Lewis occurred, they focused on his dysfunctional relationship with Wood at least as much as on Lewis’s patently discriminatory comments. Indeed, Lewis arguably understood them as addressing only the feud: in defending his decision to issue the CAM, he explained that it was “honestly not revenge” but rather a long overdue response to Wood’s “very disruptive influence.” v6:USCA5-2244. And even though DM’s CEO and general counsel as well as the HR Director received emails from Lewis expressing discriminatory hiring preferences, these officials apparently did little — except authorize giving Lewis a mild reprimand — in response. Similarly, no one responded to Nelson’s email alerting Lewis (and hence DM) that age discrimination was illegal. v6:USCA5-2126 (Hojem).

Moreover, although the court credited Hojem’s testimony that after the interviews, she continued monitoring Lewis’s actions to be sure he did not retaliate against Wood, a jury could find that this was meaningless. Once Wood rejected Swafford and chose the younger candidate — as Lewis directed — Lewis would have had no reason to retaliate.

Finally, and most importantly, the court essentially rested its ruling on Wood’s testimony (which the court quoted in full) that, once he spoke to Hojem, he was no longer afraid of Lewis. v10:USCA5-3551 & n.19. However, since Wood did not talk to Hojem until sometime after the managers’ meeting and, perhaps, even after seeing the draft CAM, Wood’s testimony does not preclude the possibility that he had already abandoned the idea of hiring Swafford immediately and had begun doubting whether to do so at all.

Moreover, Wood testified that after talking to Hojem, he felt “comfortable” that nothing would happen to him “at that time.” v3:USCA5-809. And, perhaps in the immediate aftermath, Hojem would protect him from discipline or discharge. Id. But in the past Lewis had made Wood’s life difficult, not with CAMs and threats of termination, but in little ways — removing minor but desirable job duties and failing to give Wood information that he needed to pass along to his subordinates. Hojem had never protected Wood from such slights before, and he would have had no reason to believe that she would begin doing so. Yet, even after the hiring decision was made, Lewis would still be Wood’s boss. As Hojem acknowledged, Lewis continued to be “annoyed” at Wood for his supposed “insubordination.” v6:USCA5-2557.[5] Indeed, at one point, Dubois denied stating that she had told Wood she was glad they had hired Thomas because that would keep Lewis “off their backs” for awhile – suggesting that the spectre of Lewis’s influence may have hovered over the selection process. See v6:USCA5-1939 (Dubois). In light of all these factors, the jury could reasonably find that Wood in fact had taken Lewis’s threats to heart. Once he found an acceptable younger candidate, Wood chose the path of least resistance and, in litigation, was simply covering up what he knew had been a discriminatory and illegal decision.

Accordingly, this Court should find that Lewis’s statements are probative of discrimination. The jury therefore should be permitted to consider them along with the other evidence in deciding whether the Commission can carry its burden of showing pretext. The court committed error in ruling otherwise.

(2) Aging workforce evidence. For similar reasons, the district court erred in refusing to consider the evidence that high-level managers besides Lewis were concerned about DM’s so-called “aging workforce.” Dubois and Houston attested that they had heard Heusel discuss the impact the “aging workforce” was having on the cost of benefits. v6:USCA5-1941 (Dubois); v6:USCA5-1956 (Houston). Hojem testified that the term was used in discussing the need to “capture knowledge from all employees regardless of age.” v6:USCA5-2130-31.

Again applying the CSC Logic test, the district court considered this evidence to be mere stray remarks because it did not relate to Swafford’s age, the age of any other applicant, or the employment decision at issue. v10:USCA5-3556-57. In Palasota, 342 F.3d at 573, 577-78, however, this Court held that similar comments by senior managers — such as, “we’ve got an aging, graying sales force [and] . . . we’ve got to figure out a way to get through it”— were relevant circumstantial evidence. The Court reasoned that, as “members of upper management,” the speakers were “in a position to influence the decision” to fire the plaintiff.

Similarly here, the comments of managers such as Heusel — the HR Director — expressing concern about the “aging workforce” were probative of age discrimination at DM. Because of their positions, the speakers arguably set the tone for hiring and firing decisions. See Brewer v. Quaker State Oil Refining Co., 72 F.3d 326, 333-34 (3d Cir. 1995) (recognizing that “[w]hen a major company executive speaks, ‘everybody listens’ in the corporate hierarchy”) (citation omitted). This is especially true where, as here, the evidence suggests that the company’s CEO and general counsel (as well as Heusel and Hojem) were aware that Lewis continued to advocate for addressing the aging workforce “problem” but took no steps to ensure that such concerns played no role in individual hiring, firing, or other employment decisions.

