*1 HILL, Plaintiff- Louise Ethel

Appellant, LOGISTICS MARTIN

LOCKHEED

MANAGEMENT, INCORPORAT Defendant-Appellee.

ED, 01-1359.

No. Appeals, Court States

United

Fourth Circuit. 5, 2001. Dec.

Argued 7, 2003. Jan.

Decided *2 TRAXLER, MICHAEL

Before GOODWIN, United Judges, and Circuit the Southern Judge for District States sitting *3 Virginia, District West designation. by published and remanded

Reversed wrote the Judge MICHAEL opinion. joined. Judge in GOODWIN which opinion, dissenting wrote Judge TRAXLER opinion.

OPINION MICHAEL, Judge. Circuit em- her former Hill sued Ethel Louise Man- Logistics Martin Lockheed ployer, (Lockheed), claiming Inc. agement, age and her sex was she fired ulti- reprimanded that she for her com- in retaliation mately fired her Hill asserts of discrimination. plaints Rights the Civil Title VII of under claims § (Title VII), 2000e 42 U.S.C. Act of 1964 in Employ- seq.; Age Discrimination et (ADEA), § 621 29 U.S.C. Act of ment Rights Human New York seq.; et and the Hill seq. § 290 et Law, Law N.Y. Exec. sum- award of court’s the district appeals her on all of Lockheed mary judgment prof- Hill has conclude that claims.1 We dis- of sex evidence fered direct safety of her in the statements crimination influenced substantially inspector, who also her. We to fire company’s decision sufficient Hill has proffered conclude of mate- issue genuine to create Knox- Rayson, A. Ronald ARGUED: reports certain whether rial fact about Tennessee, Andreas Appellant. for ville, rep- to her led inspector reports her Bald- Satterfield, Jr., Haynsworth, Neal — re- in issued discharge rimands and L.L.C., Greaves, Green- win, & Johnson —were complaints her discrimination taliation for ON Carolina, Appellee. ville, South re- therefore We inspector. II, against Burkhalter, Knox- David A. BRIEF: in entered summary judgment verse Tennessee, ville, Appellant. case this judgment] will control summary [on "that the agreed district court parties in 1. York law." J.A. New questions under the federal analysis applied to legal favor Lockheed remand the case for 1998 and ending May 1998 when she trial. was fired. Hill performed her work on assignment

this without incident for about I. month, but began trouble when a man named Edward Fultz designated as Because Ethel was the nonmovant safety inspector February sometime in summary judgment proceedings, we had worked under Fultz on a state the light facts most favorable £t job just Fort Drum years three earlier. her, drawing justifiable all inferences in job On the earlier say overheard Fultz her favor. See v. Liberty Lobby, Anderson *4 that he did not like to have women work- Inc., 242, 255, 2505, U.S. 106 S.Ct. ing under him. 234. during J.A. And (1986). L.Ed.2d 202 Lockheed When fired three months 1998 when Fultz was her 1998, Hill in May she was fifty- almost inspector Drum, at Fort Fultz made many eight years old and worked had for Lock- derogatory comments about Hill’s sex and as a heed sheet mechanic metal for over age. On several occasions Fultz referred years. eleven Hill a high gradu- school to her as a lady.” “useless old J.A. 240A. ate who received training additional at One time he said that Hill awas useless technical schools in the areas of airframe lady old and that she go needed to home and x-raying construction of aircraft. and retire. J.A. 240B. Another time Fultz Dep. at 9-10. When Lockheed hired said that Hill was “useless and they April Hill in she had over thirteen need[ed] her.” retire Id. He also called years experience a sheet as metal me- woman,” her a “damn 241A, J.A. “a chanic the aircraft industry. Hill Dep. troubled old lady,” J.A. 245. Fultz was at During 13-19. years her eleven with responsible for disciplinary action against Lockheed, Hill was assigned to contract Hill that led directly to her dismissal teams that responsible field for work- Lockheed. ing government jobs. J.A. 61. These teams field traveled to various military Lockheed contends that it fired Hill un- perform bases to modification work on mil- der its Operating Standard Procedure itary aircraft. (SOP). J.A. 64-65. Over the for, The SOP allows but does not years, assigned Lockheed Hill to work at require, termination when employee an re- military bases, number of including at ones ceives three written reprimands within one Savannah, (Hunter Georgia Army year Air- and at least one of the reprimands field); Indiantown Gap, Pennsylvania; involves a suspension. Hill received a Bragg, Carolina; Fort North Eustis, Fort written reprimand in September 1997, an- Virginia; Drum, and Fort New York. She other with a three-day suspension in April also worked National Guard installa- and a in May third 1998. Hill was Jersey tions New and Puerto Rico. J.A. fired after the reprimand. third She con- Most of jobs lasted for less than tends that she was fired because of her sex months, six and Hill assigned to some and that she reprimand- was also of these bases several times. J.A. 230-31. ed and discharged in retaliation making Hill traveled so much Lockheed that complaints to supervisor, Richard Dix- she eventually bought on, a recreational vehi- about Fultz’s discriminatory conduct. cle, using it as her home while she was on Hill does not challenge her first written job assignments. Id. reprimand, which she received in Septem- job

Hill’s last for Lockheed was at Fort ber 1997 while working job on a at Fort Drum, York, New beginning in January Bragg, North Carolina. She does take extra cut- ones, where her and asked her shift and third the second with issue Fultz, Hill re- According to Drum in 1998. ters were. at Fort were issued which [them] I took repri- [Dixon] “I told Richard plied, written second before her Sometime Hill, however, Drum), (the 250 51. at Fort home.” J.A. one first mand verbal not have such complaints of several that she did the first asserts made 242-43. When Fultz. J.A. Fultz. J.A. exchange Dixon about or encounter Fultz’s Dixon, sex only report, mentioned specifically who had com- during her second to Fultz because age discrimination Hill had lied believed that not want to he did told her plaint, to Dixon about anything said she ignore should and that she about it hear report also J.A. 250. Fultz’s her cutters. 242-43. to work. J.A. go back less than think that Hill was made Dixon Lockheed are complaints Discrimination he morning when forthcoming the next investigated because to be supposed cutters and misplaced showed her employee prohibits SOP company’s all Believing that they if were hers. asked harassing discriminating against from for, Hill were accounted of her cutters 112,195. first J.A. employees. fellow cutters had acknowledged that the simply *5 policy the anti-discrimination violation 77-78. Be- on them. J.A. her number reprimand, second in a written results about had not her questioned cause Fultz third sub- and the three-day suspension, cutters, by Dix- was blindsided missing she 112. J.A. termination. the violator to jects when Dixon Specifically, question. on’s not complaints were Hill’s discrimination cutters, she was her about asked Dixon apparently investigated, mislaid pair third been her had aware that not mention discrimi- that Hill did claims sum, Fultz’s 77. In jobsite. at the J.A. was nation, Fultz only complained but Dixon, accord- was untrue to which report on her. picking at yelling her evidence, led to believe ing to Hill’s case, received second Hill misplaced cut- had lied about the that Hill (and resulting reprimand written give Dixon to prompted ters. This belief 1998, April on three-day suspension) three-day reprimand and a Hill a written Dixon about complained after she that he took suspension. Dixon admits disciplinary action second Fultz. This only against action disciplinary this misplaced pair on a Hill was based against lied about thought she had because he Under diagonal cutters. four-inch 251A, 253. cutters. J.A. employ- policy, tool control Lockheed’s three-day from her After returned times her tools at all account for ee must 1998, she April at the end suspension im- missing tools to her report and must Fultz was Dixon that again to complained pairs Hill had three supervisor. mediate then her. Dixon discriminating against cutters, Army and an of identical four-inch complaints, Hill’s Fultz about talked to cutters on pair of Hill’s found employee 246A-46B, with no- and Fultz reacted J.A. 14, 1998. J.A. April on maintenance stand Hill, 245. Im- towards J.A. anger ticeable took cutters Army employee The a series of writing began Fultz mediately, to Dixon. Fultz, gave them then Hill, at issuing on reports discrepancy Fultz day, that same 249A-50. Later J.A. discrep- These every workday. (accord- least one Dixon that something to reported “201s,” document as known ancy reports, Hill) untrue, led Dixon and this was ing minor, ma- error, classifying as it worker lying about to believe that Hill twice up Fultz wrote jor, or critical. Fultz told Dixon cutters. misplaced 30, 1998, times three April Thursday, on at the end of her checked Hill’s toolbox he 1, 1998, on May Friday, and once on Mon- to fire Hill was “based entirely on informa- day, May 1998. Fultz himself marked tion ... gathered people from “minor,” each of Hill’s errors as and Hill work[ed] the [Fort Drum] site.” J.A. said they “nit-picky were and trivial.” Finally, Fultz wrote signed J.A. 83. discrepancy reports The for statement, termination which explains that matters such as failure to burnish low Hill was fired because Fultz found her voltage power supply mounting holes and work to be unsatisfactory. J.A. 170-72. using wrong screws in an antenna fired, When Hill was she was the only (With fairing assembly. J.A. 127. respect woman and employee oldest on her screws, Hill contends that she was eight-person work team. J.A. 279. Hill’s only long instructed to use the left screws initially work was assigned a thirty-one- 83-84.) Dixon, kit. supply J.A. year-old man, and she was ultimately re- supervisor, had no control over whether a placed by a man who forty-seven. discrepancy report was written. Dixon Dep. could, however, 29-30. Dixon In June 1998 Hill filed a charge of dis- report check a accuracy, and he re- crimination and retaliation Equal with the fused to endorse one of the reports that Employment Opportunity Commission, Fultz against issued Hill. Hill Dep. at EEOC issued right-to-sue her a J.A. 130. letter April dated 1999. Hill then filed flurry of discrepancy reports that a complaint in the United States District against issued Hill triggered her Court the District of South Carolina third reprimand 4,May written 1998. alleging that she had been wrongfully dis- *6 J.A. 127. reprimands, With three Hill was charged because of her age sex and in subject now to discharge, and she was sent VII, violation of ADEA, Title and the home to await word. J.A. 84. She was New York Rights Human Law. Hill also fired days. within the next few J.A. alleges that she was terminated retalia- 278. The Lockheed officials who made the tion for complaining about the discrimina- formal decision to fire Hill were Archie Fultz, tory behavior of inspector. her Griffin, the east coast senior site represen- Lockheed for summary moved judgment, tative, Prickett, and Thomas the program district court granted compa- manager charge of contract field teams. ny’s First, motion. the court held that Hill (Neither Griffin nor Prickett was located did not proffer any direct evidence of dis- Drum; at Fort Griffin was in Georgia, and crimination. Fultz’s many derogatory Texas.) Prickett was in According to Grif- comments about Hill’s age sex and do not fin, the decision to fire Hill was based count, said, the court because Fultz did not entirely on provided information make the final Second, decision to fire Hill. Dixon, especially Fultz. J.A. 256. the district court concluded that Hill did Griffin talked with Fultz about Hill several proffer not sufficient circumstantial evi- prior times the termination dence to summary withstand judgment and Fultz provided Griffin with a written the discrimination claims. Finally, statement of his with observations about Hill’s respect claim, performance. work the retaliation J.A. 255-56. district Griffin did court talk with Hill concluded that Hill she while established being was termination, prima case, considered facie nor did but he ever the claim failed be- examine her work. Prickett, J.A. 256-57. cause could not show that Lockheed’s who also did not talk with Hill or any poor job claim of performance pretext firsthand knowledge, said the decision for a retaliatory discharge. Hill appeals.

II. prove prima facie case of discrimination succeeds, employment. If she question turn whether We first defendant-employer respond must with properly granted the district court sum- showing that it had legitimate, mary judgment to Lockheed on Hill’s sex nondiscriminatory reason for the adverse age discrimination claims. Section employment action. At that point, the Title VII makes it “an unlawful 703 of burden shifts back to plaintiff an ... employment practice employer prove that the employer’s proffered rea- any to fail or refuse to hire or to discharge son a pretext for discrimination. individual, or otherwise to discriminate retains the ultimate burden against any individual with respect of persuading the factfinder that she was terms, conditions, compensation, privi- or the victim of discrimination. See Brink- leges employment, of such indi- ley, 180 F.3d at 607. § ... vidual’s sex.” U.S.C. 2000e- 2(a)(1). The ADEA parallel contains a Price Waterhouse v. Hopkins, 490 prohibition: “It shall be for an unlawful U.S. 109 S.Ct. 104 L.Ed.2d 268 to fail or refuse to hire or to (1989), recognized which employ discharge individual or otherwise dis- may ment decision be motivated both against any criminate individual re- legitimate illegitimate considerations, terms, spect compensation, to his condi- second, established the framework for the tions, or privileges employment, because “mixed-motive,” method of proving em age.” of such individual’s 29 U.S.C. ployment plaintiffs discrimination. The 623(a)(1). § initial burden is heavier under the Price proving There are two methods for in Waterhouse framework. Instead of start tentional sex or discrimination in the ing with the McDonnell Douglas prima employment setting. Brinkley See v. Har case, facie which relies on circumstantial Club, bour Recreation 606- up evidence to a presumption set of dis (4th Cir.1999). “[ijnten- Specifically, crimination, plaintiff proceeding under *7 tional discrimination in employment cases Price Waterhouse must offer evidence of fall within one of two categories: ‘pretext’ discrimination that is more If direct. cases and ‘mixed-motive’ cases. The dis plaintiff threshold, evidentiary crosses this critical, plaintiffs tinction is enjoy production both the burden of and “the liability more favorable standards of in burden of persuasion to the em shift[ ] cases, mixed-motive and this is even more ployer prove that it would have reached so after the Rights Civil Act of 1991.” the same determination if [even it had (4th 1137, Phipps, Fuller v. 67 F.3d 1141 without been] animus.” Cir.1995) (internal quotations and citations Univ., Taylor Virginia v. Union 193 F.3d omitted). (4th 219, Cir.1999) (en banc) (internal 232 omitted).

