No

TABLE OF CONTENTS

TABLE OF AUTHORITIES. iii

STATEMENT OF INTEREST. 1

STATEMENT OF THE ISSUES. 2

STATEMENT OF THE CASE. 2

1. Statement of the Facts. 2

2. District Court Decision. 12

SUMMARY OF ARGUMENT. 14

ARGUMENT. 15

THE DISTRICT COURT IMPROPERLY ANALYZED PLAINTIFF'S EVIDENCE IN DECIDING PLAINTIFF FAILED TO PRODUCE EVIDENCE TO SUPPORT HER CLAIM OF RACE AND AGE DISCRIMINATION. 15

A. Trussville Was Not Entitled to Summary Judgment on Kilgore’s Claim of Race and Age Discrimination Because the Decisionmakers’ Discriminatory Remarks Established a Prima Facie Case. 16

B. The District Court Should Not Have Granted Summary Judgment on Kilgore’s Discrimination Claims Because Triable Issues of Fact Exist as to Whether She was Fired Because of Her Race and Age. 26

CONCLUSION.. 29

CERTIFICATE OF COMPLIANCE. 31

CERTIFICATE OF SERVICE

Table of Authorities

Page(s)

Cases

Alphin v. Sears, Roebuck & Co., 940 F.2d 1497 (11th Cir. 1991).................. 24

Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253 (11th Cir. 2010)... 26, 27

Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004) 19

Barnes v. GenCorp Inc., 896 F.2d 1457 (6th Cir. 1990)................................ 22

Bowen v. Missouri Dep’t of Soc. Servs., 311 F.3d 878 (8th Cir. 2002)........... 23

Brainerd v. Schlumberger Tech. Corp., 589 F. App’x 406 (10th Cir. 2015)... 20

Carter v. Chrysler Corp., 173 F.3d 693 (8th Cir. 1999)................................. 25

Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354 (11th Cir. 1999) 24

Domínguez–Cruz v. Suttle Caribe, Inc., 202 F.3d 424 (1st Cir.2000)............ 20

EEOC v. Lehi Roller Mills Co., No. 2:08-CV-00591 DN, 2014 WL 1757987 (D. Utah May 1, 2014)............................................................................................. 25

Eskra v. Provident Life & Acc. Ins. Co., 125 F.3d 1406 (11th Cir. 1997)....... 17

Essex v. United Parcel Serv., 111 F.3d 1304 (7th Cir. 1997)......................... 27

Furnco Constr. Corp. v. Waters, 438 U.S. 567, 98 S. Ct. 2943 (1978)............ 18

Holifield v. Reno, 115 F.3d 1555 (11th Cir.1997).......................................... 19

Jones v. Bessemer Carraway Med. Ctr., 151 F.3d 1321 (11th Cir. 1998)........ 28

Jones v. Gerwens, 874 F.2d 1534 (11th Cir. 1989)......................................... 16

Leffel v. Valley Fin. Servs., 113 F.3d 787 (7th Cir. 1997)........................ 18, 19

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973)..... 17

McGinest v. GTE Service Corp., 360 F.3d 1103 (9th Cir. 2004)................... 23

Mullen v. Princess Anne Volunteer Fire Co., 853 F.2d 1130 (4th Cir. 1988). 21

O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 116 S. Ct. 1307 (1996) 16

Pace v. Southern Ry. Sys., 701 F.2d 1383 (11th Cir. 1983).......................... 18

Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000) 15, 25, 27

Rioux v. City of Atlanta, Ga., 520 F.3d 1269 (11th Cir. 2008)...................... 19

Rojas v. Florida, 285 F.3d 1339 (11th Cir. 2002)........................................... 27

Rollins v. TechSouth, Inc., 833 F.2d 1525 (11th Cir. 1987).......................... 28

Smith v. City of New Smyrna Beach, 588 F. App’x 965 (11th Cir. 2014)..... 20

Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089 (1981) 16, 18, 27

Tolan v. Cotton, 134 S. Ct. 1861 (2014)......................................................... 15

Turlington v. Atlanta Gas Light Co., 135 F.3d 1428 (11th Cir.1998)............ 18

Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394 (7th Cir. 1997)................. 25

Young v. UPS, 135 S. Ct. 1338 (2015).......................................................... 18

