No. 09-6108 IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

No. 09-6108 IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT JUDY F. JONES, Plaintiff-Appellant, v. OKLAHOMA CITY PUBLIC SCHOOLS, INDEPENDENT SCHOOL DISTRICT NO. 89 OF OKLAHOMA CITY, OKLAHOMA, Defendant-Appellee. On Appeal from the United States District Court for the Western District of Oklahoma Hon. Robin J. Cauthron, Chief U.S. District Judge BRIEF OF AMICUS CURIAE THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION IN SUPPORT OF PLAINTIFF-APPELLANT AND REVERSAL JAMES L. LEE EQUAL EMPLOYMENT Deputy General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 131 M St. NE, Rm. 5NW10P Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4870 VINCENT BLACKWOOD James.Tucker@EEOC.gov Assistant General Counsel JAMES M. TUCKER Attorney

TABLE OF CONTENTS TABLE OF CITATIONS....i STATEMENT OF INTEREST... 1 STATEMENT OF THE ISSUE... 2 STATEMENT OF THE CASE... 2 Statement of the Facts... 2 District Court Decision... 9 SUMMARY OF THE ARGUMENT....11 ARGUMENT....12 THE EVIDENCE IN THIS CASE THAT IS SUFFICIENT TO ESTABLISH A PRIMA FACIE CASE OF AGE DISCRIMINATION AND SUPPORT A FINDING THAT THE DEFENDANT S EXPLANATION FOR THE PLAINTIFF S DEMOTION IS NOT TRUE IS SUFFICIENT, WITHOUT MORE, TO SUPPORT A FINDING THAT DEFENDANT VIOLATED THE ADEA.....12 CONCLUSION....18 CERTIFICATE OF COMPLIANCE CERTIFICATE OF DIGITAL AND PHYSICAL SERVICE i

TABLE OF CITATIONS Cases page(s) Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117 (10th Cir. 2003)....14 Hare v. Denver Merch. Mart, Inc., 255 Fed. Appx. 298 (10th Cir. 2008)... 15, 16 Jaramillo v. Colo. Judicial Dep t, 427 F.3d 1303 (10th Cir. 2005)....14 Jones v. Okla. City Pub. Sch., No. 08-562 (W.D. Okla. Apr. 27, 2009).....9-11, 16-18 Maughan v. Alaska Airlines, Inc., 281 Fed. Appx. 803 (10th Cir. 2008)....16 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000)... 10, 13-17 Reeves v. Sanderson Plumbing Prods., Inc., 197 F.3d 688 (5th Cir. 1999)....17 Sanders v. Sw. Bell Tel., L.P., 544 F.3d 1101 (10th Cir. 2008)....13 Swackhammer v. Sprint/United Mgm t Co., 493 F.3d 1160 (10th Cir. 2007)....9, 13, 14 Trujillo v. Pacificorp, 524 F.3d 1149 (10th Cir. 2008)... 14 Statutes 29 U.S.C. 621 et seq.... 1 29 U.S.C. 623(a)(1)....13 ii

42 U.S.C. 12101 et seq.... 1 42 U.S.C. 2000e et seq.... 1 iii

STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress with the interpretation, administration, and enforcement of, among other federal laws, the Age Discrimination in Employment Act, 29 U.S.C. 621 et seq. ( ADEA ), Title VII of the Civil Right Act of 1964, 42 U.S.C. 2000e et seq., and Title I of the Americans With Disabilities Act, 42 U.S.C. 12101 et seq. This appeal presents the question of whether a plaintiff with a claim of employment discrimination susceptible to analysis under the McDonnell Douglas three-part analytical model may survive summary judgment by presenting evidence sufficient to establish (1) a prima facie case of discrimination and (2) that the defendant s proffered reason is unworthy of belief, without also having to present additional evidence that the protected characteristic was the cause of the alleged discrimination. Because of the importance of this issue to the effective enforcement of the ADEA and other federal antidiscrimination statutes, the Commission respectfully offers its views to the Court. - 1 -