The more commonly quotations used method of and citations Once proving by discrimination is the use of of persuasion burden shifts to the em ployer Waterhouse, circumstantial evidence under the three- under Price the em step, or burden shifting, “pretext” ployer may method escape liability only proves if it by Supreme laid out Court that it would employ have made the same Green, Douglas Corp. McDonnell v. 411 purely legitimate ment based on decision “ 792, 802-05, U.S. employer may 93 S.Ct. 36 reasons. ‘[A]n not meet its (1973). L.Ed.2d 668 Under that frame- burden in such a case merely showing plaintiff-employee work the must first that at the time of the it decision was 664 role an actual plays factor] rea- forbidden legitimate [a aby only part

motivated oth- of regardless employment an aof mixed-motive very premise son. independently may considerations er pres- reason was legitimate is that case Fuller, at 67 F.3d the outcome.” explain instead must show employer ... The ent. Educ., 3 v. Bd. also alone, 1142. See Pilditch reason, standing legitimate that its of Cir.1993) (“[T]he (7th 1113, 1118 n. 2 F.3d the same it to make induced would ” Price Act of 1991 overrules Rights Civil Microdyne Corp., Russell v. decision.’ employ- an ... and makes Waterhouse Cir.1995) (4th (quoting if it was motivated illegal ment decision Waterhouse, 490 U.S. Price motive.”).2 illegitimate all an 1775). S.Ct. claiming age or dis A sex 107(a) plaintiff Rights Act the Civil Section the McDon rely need crimination Price Waterhouse modified if proof method of Douglas pretext nell treat- framework, mixed-motive “making Price use the alternative Fuller, eligible to she is plaintiffs.” ment more favorable method. As the mixed-motive Waterhouse provides Act The 1991 at 1142. 67 F.3d repeated, recently Court Supreme is practice unlawful that “an inapplicable is Douglas “McDonnell party complaining established when presents direct evi where race, color, religion, sex demonstrates Swierkiewicz of discrimination.” dence motivating factor origin national N.A., 506, 511, 122 S.Ct. 534 U.S. Sorema though practice, even any employment for (2002) (internal quota L.Ed.2d 1 practice.” motivated factors also other omitted). v. Blue See Wilhelm tions also 2000e~2(m). “The § bonus 42 U.S.C. Bell, Inc., 1429, 1434 Cir. to invoke plaintiffs able VII] [Title 1985) (“[D]irect [or sex] evidence cases in mixed-motive applicable standard the need for an discrimination obviated proof by is that the Act] the 1991 [after showing plaintiffs [the independent reached it would have employer that reasons their employer’s] articulated any dis- without the same determination ”). ‘pretextual.’ discharges the em- does not allow criminatory animus Rath- liability altogether. ployer to avoid A. the remedies er, only limits proof such us, then, before question The first plaintiff.” Taylor, available to the words, proffered whether Congress other F.3d at 232. is suffi age discrimination the law if sex and an breaks decided to use the to enable her “motivating ciently direct was a illegitimate criterion *8 “A plain proof. method of even if mixed-motive employment factor” in the advantageous for the more qualifies the same tiff have made would in mixed- liability applicable factors. standard solely legitimate on based decision presents ‘direct evi- cases if [she] when motive [Title VII] violate “[E]mployers now Thus, that a we assume defen- section ADEAclaims. not decided whether 2. Our circuit has 1991, 107(a) 42 Rights dant-employer Act of case under of the Civil in mixed-motive 2000e-2(m), applies § to ADEAmixed- liability may escape U.S.C. if it shows it ADEA was not addressed motive cases. The issue same decision based have made the would court, parties have not and the the district solely legitimate If it becomes on factors. with- We therefore assume briefed it for us. remand, necessary court can on district 2000e-2(m) ap- deciding § does not out that 2000e-2(m) governs § whether consider original that the Price ply to the ADEA mixed-motive claims. ADEA controlling for is still Waterhouse framework

665 placed that dence decisionmakers substan- attitude the workplace. See Brinkley, tial negative illegitimate Fultz, reliance on an 180 F.3d at 608. the man responsi- ” Taylor, 193 F.3d at (quot- inspecting criterion.’ 232 ble Hill’s work at Fort Waterhouse, Drum, ing 277, regularly Price 490 U.S. made derogatory com- (O’Connor, J., S.Ct. ments about her concurring)). and sex. Several O’Connor, Justice times Fultz whose Price Waterhouse referred to Hill as a “useless lady.” controlling circuit, old J.A. 240A. concurrence this Once Fultz said that id., Hill was a specify lady see did not what useless old constitutes and that she did, however, go needed to direct home and evidence. She retire. J.A. 240B. list On another occasion Fultz “stray what does not: said that remarks was “useless and they need to workplace, retire her.” statements nondecision- 240B. Fultz makers, J.A. called Hill also “a trou- or statements decisionmakers 245, lady,” bled old J.A. and a “damn process unrelated to the decisional itself.” woman,” J.A. statements, 241A. Waterhouse, 277, Price 490 U.S. at which were all at Hill directed while (O’Connor,J., she S.Ct. 1775 concurring). Our job, clearly demonstrate court understands Price Waterhouse to Fultz had discriminatory attitude to- mean the direct evidence threshold is wards at the workplace. met with “evidence of conduct or state- directly ments both reflect alleged We note parenthetically that Fultz’s discriminatory attitude bear di- comments cannot be characterized as am- rectly on the employment contested deci- biguous or open to alternate interpreta- Taylor, sion.” 193 F.3d at 232. other They tion. are distinguishable therefore words, Hill produce “must evidence that from other about age comments and sex clearly discriminatory indicates a attitude rejected that we have as direct evidence of workplace and must illustrate a a discriminatory example, attitude. For negative nexus between that attitude and humorous, Fultz’s comments jo- were not action.” Brinkley, 180 cular, general or “commentary on the fact at 608.3 all people age.” O’Connor v. Consoli- Corp.,

dated Coin Caterers 56 F.3d (4th Cir.1995), 549-50 rev’d on other Derogatory may remarks consti grounds, U.S. 116 S.Ct.

tute direct (1996). evidence of L.Ed.2d 433 can Nor Fultz’s state- opinion In this we use the term produce “direct “must direct evidence of a stated evidence, evidence” refer to be it direct or purpose to discriminate [indirect] and/or indirect, strength that is of sufficient to war- probative evidence of sufficient force to re- rant use of the mixed-motive framework. As genuine flect a issue material fact.” said, court our "whether a case is a Co., Inc., Goldberg v. B. & Green pretext or ultimately hing- mixed-motive case (4th Cir.1988). required “What is strength es on the of the establishing is evidence of conduct statements that Fuller, discrimination.” 67 F.3d at 1143 directly alleged both reflect discrimina- (footnote omitted). To meet the mixed motive tory attitude and directly that bear on the circuit, evidentiary threshold in this *9 employment contested decision. Fuller v. employee may “ordinary princi- an utilize (4th Cir.1995). Phipps, 67 F.3d 1142 ples proof using of any direct or indirect lacking, If plaintiff such evidence is may sufficiently evidence relevant proba- to and proceed nevertheless under McDonnell of Corp., tive the issue.” Tuck v. Henkel Douglas. (4th Cir.1992). F.2d To over- (alteration Brinkley, origi- 180 F.3d at 607 summary judgment a come motion based nal). upon this proof, plaintiff method of case, must be on the focus not mixed-motive they are because discounted be

mente rather influence Taylor, actual to Hill. See the subordinate’s sufficiently connected that plenty Fultz said em- 232. F.3d at role adverse formal than his short, In at Hill. directed specifically this is The reason for decision. ployment Hill as a useless describing his statements sub- aif biased subordinate simple: and retire home go to needed lady who old de- employment over influence stantial discriminatory attitude a directly reflect di- can bear cision, bias the subordinate’s Hill. towards to If we refused rectly on the decision. this, it mean that would recognize you fired statement, get “I’m going proffer must also female,” made are old and you because dis- Fultz’s between a nexus clearly shows (but anot was an actual who a subordinate em- the contested and criminatory attitude formal) as could not count decisionmaker words, Hill In other decision. ployment That evidence of discrimination. direct atti- negative must establish was, wily em- it a right, for if cannot be directly her bore about sex tude ever from plaintiff prevent could ployer court The district termination. on her the Price Waterhouse advantage of taking make this not could that Hill concluded create could employer Fultz did not framework. showing because Instead, the final firing, fire her. authority manager charge of of position was made to terminate decision firing manager could make formal In her Price Water- and Prickett. Griffin solely on the recommenda- based decisions dis- concurrence, O’Connor Justice house au- with no official tions of subordinates “decisionmakers” between tinguishes- would not manager thority. Because the “nondecisionmakers,” com- noting investigations, independent conduct di- cannot constitute the latter ments actual making the would be subordinate Price Wa of discrimination. rect evidence would Yet the firing decisions. terhouse, 109 S.Ct. 490 U.S. subject plaintiff-friendly be J., Lockheed (O’Connor, concurring). if the even Price Waterhouse standard nar court’s the district adopt us to urges a dis- clearly recommended subordinate “decisionmaker,” which concept of row toward expressed bias charge based to someone a decisionmaker limit would not be It should targeted employee. decision make the final power to with the Price Waterhouse eliminate the easy so employment. We to terms respect VII of Title proving violations option for by limiting- approach this reject v. New Wells Cherokee discrimination and the ADEA. evidence of direct Cf. Cir.1995) decision- statements actions Corp., 58 formal by sub makers, case). discrimination it overlooks pretext in a points (making similar decisionmakers, are actual who ordinates hold that five At least circuits au formal is, who lack subordinates employ- evidence of direct may establish sub exercise who nevertheless thority but the state- through ment discrimination decisions. employment influence stantial lacks person conduct of ments or a. fire but who authority to hire or formal de- influences nonetheless subordinate whether a deciding Mut. Atlantic cision.4 Ostrowski See in a Price Waterhouse ais decisionmaker by a discriminatory conduct expressly that evidence held Although our has not circuit

667 Cos., (2d 171, Cir.1992) 156, (6th Cir.1991) (the Ins. 968 F.2d 182 F.2d 160 plaintiff (a Price Waterhouse mixed-motive instruc met his burden under Price Waterhouse given plaintiff tion must be “if the presents by proving that supervisor’s his racial bias evidence of conduct or per statements “led substantially dismissal, to [his] [and] sons involved in decisionmaking the pro the fact supervisor] [the ‘pull did not may cess that be directly viewed as trigger’ reflect the is of consequence”); little ing alleged attitude”); discriminatory Stacks v. Southtvestern Bell Pages, Yellow City Educ., Inc., Rose v. New York (8th Bd. 1316, Cir.1994) (the 27 F.3d of (2d Cir.2001) 156, 162 (the discrimina discriminatory remarks of a manager, who tory comments of plaintiffs supervisor, was the plaintiffs fired supervisor and who who did not have formal firing authority was “closely involved in the decision-mak but who “had enormous influence ing process,” constituted direct evidence decisionmaking process,” Waterhouse); constituted direct under Price Bergene v. Salt evidence); Walden v. Georgia-Pacific Project Agric. River Improvement & Pow (3d 506, Cir.1997) Corp., Dist., 126 F.3d (9th 514-15 Cir.2001) er 272 F.3d (a (a person is in the decisionmaking process manager’s comment was direct evidence for Price purposes Waterhouse when he of retaliation because “[e]ven if the manag has direct access to the formal decision- er was not the ultimate decisionmaker [in maker and discriminatory denying animus is plaintiff a promotion], “linked to [the formal manager’s may decisionmaker’s] motive imputed be specific decision to fire the plaintiffs”); company if manager was involved in Gen., Inc., Simpson decision”).5 v. Diversitech make, substantially subordinate who influences the adverse sev- may formal may See, decisionmaker count as heading direct eral be in that direction. context, MCA, Inc., evidence in e.g., the mixed-motive our de 144 F.3d Hoffman Bell, Inc., (7th Cir.1998) ("Normally cision Wilhelm v. Blue 1121-22 plain- 773 F.2d 1985), prove tiff must that the Cir. is consistent decisionmaker with that uttered approach. remarks” to be plaintiffs In Wilhelm entitled to Price Water- three instructions, house charged yet mixed motive “if a that their had fired them plaintiff can show that the age, attitudes of the plaintiffs because of their and the relied person who made the remarks tainted the part on the comments of their immediate judgment, decisionmaker's the remarks can supervisor. placing plain When one of the discrimination.”); prove be relevant to Trotter probation, supervisor tiffs on said that Alabama, v. Bd. Trs. Univ. 91 F.3d people "older complacent tend to become (11th Cir.1996) ("For 1453-54 state- younger people whereas have drive more ments of intent to constitute supervisor ambition.” Id. at 1433. The add discrimination, direct evidence of they must going ed that "[h]e was to take care of [the person be made involved in the chal- targeted employee] first and then there were decision.”); lenged Thomas v. Nat’l Football going to be some others.” Id. at 1433-34. Ass’n, League Players supervisor We never characterized the as a (D.C.Cir.1998) (internal quotations and cita- fact, final supervisor decisionmaker. omitted) (Price tion Waterhouse "burden longer managing was no one least shifting requires evidence of conduct or state- plaintiff's at the time discharge. of that Nev by persons ments involved in the decision- ertheless, we supervisor's considered the ear making process”). lier comments to be direct evidence discrimination. The Fifth and Tenth Circuits have never question reached the of whether the discrimi- Although remaining circuits have not nation of employ- someone who influences an expressly held that direct evidence of discrim- ment decision is admissible as direct evidence ination can come from the statements of a in a probably mixed-motive case. This is influences, person formally but does not very because these circuits strict view *11 668 are relevant decisionmakers only more that the are much cases pretext

Because authority. final or formal cases, those with courts mixed-motive than common support proposi- the cases pretext These in pretext opportunity had more have of discriminatory attitude the tion of evidence the relevance explore cases formal, actual, not a who is an but someone of a discriminatory attitude- the showing that discrimina- may prove decisionmaker to hire authority lacks formal who person employment decision. motivated the tion influences nonetheless fire but who recognize, We decision. employment the actual influence person’s a The focus on require course, cases do pretext formal au- rather than his on a decision Yet the of discrimination. direct evidence Supreme the thority is consistent deci- counts as relevant of who question in Reeves v. Sanderson approach Court’s pretext same in both is the sionmaker Products, Inc., 133, 530 U.S. Plumbing Specifical- cases. mixed-motive cases and 2097, 105 151-53, 147 L.Ed.2d 120 S.Ct. determining whether discrimination ly, in (2000), plain- case. The pretext an ADEA deci- employment actually motivated was termi- claimed that he tiff in Reeves of the on the attitude sion, you focus do age, and as evidence nated because of may you only, or decisionmaker formal derogatory the re- he offered pretext person the attitude of also consider recom- who had supervisor marks of his decisionmaker? influenced the formal company the dismissal mended his type question not a about Again, this is made com- supervisor president. used, differs in mixed- which plaintiff] of evidence was so old “[the ments such as Rather, this is Mayflow- cases. pretext motive come over on the must have [he] (second 151, whose discrimination question about 120 S.Ct. er.” Id. mo- determining super- if discrimination original). counts in in Because alteration decisionmaker, employment formal tivated the adverse was not the visor these type of evidence used court had discounted regardless appeals “not made they Because prove the discrimination. comments plaintiffs] in both termi- [the must be answered the direct context of question same 152, 120 2097. The motive cases—whether nation.” Id. at S.Ct. and mixed pretext In- rejected analysis. this em- Court Supreme motivated the adverse discrimination stead, actual supervisor’s it examined decision—the answer ployment and con- in the termination decision discrimination counts role question of whose is, plaintiff had “introduced cases. That cluded that be the same both should supervisor] was the ac- qualifies of who evidence that question [the answer to the Id. firing.” same. behind his should be the tual decisionmaker as a decisionmaker supervisor’s that the other The concluded our court and most Court pretext cases be- helped pretext establish rejected the view comments appeals courts Mooney See v. Aramco Servs. in a direct evidence. qualifies as direct evidence of what Cir.1995). Circuit, Co., But F.3d case. In the Tenth mixed-motive Mississippi Elec. Power Brown v. East example, a formal decision- see a comment (5th Cir.1993) (hold- Ass'n, "incompetent was an maker that n_[racial ing supervisor’s "routine use of racial that a was not direct slur]” evidence that racial constitutes direct "would have to infer slurs because the factfinder motivating contest- animus was a factor statement[ ] that the bias reflected decisions”). we have ex- disciplinary ed As adverse reason behind the earlier, Inc., supra note the Fourth Holdings, plained see v. ICG decision.” Shorter (10th Cir.1999). ap- take a restrictive Circuit does not such The Fifth proach. similarly view of strict Circuit has taken

669 they cause showed that supervisor the would have to be by jury. decided a Id. at “was motivated age-based animus and 377. principally responsible plain- for [the appeals Most adopted courts have a Id. firing.” tiffs] at 151. approach similar in their pretext cases cases, one of our own ADEA pretext and have held that the ultimate decision- (4th Tuck Corp., v. Henkel 973 F.2d 371 maker’s lack of bias cannot shield the em- Cir.1992), expressly rejected we prop- “the ployer from liability if the employment osition that a employee fired rely cannot decision was tainted by the bias of a sub- on demonstrating the of a prejudice super- ordinate.6 The differ only courts in how visor who not the ultimate decisionmak- much they influence require of the subor- prove er to that discrimination motivated dinate who lacks formal authority before employer’s the decision.” termination Id. his discrimination is imputed to the em- Instead, at n. 377 we said that ployer. Some circuits require that question relevant is whether the supervi- formal rely decisionmaker entirely on the actually sor had influenced decision to subordinate, biased so that the employer

fire plaintiff. In reversing summary a liable, is not for example, if the formal de- judgment for the employer, we noted that cisionmaker independent conducts an in- “presented] had proba- some See, vestigation. e.g., Shager Upjohn tive v. evidence that supervisor former [his] Co., (7th Cir.1990) ... 913 F.2d against was biased older 405-06 workers and (When a supervisor] [the committee has influenced the deci- “acted as a con- sion supervisor’s] to fire duit prejudice [him].” [a at 376-77. a Id. As —his result, we held that supervisor paw whether the cat’s innocence its members —the actually influenced the spare decisionmakers would not company from liabili- open was “an question” ty”).7 [factual] Other require only circuits that the 6. A dissenting number of policy) courts and our col- a usually as matter of routine without Traxler, league, Judge use the terms judgment "cat’s expressed exercise of or at the paw” stamp” and "rubber implied to characterize or person command of another or their deciding body.” standards for when a subor- at literally, Id. 1983. Taken “rubber prove stamp” dinate's bias apply only can be a used discrimi- would to the situation 684; natory employment post when the automatically decision. See formal decisionmaker see also Rebecca White & Linda endorses the biased Hanner subordinate’s recommen- Krieger, Hamilton exercising dation independent judg- Whose Motive Matters?: without Nonetheless, Employment Discrimination ment. Multi-Actor as cases we will men- illustrate, Making, Decision tion adopt La. L.Rev. 511-12 some courts that what (2001). they While paw” the two terms call a stamp” are clever and "cat's or "rubber useful, go beyond often we meaning do include standard them in our the literal of the holding. applying formal Infra 670-71. terms in When the the standard. are meanings, terms confined to their literal they very Servs., characterize limited circumstances. 7. See Transp. also Kendrick v. Penske Inc., paw” The term "dupe” (10th Cir.2000) "cat's means or 220 F.3d originates ("[A] "tool” and from a fable in may which a defendant be held liable if the man monkey duped using paw pull ager cat into discharged its plaintiff merely act roasting chestnuts from fire. See stamp, Webster's ed as a paw’ rubber the 'cat's or for a Dictionary Third New employee's prejudice, International subordinate even if (1993). paw” Taken literally, manager intent.”); "cat's would lacked discriminatory only Mini-Circuits, Lab, Inc., cover the situation when a biased Llampallas subor- v. dupes dinate 1998) ("In formal decisionmaker into tak- Cir. a cat’s ing situation, against adverse action employee. paw another [person with the discrimi Similarly, stamp” approve natory "rubber clearly means "to tangible animus] causes the endorse, (as action, dispose regardless document or of which indi- the forbid- recommendation role in the dinate’s play some subordinate

biased employee can of a subordinate den motive See, Abramson William e.g., decision. employer.”).9 imputed be Jersey, New Coll. Paterson (internal Cir.2001) (3d quotations 265, 286 *13 cases cited the mixed-motive Like omitted) (“Under our case citation earlier, cases demonstrate pretext the dis exhibiting if those law, it is sufficient whose dis addressing question the in partici animus influenced criminatory counts as evidence criminatory animus ... [be to terminate in the decision pated employment in an discrimination level, if based an evaluation cause] agree points. on two generally courts the discrimination, the [may] influenee[ ] a First, person a is evaluating whether allow[ ] and thus decision-making process decisionmaker, his actual what matters is ultimate decis to infect the discrimination than formal role rather role ion.”).8 yet few circuits have A Second, an employment decision. adverse the standard for precise worked out able to insulate should not be employer part required on the of influence degree a for liability by hiding behind itself from subordinate, general prop a but as of the lead us points These mal decisionmaker. pretext they accept as evidence osition that a biased subordinate to conclude a discriminatory comments of subor- employ formal make the final or does not influences, does not but who dinate who a deci may still count as ment decision make, decision. final mixed- in a Price Waterhouse sionmaker McKinney Hosp. v. Russell Compare short, that a sub case. In we hold motive Cir.2000) 219, Venture, 226 235 F.3d Price Wa a decisionmaker for ordinate is (“If can demonstrate that [plaintiff] if a substantial purposes he has terhouse leverage over the had influence or others employment decision. influence on the proper ... it is decisionmaker official evidence of the subor Consequently, discriminatory attitudes to may their impute discriminatory animus consti dinate’s decisionmaker.”), v. with Rios the formal in a mixed-motive tute direct evidence (5th Cir.2001) 375, Rossotti, F.3d 382 252 case. (“[T]o insulating from employers prevent b. acts of subordinates

themselves from acknowledge that our here to pause action We the ultimate decisionmaker’s when deciding when a subordinate standard for stamp’ for the subor- merely is ‘rubber independently have the walking who did not actually signs employee's those vidual directly authority exercise their papers.”). or did not plaintiff, authority but who never- to fire Washington v. Convention 8. See also Griffin played meaningful role in the deci- theless 1308, (D.C.Cir.1998) Ctr., 1312 142 F.3d plaintiff, were rele- sion to terminate ("Thus join other circuits do we at least four vant.”). holding a subordinate’s that evidence of where the ultimate decision- bias is relevant Douglas Kientzy also v. McDonnell 9. See not insulated from subordinate’s maker is 1051, (8th Cir.1993) Corp., 990 F.2d influence.”); Santiago-Ramos v. Centennial (" escape responsibility employer cannot '[A]n 46, (1st Corp., Cir. P.R. Wireless by multiple layers of wilful discrimination 2000) ("One proving pretext] is to [of method review, on which the paper when the facts discriminatory comments were show by manag- rely have been filtered reviewers key decisionmaker or those in made purge force of to ” the labor decisionmaker.”); er determined position to influence Unisys Co., (quoting v. Gusman older workers.’ Goodyear Ercegovich Tire & Rubber (7th Cir.1993))). (6th Cir.1998) ("[R]emarks Corp., 986 F.2d 354-55 as a decisionmaker is counts based on the the subordinate was married to the Judge principles same Traxler articu- decisionmaker, formal company presi agree lates so well his dissent. We 2097; dent. Id. at 120 S.Ct. Rus cf. him that “an should not be al- sell, 235 F.3d at (noting the case’s lowed to insulate from liability itself [for factual similarity to Reeves and concluding by hiding behind ... discrimination] for- that “it appropriate tag the employer decisionmakers,” mal post and that with an employee’s age-based if animus an “appropriate we need means to prevent the evidence indicates that the worker pos employers unfairly from insulating them- sessed leverage, influence, or exerted over consequences selves from the of adverse decisionmaker”). the titular *14 employment reality actions that are in The biased subordinate must have a upon based motives of a substantial influence on employment employee,” subordinate id. disagree- Our decision agree because we with Judge ment, concerned, insofar as the standard is Traxler that employers must not be “un- degree is about the of influence that a fairly ... tagg[ed] with the discriminatory subordinate employment must have on the motives of employees subordinate decision before his discrimination counts. have not been entrusted with formal deci- Judge Traxler reads Reeves to mean that (em- sion-making authority.” Post at 684 if the subordinate is not the “actual deci- added).10 phasis Accordingly, under the employment action, sionmaker” behind the standard adopt today, we a subordinate he must be at least “principally responsi- lacks substantial influence over the final ble” for liability the action before attaches employment decision when the formal de- 682-83, to the employer. post See 686. cisionmaker conducts an independent in- respectfully suggest We that Reeves vestigation and independent exercises should not read narrowly. be so In judgment that is free of discrimination. Reeves the Supreme Court simply deter- See infra at n. 11. permitted mined the facts jury to find that the biased subordinate “prin- c. cipally responsible plaintiffs] for [the fir- this case Reeves, proffered considera- ing.” 530 U.S. at 120 S.Ct. ble evidence to show that Fultz anis actual 2097. The Court say did not that a subor- decisionmaker because he had a dinate’s in substan- involvement the employment tial influence on Lockheed’s decision to decision must rise to the level of fire “principal her. The responsibility” two formal before the decisionmakers— subordinate’s Griffin who was in Georgia discrimination can imputed be to the em- Prickett ployer. who was in Reeves does not a Texas'—did not conduct an articulate stan- decisionmaker, independent dard for identifying investigation of Hill. Nor did in nothing they suggests independent judgment Reeves the subor- exercise dinate who substantially reaching influences an em- the termination They decision. ployment qualify decision cannot never questioned as deci- observed Hill’s work or sionmaker. Reeves fact her focuses on the about the events to leading repri- influence, subordinate’s Instead, even out pointing mands. they entirely relied quibble, 10. We do not mean to but we are because he has had a 'substantial influence' uncomfortable process with the dissent's characteriza- on the led which to the post decision”) See added). tion of our (stating standard. at 684 (emphasis Our standard holding that under our "a biased subordinate focuses on the subordinate’s influence on the may ... count simply as a decisionmaker process. not on the missing tool incident Dixon, with the began Fultz and provided information discrep- of the with a ended discussion of Dixon’s The extent Fultz. especially last during Hill’s he ancy reports issued not Prickett does unclear. influence is work, had com- after she days of three Dixon, with conversations remember Fultz was discrimi- to Dixon plained story a consistent not does tell and Dixon All this demon- nating against her. At Griffin. his conversations about sufficient proffered Hill has strates he Dixon said deposition, point one Fultz had a substan- to show could think Hill that he did told Griffin fire her on the decision tial influence At another anymore. job J.A. do Prickett, formal that Griffin and however, that he sub- testified Dixon point, decisionmakers, essentially rubber any recommenda- without file mitted Hill’s Fultz, man on the scene stamps According discharge. J.A. tion about Drum. Fort him for Dixon, asked Griffin when argu- said, thrust of the dissent’s recommendation, up initial “that’s be deemed Fultz cannot is that facts are taken ment you.” Id. When reason: following Hill, Dixon’s role decisionmaker favorable light most (which reprimands and third second he is- reprimands two limited *15 was dismissal) of were cleansed Hill’s led to which led reprimands, But these sued. Dixon, supervisor, Fultz’s bias because termination, on informa- were based Hill’s indepen- and the facts decided reviewed Hill) (some false, according to itof tion The sum- reprimands. dently to issue the Fultz. by provided permit does not judgment record mary making that in acknowledges Griffin did, if it Lock- But even this conclusion. Hill, he received terminate decision to facts, problem has a still heed reports on and discrepancy Fultz’s Hill, most light favorable taken a He also received reprimands. written did not Dixon’s review that establish Fultz that detailed from statement written dis- firing decision cleanse ultimate per- Hill’s work about Fultz’s observations it came to consid- When time crimination. Finally, he talked J.A. formance. Prickett, termination, and er Griffin Hill. J.A. times about Fultz several with decisionmakers, primarily turned formal Fultz, ac- with also talked 255. Prickett and evaluation. information Fultz human Dixon and Lockheed cording to inde- Prickett did not exercise and Griffin Smith. Donald representative, resources already we judgment. As pendent (Prickett he said at 10. Dep. Smith discussed, Fultz to they even relied on employees, for over responsible was The statement. Hill’s termination write he could not recall Dep. Prickett by noting begins three-page statement 181.) Hill, J.A. about whom he consulted actions, or rule problems, “all it lists not talk that he did ter- being Fultz claims in [Hill] that resulted violations Hill’s termination. Prickett about Griffin or J.A. 170. substance minated.” course, claim, directly solely on Fultz’s observa- is contra- based That follows is Dixon, perfor- of Hill’s who acknowl- and his evaluation dicted Griffin tions Indeed, it or Prick- And Griffin was involved. Fultz —not Fultz mance. edge that It Hill’s ter- statement. ultimately signed wrote termination was Fultz ett — that Fultz statement, to find listed thus be a statement that would reasonable mination on the decision 170- influence fired. J.A. had substantial why the reasons Indeed,' be rea- Hill. it would on to listed was based terminate Every reason stan- the dissent’s to find under work. sonable with Hill’s dissatisfaction “principally responsi- dard that employment adverse action. For these reasons, ble” for termination.11 we conclude that Hill presented direct evidence that sex age played d. termination, role in her and she is there- II.A.1, part We concluded in supra, fore pursue entitled to a mixed-motive that Fultz’s comments about Hill’s sex and case.

age “clearly a discriminatory indieate[ ] workplace.” [towards attitude at the Hill] B. must, Brinkley, 180 F.3d at 608. There course, be “a neg nexus between [Fultz’s] has proffered direct evidence ative and the attitude action” of sex and age discrimination. We must taken against Hill. Id. Fultz’s statements now consider how this affects Lockheed’s that Hill was a damn woman a useless motion for summary judgment. Because lady old who should be retired bear direct Hill proffered direct evidence that dis ly on the contested decision criminatory for several played animus a role in her just reasons. As explained, termination, we have company must be denied statements were made deci summary actual judgment on her sex discrimina sionmaker. This is a crucial factor es tion claim. The question essential tablishing required nexus between the factfinder, remains must be resolved is, animus and the adverse em whether Hill’s direct evidence of ployment although alone this sex discrimination is credible. If the fact- enough. timing The content and finder Hill’s evidence credits and deter the statements are also in deter relevant mines that played Hill’s sex role *16 mining termination, whether there is a sufficient nexus. then Lockheed is liable re Here, Fultz’s remarks disparaged gardless Hill’s of whether it would have made professional abilities and reflected Fultz’s the same decision absent the discrimina judgment harsh that such a “useless old tion: “an employment unlawful practice is lady” not be allowed should to remain at established the complaining party when Furthermore, race, color, Lockheed. these remarks demonstrates that religion, sex shortly were made before or at the same or origin national was a motivating factor time reprimands as- the that triggered any employment practice, though even They Hill’s termination. thus other reflect factors also practice.” motivated the 2000e-2(m). state § decisionmaker’s of mind at the time 42 words, U.S.C. In other he that taking directly actions led to if sex was motivating factor Hill’s Contrary worry, post hypothetical dissent’s see at that the decision to fire Hill was 695, based on her theft and that the decision was summary Lockheed would be entitled to not influenced ani- judgment following hypothetical under the way, summary judg- mus. another Stated they undisputed. facts if Hill steals appropriate ment would be because the Fultz, from Lockheed. age- hypothetical facts demonstrate that Griffin Hill, reports animus sex-based towards independent conducted investigation to Dixon. Dixon theft Hill and confronts independent judgment exercised in terminat- passes she confesses to the theft. Dixon then ing Hill. actual today The case before us is report word of Fultz's and Hill’s confession proffered different. evidence that investigates to Griffin. Griffin and deter- substantially Fultz's discrimination influ- that a theft mines occurred and that Hill reprimands, enced the decisions to issue the confessed to the misdeed. Griffin fires Hill the actions that Moreover, led to Hill’s termination. get as a result. summary Lockheed would Fultz influenced the ultimate deci- Hill, judgment undisputed according because it is in this sion to fire to her evidence. decision, that employment the adverse Title into is liable under Lockheed

discharge, a material factu- normally creates is evidence if Lockheed even Consequently, VII. employ- validity of about the al issue have made it would that prove to able have made that it would discriminatory ani- er’s defense despite decision same of the discrimina- regardless decision same only limit mus, showing would however, that an say, This is not to tion. Title VII. See Hill under available relief summary judg- can never obtain employer It would 2000e-5(g)(2)(B). § 42 U.S.C. defense in on its same-decision liability on ment VII Title not affect Lockheed’s employer will But the case. mixed-motive claim. sex discrimination it only if judgment summary be entitled age discrimination Hill’s As for one-sided that that is so evidence proffers deciding claim, without we assume only conclude factfinder could a rational 107(a) Act of Rights of the Civil section on its prevail must proving the law change 1991 did v. Anderson defense. See same-decision ADEA. See under the cases mixed-motive 251-52, Inc., Lobby, 477 U.S. Liberty Thus, we assume supra note 2505; & Roebuck EEOC v. Sears 106 S.Ct. ap framework Price Waterhouse original Cir.2001). (4th Co., 243 F.3d claim. age discrimination to Hill’s plies therefore evidence must reason proffered framework, once the this Under only one conclusion—the con ably support discrimination, direct provides legitimate rea- employer’s that the clusion to the em shifts persuasion burden of alone, son, prompted have standing would factors legitimate prove ployer decision. See employment the adverse same led it to make the would alone 12; Frobose, Hawkins n. 152 F.3d decision, and the em adverse Inc., PepsiCo, it liability only if is success ployer avoids denied, Cir.), S.Ct. 531 U.S. cert. Thus, with showing. making ful this (2000). As we dem 148 L.Ed.2d claim, discrimination respect to below, summary judgment onstrate enti Lockheed must decide whether we indisputably establish does not record defense summary judgment on its tled ais material defense. There Lockheed’s *17 alone would factors legitimate whether Lockheed of fact about question Hill, Fultz’s notwithstanding it to fire led of Hill in the absence have fired would the “[0]nce age discrimination. discriminatory animus. Fultz’s a for presented direct triggered Hill’s termination Because employ factor contributed bidden she reprimands second and third against adverse action to er’s decision take Drum, Lockheed’s same- at Fort received her, normally necessary be a trial will to the claim boils down decision defense whether to determine order alone would have legitimate factors in the same action have taken would re- reprimands, both of those prompted Fro consideration.” the illicit absence of age discrimination. of Fultz’s gardless Loan Ass’n Dan Am. Sav. & bose v. of for reprimand Hill’s second Again, (7th 602, ville, 615 n. 12 Cir. F.3d policy, tool control Lockheed’s violating 1998). v. Madigan, also Adler See receiving third was several and the Cir.1991) 476, (observing reports. discrepancy ordinarily “are cases that mixed-motive mill”). Hill initially that can- argues summary judgment Lockheed grist for the not reprimand for tool challenge the words, not plaintiff proffers once a In other company violation figured control discrimination direct evidence that stand April for this violation maintenance on 1998. J.A. have fired her could problem argu- with this Army alone. The first employee gave 125. The the cutters Lockheed’s does not ment is that SOP who, turn, Fultz to delivered them to for this offense. SOP require termination day, Dixon. J.A. 249A 250. Later in the that call for immediate termi- violations (Fultz) Fultz told Dixon that he checked theft, fighting, unauthorized nation include toolbox the end of her shift and weapons, sleeping duty, possession of asked her where extra pair of cutters records, of and use of alcohol falsification Fultz, to Hill “I According was. said told at work. 113-14. Violation drugs J.A. Richard that I [Dixon] had taken the tool policy specifically the tool control is not report— home.” J.A. 250-51. Fultz’s appears This violation listed SOP. report, a false according to Hill—led Dixon fall Rule “Violation of written under to conclude that Hill had lied to directives/policy.” J.A. 113. Company anything because she had not said to Dix- can Punishment for a violation of Rule 15 on about her morning cutters. next reprimand, a written to a range from again concluded that Hill was dis- termination, three-day suspension, or to honest when he her misplaced showed severity on the of the violation. depending they cutters and asked if were hers. Be- Here, course, Id. Lockheed did not fire Hill cause believed that none of her cutters misplaced Hill her cutters. It when she missing, only she said that the cut- reprimanded imposed three-day her and ters had her number on them. J.A. 77-78. event, any proper suspension. Hill Dixon’s conclusion that was less than question is not whether Lockheed could candid was based on report that he misplacing Hill for her tool but have fired already questioned Hill about the mis- proffered undisputed proof whether it has Hill, however, placed cutters. insists that disciplined that it would have her even Fultz did not talk her about her cutters. the absence of Fultz’s ani- Thus, if J.A. when Dixon asked her Waterhouse, mus. See Price U.S. hers, missing cutters were she had added) (emphasis 109 S.Ct. 1775 any been alerted to the fact that of her (“[T]he may finding defendant avoid a was, cutters had misplaced. been liability only by proving by a preponder- course, subject discipline because of ance of the evidence that it would have Dixon, however, misplaced says un- tool. made the same decision even if it had not account.”). equivocally that he would not have [age] issued plaintiffs taken the into Lockheed, reprimand three-day suspension party that now has the bur- 251A, if persuasion, den of has not offered she had not lied. J.A. proof regularly employees that it fires thought But Dixon lied because of *18 misplacing a tool.. what Fultz told him. Hill has Because proffered report evidence that Fultz’s to argues next that Hill Lockheed would false, Dixon about the cutters was there is received the second reprimand have even a factual Hill genuine issue about whether part. without discrimination on Fultz’s disciplined (reprimanded have been would policy, Under Lockheed’s tool control em- in suspended) over the tool the ab- ployees must be able to account for their discriminatory sence of Fultz’s animus. at all report missing tools times and must disciplinary necessary That action a immediately. An Army employee tools a pair pre-requisite found of Hill’s four-inch cutters on a to Hill’s dismissal.12 argues reprimand 12. The that Hill cannot that her mislaid dissent estab- lish second for the dismissal, illegiti- in of Fultz’s in the absence involved Hill’s heavily also Fultz was mate motives. based on sev- which was reprimand, third Fultz in detected minor errors eral C. greater in detail explain work. As we III, proffered Hill has evi- infra, part Hill we conclude that has up, To sum these up wrote her Fultz dence that age direct evidence of sex proffered com- for her retaliation errors swift discrimination, to thereby qualifying her There is discrimination. plaints about his mixed- proceed under Price Waterhouse’s about whether factual issue genuine a proving a case. As motive framework issued would reprimand third been result, is not entitled to sum- Lockheed Fultz’s discrimination the absence on Hill’s Title VII claim mary judgment was also reprimand third against Hill. The a rational factfinder could con- to Hill’s termi- necessary prerequisite was a mo- clude that sexual discrimination nation. in the decision to terminate tivating factor addition, Lockheed is not entitled her. Thus, Lockheed’s defense it on on Hill’s ADEA summary judgment to Fultz’s Hill even without

would have fired proffered claim because Hill has evidence animus, has company discrimination, Lockheed has that it so one-sided proffered not points evidence that indis- proffered summary judgment prevail at the must conclusion that it would putably could conclude stage. A rational factfinder anyway.13 have fired Hill have reached the would not that Lockheed is, to fire the decision same III. Hill, Fultz’s discrimina- in the absence of words, is, alleges Hill also that her termination genuine in other tion. There complaints Lock- was in retaliation for her fact about whether issue of material the second and Dixon about Fultz’s discrimination. would have issued heed about Fultz when complained last to Dixon triggered which reprimands, third reprimanded post would not have Hill. See product of Fultz’s bias for two cutters was a facts, First, light taken in the most for not 689-90. The dissent faults Hill reasons. Hill, that she met her report favorable to show defending against false herself stage. acknowledges at this Dixon burden her about the mis- when Dixon confronted he confronted Hill that he was mad when morning April placed cutters on (due report) thought because he Fultz's problem post 1998. See at 687-88. by telling Dixon, had to Fultz him that that Hill lied although because of Fultz’s re- this: lied, already talked to Dixon about the she did not port, Hill had believed that deposition missing Dixon’s testimo- cutters. meeting what Fultz had re- tell Hill ny that his belief that Hill had lied to reveals ported. therefore had no clue she played key disciplinary role in the against a false state- herself should defend words, record, jury, could reason- action. A in other According ment Fultz. report substantially ably false find that Fultz’s ap- lie until it did not know about Fultz's the sec- influenced Dixon’s decision issue reprimand, peared which in the written reprimand. later, ond April handed to her a week By Compare J.A. 249A-253 with J.A. 125-26. *19 discipline Hill had 13. Because we have concluded that time the decision to is Second, says already pursue the dissent and discrimina- been made. entitled to her sex proffered evidence to show of that Hill has not tion claims under the mixed-motive method (1) proof, we consider her alternative ar- erroneous conclusion that do not Dixon's proceed repri- gument that is entitled to under to Fultz led to her second she lied lied, (2) theory. pretext had not Dixon mand or that if Fultz

677 suspension returned from her in she late heed proffer legitimate, evidence of a 1998. Dixon talked with Fultz April soon non-retaliatory for reason the discharge. thereafter, 137, immediately J.A. and Dep’t See Texas Cmty. v. Bur of Affairs began writing discrepancy reports against dine, 248, 253, 450 1089, U.S. 101 S.Ct. 67 up Hill. Fultz wrote (1981). twice on Thurs- L.Ed.2d 207 proffered Lockheed’s 30, 1998, day, April on Friday, three times reason firing for Hill is year one 1, 1998, 4, May again Monday, May she accumulated reprimands, three written 704(a) Section of provides 1998. Title VII one with suspension, and this was it employment “shall be an unlawful grounds discharge under the SOP. practice for an employer to discriminate short, Lockheed asserts that Hill was fired any against employees because repri accumulation three employee] has any practice [the opposed mands indicated she was fit for her an employment made unlawful practice by job. 2000e-3(a). § subchapter.” this U.S.C. In the step third under McDon To defeat Lockheed’s motion Douglas, nell Hill must demonstrate that summary judgment on her retaliation proffered Lockheed’s reason for firing her claim, Hill relies on the three-step, burden pretext is for retaliation. The district shifting framework of Douglas. McDonnell court concluded that Hill has not come Under this framework Hill begin by must forward with pretext evidence of establishing prima facie case of retalia that Lockheed is entitled therefore to sum (1) showing tion. She does this mary judgment. pretext To establish a (2) engaged protected she activity; case before Plumbing Reeves Sanderson employment Lockheed took adverse action Products, Inc., 133, 530 U.S. 120 S.Ct. (3) her; and against there awas causal 2097, (2000), 147 L.Ed.2d 105 Hill would protected activity connection between the prove have had to that Lockheed’s prof and the adverse action. See Matvia v. fered reason was false then introduce Inc., Mgmt.,

Bald Head Island 259 F.3d independent evidence that discrimination (4th 261, Cir.2001). complaints was the real reason for her discharge. about Fultz’s discrimination con See, e.g., Mary Washington Jiminez v. protected activity, stitute and termination Coll., (4th Cir.1995). 57 F.3d is an adverse action. A caus However, “the Reeves Court plain made may al connection be inferred when an that, circumstances, under the appropriate employee discharged soon after com case, plaintiffs prima ‘a combined facie plaining, and Hill days was fired within evidence, with sufficient to find that complaint last her and within weeks employer’s false, asserted justification is See, Ball, one. e.g., first Carter v. 33 F.3d may permit the trier of fact to conclude (4th Cir.1994) (“[T]he 450, 460 discharge of ” that the unlawfully [retaliated].’ employee soon the employee after en Co., EEOC v. Sears & Roebuck gages protected activity sug is strongly Cir.2001) Reeves, (quoting gestive of retaliatory motive thus indi 2097). 530 U.S. at In other S.Ct. causation.”). proof of agree rect We with words, permissible “it is for the trier of the district court that Hill “has established fact to infer the of [retalia ultimate fact prima facie case of retaliation.” J.A. employer’s tion] from the of the falsity Reeves, explanation.” 530 U.S. at course,

Because Hill pri has established a if S.Ct. Of no rational fact- case, ma facie the burden shifts to Lock- employee, finder could find for the then *20 Dix- activity. According to protected appropriate. See judgment is summary (4th for on, been fired but Co., Hill would not have Marley Rowe issued Cir.2000). However, discrepancy reports creates flurry if the reprimand. fact on whether to Hill’s third material Fultz that led issue of genuine Therefore, is pretextual, question then Dep. reason was Dixon 31. proffered summary of ma- genuine denied Hill raises a issue employer must be whether discrep- Fultz’s fact whether judgment. terial about in retaliation for Hill’s ancy reports were the district court argues Lockheed discriminatory com- complaints about his Hill failed to meet correctly concluded and conduct. ments not come for- she has her burden (1) that to show any with ward there is no maintains that Lockheed were motivated the formal decisionmakers admits because Hill genuine factual issue (2) Fultz issued the by retaliation the errors most of that she committed in retaliation discrepancy reports flurry of Howev- discrepancy reports. noted him. complaints about for Hill’s Fultz could er, not whether question are with- arguments Both of Lockheed’s Hill’s mistakes. The up have written II.A.2, in part we discussed out merit. As a genuine Hill creates question is whether its formal decision- the innocence of supra, have writ- Fultz would issue as to whether an from not shield makers does retaliatory ani- absent a reports ten the if an actu- claims liability on discrimination do not auto- inspectors mus. Lockheed (that is, someone al decisionmaker report for discrepancy matically issue on the influence substantial every contrary, inspectors error. On decision) by illegal consider- was motivated or not to write discretion on whether Corp., Henkel Tuck v. ations. See (We Dep. up minor mistakes. Cir.1992). an example, For F.2d 371 here were not serious know the errors liability from on a not shielded employer is all of them as designated because Fultz decision- claim when a formal retaliation “minor.”) that he had this Fultz concedes retaliatory motive fires maker with no issue a and that he did not discretion evaluation poor based on a someone employee report every time an discrepancy the poor who wrote actual decisionmaker Dep. Fultz erred. ac- protected in retaliation for evaluation offered conclude that suffi- Here, decisionmakers at We tivity. the formal fact- to allow a reasonable repri- cient evidence on three written Lockheed relied that had Fultz not been finder to conclude Hill. all three firing when Without mands her, he would not have written gunning termi- eligible have been she would not minor report every mis- nation, discrepancy If according to Lockheed’s SOP. off, timing First due to take that she made.14 reprimands were of those alarm retaliation, discrepancy reports sets off Lockheed is Fultz’s then liable. Hill followed write-ups bells. Fultz’s which was based on reprimand, Hill’s third told Fultz that immediately. after Dixon occurred after discrepancy reports, believed, appears, lady.” it old J.A. 106. Hill claim does not fail as 14. Hill's retaliation deposition that she getting result of her statement her out of that Fultz was committed thought would have been terminated if could, she regardless company he as soon as complained to Dixon about Fultz. she complained about his discrim- of whether she statement came post See at 695 & n. 9. That part does not belief on Hill’s ination. That "con- right testified that Fultz after retaliation. absolve ” being stantly] her of "a troubled accused

679 registered complaint against unsatisfactory.” Hill had work is (empha- J.A. 170 added). him. After Fultz learned of Hill’s com- Why sis deny would Fultz picking plaint, day he wrote Hill at least once a up on Hill unless he knew she had made an every day of single total six times against accusation him? When asked to —a days go three she was told to home. this, explain Fultz claimed that he was not —until A reasonable factfinder could attribute the aware of complaint Hill’s that he had dis- write-ups sudden burst of to Fultz’s retali- her, criminated against just but he wanted ation rather than to a sudden deterioration to make it clear that he was not biased. “I in Hill’s work.’ “When these facts are probably inserted that because she is of light considered in temporal of the close gender,” the female Fultz said. J.A. 160. relationship it is reasonable to con- Dixon’s plus contradiction of Fultz clude that the would fair defensive comment in the termination demonstrating chance of that she ter- statement would allow a reasonable factfin- King minated retaliation.” (1) Preferred der to conclude that Fultz lied when he (7th Group, Technical 166 F.3d 894 said that he did not know about Hill’s Cir.1999) (internal omitted). quotations (2) complaints and that he also lied about Houston, City See also Evans v. writing reasons for the discrepancy (5th Cir.2001) (“ com- ‘[TJhe reports. support This alone could a find- suspicious timing bination of with other Reeves, ing pretext. See 530 U.S. at significant pretext, evidence of can be suf- 147, (internal quotations S.Ct. ” summary judgment.’ ficient to survive omitted) (noting that it a “general prin- Touche, (quoting v. Deloitte & Shackelford ciple of evidence law that the factfinder is LLP, Cir.1999))). party’s entitled to consider a dishonesty is, course, There more to this than the about a fact material as affirmative evi- timing discrepancy and volume of the re- guilt.”). dence of ports. All of the mistakes noted Fultz all When of the factors are considered minor, and one of the discrepancy together, it becomes clear that a reason- reports appears to have been unfounded able factfinder could determine that Fultz because Dixon sign refused to off on it. discrepancy reports wrote the in anger Moreover, presented Hill has evidence that because he wanted to retaliate against Fultz is not being truthful about the dis- complaints, for her and not because he crepancy reports. Fultz claims that at the wanted to a fair make evaluation of her time reports, he wrote the he had no work. These factors include Fultz’s ani- knowledge complaints of Hill’s about him mosity towards because of her sex and and that reports solely he issued the be- age; timing and volume of the discrep- cause poor performance. of Hill’s J.A. ancy reports, immediately which came on 160. Yet Fultz’s claim with Dix- conflicts complaint; the heels of Hill’s and the na- spoken on’s statement that he had to Fultz discrepancy reports reporting ture of the complaints shortly about Hill’s before — errors, minor work errors that are not began Fultz issuing discrepancy reports. Furthermore, always up. written There statement, is also issue Hill’s termination Fultz, credibility. of Fultz’s prepared which was He claims he suggests did not know about Hill’s but complaints, that he knew about Hill’s complaints. wrote, directly that claim is Dix- “Every sign off that E. contradicted Lou at, Moreover, I completes must look not because on. Fultz’s defensive statement her, I picking am report but because without the termination indicates that he exaggeration approximately complaints. 80% of all her about all knew With *22 safety in- investigating the independently evidence, genuine created a Hill has

this spector’s reports. fact about whether material issue of to her third that led discrepancy reports out, the colleagues point issue myAs dis- in retaliation her reprimand were in a discrimination motives matter” “whose Lockheed is complaints. crimination today holding evolving case is an one. The summary judg- not entitled therefore employee who will be that subordinate claim. Hill’s retaliation ment on is a discriminatory statements has made pur- for Price Waterhouse decisionmaker IV. long as he has what is deemed poses so reasons, we reverse foregoing For process that influence” on the “substantial granting sum- court’s order the district I in the decision. culminates Lockheed, re- and we mary judgment scope holding expands this believe claims a trial on Hill’s mand the case for statutes and Price Wa- the discrimination ADEA, VII, and the New under Title In beyond their intended limits. terhouse Law. Rights York Human discriminatory motives impute order to AND REMANDED. REVERSED employee to the formal of a subordinate I would employer, of an decisionmakers TRAXLER, Judge, dissenting. Circuit require to establish Hill, an aircraft respect, I dissent. With was the “actual decisionmak- subordinate Lockheed, by rep- employed mechanic because the formal decisionmakers er” jobsites, military separate rimanded at two as a merely “rubber-stamped” or acted admittedly and unbiased by two different report, paw” “cat’s for the subordinate’s separate viola- for three supervisors, direct view, decision, my or recommendation. quality safe- work tions of Lockheed’s this causal link Hill has failed to establish Lockheed’s standard ty standards. Under alleged dis- safety inspector’s between the repri- the three operating procedures, criminatory the disciplinary animus and a termination decision triggered mands Therefore, I Hill. against actions taken regional imposed that was Lockheed’s grant the district court’s would affirm manager, who supervisor program summary judgment to Lockheed. charged harboring are not with likewise any discriminatory animus. I. However, safety inspector because the as an employed by to her di- Hill was Lockheed reported who Hill’s infractions jobsite working mechanic at the last made aircraft sheet metal supervisor rect field team. Hill’s team to Hill about her contract derogatory comments sex, modifications to my majority assigned perform friends in the con- was military military evi- aircraft at various bases presented that Hill has direct clude States, as called for that she was instead terminated “be- eastern United dence contracts between Lockheed and the age, entitling of’ her sex and cause government. Archie Griffin the more favorable “mixed-motive” method United States supervisor v. was the east coast senior site proof set forth Price Waterhouse Lockheed, at each present 104 for but was not Hopkins, 490 U.S. S.Ct. (1989). And, Rather, military jobsite. Hill and the oth- they reach this L.Ed.2d 268 directly super- aircraft mechanics were though even Hill concedes that er conclusion person” “point vised a “lead of con- supervisor repri- her direct issued each base, reported tact” at each to Griffin nondiscriminatory mand for reasons after authority. person in the line of The lead Dixon contacted Archie Griffin and was ultimately responsible enforcing told to follow SOP. Dixon then for- operating procedures standard disciplinary paperwork warded the to Grif- (“SOP”) fin, ensuring of Lockheed who made the along with military satisfactorily per- Priekett, contracts Thomas program Lockheed’s *23 jobsite. at the formed manager charge in of the contract field teams, to terminate Hill. In addition to the mechanics and the supervisor, safety a inspector direct Hill subsequently filed un- this lawsuit jobsite. Specific to each aircraft assigned der Title VII and the ADEA alleging that performed modifications scheduled to be reprimanded she was and by terminated military under the contracts were set forth Lockheed of’ “because her sex and (“MWOs”). in modification work orders and in complaints retaliation for her duties, part safety inspector As of his discrimination. acknowledges that checked the to ensure that modifications Dixon, Souders and the lead persons on they completed had been accordance Bragg both the Fort job- and Fort Drum required specifications. with the Howev- sites, discriminatory acted without a or er, inspector supervisory had no direct retaliatory in issuing motive rep- three mechanics, authority any over nor au- rimands, dispute and she does not that she thority discipline them. Like the me- upon violated the standards which those chanics, safety inspector reported to reprimands were based. Hill also does not directly supervision and worked under the dispute reprimands subject- that the three person. the lead 3.4.2, ed her to termination under SOP and allege she does not During the Griffin or Priekett eight last months of her Lockheed, acted with a discriminatory retaliatory or employment with Hill received Rather, in terminating motive her. reprimands three written under Lock- (1) claims of discrimination and retaliation reprimand by heed’s SOP: a issued Souders, wholly allegations stem from her person Ronald the lead at Ed Fort Fultz, Drum, Carolina, safety inspector Bragg, North for a Fort violation of lady,” called her a “useless old “unsatisfactory Rule 4 of the who needed quality SOP — retired, to be a lady,” “troubled old and a quantity of work”—under a MWO as- woman,” (2) “damn 1997; on several occasions while signed September to Hill in they working together, 240- reprimand disciplinary suspension J.A. is- 241A, 245, Dixon, and that this by sued Richard person lead animus, Drum, York, along with a desire to retaliate Fort New for Hill’s violation against complained her when she to Dixon safety of Lockheed’s tool control policy (3) comments, 1998; about Fultz’s led Fultz to re- April reprimand issued port the infractions that became the bases Dixon for another violation of Rule 4 of the reprimands the second and third issued assigned under several to her SOP MWOs Dixon, to Hill ultimately to her April May 1998. J.A. 112. termination. 3.4.2, “[a]n Under Lockheed’s SOP em- ployee Concluding who receives a combination of two that Hill had failed to reprimands involving suspen- present written sufficient direct or circumstantial (not sion and involving suspension support one evidence to her claims of dis- rule) necessarily on the same will be sub- crimination and retaliation Lockheed’s decisionmakers, ject discharge.” repri- 110. After Rich- J.A. issued the reprimand, ard Dixon issued Hill her third mands and terminated Hill in the ab- motivations, decisionmakers “direct improper any such sence of reliance on negative substantial placed Lockheed’s mo- granted court the district deci Hill, reaching criterion in their illegitimate claim- summary judgment. tion for Waterhouse, sion,” 490 U.S. at sufficient evi- Price presented ing that she J., (O’Connor, concurring). S.Ct. 1775 that Fultz instead prove dence however, decisionmaker,” pro proof, I commands appealed. Such the “actual or state of “evidence of conduct duction would affirm. directly alleged ments that both reflect II. discriminatory attitude and that bear di deci rectly the contested ... “an Title VII forbids (internal quotation marks omit sion.” Id. ... because discharge individual ted); Phipps, see also Fuller sex.” U.S.C.A. such individual’s *24 (4th Cir.1995). 1137, 1142 1994) (West 2000e-2(a)(l) (emphasis § added). similarly forbids “an The ADEA If evidence of discrimination such direct discharge ... individual employer to available, may a still estab- plaintiff is not age.” 29 of such individual’s because claim circum- utilizing lish a discrimination 1999) (West 623(a)(1) (empha- § U.S.C.A. burden-shifting evidence and the stantial added). that, as a alleges result sis Douglas forth in McDonnell scheme set retaliatory ani- discriminatory and Green, 1817, 93 Corp. v. 411 U.S. S.Ct. mus, ultimately and disciplined she was (1973). plaintiff L.Ed.2d 668 must by “because of’ her terminated Lockheed a facie case of dis- prima first establish sex, not “because of’ her age and and (1) by showing that she is a crimination deficiencies. performance (2) class; protected a she suf- member of (3) action; employment fered adverse she A. performing at a level that met her by proof avenues of which There are two employer’s legitimate job expectations at a claim for inten plaintiff a can establish employment ac- the time of the adverse (1) “mixed-motive” tional discrimination: (4) tion; or position open the remained cases, employer in which the is motivated by similarly qualified applicants was filled employment take an adverse action to Brinkley, protected the class. See outside reasons; permissible both and forbidden prima 607. If a facie case is 180 F.3d at (2) cases, in which the em “pretext” the then shifts to the presented, burden permissible a reason for ployer advances employer legitimate, to articulate a nondis- action, but employment an adverse the em- eriminatory reason for the adverse there is evi pretextual reason is Assuming employer the ployment action. reality was in employer dence that the the bur- production, meets this burden of animus. motivated plaintiff then den shifts back Club, Brinkley v. Harbour Recreation See prove employer’s that the stated reason is (4th Cir.1999); Tuck v. pretextual and that she has indeed been (4th 371, 375 Cir. Corp., Henkel 973 F.2d the victim of discrimination. See id. 1992). “plaintiff qualifies A for the more advan B. tageous liability applicable standard of Thus, cases,” regardless of the method of Taylor Virginia proof mixed-motive Univ., employed by plaintiff particular Cir. Union 1999) (en case, banc), question every em- plaintiff presents if the the ultimate behind, the ter- plaintiffs is whether decisionmaker” case discrimination ployment Reeves, 151-52, mination. 530 U.S. adverse suffered plaintiff plaintiffs protected “because of’ S.Ct. action present suffi- plaintiff must

traits. The point This is best illustrated the facts circumstantial, evidence, direct or cient There, case itself. the for Reeves link discrimina- a causal between establish made no discriminato mal decisionmakers workplace tory present animus bearing upon petition statements ry decision. See challenged employment However, the Court held er’s termination. Prods., Plumbing Reeves v. Sanderson judg not entitled to that the 133, 152-53, Inc., 120 S.Ct. 530 U.S. a matter of law under the McDon ment as (2000). In order to evalu- 147 L.Ed.2d 105 because, “in addi Douglas nell framework presented ate whether prima facie case of establishing tion to discrimi- of intentional sufficient evidence jury as creating issue discrimination requisite causal connection nation and the explanation, falsity employer’s of the decision, the challenged employment evi petitioner introduced additional [had] that we must first agree and I majority Chestnut,” petitioner’s dence that one of actually persons identify person authority, in the chain of “was superiors decision on behalf challenged made animus and was by age-based motivated *25 And, if is dif- person employer. the petitioner’s for fir principally responsible who harbors the person from the ferent In par 120 S.Ct. 2097. ing.” Id. at bias, determine discriminatory we must ticular, petitioner had told the Chestnut fairly impute improper the whether we can so old he must have come “that he ‘was the employee to motives of the subordinate ” and “that he ‘was Mayflower’ over on the decisionmaker. formal ” (internal job.’ Id. damn old to do his too determining for approach A formalistic omitted). Although Chestnut alterations appropri- is not who is “decisionmaker” in the decisionmaker was not the formal in by Justice O’Connor ate. As noted decision, he recommended termination Waterhouse, stray remarks Price compa petitioner’s the termination justify requiring an em- do not workplace married, to whom he was ny president, decision was based prove to its ployer testimony from another em and there was criteria, nor do “statements legitimate essentially “exercised ployee that Chestnut nondecisionmakers, or statements Id. company.” within the power’ ‘absolute unrelated to the decisional decisionmakers 152, 120 at S.Ct. itself, satisfy plain- to process suffice a similar employed Other courts discrimination. proving tiffs burden” determining whether subor- analysis for Waterhouse, 277, 109 at 490 U.S. Price decisionmak- is an “actual employee dinate (O’Connor, J., concurring); see S.Ct. claim. of a discrimination purposes er” for On the Brinkley, 180 F.3d also Rossotti, See, e.g., Rios v. hand, recently Reeves Court other (5th Cir.2001) (noting that Su- “[t]he allegedly har- person confirmed the value of has assessed preme Court animus, making discriminatory boring discriminatory [by nondecision- remarks animus, need reflecting such statements whether the re- by examining makers] im- to the “formal” decisionmaker not be animus and invidious marks indicated long so as liability upon pose the remarks was speaker of whether the sufficient evidence plaintiff presents the adverse for ‘principally responsible’ the one that the subordinate was establish action”). example, For for, employment the “actual responsible” “principally Venture, unfairly insu- prevent employers from McKinney Hospital Russell (5th Cir.2000), consequences from the lating the court held themselves actions that are in employment of the term “old of adverse repeated use discriminatory reality upon the mo- bitch,” referring plaintiff, by based when employee, while not company, tives of a subordinate parent of a president son of the with the dis- unfairly tagging employers additional circumstantial “appropriate was criminatory motives of subordinate em- discrimination” under because, ployees who have not been entrusted with Douglas while not McDonnell I decisionmaker, decision-making authority. formal be- president’s son formal follow. lieve this is the better course to responsible” plaintiffs “primarily Among other Id. at 226. termination. “rubber-stamp” premise behind presi- evidence that the things, there was analysis fairly simple. An paw” or “cat’s great ‘informal’ dent’s son “wielded automatically be held employer should not day-to- on a power” workplace within the hable for the motivation basis, and had threatened day id. to an employee a subordinate leads budget whose supervisor, their mutual action for another adverse father, quit that he would controlled However, employee. if the formal deci- fired, id. if were not see Such sionmakers choose to act accordance held, leverage, the court was sufficient report, with a or recommendation “princi- jury tag person the son as the indepen- of a biased subordinate without plaintiffs firing.” for the pally responsible dently evaluating aggrieved employee’s (internal marks quotation Id. at 228 situation, liability may imposition be omitted). alterations accepted If are appropriate. such claims value, at face discrimina- subordinate’s *26 C. tory may and actions then be statements major- in Accordingly, my colleagues the fairly imputed to the formal decisionmak- ity agree always I that we cannot limit them, and, by employ- to the ers virtue the actions or statements of inquiry our to Rios, e.g., (noting er. See 252 F.3d at 382 decisionmakers, employ- formal because that of non decision makers “[statements itself er should not be allowed insulate the ultimate become relevant when liability by hiding behind such formal from merely decision maker’s action is a ‘rubber diverge I from their decisionmakers. stamp’ for the subordinate’s recommenda however, a holding, biased subor- Servs., tion”); Transp. Kendrick v. Penske not make the final or dinate who does (10th Cir.2000) Inc., 1220, 220 F.3d 1231 employment may decision count as formal (recognizing holding case that an law em a decisionmaker a Price Waterhouse if ployer “may manager be held liable the simply because he has mixed-motive case discharged [employee] merely who the act pro- had a “substantial influence” on the stamp, paw,’ ed as a rubber or the ‘cat’s employment which the decision. cess led to for a employee’s prejudice, subordinate my required more to hold an opinion, is if manager discriminatory even the lacked employer discriminatory liable for the mo- intent”); County v. Marion Audi Willis employee tivations of a subordinate (7th Office, tor’s 118 F.3d Cir. participates discipline process. 1997) (noting that “there can be situations majority, many the circuits in which the forbidden motive of a subor As noted employee imputed or “cat’s dinate can be employed “rubber-stamp” because, the paw” employer as the means under circum- approach appropriate influ simply may uation often constitute sufficient case, employer the the stances subordinate”); ex stamp’ the to fall under the ‘rubber paw" ‘cat’s ence as the acted Indus., Mini-Circuits, Inc. v. El Burlington v. Llampallas ception.”); cf . 2257, 141 742, 762, lerth, Lab, Inc., S.Ct. 524 U.S. Cir. 163 F.3d (1998) that the (recognizing 1998) L.Ed.2d 633 (defining paw” a “cat’s situation as employed has been doctrine paw” “cat’s in which “the decisionmaker act[s] one liability upon an impose lower courts accordance with the harasser’s decision discriminatory motiva for the evaluating employee’s without herself the nondecisionmakers). tions of situation”). this, har- person like where the In cases However, when the formal decisionmak- discriminatory animus is not boring the employee’s assess the independently ers supervi- a direct or formal decisionmaker situation, of the propriety evaluate sor, influence an a-position but is validity recommended action and of the paw” anal- the “cat’s employment wrongdoing, and render the em- alleged important. It should particularly ysis upon legitimate decision based ployment that a to show subordinate enough not be discriminatory personal factors without ac- or takes an a recommendation makes “ motivations, relationship ‘the causal be- by discriminatory is motivated tion illicit motive and tween subordinate’s animus, or recommendation employer’s ultimate decision is bro- procedures the initiation of action causes ” Washington ken.’ Convention Griffin ultimately lead to the which (D.C.Cir.1998) Ctr., formal decisionmak- made decision Willis, 547); 118 F.3d at see also (quoting Rather, aggrieved employee ers. (noting Stimpson, 186 F.3d make the threshold required be should the biased recommender and “[w]hen the “ac- that the subordinate was showing are the same actual decisionmaker not decisionmaker,” “principal- or the one tual may person persons, plaintiff decision, Reeves, for the ly responsible” of causation benefit from the inference 151-52, 120 S.Ct. 530 U.S. that would arise from their common iden- the biased decisionmaker followed “the Instead, prove must tity. without [of subordinate] recommendation animus behind investigating complaint independently *27 recommendation, underlying and not the employee” making his own against the in the rec- misconduct identified employee the propriety as to the of determination ommendation, the was an actual cause of v. English action. Colorado the party’s decision to terminate (10th other Corr., 1002, 1011 248 F.3d Dep’t of circumstances, In such employee.”). “ Cir.2001) Stimpson City (quoting of clearly is made on ‘the ultimate decision Tuscaloosa, Cir. 1332 legally permissi[ble] and a 1999) Rios, independent curiam)); 252 see also (per (“Where basis, of the bias the subordinate [and] the an evaluation is F.3d at 382 ” at 1311 Griffin, 142 F.3d not relevant.’ comprises a substantial basis sole basis or 547).1 Willis, acts, 118 F.3d at (quoting the eval- which the decision maker stamp” the recommendation question for subordinate's of whether I have treated may proceed the de- then we to employee is an "ac- or such as Fultz subordinate subordinate’s inquiry. termination of whether the threshold tual decisionmaker” as properly as "direct” are viewed plaintiff presents statements If the sufficient illegitimate factor was a mo- evidence that an upon jury conclude which can therefore, and, tivating in his decision a “rubber factor decisionmaker acted as formal 1998, Hill early assigned

III. case. In was to Drum in work at Fort New York. Dixon mind, I turn to principles With these and Fultz was the person lead un- recitation of facts more detailed safety inspector. Prior to Hill’s assigned and termi- derlying reprimands Hill’s assignment, spoke Griffin about nation, light most favorable viewed job her complaints he had received about Hill, Liberty Lobby, see Anderson v. Hill that performance. Griffin told her Inc., 242, 255, U.S. S.Ct. that, up par work had not been (1986), question and the L.Ed.2d ultimately persons because the lead Fultz, whether Hill has demonstrated that “the responsible quality [her] work Drum, safety inspector at Fort was the on the road” and “she had to be followed “princi- the one “actual decisionmaker” or on,” up they expressed some resis- for each of these deci- pally responsible” assignment tance to her to their sites. sions. J.A. 188. (Fort Reprimand Bragg) A. The First reprimand, her Hill’s second written Drum, imposed three-day first at Fort subject Although challenge, not the disciplinary suspension upon based reprimand the first is relevant because it is policy, violation of Lockheed’s tool control reprimand similar to Hill’s third requires employees accurately which ac- predicate serves as a for the ultimate ter- count for their tools at all times and to reprimand mination. The was issued to promptly report missing lost or tools to during assignment Bragg, Fort supervisor. impor- their immediate Carolina, in September North policy tance of the is not in dispute. As work,” “unsatisfactory quality of a viola- Hill, acknowledged by policy ensures tion # 4 of Rule SOP. J.A. that “all of working the mechanics are Specifically, reprimanded Hill was for in- keep around the aircraft ... track of their stalling prop- rivets that were too small to they get tools so don’t left in the aircraft.” erly Wig- hold an antenna mount. Donald J.A. 76. All tools are marked for identifi- gins, assigned safety inspector, wrote cation the mechanic’s initials or social violation, up which was issued Ron- number, security and the mechanic’s tool- Souders, person ald the lead on the Fort outlined, “shadowed,” box is so that Bragg job. disciplin- Hill testified that the missing immediately apparent tools are ary report accurate and Wiggins opened. when the toolbox is unfairly issuing and Souders did not act reprimand this or otherwise discriminate April pair of blue-handled against her. cutters bearing Hill’s identification mark was found on a mili- maintenance stand (Fort Drum) B. Reprimand The Second *28 Fultz, tary employees and turned in to contrast, reprimand, by gave Hill’s second is who them to Dixon. After consulting subject Hill, the of the most contention in following this with Dixon issued the writ- "pretext” pursuant whether tire "mixed-motive” or the removed from Hill's record to Lock- SOPs, proof appropriate method of is the one to they heed's were not considered under employ. reprimand SOP 3.4.2. The issued at Fort therefore, Bragg, was considered to be the Actually, prior repri- Hill had received two reprimand purposes first the termi- jobsite mands a Lockheed on in 1995. Be- nation decision. reprimands apparently cause these had been discriminatory by Fultz’s involve- dered with Lock- in accordance reprimand, ten ment in the incident. heed’s SOP: reprimand, in the written As reflected brought my it was April On Fultz, turning over the cut- in addition to Cutters Diagonal 4" your attention Dixon, that he had earli- told Dixon found on a ters Grips were Handle with Blue pair a missing that Hill was bring er noticed You failed to stand. maintenance check during inventory a and cutters tool Inspector’s the my attention or it to them, that, Hill about questioned when he misplaced this you lost or attention “I Richard [Dixon] Hill Fultz that told my in told held These were tool. cutters taken the tool home.” J.A. they I had you discovered until possession the miss- discussing Inventory Hill now denies ever Tool missing. During were (COB) The crux her ing cutters with Fultz. close of business Check therefore, claim, Fultz was motivat- is that as to the you questioned were April discriminatory animus towards In- by the ed of these whereabouts cutters Dixon this conversation Richard her to lie to about “I told Your answer: spector. result, that, repri- Dixon issued tool- home.” Your as I taken the tool he would not otherwise have 98 in mand that again April on 15 checked box was reasons, I following be- busi- issued. For again at close of morning and produce Hill sufficient your lieve has failed you if had all asked When ness. that Fultz upon which to conclude tools, “yes.” was your answer for Dixon’s responsible” “principally was 98, after a morning April of 16 theOn or that reprimand, to issue the decision Brief on F.O.D. in-depth Safety very Fultz’s merely as “rubber acted Control, toolbox was your Tool so. stamp” doing Diagonal 4" pair a like checked toolbox, repri- the written premise, I As an initial when your were in Cutters of the tool control mand for Hill’s violation my posses- your original pair still held signed Dixon and completed by policy, sion. incident, they Hill met to discuss when you approximately I confronted When to Dix- statement sets forth Fultz’s plainly denied April you hours on conversation now-disputed on about the Blue Diagonal 4" with Cutters arbitrarily act to Hill. Dixon with did markings your with tool Grips, Handle suspension reprimand issue them, yours. engraved Fultz had upon what misplaced tool based reprimand At the 125-126. time J.A. presented tool him. told issued, only partial- Hill’s toolbox was mark and noti- her identification bearing “shadowed,” deficiency she corrected ly about the to Dixon the facts related fied of three-day suspension. during conver- incident, alleged including missing tool. with her deci- sation about Dixon’s dispute does not supervisor, her direct Faced one-on-one or that reprimand to issue sion Hill, and man that by the actual decisionmaker authorized three-day suspension was entirely with- Indeed, acting freely professes was rules. disciplinary Lockheed’s motivation, personal out a Dixon could acknowledged to tell her opportunity given Hill was immediately terminate instead chosen *29 the informa- Rather, story dispute side of the Hill claims the violation. her for no Dixon, challenges. There is evi- now tion she issued reprimand valid that this Nor, for at the time. “decisionmaker,” that she did so was ren- dence an unbiased matter, that is there indication that meeting plaintiff acting with the before during deposition. she did so the subordinate’s adverse recommenda- tion). ap- denial of the conversation in pears for the first time the form of an addition, In Hill’s evidence sup- fails to affidavit, day one completed before her claim port the that Dixon’s conclusion that response to Lockheed’s motion for sum- Hill was less than candid was based entire- mary and four months after judgment ly on report questioned that he had deposition. Hill misplaced about the cutters that or evaluating employee whether an thought only Dixon Hill lied because of disciplined been terminated “because what Fultz told him. Although Dixon ac- trait, of’ a we protected must “look at the knowledged that Fultz’s statement was they appear person making facts as. considered, as evidenced its inclusion Kendrick, 1231; decision.” F.3d at reprimand, written the evidence does Lines, Inc., Bullington v. United Air support the conclusion that Dixon (10th Cir.1999) (noting would not have exercised his discretion that inquiry “[t]he relevant is not whether reprimand Hill had Fultz not this made employer’s] proffered [the reasons were statement. Dixon testified if Hill had wise, correct, fair or but whether em- [the acknowledged tool, missing that she was ployer] honestly believed those reasons probably she would not have received a faith good upon acted those be- But, written reprimand. J.A. 251A. liefs.”); McKnight Kimberly see also testify did not that he based his belief that Corp., Clark being was not candid on Fultz’s state- Cir.1998) (holding plaintiff failed to ment about being the tool taken home. pretext plaintiff establish where was ter- Rather, testimony clearly as Dixon’s dem-

minated after the conducted an onstrates, his concern was Hill’s refusal to investigation into a allega- subordinate’s admit to him that she misplaced tions of misconduct on part of the tool: plaintiff and allegations believed the to be true, though plaintiff presented even evi- Q: said that [Fultz] Ms. had said dence in the lawsuit that the allegations you she had talked to about false). may have been issuing Before you [the tool] told that she had reprimand, Dixon informed Hill of sup- taken it home? posed gave opportunity “lie” and Yes, sir. tell her story side of the or otherwise And, course, she hadn’t? ¿O was, view, my

refute it. It incumbent upon her at point to do if Yes, so she sir. í> complain intended to later. English, See you But don’t know whether or not «O (“A plaintiff F.3d at 1011 cannot claim she said that to Mr. Fultz? firing authority that a uncritically relied A: hearsay That’s of what he told me. upon a prejudiced subordinate’s recom- mendation where the op- had an portunity to respond to and rebut the evi- Q: you Did that alarm that she had supporting recommendation.”); dence made that statement? Willis, 118 F.3d at (holding 547-48 A: It kind of made me mad. paw” “cat’s line of appli- cases was not

cable because Q: the formal decisionmaker Sure. telling Because she wasn’t investigated the subordinate’s motives truth. *30 Acknowledged that Q: hers. Could be and severe the truth telling

Wasn’t of it? it had her number tools missing [sic]. deal <y Okay.... if she’d and— mind Had her number your A: Yeah. Fultz Mr. that statement said that it? acknowledge she did Q: Okay. So her, she would attributed I— A: Yeah. After been dishonest? this, history you Q. But on the based <j Yes, sir. up and and wrote her went ahead <y thought you that ... the fact And suspended her? about it being dishonest she was Yes, A: sir. discipline, didn’t a role played it? Mr. Fultz if lied to Q: she hadn’t’ve So Yes,

*31 > sir. that that she did and told had [him] Mr. course, relied on And, you ¿O had come in and ulti- and then she that’s honest because to be these mately acknowledged that employ- when an accusation serious hers, writ- you wouldn’t have being dishonest? ee is up? ten her right. That’s <J been There wouldn’t’ve A: I wouldn’t. dishonest, Well, hadn’t been if she & nothing said. in a her have treated you would acknowl- ultimately she Q: Because did you? way, wouldn’t different edge Right? it. “yes, acknowledged, ... If she’d Yes, A: sir. tool,” noth- wouldn’t missing I’m been said. ing ever Thus, Fultz told Dixon after 251-253. J.A. Hill, writ- have been Dixon inde- Okay. wouldn’t She his encounter about <3? all, would she? investigated the matter up ten pendently op- giving her with Hill and meeting up wrote Probably wouldn’t’ve been At story. side of the to tell her portunity at all. missing tool time, replaced Hill had ... first talk you Okay. When did all of Dixon told she toolbox and her it? about Mrs. tool presented with tools. her When I morning, her the I next talked num- that bore possession in Dixon’s at that box And in her believe. it “could ber, acknowledged only said it was tool. She time was a no reason gave Dixon hers” and be there, tools. had her ... she events. of the version disbelieve Fultz’s Okay. a? testimony also contradicts her, I talking to time <i But I—at based decision claim that Dixon my tool desk. had the upon candid being Hill was that, the time admits statement. <y reprimand] [the You down wrote make a upon to was called the cutters you showed her cutters acknowledged that only she they were hers? denied she them,” all “that’s my “had number [> At first she did. Yeah. deposi- during her Even I J.A. 78. said.” it later acknowledge Did that the tion, she only acknowledge Hill would <© they likely” were? J.A. hers. were “most cutters deposition in her And, asked when she was be hers. t> Could ^[05] «© O had, fact,

directly whether she reprimand lost issued the had Fultz not told cutters, again Hill pair diagonal refused him about his alleged conversation with that, testifying “I up, to own instead testimony, Hill. Given Hill’s own it pat- is many, actually I could not so answer that.” ently obvious that Dixon’s conclusion that Later, J.A. 78. Hill admitted that she had Hill was “less than candid” and that a only pairs owned three cutters before reprimand was warranted did not rest gave disputed pair, her the and that Anderson, upon Fultz’s involvement.3 See But, only pairs she had three afterwards. (“Factual U.S. 106 S.Ct. 2505 only even then Hill would admit that she disputes unnecessary that are irrelevant or cutters, pair lost a not that pair of counted.”). will My colleagues not be con- cutters, and she the possibility raised jury clude that a could find that the second person another could have etched her reprimand was issued “because of’ Hill’s pair number on the of cutters that inwas because, sex and viewing evidence course, possession. Dixon’s Of even if that Hill, light most favorable to Fultz true, a pair missing. would still be lied to Dixon about his conversation with very Given the fact that the purpose of the Hill and Dixon would not have issued the policy tool is to ensure tools are not reprimand had Fultz not In my done so. misplaced in an aircraft they where could view, the evidence permit does not such an wreak havoc perhaps tragedy, one Accordingly, inference. I would hold that hardly why wonders Dixon felt it impor- Hill present has failed to sufficient evi- tant that his aircraft mechanics be candid dence to substantiate a claim that she re- by when confronted him missing about reprimand ceived her second “because of’ tools. animus. sum, presented Hill has insufficient support' finding that Fultz’s (Fort Drum) Reprimand C. The Third discriminatory animus caused her to be Similarly, I pre- believe that Hill has reprimanded for her violation of the tool sented upon insufficient evidence which to policy control or that Fultz’s alleged dis- equally recharacterize the legitimate third criminatory imputed motives should be reprimand, which was triggering event Dixon. The most that can be said for her termination under Lockheed’s dispute created factual as to wheth- SOP, product as the of Fultz’s discrimina- er Fultz missing discussed the tool with tory animus. her because she has now submitted an completed affidavit After Hill disclaiming any three-day such sus- conversation But, pension place. took for the violation present has failed to of Lockheed’s tool any evidence that challenged policy, she control she that con- returned to work at versation at the time Dixon Fort Drum. made his inde- Over the next few days, pendent reprimand decision to her for her was issued six discrepancy installation re- loss of the ports cutters or to substantiate her Fultz for MWOs that Hill had current claim that Dixon would not have signed off on completed, as but which disagree I also that Hill was pair blindsided ed with a of cutters with her identifica- question ques- Dixon's because Fultz had not tion mark on them and the account of Fultz's policy tioned her. The requires tool control involvement disputes. that she now Hill has employees report missing tools to their offered no evidence that she was blindsided supervisor; obligation Fultz was under no simple inquiry Dixon's as to whether the question Hill first. Even if Hill was unaware cutters were or were not hers. tool, missing that she was present- Hill was reprimand “be- unsatisfactory. find that she received to be determined *32 I age. disagree. her sex ac- cause of’ disciplinary no Fultz took again, Once reprimand tion, authorized was he nor that I note Hill premise, As an initial discrepancies. Hill for the discipline or similarly that presented no evidence job Fultz, with his Rather, in accordance were young employees or male situated dis- duties, perceived of his each reported for the discrepancy reports not issued instal- standard via Lockheed’s crepancies, in their work same or similar deficiencies J.A. 128-31. “Discrepancy Record.” lation not issued they or were that performance, duties, job Dixon, with his in accordance discrepancy reprimands once such written discrepancy investigated the personally person. lead were verified the reports it was each before and checked records Hill that contrary, the testified Fultz On one, Dix- exception of With the corrected. reports “many diserepancfy]” had written conclusion the reached independently on other completed by work me- faulty re- discrepancy the installation all of that during Fort worksite chanics at the Drum write- legitimate accurate and were ports there, at least one assignment their Hill about each with spoke and Dixon ups of a male suspension which resulted admitted part, For her discrepancy. 94-95, supervi- employee, J.A. reports were discrepancy four of that had issued her first Bragg at Fort sor correct,4 ques- not and Hill does factually discrepancy upon single reprimand based repri- authority issue Dixon’s tion there. safety inspector report by on that mand basis. addition, accepted prof- I even if only issued the inference that with the fered faced Accordingly, again discriminatory and because of his reports producing sufficient burden Hill, I could retaliatory animus towards by Dixon issued reprimand, valid this that that conclusion this agree not inadequate work admittedly her on based imputed to Dixon. animus can be discriminatory improper was rendered performance, any personal animus Dixon acted without installation dis- Fultz issued the because solely the word of rely upon did not based. it was reports upon which crepancy findings. The stamp” Fultz or “rubber this burden met asserts she has only by Dixon after was issued reprimand re- discrepancy she believes because accuracy accurate, verified Fultz, independently although issued ports And, Hill’s reports. trivial,” discrepancy J.A. “nit-picky and were Dixon, fact af- argument ignores that, during they were issued reports, accuracy of the verifying the uttering ter that Fultz was period time same the infrac- determined independently that she statements to warrant sufficiently serious Dixon, jury could tions about to complained nit-picky Very and trivial. A. testimony point this is as specific on 4. Hill’s Q. they I Are accurate? My question: follows: is, fact, mean, Q. right that this is he are called dis- And these documents they happened, weren't done crepancy records? what Right. you it was correctly A. if believe triv- even Q. discrepancy record? What is a ial? wrong something that is done A. It's Okay. Yeah. A. not done. J.A. 82-83. Q. point your that some I understand believe, these, nit-picky? you are only

not but the third reprimand, reprimands written involving suspension and trigger (not reprimand that would Hill’s termi- involving one a suspension necessarily Thus, any rule) nation. causal connection be- subject the same will be to dis- reprimand tween Fultz’s animus and the Thus, charge.” J.A. 110. after Dixon is- was broken.5 Hill, reprimand sued the third he sent home await final word on her status. reasons, I unpersuaded

For similar am Griffin, Dixon contacted who told Dixon to summary judgment be should with- *33 follow Lockheed’s SOP. simply held reprimand might by not have been issued Dixon Dixon then forwarded the disciplinary of Fultz’s absence animus paperwork to point, Griffin. At this true, towards Hill. Even if this is an insuf- propriety reprimand Hill’s first at Fort upon ficient basis which to impose liability Bragg wholly was undisputed. Hill had upon an employer independently who veri- challenged not upon facts which the Otherwise, reports. fies such an unbiased based, reprimand second was and she was employer discipline could never or termi- reprimand by issued that only after employee undisputed nate an for an viola- he had independently investigated the rules, company including tion of egre- such matter given and an opportunity to (or gious things fighting stealing as or And, story. tell her side of the Dixon had endangering fly the lives of those who on issued the third reprimand only after he aircraft which carelessly to a mechanic has independently had investigated and veri- attended), so long employee as the can discrepancies fied the cited Fultz and demonstrate that she was “turned in” by a given opportunity had an to re- employee subordinate “because of’ a dis- spond to In them. addition to these viola- criminatory attitude.

tions, Dixon testified that was termi- D. The Termination nated because he “felt like she couldn’t do job that, anymore” although and he This leaves for consideration Lockheed’s specifically declined to recommend her ter- Hill, ultimate decision to terminate which mination, boss, “that’s what I told the Griffin, and primarily rested the senior put he said the paperwork in.” supervisor site J.A. 150.6 Lockheed’s east coast Prickett, jobsites, specifically, More Dixon testified that Hill program Lockheed’s manager job in charge of the “could do one today contract field normal. Tomor- previously, teams. As noted row she Lockheed’s would mess it up, you’d SOP provides 3.4.2 employee tell her “[a]n that she up messed this and then who receives combination of two written she’d correct it.... airplane may This be 5. unpersuaded by I am also argument exercising Hill's authority impose when his sole that Fultz was the “actual decisionmaker” disciplinary upon action the aircraft mechan- allegedly because Dixon told Hill that he had ics under Lockheed’s SOP. power no to override Fultz's actions under Viewing alleged SOP. Dixon's statement I testimony do not find Dixon's to be incon- light her, to Hill in the most favorable to it is view, point. my sistent on this In it is not at best evidence that Dixon was not autho- supervisor inconsistent for a direct of an em- arbitrarily legitimate rized to override a ployee subject to termination due to work discrepancy report accurate issued a Lock- performance problems candidly convey safety inspector charging heed an aircraft me- decisionmaker, yet criticisms to a formal de- improper completion chanic with of an air- specifically cline to recommend the ultimate And, craft modification work order. even if termination decision. true, it does not ability alter Dixon's to evalu- ate, verify reject, discrepancy reports E. Conclusion off.” J.A. may one be The next fine. presented was

Also, time Griffin at the liability conclude, impose I To would person- he paperwork, valid with this upon the ADEA Title VII or under dissatisfaction general ally aware discriminatory motives for the jobsites. prior engendered Hill had simply because employee a subordinate super- direct Fultz had no part, For his role, even a played employee in a Hill, he was but authority over visory one, led to process in the significant job quality of Hill’s to observe position view, my employment decision. it. upon comment and to performance evi- present required be should light However, the evidence viewing “actual was the that the subordinate dence Hill, merely Hill has most favorable re- decisionmaker,” “principally or the one consulted Fultz was demonstrated leading to the decisions sponsible,” Fultz, critical of and that Griffin decision- the formal termination because essentially performance, work *34 deci- rubber-stamped his merely makers assessment unbiased Dixon’s agreed to failed that has I am satisfied sions. view, this my In of Hill’s deficiencies. do so. that Fultz the conclusion not support does for Hill’s ter- responsible” “principally

was process the initiated To extent Fultz the decisionmak- mination, the formal that or he reprimands, two the led to final which deci- Fultz’s “rubber-stamped” merely ers responsible” only “principally was that Fultz no There is evidence sion. light. to shortcomings bringing Hill’s or discriminatory statements voiced inspect Hill’s to position in a Fultz was decisionmakers the formal to opinions quality safety and work report to work and infractions Hill’s reported he when Dixon, supervisor, to her direct violations quality rules and stan- safety Lockheed’s if But even ultimately to Griffin. and by Griffin. was contacted when he dards or infrac- report to motivated Fultz was that Hill I would hold Accordingly, animus, this part in tions impute to presented insufficient Supreme Court the the situation is not Dixon, to discriminatory motives Reeves, “ac- in the which contemplated Prickett, clearly made Griffin, inde- who the to was married tual decisionmaker” admittedly unbiased decisions pendent and ‘ab- and “exercised decisionmaker formal Hill for and terminate discipline company.” power’ within solute quality and safety Lockheed’s violations 2097.7 Reeves, 120 S.Ct. 530 U.S. at standards. case, including requirement its prima facie v. Henkel regard, I note that Tuck In this Cir.1992), that job a level his performing was that he Corporation, 973 F.2d 371 There, expectations at the legitimate compel result. Henkel's a different met does not Henkel, Sec- de- not. discharged. that formal Hill has employer, contended was he time they Hill, re- ond, abun- presented fired an had Tuck had cisionmakers unlike Tuck plant position as prof- job employer’s duties his defined the that of evidence dance longer quali- be no manager found him to addition pretextual. was reason fered hand, Tuck, alleged that the other fied. former [his probative evidence "some age- demonstrated supervisor had former his against workers older supervisor] was biased termination. and influenced based bias actual decisionmak- influenced” 376-77, him, Tuck id. terminate ers to claim under We Tuck’s evaluated Tuck’s, undisputed evidence presented Douglas conclud- framework McDonnell younger years over 20 replacement was first inappropriate summary judgment was ed qualified), (and no First, arguably more Tuck had established Tuck for two reasons. Nor do I believe Hill has opinion during demonstrated dinate’s is solicited Prickett, Griffin, investigation and Dixon were es- course of an taken nondis- sentially stamps criminatory rubber for Fultz or that formal decisionmakers should be, these, Lockheed chose to circumstances such as insuffi- hide behind its formal cient to overcome fact By decisionmakers. Hill’s own account of that the formal termination, independent, decisionmakers reached an leading up events to her it Dixon, non-biased decision. person the lead and Hill’s di- supervisor, rect “principally re- today’s Under if a sponsible” challenged for each of the deci- presents evidence that a subordinate em- sions this case. Dixon issued the final ployee report was motivated to wrongdo- reprimands only two independent- after he ing “because of’ protected the other’s ly investigated the underlying bases and traits, that discriminatory animus will be gave opportunity Dix- respond. imputed employer even un- though on sent Hill home to await word as to biased independently decisionmakers in- whether she would be terminated in accor- vestigate verify violation, the em- dance with policy, Lockheed’s and that ployee violation, admits the employer Griffin, only decision was made after who has a preexisting policy taking pre- performance had been advised of problems cise action as a consequence prior Drum, going even to Fort violation, reported of the and there is no received documentation of the three repri- evidence that the enforces that *35 mands and word from Dixon per- that her policy discriminatory Sup- fashion. problems formance had continued and that pose, for example, Fultz had reported that quality her work was unreliable. Fultz Hill stealing was from Lockheed and Hill was asked to prepare work with Dixon to confessed when by confronted Dixon. report deficiencies, written documenting Griffin, after consulting with Fultz and which Dixon, was forwarded to Griffin.8 Howev- nothing hears to against militate er, the mere fact that a termination, biased subor- Hill’s and Lockheed fires her. replacement and that the clearly second was performance "because of” the admitted defi- Tuck, qualified no more 76, than see id. at 375- by ciencies that had been verified the non- "strong as well as anecdotal evidence ... biased company. decisionmakers within the that employees they Henkel its fire[d] before age.” reach retirement [ed] Id. at 376. Of talking Fultz denied ever to Griffin about particular significance, the Director of Hu- during Hill the time reviewing Griffin was only man Resources was able to remember company Hill's infractions of policy. Since employees high-ranking two Henkel of- —both deposition Griffin testified at that there was age ficers—who had reached retirement them, some accept discussion between I company, employee the and another testified Griffin, stage testimony this the agree of and I that "Henkel’s well-known reason for this my colleagues that an adverse inference practice to [was] save on retirement benefits.” can be drawn as to Fultz from his denial. held, Accordingly, Id. we is "[i]f it Henkel's However, I do not view this inference as position employees that it fires ‘merely’ older prevent summary judgment sufficient to for benefits, pension to save on jury then the Anderson, Lockheed. See 477 U.S. at given opportunity should be the to consider 106 S.Ct. may 2505. Whatever this evidence policy age such as evidence of discrimina- Fultz, say about the fact still remains that tion." Id. there is no evidence that Griffin acted with sum, hardly In dispositive precedent Tuck is animus, any discriminatory agrees and Hill for determination that the comments that Griffin had no Additionally, such bias. I Fultz, Hill, supervisor who was not a direct of prepared note that the statement Fultz for can be construed as direct evidence under Griffin discriminatory is devoid of remarks.

Price Waterhouse that Hill was terminated Lockheed age "because of” her sex or and not comments, is it and sex the of Dixon caused single-handedly have will Fultz Fultz to talked Dixon that her undisputed turned termination, because he Hill’s not did Dixon that and complaint than “sub- more done about Indeed, has he in. outcome; has he termination Hill’s recommend or influence” discipline stantially to- against Under complaints termination. her precipitated in retaliation denied be would Lockheed holding, day’s Fultz. that theory under summary judgment retaliat- Fultz Hill claims that Although a dis- demonstrating statements Fultz’s for a up writing her her against ed to imputed be should criminatory animus in- that infractions, admits series decisionmak- other Griffin, and the Dixon, committed, personal- Dixon were a viola- fractions termination ers, rendering committed, were they that that ly believes verified jury if VII of Title tion in because determined her turn independently motivated Fultz .view, my There In issued. properly animus. were write-ups intend- not were ADEA infractions similar VII Title no evidence employers. upon employ- burden impose this to other came ed it when overlooked con- is to indeed, evidence ees; presented has I sum, believe In testified addition, Hill herself trary. evidence insufficient “prin- been otherwise would or she believes decisionmaker” that she “actual discipline complained for her responsible” if she even cipally terminated evidence termination, no insufficient presented And, Dixon.9 as a acted Griffin, Dixon Prickett, or knew either Prickett that Griffin paw” “cat’s stamp” or “rubber mere Fultz. about complaints Accord- discriminatory decisions. court’s district affirm would I ingly, V. Lockheed. judgment summary grant *36 failed Hill my that belief view of In IV. “actual was Fultz that demonstrate to. the same fails claim retaliation Hill’s motivations his decisionmaker,” or that fail. claims discrimination her reason fairly imputed be otherwise could her treat- about to Dixon complained reach decisionmakers, I would formal asserts Fultz. the hands at ment made remarks whether the issue calling kept that Fultz told she invoke sufficiently “direct” Fultz woman; Dixon useless” “old and an her standards favorable the more her only told that Hill asserts cases. in mixed-motive liability available her. at yelling picking however, I note dissent, I write Because recollection difference this regarding reservations my briefly because, however, unimportant is two, as well. holding complained we assume if even been have you would Q: you think Do follows: as is point this testimony on complained you had not if terminated you you Q: at mad [Fultz] Was Dixon? to Mr. Dixon? complained Mr. had Oh, yeah. A: my as- That That, know. don't I A: been have you would Q: you think Do sumption on that. way? either terminated Q: evidence you don’t But Yeah. A: that? support added). (emphasis J.A. A: No. In order to establish 2001) a discrimination (finding plaintiff was entitled to claim by evidence, direct it is incumbent a Price charge Waterhouse plain where upon plaintiff to produce “evidence of tiffs supervisor, direct superintendent conduct or statements that both reflect school, of the had specifically threatened to directly the alleged discriminatory attitude replace plaintiff with someone “younger and that bear directly on the contested and cheaper” on two occasions and later Taylor, decision.” at recommended to the school board that she 232; Fuller, see 67 F.3d at 1142. The demoted). be plaintiff produce “must evidence that Reeves, contrast, the Supreme clearly indicates discriminatory attitude Court did not employ the Pnce Water workplace and must illustrate a house direct inquiry evidence to evaluate nexus between that negative attitude and the discriminatory statements and actions the employment action.” Brinkley, 180 of a lower-level supervisor who recom F.3d at 608 (emphasis added); see also mended the plaintiffs termination, even Bank, v. Maldonado U.S. 759, 186 F.3d though supervisor told (7th Cir.1999) (explaining that direct “that he was so old he must have come “evidence that can be inter- over on Mayflower” and that he “was preted as acknowledgment of discrimi- too damn old to do job.” Reeves, natory intent (internal by the defendant” (internal U.S. 120 S.Ct. 2097 quota quotation omitted)); marks Indurante tion marks omitted). alterations Local Int’l Teamsters, Bhd. AFL- Rather, the Court concluded that the dis CIO, Cir.1998) (ex- trict court properly submitted the case to plaining that direct evidence is “the sort of the jury because plaintiff, in addition evidence of discrimination that in itself to establishing a prima facie case and cre entitles plaintiff] [a to take [her] case to a ating a jury issue as to the falsity of the jury without disproving [the defendant’s] employer’s explanation, had produced ad stated [her]”). rationale for firing ditional evidence that supervisor, “[Wjhether a case is pretext or mixed- was manned to the ultimate decisionmak motive case ultimately hinges on the er, was the “actual decisionmaker behind strength of the evidence establishing dis firing,” [the] 152, 120 id. at S.Ct. Fuller, crimination.” 67 F.3d at 1143. In was “principally responsible” for the firing, Price Waterhouse, the Court found direct 151, 120 id. at S.Ct. 2097. evidence of partners, discrimination where *37 We, too, who were directly have more narrowly involved in deciding construed whether the plaintiff the circumstances would be under allowed which general to the join them, were discriminatory heard to describe the statements of nondecision- plaintiff as “macho” makers and as and “overcompen- other subordinates should be satfing] for being woman,” and considered as directly direct evidence of discrimi- urged plaintiff directly to “walk nation by more femi the employer. For example, in ninely, talk more femininely, Brinkley, dress more we held that the discriminatory femininely, wear make-up, have her hair statements a subordinate who very was styled, and wear jewelry.” Price popular Water and highly valued the ultimate house, 490 U.S. at 109 S.Ct. decisionmakers, 1775 to the effect that he would (internal quotation omitted); marks see id. have difficulty working for woman, were at 109 S.Ct. 1775 (O’Connor, J„ con insufficient to establish by direct evidence curring); see also Rose v. New York City plaintiff that was demoted and terminated Educ., Bd. (2d of Cir. because of her sex. See Brinkley, 180 VI. that Tuck, noted we In at 608-09. F.3d supervi- of a discriminatory statements the this. down to comes view, case the my influenced and recommended sor, had who about remarks discriminatory made Fultz that effect to the termination the for various her reported later and Hill people older rid of the to get “wanted he decisionmak- If the violations. workplace ” blood,’ and ‘young with them replace and simply process discipline ers peo- “younger needed company that wrong- was there that word Fultz’s taken best were at Tuck, F.2d ple,” that disputed Hill and Hill’s doing part Douglas McDonnell under evaluated have a well might Hill then wrongdoing, evidence as direct than rather framework VII and her Title to present basis valid And, in discrimination, id see of jury. to a ADEA claims claim plaintiffs rejected Taylor, we dem- evidence Hill’s what is not “he that that But statement chiefs police that taking blindly of Instead to the onstrates. female send to going never veri- it, personally for word Fultz’s of discrimi- was direct Academy” met He wrongdoing. of reports fied “bear did not statement because nation face, advised face to her. Hill deci- employment the contested directly on opportu- her, her gave and against reports Police to [plaintiff] to send ... not sion For them. disprove deny to nities made chief police Academy” errors, person- also he quality Hill’s work employ- to another response statement confirmed work observed ally would whether toas question ee’s inde- These improperly. was done it that F.3d Taylor, attending. be supervisor by the investigations pendent omitted). (internal marks quotation decision make an unbiased to him allowed com several discrimination case, made taint In this removed that old and attached otherwise might have the effect ments these unbiased There It was retire. Fultz. she should reports useless review however, Fultz told forwarded evidence, decisions no is management Griffin, a member fired because get you going “I’m discrimi- without acted also Op. at Hill concedes Majority female.” old and are you undisputed these Under natory bias. may well statements any basis there facts, conclude I cannot attitude to a- evidenced company. liability imputing sex, but wards Therefore, dissent. respectfully I directly on “bear did not the statements Tay decision.” the contested (internal quotation at 232

lor, already omitted). For the reasons

marks failed Hill has detail, I believe

explained *38 between nexus required] [the “Alústrate attitude negative Ac Brinkley, 180

action.” I unconvinced am

cordingly, direct of the level rise

statements mixed- invoke the necessary to Price Wa under proof method

motive

terhouse.