Zaben v. Air Prods. & Chem., Inc., 129 F.3d 1453 (11th Cir. 1997)............. 21

Statutes

Age Discrimination In Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.......... 1

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

Rules and Regulations

Fed. R. Civ. P. 56.......................................................................................... 15

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (“EEOC” or “Commission”) is the federal agency charged with interpreting, administering, and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) and the Age Discrimination In Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. In relevant part, Title VII prohibits discrimination based on race. The ADEA prohibits age discrimination. In this case, contrary to summary judgment standards and settled law governing proof of discrimination, the district court ignored critical evidence of the decisionmakers ‘discriminatory comments to the plaintiff about her race and age shortly before they terminated her. Unless corrected, the district court’s ruling will vitiate the probative value of a decisionmaker’s discriminatory remarks in the assessment of the ultimate question of discrimination. Because of the importance of this issue to the enforcement of Title VII and the ADEA, the Commission offers its views to the Court.[1]

STATEMENT OF THE ISSUES

Whether the district court improperly granted summary judgment based on plaintiff’s failure to establish a prima facie case where she provided evidence that the decisionmakers made discriminatory remarks about her race and age shortly before her termination, requiring instead that she produce evidence that similarly situated persons outside her protected group were treated differently or that she was replaced.

STATEMENT OF THE case

1. Statement of the Facts

In December 2011, Valarie “Katie” Kilgore, a 65 year old Caucasian female, worked as a front desk agent for the Hilton Garden Inn/Trussville (HGI). D.29, Op. at 3. Quincey Beckwith, an African American female, D.11 at 2, Trussville SJ Motion at ¶3, was the front desk manager and Kilgore’s supervisor. D.29, Op. at 3; D.24-2 at 25, Beckwith Aff. at ¶¶2-3. In February 2012, Joe Malik, a Caucasian male, became general manager of the hotel. D.29, Op. at 3.[2]

In late February 2012, Beckwith asked Kilgore to train two new, part-time, front desk agents. D.24-3, Kilgore Aff. at ¶5. Both new hires were African American. D.24 at 25, Kilgore SJ Opp. at 19; D.24-2 at 4, Kilgore’s Amended Complaint ¶23. When Kilgore inquired as to why they were hired since all the HGI shifts were covered, Beckwith stated that Malik had hired them to work at the Hampton Inn, a sister property. D.24-3, Kilgore Aff. at ¶5. The new hires, however, remained at HGI even after Kilgore was terminated. Id. at ¶¶5-6.

In February and April 2012, Malik made comments concerning Kilgore’s race and age. D.29, Op. at 3. According to Kilgore, in late February of 2012, she asked Malik to intervene on her behalf and ask LaCretta “Cretta” Shipley, the Housekeeping Manager and sister of Kilgore’s supervisor Beckwith, to “stop making frequent, derogatory comments about my age, my lack of memory, as a result of my age; and my inoperable hearing aid, which I do not even own.” D.24-3, Kilgore Aff at ¶3. Malik laughed and told her “You are old, Katie. Where’s your sense of humor? Or can’t you remember what that is? You did hear me right?” He then directed her to return to work. D.29, Op. at 4; D.24-3, Kilgore Aff. at ¶3.

A week later, Shipley yelled at Kilgore for permitting a guest to go to his room after Kilgore had checked him in. Shipley did not believe the room was ready. D.24-3, Kilgore Aff. at ¶4. Although Kilgore tried to explain that the maintenance man had verified the room was ready, Shipley cut her off and told her “I’m taking this up with Joe [Malik].” Id. Less than an hour later, Malik yelled at Kilgore referencing Shipley’s complaint and declined Kilgore’s suggestion to verify the matter with the maintenance man. Kilgore said that Malik asked her “who I thought I was to suggest anything to him or tell Cretta anything; he did not care about my suggestions and neither did Cretta [.]” Id. Malik ended his tirade saying, “You’re a stubborn, old woman, who either won’t listen or can’t hear what you’re being told to do. This business between you and Cretta better stop, and stop now; you’ll never win these battles; you’re the wrong color, lady.” Id.; D.29, Op. at 4.