STATEMENT OF THE ISSUE 1 Whether the district court erred in concluding that despite the presence of evidence sufficient to support a reasonable jury s conclusion that Jones established both a prima facie case of age discrimination and that the school district s proffered explanation for its alleged discriminatory conduct is false, the school district was still entitled to summary judgment because Jones failed to present additional evidence of age discrimination. STATEMENT OF THE CASE A. Statement of the Facts Judy Jones has been an employee of the Oklahoma City Public Schools, Independent School District No. 89 of Oklahoma City, Oklahoma ( District ), since 1969. Appellant s Appendix (Apx. ) 43. During her tenure Jones has served in a variety of capacities, including spending fifteen years as the principal of an elementary school. Apx. 43, 44. In July 2002, Jones was promoted to the newly-created position of Executive Director of Curriculum and Instruction. Apx. 51. In this position, Jones reported to one of five Executive Directors in charge of the District s schools and support services. Apx. 209-10, 213-14. Jones did not have any disciplinary or performance problems. Apx. 212. 1 The Commission expresses no opinion on any other issues presented in this appeal. - 2 -

Beginning in late 2006, Jones was questioned by the District s leadership about her retirement plans. First, in December, Manny Soto, an Executive Director with the District and the person to whom Jones reported, asked Jones when are you going to retire? Apx. 181, 209-10. A few months later, Jones was similarly questioned by several other Executive Directors. In April or May 2007, DeAnn Davis asked Jones on two occasions when she was going to retire. Apx. 190. A witness to Davis questioning of Jones about retirement interpreted Davis questions as indicating that things would be better if Dr. Jones would go ahead and retire and that she really ought to consider retiring. Apx. 290. During the same time period Linda Toure, the Executive Director to whom Jones reported at that time, and Linda Brown, Interim Superintendent for the 2006-07 school year, also asked Jones when she was going to retire. Apx. 92, 192-95, 210, 215. In March or April 2007, the District hired a new Superintendent, John Porter. Apx. 106, 214. Porter began serving as Superintendent on July 1, 2007, but worked for the District during May and June 2007 as a consultant while preparing for his transition into the Superintendent position. Apx. 106. Porter claims that as a consultant he worked closely with Interim Superintendent Linda Brown to ensure a smooth transition into the position - 3 -

of Superintendent. Apx. 106. Porter stated that during this period, he reviewed the organizational structure of the District and determined that reorganization was necessary. Apx. 107. Porter claimed that, after he came up with a draft organizational chart, he began working with Interim Superintendent Linda Brown to institute steps to effectuate a new organizational chart that was budget neutral. Apx. 107. According to Porter, the changes he determined to be necessary included the creation of a Deputy Superintendent/Chief Academic Officer position, and, most relevant to this case, the elimination of Jones position. Apx. 107. Porter states he advised Senior Human Resources Officer, Dr. Mike Shanahan, that it would be necessary to eliminate Jones position. Apx. 107. Porter stated that he was solely responsible for the decision to eliminate Jones position. Apx. 107. Jones, however, testified that, when she asked Shanahan who specifically made the decision, he answered Brown and Porter. Apx. 173-74. While Brown also testified that Porter was the sole decisionmaker, Apx. 215, she offered a different accounting of her work with Porter and the process that led to the elimination of Jones position. Rather than agreeing with Porter s statement that he worked closely with Brown during the transition period, Brown testified that she only met with Porter very, very - 4 -

few times, and it was brief. Apx. 97. According to Brown, Porter s coming in during the transition time was not to sit and meet with me. He was meeting with the board chair, the board members, the community, the business community and whomever he met with. But it was not spent with Linda Brown. Apx. 218. Brown further testified that she did not know what Porter s organizational chart was, nor what Porter s intention was with respect to the department previously overseen by Jones after her position was eliminated. Apx. 215. Porter s affidavit statement also conflicts with the deposition testimony of Shanahan and Scott Randall, an employee of the District s finance department. While Porter asserted that the elimination of Jones position was related to budgetary reasons, Shanahan testified that he did not recall being informed of any budgetary considerations behind the decision to eliminate the position. Apx. 238. Randall testified that he had been in a meeting with Porter discussing the subject of financial justifications for funding the new positions Porter wanted to create. Apx. 258. Porter, however, did not ever mention or otherwise represent to Randall that Jones position was being eliminated for budgetary or financial reasons. Apx. 258. Randall also testified that, if Jones position were going to be eliminated because of financial or budgetary reasons, that fact would have - 5 -

