PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff-Appellant,
and
FRANCISCO G. SANTANA, No. 00-1507
Plaintiff,
v.
SEARS ROEBUCK AND COMPANY,
Defendant-Appellee.
FRANCISCO G. SANTANA,
Plaintiff-Appellant,
and
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, No. 00-1509
Plaintiff,
v.
SEARS ROEBUCK AND COMPANY,
Defendant-Appellee.
Appeals from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Malcolm J. Howard, District Judge.
(CA-98-136-4-H)
Argued: December 6, 2000
Decided: March 16, 2001
2 EEOC v. SEARS ROEBUCK AND CO.
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Reversed and remanded by published opinion. Judge Motz wrote the
majority opinion, in which Judge Michael joined. Judge Niemeyer
wrote a dissenting opinion.
COUNSEL
ARGUED: Robert John Gregory, Office of General Counsel,
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Wash-
ington, D.C., for Appellants. James Bernard Spears, Jr., HAYNS-
WORTH, BALDWIN, JOHNSON & GREAVES, L.L.C., Charlotte,
North Carolina, for Appellee. ON BRIEF: C. Gregory Stewart, Gen-
eral Counsel, Philip B. Sklover, Associate General Counsel, Lorraine
C. Davis, Assistant General Counsel, Lisa J. Banks, Office of General
Counsel, EQUAL EMPLOYMENT OPPORTUNITY COMMIS-
SION, Washington, D.C., for Appellants. Jerry H. Walters, Jr.,
HAYNSWORTH, BALDWIN, JOHNSON & GREAVES, L.L.C.,
Charlotte, North Carolina, for Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
The Equal Employment Opportunity Commission (EEOC) brought
this Title VII action on behalf of intervenor Francisco Santana, assert-
ing that Sears Roebuck & Co. discriminated against Santana on the
basis of national origin when it refused to hire him as a loss preven-
tion associate. The district court granted summary judgment to Sears;
Santana and the EEOC now appeal. For the reasons that follow, we
reverse.
I.
Santana, born in Mexico in 1960, has olive skin and speaks with
an Hispanic accent. He moved to this country in 1971 and has since
EEOC v. SEARS ROEBUCK AND CO. 3
become a naturalized citizen of the United States. In 1979, after grad-
uating from high school, Santana enlisted in the United States Marine
Corps and has continually served as a Marine since that time.
During much of his adult life, Santana has also worked for Sears.
In 1985, while he was stationed at a Marine base in Tustin, California,
Sears hired Santana as a part-time loss prevention agent to provide
undercover store security in its Costa Mesa, California store. Except
for a one-year military leave of absence when he was stationed
abroad, for the next ten years, Santana continued to work as a part-
time loss prevention agent at the Costa Mesa store. In late 1995, the
Marines transferred Santana to the Marine Corps Air Station in
Cherry Point, North Carolina.
In preparation for this transfer in October 1995, Santana visited
North Carolina. During his visit, Santana went to the Sears store in
Morehead City, North Carolina to inquire about job opportunities for
the same position he had held for ten years in California — specifi-
cally part-time loss prevention agent. Santana spoke with William
Mansfield, the loss prevention manager in the Morehead City store.
Mansfield assured Santana that the Morehead City store could use
someone with his experience and that there would be a job waiting
for him when he arrived. Mansfield then gave Santana a business card
with the telephone number of the store’s operations manager, Teri
Katsekes, and said he would talk to Katsekes about Santana and his
background and experience.
Upon his return to California, in November 1995, Santana asked
the personnel department at the Costa Mesa Sears to send a transfer
form to the personnel department at the Morehead City store. The
Costa Mesa personnel department prepared the form, dated November
27, 1995, and forwarded it as requested. Santana contacted the More-
head City operations manager, Katsekes, by telephone, in November
or early December, 1995. They had a brief conversation in which
Santana told Katsekes that he would be available for work in North
Carolina approximately the last week in December; she responded
that they would be glad to have him in the North Carolina store and
to get in touch with the store when he arrived.
In late December 1995, Santana reported for duty at the Marine
base in Cherry Point, North Carolina. Shortly thereafter, he visited the
4 EEOC v. SEARS ROEBUCK AND CO.
Sears store in Morehead City to inquire about starting work. Loss pre-
vention manager Mansfield told Santana that a job would not be
available until after the holidays. When Santana returned to the store
the first week in January, Mansfield again indicated that there were
no openings, so Santana completed an employment application, told
Mansfield he would continue to check back, and gave Mansfield his
address and telephone number. Santana returned to the store twice in
February but was unable to see either Mansfield or operations man-
ager Katsekes.
Periodically, throughout the spring and summer of 1996, Santana
returned to the Morehead City store to check on employment possibil-
ities. Santana submitted an additional employment application on
March 23, 1996. Although Santana made several attempts to talk with
Katsekes or Mansfield during this period, he was unable to speak with
either of them. On July 20, 1996, Santana submitted a third applica-
tion; in that application he indicated that he would accept a loss pre-
vention position or "any other position" with Sears. (At his
deposition, Santana identified copies of the March and July applica-
tions, which were submitted as exhibits in opposition to Sears’s
motion for summary judgment.) Despite these efforts, Sears did not
contact Santana until October 1996.