In the first week of April 2012, Beckwith informed Kilgore that Debra Quick, a Caucasian female front desk agent over the age of 40, had been fired by Malik. D.24-3, Kilgore Aff. at ¶6. Quick had been with HGI since it opened and had previously worked at the Hampton Inn for seven years. Id. She allegedly had been terminated for failure to perform her duties satisfactorily. D.24-3 at 61 (HGI000026). Quick had been the only other Caucasian front desk agent during Kilgore’s employment. D.24-2 at 4, Kilgore’s Amended Complaint ¶20.

Following Quick’s termination, Malik’s behavior toward Kilgore (the only remaining Caucasian front desk agent) “deteriorated by the month.” D.24-2 at 4, Kilgore’s Amended Complaint ¶23. Other employees allegedly noticed Malik’s “frequent and unmerited, volatile outbursts towards [Kilgore]” and commented that “Joe’s (Malik) ‘gunning’ for Miss. [sic] Katie[.]” Id.

On April 18, 2012, Kilgore fell on an unmarked wet hallway outside the hotel’s laundry room where Housekeeping kept “Lost and Found” items. D.24-3, Kilgore Aff. at ¶7. She had been looking for a red tie that had been lost by a guest’s son. Id. Because her leg was badly cut and bleeding, and she was in severe pain, she left work shortly after the incident. Id.

After Kilgore’s departure, Brigitte Gresham, an African American employee, D.24, Kilgore SJ Opp. at 9, wrote a report indicating that she had witnessed an altercation between Kilgore and a male guest who had asked Kilgore to look for his son’s missing red tie. D.24-3 at 49 (HGI000017). Gresham stated that Kilgore “brushed the man off and said that she was too busy right now and that she had already looked and gone through everything in lost in [sic] found and that it was not there . . . .” Id. Because it appeared that Kilgore was upset, Gresham said she intervened to assist the guest. Id. She reported that the guest whispered to her that Kilgore “don’t have to be so nasty. She’s so nasty.” Id.

The next day, April 19, when she returned to work, Kilgore was directed to go to Malik’s office where in the presence of Beckwith, she signed her first Discipline Documentation Form, a verbal warning for being nasty to a guest. D.24-3 at 41, Kilgore Aff. at ¶7; D.24-3 at 47, Discipline Form. Kilgore states that there was no discussion and she was not questioned. She simply signed the document because she was in too much pain to argue. D.24-3 at 41, Kilgore Aff. at ¶7. However, Kilgore denies that she told the guest that she was too busy to assist him or that she was rude. Notwithstanding the lack of discussion, Malik suspended her without pay for the day and directed her to leave the hotel. Id. That same day, Beckwith filed a report indicating that Malik told Kilgore, “if she gets another bad report she will be terminated.” D.24-3 at 51, Beckwith Letter.

On April 25, Kilgore and Shipley had another confrontation. D.29, Op. at 4. Shipley filed a written complaint stating that Kilgore was “hostile, disrespectful, and noncompliant concerning the manner in which [Kilgore] left her messages.” D.24-3 at 28, Discipline Form 2; D.24-3 at 41, Kilgore Aff. at ¶8. This time, Kilgore refused to sign the Discipline Form and insisted that Malik view the surveillance tape of the incident. The next day, managers Malik, Shipley, and Beckwith viewed the tape in Kilgore’s presence. Id. Afterwards, Malik told Kilgore, “I’ll let it go this time.” Id. Later that day, Kilgore asked Malik, “What’s going on here, Joe?,” and he responded, “Like I’ve said before, Katie, you’re never going to win these battles; you’re the wrong color, and frankly, you’re too old to fight the fight.” D.24-3 at 42, Kilgore Aff. at ¶8.

On April 30, Malik and Beckwith reprimanded Kilgore for failing to follow Beckwith’s instructions regarding a guest’s issues on April 29. D.24-3 at 42, Kilgore Aff. at ¶9. The guest asked to have the billing adjusted on the two rooms he had reserved. Beckwith told Kilgore not to make any adjustments. Beckwith had given the guest a “great rate” and could “not go any lower.” D.24-3 at 30, Beckwith Instructions (HGI00360). Notwithstanding Beckwith’s instructions, Kilgore credited the guest for one of the rooms because she believed that corporate policy required a guest credit if the guest is dissatisfied. D.24-3 at 42, Kilgore Aff. at ¶9. When Kilgore noticed that the managers were prepared to give her another Discipline Form, she objected and threatened to call owner Patel or the corporate office. Id. A day or two later, Malik whispered to Kilgore, “The old lady wins one; but it ain’t over yet.” Id.; D.29, Op. at 4.