been run by him because he was in the District s finance department. Apx. 258. Randall added that Jones position had not been eliminated as of July 1, 2007. It was his belief that the position was in fact carried forward to the next school year, because the money for that position was still in the budget for the upcoming school year and that money would not have been there had the position been eliminated. Apx. 260. Furthermore, after Jones position had supposedly been eliminated, her staff remained in their positions and were not reassigned or terminated. Apx. 290. On June 5 or 6, 2007, Shanahan presented Jones with a letter from the District notifying her that her position had been eliminated effective July 1, 2007, and she would be reassigned to work as an elementary school principal effective August 1, 2007. Apx. 171-72, 287. As a result of her demotion, Jones suffered an immediate loss of vacation benefits, and a substantial salary decrease in the following year. Apx. 177. The letter did not indicate where Jones would be working, but the District notified her by subsequent letter dated June 29 of the school to which she would be assigned, with a new effective date of July 12. Apx. 112. In its position statement submitted to the Commission during its investigation of Jones charge, the District stated that, at the time of her demotion, Jones was qualified for only one position in the District the - 6 -

elementary school principal position to which she was reassigned. Apx. 279-80. However, Shanahan testified that there were several other positions open for which Jones was qualified, including the Regional Executive Director position left vacant upon Soto s retirement a position that, unlike Jones new principal job, would not have been a demotion. Apx. 233-34. Shanahan also testified that he assumed Porter would have been aware of this opening. Apx. 234. Supporting that assumption, Shanahan noted that this particular position was still on the District s organizational charts in June, and was never taken off to his knowledge. Apx. 233. In the letter Jones received from the District notifying her of her demotion, she was offered the opportunity to apply for other positions an offer inconsistent with the District s assertion in its position letter that she was only qualified for the elementary school principal position. Apx. 287. Jones declined to apply for any other positions, however, because to do so she would have to apply through the very people making these decisions to eliminate her job. Apx. 180-81. In late July 2007, after Jones had been reassigned, Porter promoted Elois Brooks, who was roughly the same age as Jones, to the position of Acting Deputy Superintendent. Apx. 109. Porter stated that, after Brooks became Acting Deputy Superintendent, it became apparent that there was - 7 -

an immediate need to have an individual in the position of Director of Teaching and Learning. Apx. 109. The Director of Teaching and Learning position was ostensibly created by Porter as part of his reorganization of the District, but the duties and responsibilities of this new position were strikingly similar to those of Jones prior position. District Senior Human Resources Officer Shanahan testified that the two positions were closely related with curriculum and instruction very integral parts of both job responsibilities, with both responsible for staff development. Apx. 239-40. The written job descriptions themselves both provide that the primary qualification for each position is a Master s Degree in Curriculum and Instruction, with a doctorate preferred. Apx. 267-70. Each also specifies that the duties of the positions involve taking a leadership role in providing professional development services to the District s teachers, evaluating instructional methods and recommending changes where necessary, developing collaborative relationships with external partners, and coordinating textbook ordering and distribution. Apx. 267-70. In August 2007, Sandra Park, who is thirteen years younger than Jones, submitted a job application to the District for the position of Regional Executive Director. Apx. 41-42, 117, 125. Park initially interviewed with - 8 -