In October, Patty Haynes, a human resources specialist at the
Morehead City store, telephoned Santana and invited him to come in
for an interview. During this interview, Haynes commented on San-
tana’s accent and asked where he was "[o]riginally from." Santana
answered that he had been born in Mexico City. At the conclusion of
the interview, Haynes offered Santana a position as a stock clerk.
When Santana referred to his loss prevention experience, Haynes real-
ized that he was "the guy from California" and remembered his previ-
ous applications.
Haynes then took Santana to meet with Katsekes, who interviewed
him in the office of the store manager, Patricia Kiely; according to
Santana, Katsekes told him that Kiely was on vacation at the time.
Santana remembered this because Katsekes apologized for the messi-
ness of the desk during the interview, explaining that it was not her
office, where she normally conducted interviews, but that she was
"standing in" for store manager Kiely, using Kiely’s desk, while Kiely
EEOC v. SEARS ROEBUCK AND CO. 5
was on vacation. Santana maintains that, during the interview,
Katsekes became increasingly disinterested and abrupt due to his
accent, although she did not comment on the accent, as Haynes had.
Nevertheless, at the conclusion of the interview, Katsekes offered
Santana a part-time loss prevention position, sent him for a routine
drug screening, and stated that he would begin work right after a sat-
isfactory drug screening result was received. Two days later, on Octo-
ber 25, 1996, Santana underwent a drug screening test; the negative
result was sent to Sears.
On November 1, 1996, Santana returned to the store to give
Haynes a copy of his social security card and asked when he could
begin work. Haynes told him that "the trainer was sick." When San-
tana demurred that he had been trained and worked for the company
for ten years, she replied that company policy required retraining. A
week later, on November 8, 1996, Santana telephoned Haynes, again
inquiring when he could start work. Haynes told him that a back-
ground investigation was being conducted and that he would be called
by November 12. During this time, Santana spoke twice with David
Mrazick, the loss prevention manager who had replaced Mansfield;
Mrazick indicated that there was an immediate need for someone in
the loss prevention department, that he was impressed by Santana’s
experience, and that he would speak to "management" on Santana’s
behalf.
Despite this, no one at Sears contacted Santana about starting work.
When Santana did not hear from Sears, he telephoned the store
repeatedly; he also contacted Sears loss prevention officials in Cali-
fornia, including that region’s manager, to see if they could determine
the reason for the delay. After these telephone calls failed to yield an
answer, on November 22, Santana went to the store to speak with
Haynes or Katsekes; Haynes saw him and told him Katsekes would
telephone him by November 26. On November 27, after Santana had
not heard from Katsekes, he called her. At that time she told him that
he was not going to be hired after all because Sears had hired some-
one else in his place and the store did not have the payroll to hire yet
another person. Subsequently, Santana learned that Virginia Born, a
Caucasian woman, had been hired as a part-time loss prevention agent
two weeks earlier, on November 12, 1996.
6 EEOC v. SEARS ROEBUCK AND CO.
Upon hearing that he was not going to be hired, Santana immedi-
ately telephoned Sears corporate headquarters to complain about the
way he had been treated. After Santana related his story, an employee
in the corporate office asked if he was willing to take any available
position at the Morehead City Sears; Santana stated that he was.
Shortly thereafter, the corporate employee called him and said that the
Morehead City store was going to find him a position before Decem-
ber 6 and someone would call him by November 29. When Santana
did not hear from anyone, he called on December 2, 1996 and talked
to Haynes, who said she did not know anything about finding him a
position. The Morehead City Sears never employed Santana.1
In early 1997, Santana filed an EEOC claim against Sears alleging
discrimination on the basis of national origin. Sears assigned David
Cross, the Fair Employment Manager for the South Central region, to
respond to the charge. Cross contacted Katsekes and Haynes in the
course of preparing this response and asked why Santana had not
been hired. Based on their explanations, Cross submitted a position
statement for Sears to the EEOC. The position statement acknowl-
edged Santana "had a number of years" experience in loss prevention
at a Sears store in California, and that his job history was "a positive
one." The Sears position statement asserted that the Morehead City
store did not hire Santana before October 1996 because "he had not
shown up or contacted the unit" and, although store employees repeat-
edly tried to contact him, they were "unable to do so." When Santana
"finally showed up," he was told "that the position had been filled,"
and he responded that he "had been on deployment with the military."
Thereafter, Santana "constantly inquired about any open positions in
the unit." Recognizing that Santana "would be an asset" to the store,
Sears interviewed him and requested "additional hours and payroll for
its" loss prevention division, but the request was denied. Sears main-
tained that they did not hire Santana because there were no hours
available in loss prevention.
1
The above facts are those related by Santana. For purposes of sum-
mary judgment, they all must be accepted as true. However, in order to
understand the legal issues involved in this case, we also set forth below
Sears’s version of the facts.
EEOC v. SEARS ROEBUCK AND CO. 7
During discovery, Sears offered another story. Katsekes testified
that it was difficult to find experienced loss prevention employees and
that she was interested in hiring the "loss prevention agent from a
California Sears store" that Mansfield told her about, but Mansfield
was unable to locate this person in late 1995 or early 1996 at his work
number, and was told by someone that he was on deployment. (Mans-
field ended his employment with Sears in 1996 and did not testify or
submit an affidavit.) Katsekes could not identify who told Sears this,
and acknowledged that no effort was made to contact the California
loss prevention agent at his home. She did not testify that this agent
had been deployed by the Marines or had told the store he had been
deployed. Moreover, Katsekes did not dispute that Santana had filed
employment applications in January, March, and July 1996 but she
maintained that she was "never aware of [the earlier] applications"
and that the first time she saw his July application was in October
1996 when she interviewed him.