In early May, approximately two weeks after the April 30 meeting, Beckwith mentioned to Kilgore that she received a corporate complaint against her concerning the April 29 guest incident. Kilgore assured Beckwith that she had not filed a complaint with corporate. But as Beckwith left the room, Kilgore heard her say, “You old white Bi….” D.24-3 at 42, Kilgore Aff. at ¶10; D.29, Op. at 4.

On June 5, 2012, HGI received a SALT survey from Angela Hoston, a guest who had stayed at the hotel from May 25-28. D.24-3 at 55 (HGI00021). “SALT customer satisfaction surveys are questionnaires that are sent to hotel guests by email after their stay.” D.11 at 3, SJ Mot. at ¶7. In her survey, she indicated that she was “extremely dissatisfied,” as evidenced by a ranking of 2 on a scale of 1-10, with the hotel’s value for price paid, bed comfort, and housekeeping services. She gave her breakfast experience a ranking of 1. She also indicated that she was moderately dissatisfied with the front desk staff, which she ranked 4, and that the staff’s service and attitude fell “below” her expectations. She explained that “[t]he front desk staff on my second day was extremely rude and short tempered.” D.24-3 at 57. Upon investigation, Beckwith and Malik determined that Kilgore was to blame. D.29, Op. at 5. In speaking with the customer, they claimed to have verified that the HGI employee involved was Kilgore. D.24-2 at 10, Trussville S.J. Mot. at ¶8; D.24-2 at 26, Beckwith Aff. at ¶6. However, Defendant’s work schedule indicates Kilgore was not at work on May 28, the date of the incident. D.24-3 at 8, Front Desk Schedule. Notwithstanding the schedule, Malik and Beckwith decided to terminate Kilgore “because of her ‘continually poor attitude towards [Defendant’s] guests.’” D.29, Op. at 5 (internal citation omitted); D.24-2 at 26, Beckwith Aff. at ¶7.[3]

On June 6, Malik and Beckwith terminated Kilgore. D.24-3 at 42, Kilgore Aff. at ¶11. She objected and requested to view the surveillance tapes of the day in question and to be told what specific information the guest provided that identified her as the culpable front desk agent. Beckwith deflected and Malik cut her off, saying “We’re not going to discuss this.” D.24-3 at 43, Kilgore Aff. at ¶11. Instead, Malik issued another Discipline Form on which he wrote that the “guest had stated on a survey that Katie was extremely rude and short tempered[.] In phone conversion [sic] guest couldn’t believe how rude she was.” D.24-3 at 53, Discipline Form. Malik added, “[t]he above action has been addressed with Katie in the past and that future incidences [sic] could lead to termination.” Id.

HGI has a progressive disciplinary policy. D. 24-3 at 59 (HGI000023). The policy indicates that:

· First violation of negative attitude or any policy violation is verbal written warning

· Second violation of negative attitude or any policy violation is 1st written warning

· Third violation of negative attitude or any hotel policy violation is final written warning

· Final violation of negative attitude or any hotel policy violation will result in suspension of employment for two business days pending investigation with recommendation of termination of employment by the General Manager.

Id. The policy further indicates that “[r]efusing to follow out your manager’s reasonable instructions” and “[b]eing rude or vulgar to a guest” are two of nine “Deadly Sins” that will result in immediate termination of a team member. Id. Trussville acknowledges that Kilgore may not have received a copy of the employee handbook in which the policy was published. D.24-3 at 2, Ronnlund email.

2. District Court Decision

The district court granted summary judgment. On the race claim, the court decided Kilgore, who filed pro se, did not satisfy her burden of establishing a prima facie case of discrimination because the evidentiary submissions lacked any evidence that Kilgore was treated differently than any other employee about whom guests complained. It observed that while she was treated poorly by Malik and she alleged that he made comments to her based on race and age, this evidence did not identify any comparators or establish that she was replaced by someone of a different race. D.29, Op. at 8. The court added that even if Kilgore had established a prima facie case of race discrimination, the guest complaint provided Trussville with a nondiscriminatory explanation for the termination. Id. The court further opined that even if Trussville were incorrect in its belief that Kilgore was culpable, Kilgore has not provided any evidence from which to draw the reasonable inference that Malik’s actions were motivated by racial animus. Id. at 9.