Accordingly, like Lewis’s comments and directive that Swafford should not be hired based on his age and disabled wife, other managers’ statements regarding the aging workforce should have been considered in assessing whether summary judgment was improperly granted. The district court erred in failing to credit this relevant affirmative evidence of discriminatory bias.

B. The evidence supports a finding that the reasons DM proffered for refusing to hire Swafford were unworthy of credence.

The district court further erred in holding that there was insufficient evidence to rebut DM’s proffered reasons for rejecting Swafford. On the contrary, there was ample evidence from which a jury could find that DM’s explanation was unworthy of credence and that the real reason for Swafford’s rejection was his age and/or relationship to his ailing wife.

As noted above, at step three of the McDonnell Douglas framework, the Commission bears the burden of proving that the employer’s proffered reasons are false or otherwise unworthy of credence. Reeves, 530 U.S. at 143. In this Circuit, as the district court recognized, where, as here, the employer proffers more than one reason for its decision, the Commission ordinarily must “rebut each non-discriminatory reason articulated by the employer.” See, e.g., Laxton, 333 F.3d at 578. This Court has explained, however, that this rule does not apply to purely subjective reasons since proffering such a reason would not normally satisfy the employer’s burden of production. See, e.g., Patrick v. Ridge, 394 F.3d 311, 317 (5th Cir. 2004) (reason must have sufficient detail and clarity to allow plaintiff a “realistic opportunity” to prove pretext). Rather, a subjective reason would be sufficient — and, so, subject to rebuttal — only where “the employer articulates a clear and reasonably specific basis for its subjective assessment.” Alvarado v. Tex. Rangers, 492 F.3d 605, 616 (5th Cir. 2007) (citation omitted).

Properly applying these standards to this case, summary judgment was improvidently granted. As the district court recognized, DM’s proffered reason for refusing to hire Swafford was essentially his supposed inferior qualifications. Wood testified that he was looking for the “most qualified person . . . somebody [with] scheduling, planning, and background that knew how to do that job and had the experience to do it.” v3:USCA5-812. Although in litigation Wood alleged that Thomas best filled that bill, a jury could find this explanation was a pretextual post-hoc justification.

The applicants for the planner/scheduler position were rated on six criteria: education, experience, technical skills, education, communication skills, interpersonal skills, and customer service skills. v6:USCA5-2023 (ratings form). Wood gave Swafford and Thomas the same ratings in every category except education, where Thomas got a “2” but Swafford got only a “1” (not meeting preferred requirements). Based on the ratings form, therefore, Thomas’s supposed superior education was dispositive; he was hired because he supposedly had a BA degree in philosophy as well as some coursework in the Army, whereas Swafford had only an AA degree, albeit in a technical field.

A jury, however, could reasonably question whether Wood actually placed such importance on the candidates’ relative educational qualifications. Both men exceeded the “minimum” requirements; the job description does not list any “preferred” requirements. v6:USCA5-2194-95. Moreover, according to Thomas, Wood never asked about his education or the courses he professed to have taken in the military. v10:USCA5-3351-53. Nor did Wood otherwise bother to verify whether Thomas had a degree (or had taken other courses). A jury could conclude, therefore, that Wood simply seized on the disparity between the men’s education as reflected on their resumes as a convenient rationale for rejecting Swafford because of his age and/or disabled wife.

The jury could also discount the one-point difference in their ratings since, contrary to Wood’s testimony, there is evidence he completed the form himself, with no input from Dubois. v6:USCA5-1936 (Dubois). Thus, assuming it believed Dubois, the jury could also consider the fact that Wood misrepresented how and when the form was completed in assessing the overall veracity of Wood’s explanation.

Wood also stated that he chose Thomas over Swafford because Thomas had more, and more recent, experience in doing scheduling, planning, and logistics in the Army and had used a version of the SAP system during that time. This experience was manifest, Wood suggested, because Thomas was “working in the system” within “a week or week and a half” after he started working at DM. v6:USCA5-2018. In contrast, although Swafford’s experience was arguably more relevant — he had done the same job, using the same version of SAP — his experience was for a shorter period of time and he had not worked with SAP since 2003.

