                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
               FOR THE FOURTH CIRCUIT


EQUAL EMPLOYMENT OPPORTUNITY          
COMMISSION,
               Plaintiff-Appellant,
                v.                              No. 00-2167
TOWN & COUNTRY TOYOTA,
INCORPORATED,
              Defendant-Appellee.
                                      
           Appeal from the United States District Court
     for the Western District of North Carolina, at Charlotte.
              Carl Horn III, Chief Magistrate Judge.
                        (CA-98-276-3-H)

                     Argued: February 26, 2001

                      Decided: April 13, 2001

     Before WILLIAMS and MICHAEL, Circuit Judges, and
      Cynthia Holcomb HALL, Senior Circuit Judge of the
      United States Court of Appeals for the Ninth Circuit,
                     sitting by designation.



Reversed and remanded by unpublished per curiam opinion.


                            COUNSEL

ARGUED: Robert John Gregory, Senior Attorney, EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION, Washington,
D.C., for Appellant. William Porter Farthing, Jr., PARKER, POE,
2                EEOC v. TOWN & COUNTRY TOYOTA
ADAMS & BERNSTEIN, L.L.P., Charlotte, North Carolina, for
Appellee. ON BRIEF: C. Gregory Stewart, General Counsel, Philip
B. Sklover, Associate General Counsel, Lorraine C. Davis, Assistant
General Counsel, EQUAL EMPLOYMENT OPPORTUNITY COM-
MISSION, Washington, D.C., for Appellant. Jonathan M. Crotty,
John B. Anderson, PARKER, POE, ADAMS & BERNSTEIN,
L.L.P., Charlotte, North Carolina, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   This case involves a claim of disability discrimination under the
Americans with Disabilities Act ("ADA") brought by the Equal
Employment Opportunity Commission ("EEOC") at the behest of
Brian Mickles against his former employer, Defendant Town &
Country Toyota ("Town & Country"). The district court granted sum-
mary judgment for Town & Country. The district court held that the
EEOC failed to establish a prima facie case of discrimination, and
even if it had established a prima facie case, Town & Country offered
legitimate, non-discriminatory reasons for firing Mickles that the
EEOC failed to rebut. For the reasons that follow, we reverse and
remand for further proceedings.

                                  I.

   To make out a prima facie case, the EEOC must demonstrate that:
(1) Mickles was in the protected class (disabled); (2) he was dis-
charged; (3) at the time of discharge, he was performing his job at a
level that met his employer’s legitimate expectations; and (4) his dis-
charge occurred under circumstances that raise a reasonable inference
of unlawful discrimination. See Ennis v. National Ass’n of Business
and Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995).
                 EEOC v. TOWN & COUNTRY TOYOTA                        3
   There are three ways to be disabled for the purposes of the ADA.
An individual is disabled if: (1) she has a physical or mental impair-
ment that substantially limits a major life activity; (2) she has "a
record of such an impairment"; or (3) she is "regarded as having such
an impairment." 42 U.S.C. § 12102(2). Under the ADA’s third defini-
tion of disability, it is not enough for the EEOC to show that Town
& Country regarded Mickles as impaired; they must show that Town
& Country regarded him as disabled within the meaning of the ADA.
See Colwell v. Suffolk County Police Dept., 158 F.3d 635, 646 (2d
Cir. 1998). Thus, the EEOC must show that Town & Country
regarded Mickles as having an impairment that substantially limited
a major life activity. See id.1

   Construing all of the evidence and factual inferences in favor of the
EEOC, there is sufficient evidence in the record to conclude that
Town & Country regarded Mickles as substantially impaired in the
major life activity of walking. Mickles’s supervisor, Dennis Koenig,
made several comments demonstrating that he regarded Mickles as
disabled. The district court found that these comments established
only that Koenig understood that Mickles had difficulty and experi-
enced pain when walking; they did not demonstrate a discriminatory
animus. The district court also explained that it found Koenig’s
alleged statements unpersuasive because Koenig hired Mickles with
"full knowledge" of his impairment.