For similar reasons, the court also rejected Kilgore’s claim of age discrimination. The court stated that Kilgore failed to establish a prima facie case because she offered no evidence that “she was replaced at all, let alone by someone ‘substantially younger’ than her [sic].” D.29, SJ Op. at 11. Although she contended that Malik called her “old” on several occasions, the court decided that this is not evidence that, but for her age, Trussville would have retained her despite the guest complaints. Id. Moreover, the “old” comments are not direct evidence of discrimination since there was no nexus between the comments and her termination such as, “Fire Plaintiff—she is too old.” Id. at 11 n.7.

Summary of argument

Summary judgment was inappropriate in this case. The district court erroneously decided that the plaintiff had not established a prima facie case of discrimination or provided any evidence to “‘draw the reasonable inference’” that her termination was motivated by racial or age animus because she did not offer any evidence that similarly situated persons were treated differently or that she was replaced by someone substantially younger. Such evidence is not required to establish a prima facie case and thus its absence does not defeat her claim of intentional discrimination. Rather, plaintiff’s evidence that the decisionmakers referred to her using racial and ageist comments within weeks of her termination is indicative of discriminatory motive and sufficient to establish a prima facie case as well as create genuine issues of material fact as to whether her termination was because of her race and age. Accordingly, this Court should reverse the judgment of the district court.

ARGUMENT

THE DISTRICT COURT IMPROPERLY ANALYZED PLAINTIFF'S EVIDENCE IN DECIDING PLAINTIFF FAILED TO PRODUCE EVIDENCE TO SUPPORT HER CLAIM OF RACE AND AGE DISCRIMINATION.

Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. In assessing a motion for summary judgment, the Court views the evidence, as well as all reasonable inferences therefrom, in the light most favorable to the non-moving party. Tolan v. Cotton, 134 S. Ct. 1861, 1868 (2014). Additionally, the court is to disregard evidence favorable to the moving party that the jury is not required to believe. Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 151, 120 S. Ct. 2097, 2110 (2000). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inference from the facts are jury functions, not those of a judge.” Id. (internal citation omitted).

A. Trussville Was Not Entitled to Summary Judgment on Kilgore’s Claim of Race and Age Discrimination Because the Decisionmakers’ Discriminatory Remarks Established a Prima Facie Case

In order to prove disparate treatment in violation of Title VII, the plaintiff must prove by a preponderance of the evidence a prima facie case of employment discrimination. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 1094 (1981). The prima facie framework enables employees to prove their cases through circumstantial evidence that is “‘adequate to create an inference that an employment decision was based on a[n] [illegal] discriminatory criterion . . . .’” O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312-13, 116 S. Ct. 1307, 1310 (1996) (internal citation omitted). “Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee.” Burdine, 450 U.S. at 254, 101 S. Ct. at 1094. Jones v. Gerwens, 874 F.2d 1534, 1538 (11th Cir. 1989) (“A prima facie case raises the inference that discriminatory intent motivated the challenged action against the employee.”).

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), the Supreme Court set forth the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment. For example, in a termination case, the McDonnell Douglas prima facie framework may require the plaintiff to show that (1) she is a member of a protected group; (2) she was meeting the employer’s legitimate job expectations; (3) she was discharged; and (4) her employer sought a replacement for her or there is some evidence that would allow the inference of improper motivation. Id. at 802, 93 S. Ct. at 1824. The McDonnell Douglas prima facie analysis used to prove discriminatory treatment violating Title VII also applies to ADEA cases. Eskra v. Provident Life & Acc. Ins. Co., 125 F.3d 1406, 1411 (11th Cir. 1997).

The Supreme Court, however, has observed that the “facts necessarily will vary . . . , and the specification above of the prima facie proof . . . is not necessarily applicable in every respect to differing factual situations.” McDonnell Douglas, 411 U.S. at 802 n.13, 93 S. Ct. at 1824 n.13. See also Pace v. Southern Ry. Sys., 701 F.2d 1383, 1387 (11th Cir. 1983) (“Because the application of McDonnell Douglas test to a specific case may be difficult, the essence of any prima facie case test is simply ‘whether the plaintiff has presented sufficient evidence to provide a basis for an inference that age was a factor in the employment decision.’”). Accordingly, the McDonnell Douglas paradigm “is ‘not intended to be an inflexible rule.’” Young v. UPS, 135 S. Ct. 1338, 1353 (2015) (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 575, 98 S. Ct. 2943, 2948-49 (1978)). Nor is the plaintiff’s burden of establishing a prima facie case to be onerous. Burdine, 450 U.S. at 253, 101 S. Ct. at 1094; Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir.1998) (“a plaintiff's burden in proving a prima facie case is light”) (emphasis omitted).

Applying this flexible standard, courts have recognized that, even though “[e]vidence of disparate treatment is certainly one of the most obvious ways to raise an inference of discrimination absent direct proof of discriminatory animus[,] [i]t should not be understood as the only means of doing so[.]” Leffel v. Valley Fin. Servs., 113 F.3d 787, 793 (7th Cir. 1997). Consequently, courts have held that a plaintiff does not have to identify comparators or a replacement who is outside the plaintiff’s protected class to create an inference of discrimination. See, e.g., Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1281-82 (11th Cir. 2008) (holding that plaintiff established a prima facie case of racial discrimination when he did not present evidence of a comparator but presented other circumstantial evidence that was sufficient); Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997) (per curiam) (“[d]emonstrating a prima facie case . . . requires only that the plaintiff establish facts adequate to permit an inference of discrimination”); Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 121 (2d Cir. 2004) (“the ultimate issue is the reasons for the individual plaintiff's treatment, not the relative treatment of different groups within the workplace”) (internal citation omitted; emphasis in original); Leffel, 113 F.3d at 793 (“[f]ollowing O'Connor's lead, we have disavowed prior cases from this circuit suggesting that a Title VII plaintiff must show that she was replaced by someone of a different race, sex, and so on”). Because Kilgore produced “direct proof of discriminatory animus,” the district court erred in concluding that Kilgore failed to establish her prima facie case because she did not offer any evidence that she was “treated any differently than any other employee . . . about whom guests complained,” D.29, Op. at 8, or that she was replaced, “let alone by someone ‘substantially younger[.]’” Id. at 11.

Kilgore established a prima facie case of discrimination when she offered evidence that the decisionmakers Malik and Beckwith made comments about her race and age in the context of her employment from which a discriminatory motive could be inferred. It is settled law that discriminatory remarks by a decisionmaker are probative of discriminatory motive. See, e.g., Smith v. City of New Smyrna Beach, 588 F. App’x 965, 976 (11th Cir. 2014) (“[o]ther ‘bits and pieces’ tending to show discriminatory intent include sexist and derogatory comments by superiors”); Brainerd v. Schlumberger Tech. Corp., 589 F. App’x 406, 411 (10th Cir. 2015) (“[a] variety of circumstances can give rise to an inference of discrimination, including the decisionmakers' actions or remarks that could be viewed as reflecting a discriminatory animus”); Domínguez–Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 433 (1st Cir.2000) (“evidence of age-related comments could support an inference of pretext and discriminatory animus”).

Indeed, the Fourth Circuit observed in Mullen v. Princess Anne Volunteer Fire Co., 853 F.2d 1130 (4th Cir. 1988), “[w]here a plaintiff seeks to prove discriminatory intent, the probative value of statements revealing the racial attitudes of the decisionmaker is great. This is so because of the inherent difficulty of proving state of mind.” Id. at 1133 . The court elucidated,

[u]se of racial aspersions obviously provides an indication that the speaker might be more likely to take race into account in making a hiring or membership decision. The probative value of this evidence is apparent from the nature of the words involved. * * * The user of such terms intends only one thing: to degrade those whom he describes in the most offensive manner. General use of these words, though obviously not conclusive evidence that a particular decision was made with racial animus, is clearly relevant to determining whether it was. It would be ironic indeed to conclude that use of the language of prejudice is irrelevant in a civil rights suit.

Id. Evidence, direct or circumstantial, of a discriminatory motive is sufficient to establish a prima facie case. See Zaben v. Air Prods. & Chem., Inc., 129 F.3d 1453, 1457 (11th Cir. 1997) (plaintiff may establish a prima facie case of age discrimination “by presenting direct evidence of discriminatory intent, such as age-biased statements made by the decision maker”); Barnes v. GenCorp Inc., 896 F.2d 1457, 1466 (6th Cir. 1990) (“a plaintiff could show that the employer made statements indicative of a discriminatory motive” to establish a prima facie case).

Here, Kilgore cited several occasions in which Malik referenced her race and age. From February through May 2012, Malik told Kilgore that she was “too old” and, on one occasion, made age-related comments about her hearing and memory. On other occasions, Malik called Kilgore “old” and told her she was the “wrong color.” Finally, just weeks before Kilgore was terminated, Malik told Kilgore “the old lady wins one; but it ain’t over yet,” D.24-3 at 42, Kilgore Aff. at ¶9, and her supervisor Beckwith called her “you old white Bi….” D.24-3 at 42, Kilgore Aff. at ¶10; D.29, Op. at 4.

Under a proper application of the law, the district court should have denied summary judgment because a reasonable jury could find discriminatory intent based on these race and age-related comments, and, given their nexus to Kilgore’s discharge, decide that Kilgore’s protected traits played a role in the termination decision since the comments were made by decisionmakers who would ultimately fire her. Cf. Bowen v. Missouri Dep’t of Soc. Servs., 311 F.3d 878, 884 (8th Cir. 2002) (reversing summary judgment for employer in racial harassment case, holding, inter alia, that racial nature of epithets used by supervisor (“white bitch” and “menopausal white bitch”) towards plaintiff was sufficient to support finding that Black supervisor’s harassment of plaintiff was motivated by race; the clear racial overtones “permit an inference that racial animus motivated not only her overtly discriminatory conduct but all of her offensive conduct towards Bowen”). Indeed, based on his discriminatory remarks alone, a jury could decide that Malik’s repeated references to Kilgore being “too old” and “the wrong color” conveyed “the message that members of [her] particular race [and in this case, age] are disfavored and that members of that race [and age] are, therefore, not full and equal members of the workplace.” McGinest v. GTE Service Corp., 360 F.3d 1103, 1117 (9th Cir. 2004) (“The words themselves are . . . relevant for what they reveal--the intent of the speaker.”). See also Alphin v. Sears, Roebuck & Co., 940 F.2d 1497, 1501 (11th Cir. 1991) (“remark that [plaintiff] was ‘too old,’ although ambiguous, certainly supports a showing of discriminatory intent if we interpret the remark in the light most favorable to [plaintiff]”).

Additionally, the district court failed to draw the favorable inference of discriminatory motive based on evidence that Malik had already fired another Caucasian, over-40 front desk agent two months prior to Kilgore’s dismissal, D.24-3, Kilgore Aff. at ¶6, employees believed Malik was “gunning” for Kilgore, D.24-3 at 61 (HGI000026), and Malik never disciplined the African American employees who were more harshly evaluated by the same guest survey that led to Kilgore’s termination. This evidence combined with Malik’s discriminatory remarks bolsters the inference that impermissible factors motivated the termination decision. See Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1363 (11th Cir. 1999) (finding “Soto’s statement to be probative as to whether age animus motivated the decision to terminate Damon because the remark (1) was allegedly made only three months after Damon was terminated, (2) immediately followed the termination of someone similarly situated to Damon and in the same protected class, and (3) came from the same decision-maker responsible for Damon’s termination”); Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1398-99 (7th Cir. 1997) (explaining that a supervisor’s remark that “all Americans are stupid” would be sufficient to establish a prima facie case strong enough to go to a jury if plaintiff is fired after statement is made). Accord Carter v. Chrysler Corp., 173 F.3d 693, 701 (8th Cir. 1999) (“All instances of harassment need not be stamped with signs of overt discrimination to be relevant . . . if they are part of a course of conduct which is tied to evidence of discriminatory animus.”) (internal citations omitted). In short, Kilgore presented sufficient evidence of discriminatory animus by the persons who decided to terminate her, even if they did not say, “Fire Plaintiff—she’s too old,” D.29, Op. at 11 n.7. See Reeves, 530 U.S. at 135, 120 S. Ct. at 2102 (finding reversible error where court “acknowledge[ed] the potentially damning nature of Chesnut's age-related comments, [but] discounted them on the ground that they were not made in the direct context of Reeves' termination”); EEOC v. Lehi Roller Mills Co., No. 2:08-CV-00591 DN, 2014 WL 1757987 (D. Utah May 1, 2014) (“[t]here are no magic words . . . required for establishing direct evidence of discriminatory motive. A decision-maker does not have to use the language ‘because of’ to communicate his or her discriminatory motive”).

B. The District Court Should Not Have Granted Summary Judgment on Kilgore’s Discrimination Claims Because Triable Issues of Fact Exist as to Whether She was Fired Because of Her Race and Age

The district court wrongly concluded that, even if Kilgore established a prima facie case, summary judgment was appropriate because the decisionmakers honestly believed that Kilgore was the culpable employee since this was not the first complaint that they had received about Kilgore’s treatment of guests. As this Court observed, “Title VII does not require the employer's needs and expectations to be objectively reasonable; it simply prohibits the employer from discriminating on the basis of membership in a protected class.” Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1266 (11th Cir. 2010).“[4] Therefore, “[i]n examining pretext, the question is whether the employer honestly believed its proffered reason for [the adverse action]. The fact that the employer was mistaken or based its decision on bad policy, or even just plain stupidity, goes nowhere as evidence that the proffered explanation is pretextual.” Essex v. United Parcel Serv., 111 F.3d 1304, 1310 (7th Cir. 1997).

Here, the decisionmakers’ purported honest belief is called into question by Kilgore’s prima facie evidence of discriminatory comments and their nexus to the termination. As this Court has recognized, discriminatory comments “can contribute to a circumstantial case for pretext.” Rojas v. Florida, 285 F.3d 1339, 1343 (11th Cir. 2002); see also Reeves, 530 U.S. at 143, 120 S. Ct. at 2106 (quoting Burdine, 450 U.S. at 255 n.10, 101 S. Ct. at 1095 n.10) (“the trier of fact may still consider the evidence establishing the plaintiff's prima facie case ‘and inferences properly drawn therefrom ... on the issue of whether the defendant's explanation is pretextual’”).

Kilgore presented ample evidence of discriminatory motive based on the decisionmakers’ discriminatory remarks, which neither Malik nor Beckwith denied making, and the temporal proximity between the offending comments and her termination. See Jones v. Bessemer Carraway Med. Ctr., 151 F.3d 1321, 1323 n.11 (11th Cir. 1998) (“language not amounting to direct evidence, but showing some racial animus, may be significant evidence of pretext once a plaintiff has set out a prima facie case”); Rollins v. TechSouth, Inc., 833 F.2d 1525, 1530-32 (11th Cir. 1987) (finding a jury issue regarding pretext where the plaintiff’s supervisors made comments indicating age bias) (internal citation omitted). The record evidence shows that Malik and Beckwith decided to fire Kilgore based on a guest survey that did not name her, refused to provide Kilgore with the identification information they allegedly received from the complaining guest, and denied Kilgore’s request to view the surveillance tapes of the day in question (activity which had previously exonerated her), despite a front desk schedule that indicated Kilgore was not at work on the date of the incident. This, combined with the evidence of animus, could cause a reasonable jury to question the validity and veracity of Trussville’s explanation that the guest survey was the reason Kilgore was terminated, and to conclude that the guest survey/complaint was a pretext for firing Kilgore because she was “too old” and the “wrong color.” [5]

CONCLUSION

Based on the foregoing, the Commission urges this Court to reverse the summary judgment entered in favor of Trussville Development and remand the case for trial of Kilgore’s Title VII and ADEA claims.

[1] The Commission takes no position on any other issues presented in this appeal.

[2] The record does not contain any evidence of the age of Beckwith or Malik, but Trussville suggested that Malik was over age 50. D.29, Op. at 3 n.4.

[3] Beckwith asserts that Kilgore was offered an opportunity to transfer to HGI’s laundry department, where she would have no interaction with HGI guests. D.24-2 at 26, Beckwith Aff. at ¶8. Kilgore, however, denies being offered another position. D.24-3 at 43, Kilgore Aff. at ¶11.

[4] In Alvarez, the plaintiff’s only evidence was a single remark, “Cubans are dumb,” which was not made by any decisionmaker, and her own observation that Cubans “‘seem to get terminated at a very high rate without justification,’ which she never backed up with any specifics.” Alvarez, 610 F.3d at 1268.

[5] This evidence also undermines the district court’s conclusion that Kilgore failed to dispute defendant’s justification for her termination because she did not “assert that she was not the front desk clerk about whom the guest complained” D.29, Op. at 8.