A jury could refuse to credit this explanation for three reasons. First, Wood actually said that Thomas told him he had been “doing the job for like eight straight years now,” but Thomas’s resume reflects only three or four years of planning and/or scheduling experience. Even assuming that Thomas overstated his work history as he had his education, Wood could not explain why, if he were truly seeking the best candidate, he would accept, without question, such a demonstrably inflated description of Thomas’s experience.

Second, Thomas’s resume does not mention SAP, and Thomas testified that there was no discussion during his interview of the differences between the SAP he knew and the SAP used at DM. As Thomas explained it, there are substantial differences between the two versions of the program, and it actually took him “six to nine months” to “get the gist” of the job. v10:USCA5-3455. Wood’s suggestion that Thomas got up to speed “very quickly” and was functional in the system “in about a week [or] week and a half” (v6:USCA5-2018), therefore, is so inaccurate as to be incredible. Furthermore, had Wood in fact determined that Thomas’s experience was more valuable than Swafford’s, he could easily have noted that in the comments section on the ratings form. Instead, the form specifies that Swafford “knows SAP well.” It does not reference Thomas’s experience with SAP at all. To the contrary, the ratings form states that Thomas’s “scheduling experience” is with “[an]other system.” v6:USCA5-2023.

Third, the recruiter specifically called Wood’s attention to Thomas’s resume in early February, and Thomas’s stated experience is clearly reflected on that document. Yet, there is no evidence that Wood displayed any interest in Thomas before his name suddenly appeared on the interview list on February 27.

Evidence also undermines Wood’s subjective reasons — his belief that Thomas interviewed and communicated better than Swafford and was also more “energetic” and “outgoing.” As noted above, where an employer relies on subjective reasons, the Commission need only offer evidence rebutting whatever “clear and reasonably specific bases” the employer articulates to flesh out its subjective reason. See Alvarado, 492 F.3d at 616.

Objective evidence casts significant doubt on Wood’s post-hoc reliance on Thomas’s supposedly superior communication and interview skills. Both Thomas and Swafford were given a “2” for communication on the ratings form, and Wood noted in the comments section that each man interviewed “very well”/“very good.” v6:USCA5-2023. Had Wood in fact determined that Thomas’s skills were superior, nothing prevented him from documenting that distinction on the form. A jury could reasonably conclude that Wood’s failure to document contemporaneously that he was more impressed with Thomas’s interview skills than with Swafford’s suggests that Wood did not actually believe Thomas had superior communication abilities.

Objective evidence likewise does not support Wood’s assertion that in contrast to Thomas, who was “energetic” and “outgoing,” Swafford was merely an “average” performer who had not been “aggressive” about seeking new assignments (v3:USCA5-819), or, in the district court’s words, “lacked initiative.” See v10:USCA5-3556-57. A jury could find that this, too, was a post-hoc rationalization. Until he was required to explain his selection, Wood, unlike Lewis, did not mention any supposed flaws in Swafford’s prior performance. On the contrary, there is evidence Wood initially wanted to hire Swafford and told the recruiter that he really knew the job.

Moreover, the evidence strongly suggests that Swafford was highly successful as a planner/scheduler. Dubois recalled that Swafford was “meticulous” and did “excellent work” (v6:USCA5-1934), and Swafford testified, without contradiction, that he helped train his successor. v6:USCA5-1977-78. In addition, Swafford’s performance evaluations (which Wood evidently never checked) show that his performance as a planner/scheduler — even in the categories of “quantity of work” and “dependability” — was “above expectations.” v6:USCA5-2212-15. Furthermore, despite the district court’s characterization, Wood did not recall describing Swafford as “lacking initiative.” v3:USCA5-816. Thus, given the dearth of any objective support for Wood’s supposed recollection of Swafford’s lackluster performance, a jury could reasonably reject this explanation as unworthy of credence.

In holding that the evidence was not sufficient to raise a triable issue as to pretext, the district court accepted, uncritically, Wood’s statement that having observed Swafford during his prior tenure at DM, he “knew in his mind” that Swafford was an “average” employee who was not “‘aggressive, basically.’” The court reasoned that “Wood’s subjective belief about Swafford was merely one of the legitimate, non-discriminatory reasons” for the hiring decision and “does not raise those reasons to pretext for age or disability-association discrimination.” v10-USCA5-3556.

This misses the point. A jury could find that Wood’s explanation is pretextual not because it is subjective, but because objectively this so-called “belief” has no basis in fact. Moreover, because this “belief” conflicts with evidence that Wood had previously considered Swafford to be the “best” candidate, one who really knew this exact job, the jury might well conclude that Wood could not have believed — and did not really believe — the explanation himself.