Brooks for this position, but Porter conducted a follow-up interview during which he instead offered Park the position of Director of Teaching and Learning. Apx. 126-27. Park accepted the position and began work in September 2007. Apx. 132. B. District Court Decision In granting the District s motion for summary judgment, the district court determined that Jones had established a prima facie case of age discrimination, as her reduction in pay, benefits, and prestige were sufficient to make her reassignment an actionable adverse employment action. 2 Apx. 311. The court recognized that the District had articulated a legitimate, nondiscriminatory reason for its action that eliminating Jones position allowed Porter to create a new position in a revenue-neutral manner. Apx. 312. The court also noted the District s assertions that Porter combined some of the duties from Jones prior position with additional duties and created a new position, and that Porter reassigned and/or promoted at least 2 On summary judgment, the only element of Jones prima facie case that the District challenged was whether she suffered an adverse employment action. Apx. 30. The District stated that it did not challenge that Jones was a member of the protected class or that she was performing her job satisfactorily. Apx. 30. In addition, it made no challenge on what this Court has identified as the critical element of whether the reassignment took place under circumstances which give rise to an inference of unlawful discrimination. Swackhammer v. Sprint/United Mgm t Co., 493 F.3d 1160, 1166 n.8 (10th Cir. 2007). - 9 -

six people over the age of fifty (and Porter himself was fifty-six). Apx. 312. Turning to the issue of pretext, the court recognized that evidence that the funding for her position continued after the position was supposedly eliminated, that the staff supporting that position remained employed in that capacity, and the similarity of the old and new positions, was sufficient for a jury to find the District s explanation unworthy of belief. Apx. 313. However, citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), and Tenth Circuit precedent, the court stated that there are cases in which there is sufficient evidence to reject the defendant s explanation but insufficient evidence from which a rational factfinder could conclude the challenged action was discriminatory. Apx. 313-14. The court characterized the evidence of pretext in this case as not particularly strong, and noted that, particularly fatal to Plaintiff s case, there was a lack of evidence suggesting age discrimination. Apx. 314. The court stated that the only evidence suggesting age discrimination was the questioning Jones had received about her retirement plans, and only one of the questioners Linda Brown was arguably involved in Jones reassignment but [d]efendant strongly argues she had no role in the decision process. Apx. 314. The court added that Brown had testified that she had no role, and that while Jones argued that Shanahan had stated that others were also involved, - 10 -

Jones offer[ed] no additional evidence suggesting that her age played a role regardless of who was involved. Apx. 314. The court concluded that no rational juror could find in her favor. Apx. 315. SUMMARY OF THE ARGUMENT In granting the school district s motion for summary judgment, the district court applied an incorrect evidentiary standard in essence, a pretext-plus standard that has been flatly rejected by both this Court and the Supreme Court. The law is well-settled that a plaintiff prosecuting a claim of employment discrimination based on circumstantial evidence can survive summary judgment by doing precisely what the district court concluded that Jones had done in this case presenting sufficient evidence to establish both a prima facie case of discrimination and that the defendant s asserted reason for the alleged discrimination is false. However, despite the district court s conclusion to the contrary, Jones did not need to present any additional evidence of age discrimination in order to survive summary judgment. While this Court and the Supreme Court recognize that in certain rare circumstances this minimum showing may not suffice to forestall summary judgment, those circumstances are not present in this case. For these reasons, the district court s grant of summary judgment constituted reversible error. - 11 -

ARGUMENT THE EVIDENCE IN THIS CASE THAT IS SUFFICIENT TO ESTABLISH A PRIMA FACIE CASE OF AGE DISCRIMINATION AND SUPPORT A FINDING THAT THE DEFENDANT S EXPLANATION FOR THE PLAINTIFF S DEMOTION IS NOT TRUE IS SUFFICIENT, WITHOUT MORE, TO SUPPORT A FINDING THAT DEFENDANT VIOLATED THE ADEA In this case, the district court deviated from well-settled law in granting summary judgment to the District. Under the clear precedent of this Court and the Supreme Court, as soon as the district court determined that the record contains sufficient evidence for a reasonable jury to conclude that there is a prima facie case of age discrimination and that the District s proffered explanation for its decision to demote Jones was false, the court s inquiry should have been at an end and the District s motion should have been denied. Instead, the court imposed a heightened evidentiary burden on Jones, requiring that she also present additional evidence of age discrimination beyond that necessary to establish her prima facie case and the falsity of the District s proffered explanation and granted summary judgment against her because she had not met this heightened standard. This de facto imposition of the discredited pretext plus standard on Jones was incorrect as a matter of law, and constitutes reversible error. Section 4(a)(1) of the Age Discrimination in Employment Act ( ADEA ) makes it unlawful for an employer to fail or refuse to hire or to - 12 -