Katsekes admitted that the reasons she gave to Cross, and that he
in turn gave to the EEOC in 1997, for refusing to hire Santana in
October 1996 were inaccurate. She explained that she did have an
available loss prevention position when she interviewed Santana
because she had determined to "take those hours from somewhere
else in the store" and "put on extra Loss Prevention help." Katsekes
testified that she had been impressed with Santana’s loss prevention
experience and offered him a job, contingent on his passing a drug
test and background check, "[h]owever . . . after the interview" she
"was instructed not to go any further with the application." Katsekes
acknowledged that a few weeks after she interviewed Santana, a Cau-
casian woman, Virginia Born, was hired as a part-time loss prevention
associate. Sears records produced to Santana indicate that on Novem-
ber 12, 1996, Sears hired Born, who had no loss prevention experi-
ence, no previous employment history with Sears, and less education
than Santana. Katsekes admitted that "[w]ith respect to education and
prior experience," she would "have to say Mr. Santana" was more
qualified than Born.
In her 1999 deposition, Katsekes testified that the reason Sears did
not employ the better qualified Santana was not what she previously
told Cross, but rather that, a few hours after her interview with San-
tana, Mrazick came into her office and told her that store manager
8 EEOC v. SEARS ROEBUCK AND CO.
Patricia Kiely "decided that we’re not going to go any further with
this application." Katsekes maintained that she did not ask either
Mrazick or Kiely the reason for this decision because she was angry
at Kiely for overruling her without an explanation. Katsekes further
testified that she did not inform Santana or Cross or the EEOC that
Kiely had overruled her decision to hire Santana because she thought
it reflected badly on the store.
Kiely testified in her deposition (taken in 1999, several months
after Katsekes’s) that in October 1996, when Mrazick told her that
Katsekes "was getting ready to hire a guy from California with asset
protection experience," she told him she "did not want that to hap-
pen," without explaining her reasons. Kiely maintained that in the
beginning of 1996, she had a telephone conversation with Ann Man-
herz, a Sears regional manager, who mentioned in passing an
unnamed "asset protection agent from California that had some sexual
harassment issues," and Kiely mistakenly thought Santana "could be
that person." (Sears does not contend and has not contended that San-
tana was in fact the individual to whom Manherz had referred.) Kiely
acknowledged that she did not investigate or attempt to confirm that
Santana was the suspected individual. Rather, she "assumed" that he
was the individual Manherz had spoken about and therefore decided
not to hire him. Kiely further asserted that, at the time she decided not
to hire Santana, she had not met or seen Santana, and that she did not
know his national origin or even his name.
Ann Manherz testified that she had no involvement with Santana’s
attempt to become employed at the Morehead City store, and that she
had never discussed Santana with Kiely, Katsekes, Haynes, or anyone
else except her lawyer. Manherz further testified that she never had
any conversations with Kiely, Katsekes, or Haynes about employment
decisions at the Morehead City store. In response to a question from
Sears as to whether she "[c]ould . . . have had a conversation with Ms.
Kiely about a loss prevention agent being accused of sexual harass-
ment," Manherz responded, "I could have." In a later affidavit, Man-
herz elaborated that she was aware, in early 1996, that a loss
prevention agent from a California store, who had been accused of
sexual harassment, was looking for work in the Southeast and she
could "very well" have talked with Kiely about this agent, but reiter-
EEOC v. SEARS ROEBUCK AND CO. 9
ated that she did not know Santana or talk about him specifically with
Kiely.
After discovery was completed, the district court granted Sears’s
motion for summary judgment. The court reasoned that, although the
EEOC had established a prima facie case of national origin discrimi-
nation, it had failed to establish that Sears’s proffered legitimate non-
discriminatory reason for its failure to hire Santana — namely,
Kiely’s belief that he had "some sexual harassment concerns" — was
a pretext for illegal discrimination.
II.
A plaintiff establishes a prima facie case of discrimination in hiring
when he demonstrates that (i) he belongs to a protected class, (ii) he
applied and was qualified for a job for which the employer was seek-
ing applicants, (iii) despite his qualifications, he was rejected, and (iv)
after his rejection, the position remained open and the employer con-
tinued to seek applicants from persons of his qualifications. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).2
Plainly, Santana satisfies all four elements of a prima facie case: (i)
as a Hispanic Mexican-American, he is a member of a protected class,
(ii) he applied and was well qualified for a position as a part-time loss
prevention associate at Sears, (iii) despite his qualifications, Sears
rejected him, and (iv) the position remained open, Sears continued to
seek to fill it, and did shortly fill it by hiring a less qualified Cauca-
sian woman.
Indeed, the prima facie case here is a strong one. The evidence as
to Santana’s year-long job seeking odyssey — including his numer-
2
The Supreme Court has made it clear that because the facts of given
cases "necessarily will vary" this formula "is not necessarily applicable
. . . to differing factual situations." McDonnell Douglas, 411 U.S. at 802,
n.13. See O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312
(1996). What is critical with respect to the fourth element is that the
plaintiff demonstrate he was not hired (or fired or not promoted, etc.)