The district court also noted that the “EEOC contends that Wood’s failure to verify Thomas’s educational achievements beyond what Thomas represented raises a fact issue about whether Thomas’s higher score on education on the evaluation sheet was really a reason for hiring him over Swafford.” v10-USCA5-3553. The court rejected this contention because Wood stated that he also considered Thomas’s military courses, and because there is no evidence that Wood verified anyone’s credentials. Further, the court reasoned, even if Thomas did lie, Wood did not know that. Id. at 3553-54.

As noted above, however, a jury might well conclude that, because he made no attempt to explore Thomas’s educational background, Wood did not actually care whether Thomas had a degree or had taken courses in the military. Since all HR would see in reviewing the recommended hire of Thomas was the one-point difference between his score and Swafford’s, it was a convenient way to justify rejecting Swafford because of his age and/or disabled wife.

Finally, the court concluded that, even if the Commission could establish that Swafford was more qualified than Thomas, “differences in qualifications are generally insufficient to raise genuine fact issues.” v10:USCA-3554. Rather, the court concluded, to establish pretext on this basis, the Commission would have to show that Swafford was “clearly better qualified,” that is, “so much more qualified than Thomas that no reasonable person could have chosen Thomas over Swafford.” v10-USCA5-3554-55. The court concluded that the Commission failed to make that showing. Id.

This was error. The “clearly-better-qualified” standard applies in cases where plaintiffs attempt to prove pretext mainly, if not exclusively, on the basis of comparative qualifications. See, e.g., Moss v. BMC Software, 610 F.3d 917 (5th Cir. 2010) (besides one remark — that company was seeking a “more junior-level attorney,” which arguably accurately described the “entry level position” — older plaintiff’s evidence focused on comparing his qualifications to those of the younger successful applicant). That is not this case. In addition to the evidence comparing the qualifications of Swafford and Thomas, there was substantial other evidence which, if believed by the jury, would support a finding that Swafford was rejected because of his age and/or relationship to his disabled wife.

As already recounted above, this evidence includes Lewis’s open and emphatic preference for a younger employee who would not be encumbered by a disabled spouse, and his explicit orders to his subordinate, Wood, not to hire Swafford for those reasons. It also includes the fact that, although Lewis’s conduct and comments should have caused serious consternation at headquarters, even HR Director Heusal, who was copied on many of his explicit emails, took no steps to publicly repudiate the sentiments Lewis was expressing.

The pretext evidence also includes the fact that after receiving Lewis’s directive, Wood changed from telling people that Swafford was the “best” candidate who “knew the job” to describing him as an “average” employee who was not “aggressive, basically.” He even asked Swafford point-blank whether his disabled wife would negatively affect his attendance.

The evidence of pretext further includes the unexplained last-minute resurrection of Thomas’s resume (which Wood had apparently initially ignored); the suspiciously timed approval of his call-back; Wood’s failure to explore Thomas’s education or knowledge of the job; and Wood’s push to complete Thomas’s hiring, without consulting Dubois, while she was out on sick leave.

Thus, while the Commission offered evidence rebutting Wood’s qualification-based explanation for choosing Thomas over Swafford, there was in fact much more evidence of pretext. The “clearly-better-qualified” rule does not apply in cases, such as this one, where the plaintiff proffers other affirmative evidence of discriminatory animus, and where the evidence, viewed as a whole, would permit a jury to find the employer’s failure to select the charging party was motivated by discrimination. See Vance v. Union Planters Corp., 209 F.3d 438, 444 (5th Cir. 2000) (plaintiff need not meet “clearly better qualified” standard where other evidence supports pretext finding); cf. Rutherford v. Harris Cty, 197 F.3d 173, 182 n.9 (5th Cir. 1999) (noting, in response to argument that plaintiff failed to show she was clearly better qualified, that she “did not attempt to prove pretext solely on the basis of her comparative qualifications”).

In any event, even if the standard did apply, the evidence as a whole would permit a finding that Swafford was clearly better qualified than Thomas. Wood believed he was the “best” person for the job (at least before Lewis intervened to stop Wood from hiring Swafford). In addition, Dubois stated that Swafford was the “most qualified applicant for the position” and that she would not have recommended hiring Thomas because, in her view, he lacked the necessary skills, background, and experience for the job.

Further, the planning/scheduling position was “classified as Essential” and “vital and critical for mission readiness.” v6:USCA5-2193. It thus was one that needed to be filled promptly with someone who could become proficient in the job quickly. Indeed, in a January email, Lewis suggested hiring Swafford as a temp until the company could hire a younger person who did not have an ailing spouse. v6:USCA5-2232. Thomas admitted that he was not familiar with the codes, acronyms, and other terminology of the job and his experience was with a different version of SAP. v10:USCA5-3347-48. Furthermore, he was not available to start until May 7, and, by his own estimation, it took him six to nine more months to become fully competent in the position. v10:USCA5-3345. In contrast, Swafford, being local, could have started immediately. He had already done the same job successfully for over two years and had even helped to train his successor. Thus, even with a brief period to refamiliarize himself with the job, Swafford could have been fully functional before Thomas even arrived in Big Hill to start his training. A jury could therefore find that Swafford’s availability and experience rendered him clearly better qualified than Thomas.

In sum, contrary to the district court’s decision, the evidence fully supports a finding that but for his age and/or relationship to his disabled wife, Swafford would have been selected for the planner/scheduler position. Accordingly, this Court should reverse the summary judgment on the merits.

II. Summary Judgment Was Inappropriate On the Claim for Enhanced Damages Under the ADEA and ADA.

Summary judgment was likewise inappropriate on the Commission’s claim for enhanced damages under the ADEA and ADA. Liquidated damages, in an amount equal to the backpay award, are available “in cases of willful violations of the [ADEA].” 29 U.S.C. §626(b). A violation is willful if “the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.” Hazen Paper, 507 U.S. at 617 (adding that standard “applies to all [ADEA] disparate treatment cases”); see also West v. Nabors Drilling USA, 330 F.3d 379, 391 (5th Cir. 2003) (adding that liquidated damages “are not recoverable only if there is evidence that the intentional violation of the ADEA was based on the employer’s good-faith, albeit mistaken, belief that the statute allowed an age-based decision”) (citation omitted) (emphasis in West).

Similarly, under the ADA, a plaintiff may recover punitive damages up to the statutory cap if the defendant acted “with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. §1981a(b)(1). The availability of punitive damages turns on the defendant’s mental state, not the nature of the defendant’s conduct. Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 535 (1999). To be liable for punitive damages, the employer “must at least discriminate in the face of a perceived risk that its actions will violate” the ADA (id. at 536), and there must be evidence that the “malfeasing agent served in a ‘managerial capacity’ and committed the wrong while ‘acting in the scope of employment.” EEOC v. E.I. Du Pont de Nemours & Co. 480 F.3d 724, 732-733 (5th Cir. 2007) (citations omitted).

Here, before, during, and after the February 7 meeting, Lewis repeatedly and openly stated that DM should not hire Swafford because he was old and he would miss a lot of work caring for his disabled wife. In addition, Wood asked Swafford directly about his wife’s disability and whether it might affect his performance. In the end, Swafford was not hired.

There is ample evidence that the company knew these views and actions were contrary to federal law. When Lewis ordered Wood not to hire Swafford on these grounds, for example, Wood responded that Lewis was telling him to violate the law. v6:USCA5-2012. Similarly, shortly after the February 7 meeting, Nelson emailed Lewis a copy of EEOC’s ADEA Guidance, to which Lewis responded, “Actually, I know about this,” but then went on to explain that DM needed to hire younger people, rather than Swafford and others of his age group, in light of the company’s “aging workforce.” Id. at 2239. Lewis sent copies of Nelson’s email and his response to Hojem and HR Director Heusel. Id. Shortly thereafter, in announcing by email that he was giving Wood a CAM for insubordination, Lewis admitted that he “DID say that [DM] needed to keep age in mind in order to have folks around after [Lewis and others] leave. I also mentioned [that Swafford’s] wife had cancer that could keep him from coming to work.… This was done ‘in good faith’ to help our ‘aging work force’ problem.” Lewis also copied Hojem and Heusel on this email. Id. at 2246.

At all relevant times, Hojem and Heusel, as well as Wood and Lewis, were managerial employees acting within the scope of their employment. Yet, despite their awareness of Lewis’s threats and Wood’s initial insistence that Swafford was the “best” candidate, neither Hojem nor Heusel questioned Wood’s decision to hire Thomas (or the premature decision to fly him back at company expense). See v6:USCA5-2260. Moreover, even though Hojem was fully informed about Lewis’s explicit comments and orders based on age and disability-association, for example, she admitted that she did not attempt to disabuse Lewis of the notion that the so-called “aging workforce” problem could not justify making decisions based on age or disability. v6:USCA5-2130. In addition, with the agreement of the general counsel and CEO, Hojem decided that a simple oral reprimand with no written documentation was an appropriate response to Lewis’s behavior. v7:USCA5-2557. Moreover, and remarkably, there is no evidence that Heusel — DM’s director of human resources — acted in any way to rectify Lewis’s comments, threats, and orders.

In granting defendant’s motion to dismiss the damages claims, the district court based its decision solely on the fact that it had already “found that the EEOC ha[d] not presented sufficient direct or circumstantial evidence of intentional discrimination to overcome summary judgment.” v10:USCA5-3557. As discussed above, however, summary judgment on liability was inappropriate because there is ample record evidence on which a jury could base a finding in the Commission’s favor. For similar reasons, summary judgment on enhanced damages is also inappropriate. A jury could find that, at a minimum, defendant was aware of its statutory obligations and displayed reckless disregard for whether its conduct violated the ADEA and/or reckless indifference to Swafford’s federally protected rights under the ADA. The judgment dismissing the claims for enhanced damages should therefore be reversed.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings.

Respectfully submitted,

P. DAVID LOPEZ /s/ Barbara L. Sloan____________

General Counsel Barbara L. Sloan

CAROLYN L. WHEELER EQUAL EMPLOYMENT OPPORTUNITY

Acting Associate General Counsel COMMISSION

Office of General Counsel

DANIEL T. VAIL 131 M Street, N.E., 5th Floor

Acting Assistant General Counsel Washington, DC 20507

(202) 663-4721

fax: (202) 663-7090

barbara.sloan@eeoc.gov

APPENDIX A

The following is a list of key players and their respective roles.

● Michael Swafford Charging party, seeking rehire into a vacant

“planner/scheduler” position

● Mark Thomas 34-year-old applicant chosen for the planner/scheduler

position

● June Dubois Lead planner/scheduler (incumbent)

● Danelle Houston Planner/scheduler (incumbent)

● Ray Wood Maintenance manager; planner/schedulers’ supervisor;

hiring manager for the planner/scheduler vacancy

● Tim Lewis Site director; Wood’s supervisor

● Deborah Hojem New Orleans-based Director of Operations and

Management; Lewis’s supervisor

● Dione Heusel DM’s Director of Human Resources

● Bernadette Nelson DOE employee who attended a crucial meeting on

February 7, 2008

● Michelle Hughes DM recruiter for vacant planner/scheduler position

[1] For the Court’s convenience and ease of reference, there is a list of key players and their respective roles in Appendix A, following the Conclusion and signature block (p.64) of this brief. This Appendix is included in the word count.

[2] This Circuit recognizes that causation in ADA cases may be shown using either the “but for” or the “motivating factor” standard. See Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir. 2008). For simplicity, however, this brief focuses on the “but-for” standard since the evidence is sufficient to support a finding under even that more stringent standard.

[3] EEOC could establish a prima facie case under the ADEA with these facts: Swafford was 56, he applied and was rejected for a job for which he was qualified, and DM instead selected a 34-year-old applicant. The ADA facts are: DM knew that Swafford’s wife had an advanced form of cancer, which was severe enough to constitute an actual or perceived disability (Lewis suggested she was dead or dying), Swafford applied for and was rejected for a job for which he was qualified, and persons including Wood questioned whether Swafford’s care-giving duties would adversely affect his attendance.

[4] This is consistent with the Restatement (Second) of Agency §212 & Illustration (1) (1957). “A person is subject to liability for the consequences of another’s conduct which results from his directions as he would be for his own personal conduct if, with knowledge of the conditions, he intends the conduct, or if he intends its consequences ....” To illustrate: “P directs A to shoot any person entering premises belonging to P. A shoots T, who, as A knows, is rightfully entering the premises. P is subject to liability to T.” See also Pa. State Police v. Suders, 542 U.S. 129, 143-44 (2004) (noting that anti-discrimination laws should be interpreted based on agency principles).

[5] The district court also emphasized that Hojem had removed Lewis from the hiring process. However, a reasonable jury could conclude that, as least for Wood and Lewis, this was not so clear. When deposed, neither man recalled that Lewis had sent out an email “formally” withdrawing from the hiring board. Since Wood did not recall seeing Lewis’s email, it evidently made little impression on him. And since the second-level supervisor normally could participate in interviews, Wood might well have assumed that Lewis would do so and that Hojem would be there simply to ensure he did not misbehave.