discharge any individual or to otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual s age. 29 U.S.C. 623(a)(1). This Court applies the McDonnell-Douglas burden-shifting framework when reviewing a district court s grant of summary judgment on claims under 4(a)(1). Sanders v. Sw. Bell Tel., L.P., 544 F.3d 1101, 1105 (10th Cir. 2008). That is, in the absence of direct evidence, if there is sufficient circumstantial evidence to permit a reasonable jury to find that there is a prima facie case and that the employer s nondiscriminatory explanation for the contested action is pretextual, summary judgment should be denied. Id. The Supreme Court has held that, in all but the most exceptional circumstances, summary judgment should be denied in an ADEA disparate treatment claim if the evidence is sufficient to permit a reasonable jury to conclude that the plaintiff established a prima facie case and that the defendant s proffered reason for its action is false. Reeves, 530 U.S. at 146-49. [A] plaintiff s prima facie case, combined with sufficient evidence to find that the employer s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated. Id. at 148; see also Swackhammer v. Sprint/United Mgm t Co., 493 F.3d 1160, 1168 (10th Cir. 2007) ( in order to survive summary judgment, a plaintiff generally - 13 -

need not provide affirmative evidence of discrimination beyond the prima facie case and evidence that the employer s proffered explanation is pretextual ) (citing Jaramillo v. Colo. Judicial Dep t, 427 F.3d 1303, 1312 (10th Cir. 2005); Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1135-36 (10th Cir. 2003)). No additional evidence is necessary, the Court explained, because rejection of the defendant s proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination. Reeves, 530 U.S. at 147; see also Trujillo v. Pacificorp, 524 F.3d 1149, 1160 (10th Cir. 2008) (same). This is because [p]roof that the defendant s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. Reeves, 530 U.S. at 147. Moreover, once the employer s justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Id. In accordance with the holding in Reeves, this Court has definitively rejected a pretext plus standard. Swackhammer, 493 F.3d at 1168. The current standard for an age-discrimination claim to survive summary judgment does not necessarily require a plaintiff to provide any evidence - 14 -

that the real reason for his termination was age-related. Hare v. Denver Merch. Mart, Inc., 255 Fed. Appx. 298, 305 (10th Cir. 2008) (unpub.). This is not to say that summary judgment may never be awarded in a case where the evidence is sufficient to establish a prima facie case and the falsity of the employer s articulated reason. The Supreme Court indicated in Reeves that under certain circumstances where, for example, the record conclusively revealed some other, nondiscriminatory reason for the employer s decision, or the plaintiff only created a weak issue of fact as to whether the employer s reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred summary judgment would be appropriate despite evidence sufficient to establish both the plaintiff s prima facie case and the falsity of the employer s reason. Reeves, 530 U.S. at 148 (citations omitted) (emphasis added). However, the situations in which these exceptions to the general rule apply are rare, and not present in the instant matter. See id. at 154-55 (Ginsburg, J., concurring) (stating that it is uncommon and atypical for it to be conclusively demonstrated by evidence that the district court is required to credit on a motion... that discrimination could not have been the defendant s true motivation ) (emphasis added). - 15 -

This Court has noted that the exceptions described in Reeves impose a heavy evidentiary burden on employers in showing an alternative source for the discrepancies in their reasons. Hare, 255 Fed. Appx. at 305. In the absence of abundant and uncontroverted evidence that no discrimination occurred, a plaintiff s showing of inconsistencies in the defendant s reasons for discharging him are sufficient to survive summary judgment. Id. at 306 (citation omitted); see also Reeves, 530 U.S. at 148 (same); Maughan v. Alaska Airlines, Inc., 281 Fed. Appx. 803, 808-09 (10th Cir. 2008) (unpub.) ( even if [the plaintiff] has created only a weak issue of fact as to whether the employer s reason was untrue, [the defendant] has not presented the corollary abundant and uncontroverted independent evidence that no discrimination has occurred, that would entitle it to judgment as a matter of law ) (quoting in part Reeves, 530 U.S. at 148). The rare conditions necessary to establish an exception from the Reeves rule are not present in the instant matter. There is no evidence, and there is none, that conclusively reveals some other, nondiscriminatory reason for the District s decision to demote Jones. See Apx. 312-15. Further, even if the evidence of the falsity of the District s explanation could properly be characterized as weak, there is not also the requisite abundant, uncontroverted, independent evidence that no discrimination had occurred - 16 -