"under circumstances which give rise to an inference of unlawful dis-
crimination." Texas Dept. of Comty. Affairs v. Burdine, 450 U.S. 248,
253 (1981).
10 EEOC v. SEARS ROEBUCK AND CO.
ous visits to the store, contacts with store personnel, and the filing of
three different job applications — is uncontroverted. Unlike some
cases, here the EEOC presented overwhelming evidence that Santana
diligently applied for the job denied him. Cf. Brown v. Coach Stores,
Inc., 163 F.3d 706, 710 (2d Cir. 1998) (upholding dismissal of failure-
to-promote claim where plaintiff did not allege that she had applied
for a promotion); Brown v. McLean, 159 F.3d 898, 903 (4th Cir.
1998) (plaintiff who failed to apply for re-employment could not
establish a prima facie case of discrimination); Chambers v. Wynne
Sch. Dist., 909 F.2d 1214, 1217 (8th Cir. 1990) (plaintiff did not
establish a prima facie case of discrimination with regard to openings
for which she never formally applied).
Furthermore the uncontroverted evidence clearly demonstrates that
Santana, again unlike some discrimination claimants, was well quali-
fied for the position he so eagerly sought. Cf. Montgomery v. John
Deere & Co., 169 F.3d 556, 559-60 (8th Cir. 1999) (plaintiff’s prima
facie case was, "at best, weak" where evidence showed that, at the
time of his termination, his performance was deficient); Pafford v.
Herman, 148 F.3d 658, 669 (7th Cir. 1998) (absent evidence that
plaintiff was qualified for promotion, her prima facie case was "too
weak to allow the factfinder to speculate" as to employer’s motive)
(internal quotation marks omitted). In fact, his previous ten years of
experience as a part-time loss prevention agent with Sears would
seem to make him as qualified as any person could be for this posi-
tion.
It is also beyond question that Santana satisfied the third and fourth
elements of the prima facie case, namely that, despite his qualifica-
tions, Sears rejected his application for employment and then quickly
filled the position by hiring a Caucasian woman. While employers
often insist in hiring cases such as this one that the person chosen for
the job over the plaintiff was better qualified, see, e.g., Bray v. Marri-
ott Hotels, 110 F.3d 986, 990 (3d Cir. 1997), here even Sears con-
cedes, as it must, that Santana’s education and experience were
superior to the Caucasian woman hired in his stead, who had never
before worked for Sears, had less education, and had no loss preven-
tion experience. In sum, Santana presented uncontroverted evidence
of a strong prima facie case — despite his repeated applications, his
superb qualifications, and his expressed willingness to accept any
EEOC v. SEARS ROEBUCK AND CO. 11
available position, Sears refused to hire him at the Morehead City
store and instead hired a Caucasian woman who, Sears itself con-
cedes, was less qualified than Santana.
Once a plaintiff establishes a prima facie case, the burden then
shifts to the employer to "produc[e] evidence that the plaintiff was
rejected, or someone else was preferred, for a legitimate, nondiscrimi-
natory reason." Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248,
254 (1981). In this case, Sears has, over time, proffered several rea-
sons for its failure to hire Santana, including the selection of someone
else, a lack of available hours in the loss prevention department, and
the belief that Santana had been investigated for sexual harassment in
the past. Sears now insists that only this last explanation — the belief
that Santana was the person described by Manherz who had been
investigated for sexual harassment — is the true reason for its failure
to hire Santana. If this is the reason Sears did not hire Santana —
although this belief ultimately proved to be unfounded — it nonethe-
less constitutes a legitimate non-discriminatory explanation. See Pol-
lard v. Rea Magnet Wire Co., 824 F.2d 557, 559-60 (7th Cir. 1987).
Once an employer offers a legitimate, non-discriminatory explana-
tion for the challenged employment decision, "the plaintiff must than
have an opportunity to prove . . . that the legitimate reasons offered
by the defendant were not its true reasons, but were a pretext for dis-
crimination." Burdine, 450 U.S. at 253. The Supreme Court recently
clarified the plaintiff’s burden at the pretext stage in Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097
(2000). The Court reiterated that evidence of pretext, combined with
the plaintiff’s prima face case, does not compel judgment for the
plaintiff, because "[i]t is not enough . . . to disbelieve the employer;
the factfinder must [also] believe the plaintiff’s explanation of inten-
tional discrimination." Id. at 2108 (quoting St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993)). However, the Reeves Court made
plain that, under the appropriate circumstances, "a plaintiff’s prima
facie case, combined with sufficient evidence to find that the employ-
er’s asserted justification is false, may permit the trier of fact to con-
clude that the employer unlawfully discriminated." Id. at 2109.
Here, looking at the totality of the circumstances, there is ample
evidence from which a factfinder could conclude that, in the words
12 EEOC v. SEARS ROEBUCK AND CO.
of the Reeves Court, Sears’s "asserted justification is false." Id.
Indeed, the fact that Sears has offered different justifications at differ-
ent times for its failure to hire Santana is, in and of itself, probative
of pretext. See, e.g., Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d
424, 432 (1st Cir. 2000) ("[W]hen a company, at different times,
gives different and arguably inconsistent explanations, a jury may
infer that the articulated reasons are pretextual."); Thurman v. Yellow
Freight Sys., Inc., 90 F.3d 1160, 1167 (6th Cir. 1996) ("An employ-
er’s changing rationale for making an adverse employment decision
can be evidence of pretext."); EEOC v. Ethan Allen, Inc., 44 F.3d 116,
120 (2d Cir. 1994) (holding that a reasonable juror could infer that the
shifting and inconsistent explanations given by the employer at trial
were pretextual, developed over time to counter the evidence suggest-
ing discrimination).
Moreover, a factfinder could infer from the late appearance of
Sears’s current justification that it is a post-hoc rationale, not a legiti-
mate explanation for Sears’s decision not to hire Santana. See Tyler
v. Re/Max Mountain States, Inc., 232 F.3d 808, 813 (10th Cir. 2000)
("We are disquieted . . . by an employer who ‘fully’ articulates its rea-
sons for the first time months after the decision was made.").
Katsekes interviewed and offered Santana a job in October 1996; the
first time Katsekes claimed that Kiely overruled her decision to hire
Santana was in her deposition in May 1999, over two and a half years
later. Katsekes stated that she chose not to tell Santana at the time that
her decision to hire him had been overruled by Kiely because she
thought it reflected badly on the store. This explanation certainly
seems possible. But, Katsekes had another opportunity to disclose
Kiely’s involvement in the decision not to hire Santana, namely in
1997, when Cross contacted her in the course of preparing his
response to Santana’s EEOC Charge of Discrimination, and she did
not do so. Instead, Katsekes told Cross that no hours were available
in loss prevention — an explanation that she conceded years later at
her deposition was not accurate and is further belied by the fact that
Virginia Born was hired as a loss prevention associate less than three
weeks after Katsekes interviewed Santana.
Katsekes’s failure to tell Cross or the EEOC of Kiely’s involve-
ment seems curious. If Kiely had instructed Katsekes not to hire San-
tana, why would Katsekes not tell this to Cross? She could hardly be
EEOC v. SEARS ROEBUCK AND CO. 13
embarrassed to disclose this fact to Cross, a fellow Sears employee,
and, as an operations manager, she must have known the importance
of responding truthfully and completely to an EEOC discrimination
charge. Furthermore, would she not have realized that Cross would
want to talk to Kiely, if Kiely had indeed made the ultimate decision
not to hire Santana? It seems probable that Katsekes would have men-
tioned Kiely’s involvement during the EEOC investigation, if not
before. Given that she did not do so, a trier of fact would certainly
be entitled to infer that this explanation is nothing more than a post
hoc rationale, invented for the purposes of litigation.
Apart from the late appearance of Sears’s current explanation, there
is additional evidence from which a factfinder could infer that it is
unworthy of belief. Kiely claims that she ordered Katsekes not to hire
Santana because, based on a casual conversation with Manherz eight
months earlier, she believed that Santana had been investigated for
sexual harassment. While Sears now acknowledges that this belief
was incorrect, it contends that a mistaken belief, honestly held, is not
a pretext for discrimination. In this case, however, the evidence does
not support Sears’s contention that Kiely honestly believed that San-
tana was the individual investigated for sexual harassment. Kiely
admits that, at the time she rejected Santana, she did not know the
name of the individual to whom Manherz referred and did not make
any attempt to verify that Santana was, in fact, that individual. A juror
could easily find it implausible that Kiely would reject a qualified
applicant, such as Santana, without first substantiating that he was, in
fact, the individual accused of sexual harassment. See Smith v. Chrys-
ler Corp., 155 F.3d 799, 807-08 (6th Cir. 1998) ("When the employee
is able to produce sufficient evidence to establish that the employer
failed to make a reasonably informed and considered decision before
taking its adverse employment action, thereby making its decisional
process ‘unworthy of credence,’ then any reliance placed by the
employer in such a process cannot be said to be honestly held."). This
is particularly true given that both Kiely and Katsekes testified that
the Morehead City store had difficulty finding people experienced in
loss prevention, as Santana was. The credibility of Kiely’s explana-
tion is further undermined by the fact that, until after this litigation
was underway, she admittedly failed to reveal to anyone, including
Mrazick or Katsekes, the now-asserted reason for her claimed direc-
tive not to hire Santana.
14 EEOC v. SEARS ROEBUCK AND CO.
In sum, the EEOC made out a strong prima facie case of national
origin discrimination and offered ample evidence to discredit Sears’s
proffered non-discriminatory reason for its failure to hire Santana.
Under Reeves, this showing is sufficient to permit a trier of fact to
"infer the ultimate fact of discrimination from the falsity of the
employer’s explanation." Reeves, 120 S. Ct. at 2108. Indeed, Reeves
teaches that when "the employer’s justification has been eliminated,
discrimination may well be the most likely alternative explanation,
especially since the employer is in the best position to put forth the
actual reason for its decision." Id. at 2108-09. Of course, if "no ratio-
nal factfinder could conclude that the [employer’s job] action was dis-
criminatory," then the case should not proceed beyond summary
judgment. Id. at 2109. But, in the absence of evidence requiring such
a conclusion, a prima facie case and evidence of pretext raises a suffi-
cient inference of discrimination to entitle a plaintiff to survive a
motion for summary judgment.
Thus, the only remaining question is whether Sears has presented
evidence such that "no rational factfinder" could conclude that Sears’s
refusal to hire Santana was motivated by national origin discrimina-
tion. Id. Sears maintains that it has. Specifically, Sears contends that
it has presented evidence proving that: (1) the person who decided not
to hire Santana was Kiely, and (2) Kiely did not know Santana’s
national origin. That argument must fail, however, because, although
Sears has certainly presented evidence that could lead a factfinder to
these conclusions, Sears has not presented evidence that requires this.
Rather, ample evidence in the record would permit a reasonable trier
of fact to reject either or both of these conclusions.
Sears maintains that Kiely, not Katsekes, decided to revoke the job
offer to Santana. While that is certainly Sears’s contention, there is a
good deal of record evidence that discredits it. For example, Katsekes
failed to tell anyone that Kiely was the decision-maker either at the
time of Santana’s job application or during the EEOC administrative
process. The trier of fact could reasonably infer from Katsekes’s fail-
ure to disclose Kiely’s involvement until litigation had begun that the
explanation is simply untrue, and that the relevant decision-maker in
this case was Katsekes, not Kiely. Furthermore, Santana testified, in
the kind of detail that imbues his testimony with credibility, that when
Katsekes interviewed him, she did so in Kiely’s untidy office,
EEOC v. SEARS ROEBUCK AND CO. 15
explaining that Kiely was on vacation. If a factfinder credits this testi-
mony, and Sears apparently offered no attendance records or other
evidence to counter it, then Sears’s contention that, within hours of
Santana’s interview, Kiely ordered Katsekes not to hire Santana
appears unlikely.
Moreover, on the present record, it is undisputed that in the weeks
following Santana’s interview, Mrazick told Santana he would talk to
"management" on Santana’s behalf, Haynes told Santana his start date
would begin after training and the background check were completed,
and Katsekes continued to evade Santana’s inquiries as to a start date.
Indeed, Katsekes did not notify Santana for more than a month that
she was withdrawing the job offer and during that time she hired a
Caucasian woman for the job that had been offered to Santana. A
factfinder could infer from this evidence that Katsekes, not Kiely,
decided not to follow through on the job offer to Santana; that remem-
bering Santana’s accent and national origin, Katsekes became increas-
ingly less enthusiastic about Santana as a candidate and for this
reason, she delayed finalizing his start date; and that when Katsekes
found a less "foreign" candidate, she determined to hire that person
and revoke her offer to Santana. Of course, a finder of fact might not
so conclude, but there is certainly evidence, now uncontroverted, that
permits this inference.
Even if a factfinder should conclude that Kiely was the relevant
decisionmaker, a factfinder might not accept Sears’s second conten-
tion — that Kiely did not know Santana’s national origin. As the
EEOC notes, Kiely’s assertion to this effect "is not supported by any
other testimony in the record." EEOC Reply Brief at 6 n.2. In fact,
Katsekes stated in her affidavit not that Mrazick told her to stop activ-
ity on the application of the unnamed California loss prevention
agent, but that "Ms. Kiely had directed [Mrazick] to tell me that the
store would not hire Mr. Santana," (emphasis added), suggesting that
Kiely did know Santana by his "Hispanic sounding" name.
Moreover, Santana testified that he was in the Morehead City store
very frequently over a year-long period, during which time he repeat-
edly talked with store personnel about job openings and submitted
three job applications; even Sears conceded that Santana "constantly
inquired" about open positions. Given this uncontroverted evidence,
16 EEOC v. SEARS ROEBUCK AND CO.
a jury might conclude that Kiely, the manager of this small store,
would over time have heard Santana’s name or seen him and ascer-
tained that this Hispanic man was the loss prevention agent from Cali-
fornia. Furthermore, there is no dispute that numerous other members
of the store’s management — Katsekes, Haynes, Mansfield and Mraz-
ick — who undoubtedly regularly discussed personnel matters with
Kiely, did know of Santana’s national origin. A jury might well infer
that, in these discussions, they mentioned Santana’s national origin to
Kiely.
Because there is evidence from which a factfinder could conclude
that Katsekes made the decision to revoke the job offer, or that Kiely
did know Santana’s national origin, a factfinder would be entitled to
reject Sears’s contentions that Kiely was the sole decision-maker and
that she did not know of Santana’s national origin. In other words,
Sears has failed to demonstrate that "no rational factfinder could con-
clude that" Sears’s refusal to hire Santana was motivated by illegal
discrimination. Reeves, 120 S. Ct. at 2109.
Nor does the lack of direct evidence of anti-Hispanic animus or the
fact that Sears has hired other Hispanics compel this conclusion.
Since no direct evidence of animus is necessary to prove employment
discrimination, see United States Postal Bd. of Governors v. Aiken,
460 U.S. 711, 716-17 (1983), its absence hardly compels a factfinder
to conclude that the employer did not discriminate. Moreover, simply
because Sears hired other Hispanic individuals in other departments
does not mean that its failure to hire Santana was free from discrimi-
natory intent. See Connecticut v. Teal, 457 U.S. 440, 453-55 (1982)
("Congress never intended to give an employer license to discriminate
against some employees . . . merely because he favorably treats other
members of the employees’ group."); Graham v. Long Island R.R.,
230 F.3d 34, 43 (2d Cir. 2000) (evidence that similarly situated non-
black employees were treated in the same manner as plaintiff and that
one other black employee was treated more favorably was insufficient
to sustain summary judgment for employer because of Title VII’s
focus on protecting individuals, rather than a protected class as a
whole). This is not to say that a trier of fact might not ultimately rely
on this evidence in returning a verdict for Sears. But this evidence
does not compel the grant of summary judgment to Sears because it
does not foreclose the possibility that a factfinder could conclude that
EEOC v. SEARS ROEBUCK AND CO. 17
national origin discrimination was the true reason for Sears’s failure
to hire Santana.
Sears’s reliance on Schnabel v. Abramson, 232 F.3d 83 (2d Cir.
2000), is similarly misplaced. In that case, the Legal Aid Society
hired Schnabel, a lawyer, as an investigator to replace a much youn-
ger man, Sherlock, who was attending law school. Id. at 85. Three
years later, after Sherlock graduated, Schnabel’s supervisor dis-
charged him and rehired Sherlock; Schnabel then sued for age dis-
crimination. Id. at 86. The Second Circuit upheld the grant of
summary judgment to Legal Aid, finding that Schnabel had "put forth
the minimal proof necessary to establish a prima facie case," that
Legal Aid had proffered "clear and specific" non-discriminatory rea-
sons for his termination, namely Schnabel’s "asserted contempt for
Legal Aid clients, difficulty following instruction, outright insubordi-
nation, and inept performance," and that Schnabel had little evidence
that these reasons were pretextual. See id. at 87-88 (internal quotation
marks omitted). Moreover, the court noted that Legal Aid offered a
good deal of evidence that age was not the reason for Schnabel’s ter-
mination — Schnabel was fired by the same man who had hired him
three years earlier, when Schnabel already was 60 years old, and
Schnabel was replaced by the person whom he originally had replaced
after his employer "explicitly compared the performances of the two
men, and found that Sherlock was a better investigator." Id. at 91.
Schnabel is distinguishable from the present case in virtually every
important respect. First, while Schnabel proffered only a weak prima
facie case, with his qualifications hotly disputed, Santana’s prima
facie case was strong — unquestionably his vast experience qualified
him for the job he sought. Moreover, while in Schnabel the employer
put forward several "clear and specific" nondiscriminatory reasons for
the discharge and Schnabel offered only very thin evidence of pretext,
see id. at 88, here, Sears’s proffered reasons for its failure to hire San-
tana have constantly changed and there is abundant evidence of pre-
text. Finally, in Schnabel, the employer presented proof that illegal
discrimination was not the reason for its employment decision, see id.
at 91, here, by contrast, Sears has offered no such proof.
The case at hand is far more similar to a recent case from the Elev-
enth Circuit. In Hinson v. Clinch County, 231 F.3d 821 (11th Cir.
18 EEOC v. SEARS ROEBUCK AND CO.
2000), a female high school principal, who the county demoted and
replaced with a less-qualified male vice-principal, established a prima
facie case of sex discrimination and produced evidence that the coun-
ty’s proffered reasons for her demotion were not credible; the district
court, however, granted summary judgment to the county because
Hinson had not offered any additional evidence that the real reason
for the county’s decision was discrimination on the basis of sex. Id.
at 826, 831-32. The Eleventh Circuit reversed, finding that the district
court erred in requiring the plaintiff "to show not only pretext but also
additional evidence that the Board discriminated against her based on
her sex." Id. at 831. While the record contained no additional evi-
dence that indicated gender bias, the appellate court nonetheless con-
cluded that the plaintiff had produced enough evidence to withstand
the county’s motion for summary judgment, explaining: "this is a case
where a plaintiff’s prima facie case, combined with sufficient evi-
dence to find that the employer’s asserted justification is false, may
permit the trier of fact to conclude that the employer unlawfully dis-
criminated." Id. at 832 (internal quotation marks omitted). See also
Blow v. City of San Antonio, 236 F.3d 293, 298 (5th Cir. 2001) (sum-
mary judgment for the employer inappropriate when plaintiff had
proven a prima facie case, presented evidence creating a material
issue of disputed fact as to whether the employer’s explanation was
false and no "unusual circumstances" prevented a rational fact-finder
from concluding that the employer’s reasons for failing to promote
plaintiff were discriminatory).
The instant case is almost identical to Hinson in that there is a clear
prima facie case of employment discrimination, a good deal of evi-
dence of pretext casting serious doubt on the employer’s proffered
justification for its job action, and nothing to prevent a rational fact-
finder from finding that the employer was motivated by discrimina-
tory reasons. Moreover, while, as in Hinson, there is no additional
evidence indicating that unlawful discrimination was the true reason
for the employer’s decision, there is also no evidence that precludes
such a finding. See Rowe v. The Marley Co., 233 F.3d 825, 830 (4th
Cir. 2000). "[A]bsent such evidence [precluding a finding of discrimi-
nation], courts may not require a plaintiff who proves both a prima
facie case and pretext to produce additional proof of discrimination
in order to survive a defendant’s motion for summary judgment." Id.
In such circumstances, the factfinder is permitted "to infer the ulti-
EEOC v. SEARS ROEBUCK AND CO. 19
mate fact of discrimination from the falsity of the employer’s expla-
nation." Reeves, 120 S. Ct. at 2108; Hinson, 231 F.3d at 832.
In sum, under the rule announced in Reeves, there is sufficient evi-
dence in this case for a trier of fact to conclude that Santana was the
victim of illegal discrimination. The EEOC, on behalf of Santana, has
proven a strong prima facie case of national origin discrimination and
has raised significant questions as to the validity of Sears’s proffered
non-discriminatory reason for its failure to hire Santana. Perhaps at
trial, the EEOC will be unable to convince the factfinder that discrim-
ination was the true reason for Sears’s failure to hire Santana. But on
this record, we cannot hold that "no rational factfinder could con-
clude" that intentional discrimination was the true motivation for
Sears’s decision. Reeves, 120 S. Ct. at 2109. Accordingly, the district
court erred in granting summary judgment to Sears.
III.
For the foregoing reasons, we reverse the judgment of the district
court and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED
NIEMEYER, Circuit Judge, dissenting:
It appears to me, regretfully, that the majority may have permitted
the plaintiff’s personal suspicions, coupled with Sears’ clumsiness in
giving its reasons for not hiring plaintiff, to become the prima facie
case for national origin discrimination. The evidence to support
national origin as a reason for not hiring the plaintiff is completely
lacking. Indeed, because there is no more indication that the plaintiff
was a victim of discrimination on the basis of national origin than
there is that he was a victim of age discrimination or gender discrimi-
nation, the majority is incorrect in holding that a rational factfinder
could conclude that Sears’ decision not to hire Santana was based on
national origin discrimination. See Reeves v. Sanderson Plumbing
Prods., Inc., 120 S. Ct. 2097, 2109 (2000).
Human resources specialist, Patty Haynes, first interviewed Fran-
cisco Santana, the plaintiff, in October 1996 for a position at the
20 EEOC v. SEARS ROEBUCK AND CO.
Morehead City (North Carolina) Sears store and, during the interview,
noted Santana’s accent, asking him where he was originally from. He
said that he had been born in Mexico City. After the interview,
Haynes offered Santana a job, albeit not the one he had originally
applied for in late 1995. When he indicated that he was interested in
a "loss prevention" position, as he had previously held at the Sears
store in California, Haynes realized that Santana was "the guy from
California" who had been an applicant since late in the previous year.
Haynes took Santana to the store’s operations manager, Teri
Katsekes, and Katsekes offered Santana a part-time loss prevention
position.
Later, however, Sears abandoned its offer to Santana on the
instruction of Patricia Kiely, the store manager. When Kiely was told
by an employee that Katsekes "was getting ready to hire a guy from
California with asset protection experience," Kiely told the employee
she "did not want that to happen," but she did not explain why. Kiely
had never met the applicant, nor did she know his name or national
origin. She simply overruled Katsekes, stating, "we’re not going to go
any further with this application." When Katsekes was advised of
Kiely’s decision, she became angry that she had been overruled.
As Kiely later explained, she had been told by a Sears regional
manager several months earlier — during a period when Santana had
been first prosecuting his application — about an unnamed "asset pro-
tection agent from California" who had "some sexual harassment
issues." While Kiely recalls the conversation well and relied on it, the
regional manager later confirmed a more limited recollection. The
regional manager stated that early in 1996, a loss prevention agent
from a California store, who had been accused of sexual harassment,
was looking for work in the southeast and that she could "very well"
have talked with Kiely about this agent. Kiely acknowledged that in
October 1996 when Santana interviewed, she did not check whether
Santana was this person; rather, she simply ended the interview pro-
cess with Santana because she thought he might be the individual
about whom she had heard earlier from the regional manager. Perhaps
Kiely acted too cautiously or too abruptly. But there is nothing in the
record to suggest that Kiely acted by reason of Santana’s national ori-
gin. Indeed, when she interrupted the interview process, she did not
know Santana’s name or his national origin.
EEOC v. SEARS ROEBUCK AND CO. 21
Not only is there a total lack of evidence in this case to support a
motive based on national origin, there is also evidence that the More-
head Sears store did not discriminate by reason of national origin and
was prepared to hire Hispanics. First, both Haynes and Katsekes had
offered Santana a job. They had the authority to do so and obviously
did not discriminate on the basis of Santana’s national origin in doing
so. Second, during this same period, Sears had hired other Hispanics
in the store for various positions.
While it is true that various Sears employees were hesitant during
discovery, indeed even inconsistent, in giving their reasons for not
hiring Santana, at bottom it is apparent that the decision not to hire
Santana occurred solely because of Kiely’s intervention. And the only
evidence about why Kiely made the decision to intervene was in
response to information she had received about a California Sears
employee, who was looking for a job in the southeast and who had
"sexual harassment issues." While this information may not have been
sufficient, without further investigation, to veto an employee’s appli-
cation, there is no evidence to suggest that Kiely was motivated by
Santana’s national origin. Accordingly, I do not believe that a ques-
tion of fact has been created simply by Santana’s personal belief that
discrimination based on his national origin must have been the reason
for his not receiving the Morehead City store job. See Reeves, 120
S. Ct. at 2108. Accordingly, I would affirm the summary judgment
entered by the district court.