   The district court erred in not assigning more probative value to
Koenig’s alleged comments. First, the facts do not show that Koenig
hired Mickles with complete knowledge of his physical difficulties.
Koenig admitted that he did not even review the part of Mickles’
employment application regarding his history of disability. Although
Koenig explained that it was obvious from the moment he hired
Mickles that Mickles had trouble walking, Koenig may not have real-
ized the severity of Mickles’ impairment until after he had been hired
and had been walking around the sales lot selling cars. In fact, he
  1
    The EEOC has waived any argument that Mickles actually has a sub-
stantially limiting impairment. The EEOC contends that Mickles is also
disabled for the purposes of the ADA based on a record of impairment.
We do not need to address this issue because we hold that Mickles satis-
fies the "regarded as" definition of disability under the ADA.
4                 EEOC v. TOWN & COUNTRY TOYOTA
asked Mickles a week after he was hired why he had such trouble
walking.

   Second, a reasonable jury could interpret Koenig’s comments as
convincing proof that Koenig regarded Mickles as substantially
impaired in the major life activity of walking. Koenig told Mickles
that he needed to "be on disability." An employer’s comments refer-
ring to a plaintiff as "disabled" are probative evidence that the
employer regarded the plaintiff as disabled. See McInnis v. Alamo
Comm. College Dist., 207 F.3d 276, 281 (5th Cir. 2000). He also said
that it made "anybody kind of feel [a] little bad just watching [Mick-
les] get around." While this comment may be interpreted as a simple
expression of sympathy for the plaintiff, it may also reflect Koenig’s
personal discomfort with Mickles’ presence and the discomfort he
perceived among Town & Country’s customers. In a letter to the
EEOC responding to Mickles’ initial charge of discrimination,
Koenig wrote: "I found it difficult to employ someone who is obvi-
ously in such pain and misery in performing their job, especially
when one is expected to interface with the public in a cheerful manner."2
Koenig’s statement to the EEOC can be interpreted as proof that he
regarded Mickles as disabled. See H.R. Rep. No. 101-485(II), 101st
Cong., 2d Sess. 53 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 335-
36 (stating that the "regarded as" prong is triggered by evidence that
the employer has a "fear of the ‘negative reactions’ of others to the
individual"). When the facts are viewed in the light most favorable to
Mickles, they show that a reasonable juror could conclude that he was
"regarded as" disabled by Town & Country.

   Mickles was discharged, satisfying the second prong of the prima
facie case. The third step in the prima facie case requires the EEOC
to show that Mickles was performing his job at a level that met Town
& Country’s legitimate expectations. See Ennis, 53 F.3d at 58.
    2
    Town & Country argues that the statements in the response letter do
not create a material issue of fact because the response letter was actually
prepared by Barry Davis and that person signed Koenig’s name. Even if
this is true, Town & Country admits that Davis reviewed the response
with Koenig over the telephone and Koenig approved its contents, so
there is no reason not to attribute the letter to Koenig.
                 EEOC v. TOWN & COUNTRY TOYOTA                        5
   The district court concluded that the EEOC failed to prove that
Mickles was meeting Town & Country’s reasonable expectations. It
cited deposition testimony from Koenig and an affidavit from Stewart
Abbott, another sales manager at Town & Country. The sales manag-
ers faulted Mickles for lacking effective sales skills, lacking knowl-
edge of products and financing options, and requiring too much help
in closing a sale.

   While this evidence is important to this case, it should be evaluated
in the context of Town & Country’s burden of production once the
EEOC states a prima facie case. See EEOC v. Horizon/CMS Health-
care Corp., 220 F.3d 1184, 1192-94 (10th Cir. 2000) ("subjective
qualifications . . . are more properly considered at the second stage
of the McDonnell Douglas analysis"); Valentino v. United States
Postal Serv., 674 F.2d 56, 71 n.24 (D.C. Cir. 1982) ("[s]ubjective
qualifications" are "appropriately introduced on rebuttal"). Town &
Country argues that these cases do not apply because they involved
claims under anti-discrimination statutes other than the ADA. This
Court has held, however, that the McDonnell Douglas scheme of
proof does apply to ADA claims.

   Leaving aside the subjective criticisms of Mickles’ performance,
the objective evidence shows that he sold six and one-half cars in the
month he was employed. Koenig admitted that six cars "is not a terri-
ble number for the first month" for a new salesperson. Town & Coun-
try can point to no written evidence, prepared at the time of Mickles’
employment, of subpar sales performance. Cf. Ennis, 53 F.3d at 61
(finding that third prong of prima facie case was not satisfied when
undisputed contemporaneous evidence in the record such as internal
memoranda and regular performance evaluations showed that
employer was dissatisfied with employee’s performance). Koenig did
not refer to any deficiencies in Mickles’ sales abilities until after he
had been fired. In fact, in his response letter to the EEOC, Koenig
stated that "Mickles’ selling skills seemed satisfactory." The objective
evidence shows that Mickles was performing satisfactorily.

   For the final prong of the prima facie case, the EEOC must show
that the circumstances of Mickles’s discharge would allow a reason-
able jury to infer that he was discharged because he was regarded as
disabled. "Plaintiff’s evidence must be such that, if the trier of fact
6                 EEOC v. TOWN & COUNTRY TOYOTA
finds it credible, and the employer remains silent, the plaintiff would
be entitled to judgment as a matter of law." Ennis, 53 F.3d at 59.

   In discussing this aspect of the EEOC’s case, the district court reit-
erated that it was unimpressed with Koenig’s alleged comments
regarding Mickles’ disability. According to the district court, these
comments only showed that Koenig was aware of Mickles’ difficulty
walking and "sought to soften the termination message by suggesting
to him that a career without so much walking might be a better
choice." Although the district court’s interpretation of Koenig’s com-
ments is plausible, a reasonable trier of fact could interpret Koenig’s
comments in a less benign manner. In making a prima facie case, the
EEOC does not have to carry its burden on the ultimate issue of dis-
crimination. It just has to provide sufficient evidence to support an
inference of discrimination. The same evidence used to show that
Mickles was "regarded as" disabled is germane here. Because
Koenig’s comments could be interpreted as proof that Town & Coun-
try fired Mickles because it regarded him as disabled, Koenig’s com-
ments are sufficient to satisfy the final prong of the prima facie case.

                                   II.

   Once the plaintiff states a prima facie case of disability discrimina-
tion, the burden shifts to the employer to offer evidence that the plain-
tiff was rejected for a legitimate, non-discriminatory reason. See
Reeves v. Sanderson Plumbing Products, Inc., 120 S. Ct. 2097, 2106
(2000). This is a burden of production, not persuasion. See id. Town
& Country offers evidence from Koenig and Abbott that Mickles was
fired because of his poor sales techniques and lack of familiarity with
important sales concepts. This evidence is enough to satisfy Town &
Country’s burden.

                                  III.

   Once the defendant satisfies its burden of production, the presump-
tion created by the prima facie case drops out and the plaintiff bears
the ultimate burden of proving that he has been the victim of inten-
tional discrimination. Texas Dept. of Comm. Affairs v. Burdine, 450
U.S. 248, 253 (1981); Ennis, 53 F.3d at 58. The district court held that
even if the EEOC had established a prima facie case, the EEOC’s evi-
                 EEOC v. TOWN & COUNTRY TOYOTA                        7
dence of intentional discrimination was not enough to carry this bur-
den. The district court noted that the law creates a strong presumption
against discrimination when the hirer and the firer are the same indi-
vidual and the disability is known to the employer at the outset of the
employment relationship. See Tyndall v. National Educ. Ctrs, 31 F.3d
209, 214-15 (4th Cir. 1994) (applying presumption in ADA case);
Proud v. Stone, 945 F.2d 796, 798 (4th Cir. 1991) (explaining that
same hirer/firer presumption only applies to the "third stage of the
analysis," i.e., when the plaintiff is trying to rebut the non-
discriminatory explanation for the employment action advanced by
the employer).

   It is true that Koenig both hired and fired Mickles. As discussed
earlier, however, it is debatable whether Koenig knew the extent of
Mickles’ disability from the moment Mickles was hired. See Tyndall,
31 F.3d at 215 (emphasizing that firer hired plaintiff with "full knowl-
edge" of her condition). Koenig admitted that he did not review Mick-
les’ application for information on his medical history. It is plausible
that Koenig noticed Mickles’ limp when he decided to hire him, but
did not realize the extent of his disability until he began to work and
walk around the car lot. Because the evidence on this point is unclear,
we leave it to the trier of fact to determine if Koenig fully perceived
the extent of Mickles’ disability on the date of his hiring. If not, the
presumption against discrimination set out in Tyndall and Proud does
not apply.

   The EEOC offered sufficient evidence for a reasonable juror to
conclude that Town & Country intentionally discriminated against
Mickles. There are contradictions between the non-discriminatory
rationale for firing Mickles currently propounded by Town & Country
and the statements allegedly made by Koenig during Mickles’
employment and in his response letter to the EEOC. Town & Coun-
try’s contention in its Motion for Summary Judgment that Mickles
was fired because he "lacked basic sales skills and abilities and
required excessive amounts of assistance from sales managers to
close his sales" does not jibe with Koenig’s statement to Mickles on
the day he was fired ("[I’m] not saying you’re not a good salesman.")
or Koenig’s written response to Mickles’ EEOC charge ("Mr. Mick-
les’ selling skills seemed satisfactory."). Contradictions between an
employer’s proffered explanation and the contemporaneous state-
8                EEOC v. TOWN & COUNTRY TOYOTA
ments of the employer are convincing evidence of pretext. See, e.g.,
Alvarado v. Board of Trustees of Montgomery Comm. College, 928
F.2d 118, 122-23 (4th Cir. 1991) (noting conflict between reason
given by employer at trial for firing plaintiff and reason given by
employer at time plaintiff was terminated as it found that the former
was pretextual). Evidence showing that the employer’s proffered
explanation for the discharge is pretextual, combined with plaintiff’s
prima facie case, can be enough to permit the trier of fact to conclude
that the employer unlawfully discriminated. See Reeves, 120 S. Ct. at
2109.

   Moreover, Town & Country offers no evidence contemporary with
Mickles’ employment to show that he really did lack adequate sales
skills and required excessive amounts of assistance from sales manag-
ers. See Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir.
1998) (noting that "[a]ll of the evidence supporting the employer’s
proffered reasons came from statements, depositions, and declarations
prepared after the employment decision was made and while this liti-
gation was in progress" as it reversed summary judgment for the
employer). The short duration of Mickles’ employment does not
explain why he was never given verbal warnings or told upon his ter-
mination that his performance was substandard. In contrast, the
EEOC has presented evidence roughly contemporaneous with Mick-
les’ period of employment: Koenig’s response letter to the EEOC and
Mickles’ account of what Koenig said to him while he worked for
Town & Country. Given the contradictions in Town & Country’s evi-
dence and the timeliness of the EEOC’s evidence, a reasonable juror
could conclude that Town & Country discriminated against Mickles
because of his disability.

                                  IV.

   The district court held that even if the EEOC could establish liabil-
ity, any back pay award would be de minimis because Mickles failed
to mitigate damages when he rejected a job offer from a second car
dealer within a few days of his termination at Town & Country. A
decision on back pay is premature at this stage of the litigation. There
are disputed issues of material fact on the mitigation issue that made
the district court’s grant of summary judgment inappropriate. It is
possible that Mickles’ decision not to work for the second car dealer
                EEOC v. TOWN & COUNTRY TOYOTA                   9
was not voluntary, but rather the product of emotional trauma from
his discharge from Town & Country. Accordingly, the back pay issue
is remanded back to the district court.

  The district court decision is reversed and the entire case is
remanded for trial.

                                   REVERSED AND REMANDED