that would make summary judgment for the District appropriate and, again, the district court made no such ruling. See Apx. 312-15. The district court s treatment of the District s motion for summary judgment presents a situation strikingly similar to that condemned in Reeves. In Reeves, the Supreme Court addressed a Court of Appeals decision in a case where the evidence was sufficient to establish both a prima facie case of age discrimination and that the employer s proffered reason for its action was unworthy of belief. Reeves, 530 U.S. at 145-46. The Court of Appeals held that this showing, standing alone, was insufficient to support a verdict in the plaintiff s favor, adding that the court must, as an essential final step, determine whether [the plaintiff] presented sufficient evidence that his age motivated [respondent s] employment decision. Id. at 146 (second alteration in original) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 197 F.3d 688, 693 (5th Cir. 1999)). As discussed above, the Supreme Court completely rejected this final step, or pretext-plus, approach. In this case, the district court recognized that there was sufficient evidence for a reasonable jury to credit Jones prima facie case and reject the District s proffered reason for the demotion as false. Apx. 312-13. Notwithstanding the holding in Reeves that the district court s inquiry should have been at an end and the District s motion for summary judgment - 17 -

should have been denied, the district court took an additional, final step of assessing the strength of the overall evidence of age discrimination to determine whether summary judgment was appropriate. In making this additional final step assessment that Reeves expressly rejected, the district court concluded that particularly fatal to Plaintiff s case is the lack of evidence from which a reasonable jury could find discrimination. Apx. 314. The district court, misreading Reeves, stated that [t]his lack of evidence places Plaintiff s case squarely within the contours of the Reeves exception. Apx. 314. Accordingly, the district court erred in granting the District s motion for summary judgment on the basis of what was essentially a pretext plus analysis. CONCLUSION For the aforementioned reasons, the Commission respectfully requests that this Court reverse the district court s grant of summary judgment to the - 18 -

District, and remand the case for further proceedings. Respectfully submitted, JAMES L. LEE Deputy General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT BLACKWOOD Assistant General counsel JAMES M. TUCKER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov - 19 -

CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the type-volume requirements set forth in Federal Rules of Appellate Procedure 29(d) and 32(a)(7)(B). This brief contains 3,840 words, from the Statement of Interest through the Conclusion, as determined by the Microsoft Word 2003 word processing program, with 14-point proportionally spaced type for text and 14-point proportionally spaced type for footnotes. JAMES M. TUCKER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov

CERTIFICATE OF DIGITAL AND PHYSICAL SERVICE I hereby certify that on October 23, 2009, this document was electronically served on the counsel listed below via the Court s ECF Notice of Docket Activity system at their electronic addresses of record: Scott F. Brockman scott@wardglasslaw.com Laura L. Holmes lholmes@cfel.com Heather N. Hendricks hhendricks@cfel.com I further certify that all required privacy redactions (in this document, none) have been made to this document, that this ECF submission is an exact copy of the brief filed in hard copy with the Court, and that this digital submission has been scanned for viruses with the most recent version of a commercial virus scanning program, Symantec AntiVirus Corporate Edition, version 10.1.6.6000, updated October 22, 2009, and, according to that program, is free of viruses. I further certify that on this same date, one original and seven additional hard copies of the foregoing brief were submitted to the Clerk of Court, United States Court of Appeals for the Tenth Circuit, Byron White U.S. Courthouse, 1823 Stout St., Denver, CO 80257. JAMES M. TUCKER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov