Cynthia J. Fisher, Plaintiff-Appellee-Cross-Appellant v. Vassar College, Defendant-Appellant-Cross-Appellee

challenge I that MRTLC’s am mindful facial, as-applied. is not

here MRTLC

asking consider whether us to the written-

contact-only ap- rule is unconstitutional as Therefore, I

plied to it. do not consider

whether, full factual if a record were before

us, might be able to MRTLC show it is corporate fact a conduit wealth.

Thus, regulation even would be uncon- someone, applied

stitutional as a facial

challenge present like the one must fail plaintiff appears exemplify

where even the written-contact-only

a situation where the

regulation may constitutionally applied. Austin, 4, 674 n.

Cf. J., (Brennan, concurring). 1405n. 4

Conclusion majority

I believe that the has misstated

the thrust of written-contact-only the FEC’s

regulation. simple The issue is not as nor as analysis

amenable to broad-brushed as the

majority thinks. It cannot be resolved with- examining

out the evolution law, ig-

Court case which the Because, law,

nored. as I read the case we uphold

should prophylactic regulation,

respectfully dissent.

Cynthia FISHER, J. Plaintiff-

Appellee-Cross-Appellant, COLLEGE,

VASSAR Defendant-

Appellant-Cross-Appellee. 2275, Nos. 1303 and Dockets Piel, Eleanor City Jackson New York 94-7737, 94-7785 and 94-9125. (Herma Kay, Hill Berkeley, CA, on the brief), for Plaintiff-Appellee-Cross-Appel- Appeals, United States Court Cynthia lant Fisher. Second Circuit.

Argued March 1995. Curran, Kiseo, Maurice F. Mount NY Sept. Decided 1995. (James Drohan, P. Petigrow, Daniel Anderson, Banks, Donoghue, Curran & Amended Dec. 1995. Kisco, NY, brief), Mount on the for Defen- Argued In Banc June 1996. danU-Appellant-Cross-Appellee Vassar Col- Decided June lege.

(Samuel Marcosson, Gregory A. C. Stew- ard, Counsel, Gwendolyn General Young Counsel, Reams, question was our raised whether review for General Vincent Associate Counsel, Blackwood, clear error violated a rule in General established Assistant J. Co., Opportunity Long Lighting Binder v. Equal Commis- Island 57 F.3d Employment (2d Cir.1995). DC, sion, A of the Washington, for amicus curiae Court Opportunity has decided to limit in banc review to Equal Employment Commis- resolu- sion.) question tion of the whether a liability VII, supported under pri- Title NEWMAN, Judge, and Before: Chief ma facie case and sustainable KEARSE, MINER, WINTER, pretext, subject clear to review for error.1 MeLAUGHLIN, WALKER, MAHONEY,* rule of appellate No law forbids review CALABRESI, JACOBS, LEVAL, in clear error these circumstances. holdWe PARKER, Judges. Circuit CABRANES and an employer proffered that once a non- discriminatory employ- for an adverse reason LEVAL, Judges, JACOBS and Circuit action, plaintiff ment in a discrimination MINER, WALKER, Judges with whom preponderance case must show of the MeLAUGHLIN, join PARKER and **: evidence that reason for the adverse trial, At the of a three-week bench close employment illegal action was discrimination. District Court for the United States doing, may rely In so on the J.), (Motley, of New York Southern District constituting (“Vas- College found that Vassar defendant together supportable inferences to be sar”) against plaintiff Cynthia discriminated drawn the false or erroneous character professor denying in as a Fisher her tenure employer’s proffered reason for the department. in Fisher v. biology its Vassar special adverse action. Because of mean- (S.D.N.Y.1994). College, F.Supp. 1193 ing given by to prima found Specifically, the district court that Vas- law, in proof area of evidence con- (i) against on sar discriminated stituting prior facie case the em- woman, the basis of her status as married reason, proffer coupled ployer’s with the Rights in violation Title of the Civil VII falsity employer’s error (ii) 2000e-2; § Act of and on U.S.C. may not —be reason sufficient —or Age age, basis of in violation her illegal preponder- show Employment Act Discrimination event, any But in ance of the evidence. (“ADEA”). § seq. dis- 29 U.S.C. 621 et discrimination, finding of like other de- trict court that Vassar violat- also found had fact, on appeal termination of is reviewable Act, 206(d)(1), § Equal Pay ed the 29 U.S.C. panel clear error. The scrutinized faculty by paying junior female members its findings district court’s faculty junior male less than its members. insupportable, them concluded that found pay aggre- was Fisher an Vassar ordered preponder- by a Fisher had failed to show $626,872.12, plus gate money judgment of had ance of the evidence that Vassar discrim- attorneys’ fees, and to reinstate Fisher to the illegal reason, against for an inated her rank of Associate Professor Vassar’s biolo- finding of discrimina- therefore reversed gy department. clearly We conclude that tion erroneous. panel powers reviewing panel A found was within its of this Court the district finding of discrimination clearly the district court’s ruling court’s erroneous reversed circumstances, clear in these judgment. College, v. Vassar 70 for error Fisher Cir.1996). (2d court During therefore the district to dis- F.3d 1420 consider- we direct Banc, Rehearing a miss the suit. ation of the Petition Mahoney, Equal Employment Opportunity partici- 1. The Commis- J. Daniel who *The Honorable argument pated appeal, granted appear of this died permission the oral as amicus sion was part and took no in the argument October plaintiff. Oral curiae disposition the case. final Although panel was heard on June stayed pending decision the mandate of the ** 11(b), 11(a), Parts concurs in Calabresi rehearing, panel's opinion vacated. (II)(c), 11(d), (IV) opinion. of this dean and president Acting concurred. recommendations, on these the Vassar Board fully The facts of this case are described in of Trustees denied Fisher tenure. In the panel opinion, and in the evaluations, (Pi- same round of professor one court, opinion F.Supp. of the district Norrod) granted nina was in tenure the Biol- following 1193. The brief outline of facts (Edward ogy Department, professor and one familiarity opinions. assumes with those Tucker) was denied appeal tenure. Fisher’s Cynthia Plaintiff Fisher is a married woman Faculty Appeals to Vassar’s Committee was Zoology Ph.D. in who received a from Rut- rejected, May and she left in Vassar gers University engaged post- in 1963 and in doctoral research 1963 to 1965. From 7,1987, July On complaint Fisher filed her 1974, 1966 to devoted most of York, alleg- Southern District of New children, raising her her time to two and against that Vassar discriminated her on performed no work outside the home. From the basis of her sex. subsequently She 1976, part-time 1974 to took a complaint amended her prior to trial to al- position biology as lecturer at Marist lege discrimination on the basis of her sex College. conjoined with her marital status. At the visiting Fisher was hired Vassar as a again close of Fisher’s she amended her 1977, professor biology assistant and .in complaint to include claim for discrimina- placed position was in a tenure-track in 1980. tion on age, the basis of and to add a claim 1982, In reappointed Fisher was for a three- Equal Pay under the Act. year term, at the end of which she was to be trial, During reviewed for tenure. After the district the 1984-85 court found that the year, non-discriminatory academic compre- proffered by Vassar undertook a reasons Vas- candidacy hensive review of Fisher’s sar for denying for ten- Fisher pretextu- tenure were al, A ruling ure. five-member committee of panel opinion tenured that the concluded professors Biology Department, in the clearly three was not erroneous. The district court women, men charged and two were with went on to find that the real reasons for reviewing Fisher’s credentials denying accordance Fisher tenure were discrimination scholarship, with four criteria: teaching age abili- based on plus and on sex marital status. ty, leadership, and service to Vassar. In a opinion held that that report, confidential clearly erroneous, the committee found reversed and directed that Fisher in all categories, deficient four complaint and be dismissed.

unanimously recommended that she be de- nied report tenure. The committee’s II recommendation was forwarded to Leathern Mehaffey, Biology Depart- chairman of the We have limited our in banc consideration ment, who informed Fisher of the commit- to resolution of whether a of discrimi- tee’s recommendation on March 1985. nation that is based on a facie case and procedures, accordance with Vassar’s a supportable finding pretext may be re- departmental report appeal recommenda- versed on clearly erroneous, or tion was also received the dean of the whether such a of discrimination college, college president, and the Facul- upheld must be quantum absent some ty Appointments Salary Committee employer evidence that the took the adverse (“FASC”). (At Vassar, dean, presi- action for non-discriminatory some other rea- dent, and the each FASC make a recommen- son. Several principles well-established Trustees, dation entity to the Board of law lead us to conclude that a tenure.) authority grant deny discrimination is reviewed for clear error like April 16, 1985, May Between 19 and any determination, other factual and thus FASC, dean, Biology Depart- may reversed —even there is a sustaina- ment corresponded committee evidence, about Fisher’s ble con- —if candidacy. May On all five mem- aggregate, sidered will not tenure; bers of against the FASC voted finding by the district court that the reason Cir.1994) (2d (quoting Dister v. was inten- Conti- employment action adverse Inc., (2d Group, nental tional discrimination. Cir.1988)).2 Title VII begin with statutes. We ... “for an makes it unlawful “Establishment discharge to hire or to

fail or refuse a presumption employ effect creates individual, or otherwise to discriminate unlawfully against er discriminated the em ... of such against any individual Burdine, ployee.” color, sex, race, or na- religion, individual’s that, presumption at 1094. The means un 2000e-2(a)(l). § origin.” 42 U.S.C. tional with a less the defendant comes forward non analogous provision that The ADEA has an diseriminatory reason for the action com taking an ad- prohibits employer an of, plained plaintiffs may go the ease to the [an] action of employment verse “because jury, though prima the facie case even § The age.” See 29 U.S.C. 623. individual’s apart from the presump be insufficient — held a claim under Supreme has plaintiffs meet the ultimate tion —to burden employer if an discrimi- Title VII arise indeed, discrimination; showing of such a of sex an individual because against nates jury the rule for circumstance must the characteristic, as marital plus such another plaintiff unless the submits evi Phillips See v. Martin parental status. places underly facts dence doubt the 542, 544, 91 Corp., 400 U.S. S.Ct. Marietta (such plaintiffs prima plain ing facie case (1971) 496, 497-98, (employer L.Ed.2d 613 27 qualification job), tiffs the or furnishes a against pre-school women with discriminated inability satisfactory explanation for its tell children). age why plaintiff the reason was disfavored. See Green, 411 Douglas Corp. In v. McDonnell 509, 113 Mary’s, at St. 509 U.S. at S.Ct. 2748. 1817, 1824, 792, 802, 36 L.Ed.2d U.S. 93 S.Ct. “Thus, Douglas presumption the McDonnell (1973), Supreme Court established 668 the places upon the defendant the burden of production and “allocation of the burden of producing explanation prima the to rebut presentation proof in Title an order for the i.e., ‘producing the burden of facie evi case— Hicks, Mary’s Honor Ctr. v. VII” cases. St. employment dence’ adverse actions 2742, 2746-47, 502, 506, 113 509 S.Ct. U.S. legitimate, taken ‘for nondiscriminato were (1993). ” apply the 125 407 also L.Ed.2d We 506-07,113 ry Id. at S.Ct. at 2747 reason.’ Douglas aris McDonnell framework cases Burdine, 254, (quoting 450 at 101 S.Ct. U.S. ing ADEA. See Woroski v. Nashua under the 1094). purpose at McDonnell (2d Cir.1994). 105, 108 Corp., Under 31 F.3d Douglas framework to force the defendant alleg ruling, plaintiff Court’s conduct, give an for its ing violation of the discrimination statutes simply prevent employers from re order to showing by facie prima makes out a plaintiff founders maining silent while the class, membership protected qualifica in a discriminatory difficulty proving in employment position, tion for an adverse Burdine, 254-56 & 450 U.S. at n. tent. See action, filling position ultimate and the 8, 101 at & n. 8. S.Ct. 1094-95 by person protected not of the class. note, however, important 802, “It Douglas, 411 93 McDonnell U.S. at S.Ct. Douglas although presump- the McDonnell 1824; Dep’t Community at Texas of 248, Affairs production burden Burdine, 252-53, tion shifts the 101 v. 450 U.S. S.Ct. defendant, (1981). persuad- 1089, 1093-94, ultimate burden ‘[t]he “The 67 L.Ed.2d 207 ... trier of fact that the defendant inten- establishing a facie case burden of Burdine, 253, plaintiff tionally against at discriminated re- is not 450 U.S. onerous.” ” plaintiff.’ fact, at all times with the St. 101 mains S.Ct. at 507, at Mary’s, at 113 S.Ct. 2747 establishing case has 509 U.S. burden of 253, Burdine, 101 at S.Ct. frequently (quoting “minimal.” St. 450 U.S. been described as 1093) (alteration 2746-47; 506, 113 Mary’s). Any Mary’s, in St. at at at 509 U.S. S.Ct. non-discriminatory will reason re- Copy Corp., legitimate, Chambers v. TRM Ctrs. cases). (collecting 7 2. See note infra

1336 presumption triggered longer operates. Mary’s, See St. 509 U.S. at Thus, 507, 2747; Burdine, ease. defendant need not at at “[t]he 113 S.Ct. 450 U.S. 10, actually n. persuade the court that it moti 255-56 & 101 S.Ct. at n. 10 . 1095 & proffered plaintiff opportunity then has reasons” order to vated “ nullify obligate presumption demonstrate ‘that the reason was satisfy proof. employment Bur not the true reason for the burden deci- dine, sion,’ 254, 1094; at that race Mary’s, 450 U.S. at 101 S.Ct. see was.” St. 509 507-08, College (quoting 113 Board Trustees Keene State U.S. at S.Ct. at 2747 also 2, Burdine, 1095) 256, Sweeney, 450 at 25 n. S.Ct. U.S. added). (1978) course, (employer (emphasis n. 58 L.Ed.2d 216 Of (in only “explain[ what has done” “retains that ‘ultimate persuading ] need he burden of omitted)). quotation [trier fact] marks and citation [he] ternal been ” victim intentional If defendant articulates non-discrimina discrimination.’ Id. at Burdine, reason, tory presumption (quoting “the raised 1095) (alteration rebutted, prima facie case is and the factual U.S. at 101 S.Ct. at inquiry proceeds specifici Mary’s). question to a new level St. becomes the Burdine, ty.” question same asked in S.Ct. at other case: civil (footnote omitted). shown, plaintiff by preponderance Has the a evidence, that the the defendant liable point, Douglas At that “the McDonnell alleged for the conduct? presumptions framework —with its and bur- (a) prima The a under case longer Mary’s, no St. effect dens —is relevant.” facie Title ADEA. foregoing VII As the discus- at 509 U.S. at 2749. The demonstrates, ease, prima sion the term facie Supreme Court “[t]o warns us not resurrect actions, as used in Title VII and ADEA has a it later”: that meaning quite different from and presumption, having fulfilled its role than more limited that term ascribed to the forcing to come forward defendant many prima other actions. Such a limited drops response, simply some out of necessarily facie case does not much picture. “production” The defendant’s showing force in discrimination. (whatever effect) persuasive having its made, proceeds been “Prima facie case” a the trier of fact denotes what evidence plaintiff decide must offer to question: the ultimate whether avoid dismissal after plaintiff proven presentation has of the “that defendant case. direct against intentionally Except as to causes [him].” discriminated of actions for which special satisfy rules have been adopted, to 510-11, (quoting Id. at at 2749 113 S.Ct. requirements prima of the facie case the Burdine, at U.S. at 101 S.Ct. 1093- present, plaintiff must evidence from which a 94) (alteration Mary’s; emphasis in St. add- every could reasonably factfinder find ele- ed); Jakabovitz, see also Cabrera v. 24 F.3d plaintiff prove ment that the ultimately must (2d Cir.1994) (“[T]he per- burden of Thus, prevail in the action. in the absence plain- suasion as to discrimination is on the special policy-based of a rule similar to that tiff; presumption triggered the de- promulgated Douglas, plain- McDonnell production fendant’s burden ” tiff a directed avoids verdict estab- ‘drop[ped] picture.’ (quoting out of the St. lishing prima facie ease that assures that at Mary’s, at U.S. at 2749- enough the end of trial there will be 50)); Saulpaugh Community v. Monroe support evidence to a verdict favor his (2d Cir.1993) (“[I]f Hosp., (unless conclusively defendant’s evidence by producing defendant carries its burden plaintiffs prima some undermines element of motive, non-discriminatory ‘the McDonnell case). facie Douglas presumptions framework —with its ” longer (quot- and burdens —is no adoption relevant.’ of the Because Court’s Mary’s)). St. particular, pre- particular framework in McDonnell sumption Burdine, Douglas discrimination that was raised the same is not true of upon showing prima plaintiff of the facie case alleging no a discrimination case: a dis- race, sex, religion, satisfy prima origin facie case and national can crimination the conclusion of the chosen Each of at candidate. these differ- avoid dismissal support submitting evi- will of dis- without ences plaintiffs direct case crimination, though in his even full review of the dence sufficient to plaintiff may conclusively must il- circumstances show that on each element favor burden-shifting ultimately prove legal played part discrimination whatever to win. plaintiff in the selection. presumption excuses showing discrimination was

stage from By suggest passage we do mean to employment the adverse present and caused illegal employment discrimination is plaintiff If the sub- action suffered. recognize, furthermore, in the rare. We minimal elements of mits case, satisfy direct evidence adduced to special prima facie case— may standard also amount class, membership protected qualifica- in the discrimination; showing plain- powerful action, tion, employment prefer- adverse tiffs evidence of discrimination also be protected for someone outside the ence powerfully strengthened what the defen- (discrimina- remaining elements class—the puts point forth in its case. we dant causation) presumed tion and here is to satis- make that evidence sufficient must litigation, and defendant stage of the requirements fy the scaled-down of the going forward. up the burden of take Douglas facie case under McDonnell does clear, Mary’s make as Burdine and St. But necessarily tell much about whether dis- employ- once disappears presumption played employment crimination a role pre- proffered a reason. When the er has judged The fact that a decision. drops away, plaintiffs sumption burden requirements to have satisfied these minimal every enlarged to include element that, is no indication end of the long- cause Discrimination and are claim. enough will of dis- plaintiff have evidence put- To of presumed. er sustain burden to a in favor. support crimination verdict his support in case can a verdict ting forth a (b) showing a that the em- effect of (unlike favor, pri- plaintiff then must his showing pretextual. reason was A ployer’s stage) point to facie to sufficient evidence ma proffered reason for the defendant’s reasonably support that he was a employment is action not the real adverse illegal employer’s discrimina- harmed may as evidence that the defen- reason serve tion. intentionally attach dant discriminated. We Accordingly, eases differ discrimination “pretext” proffered to a the label reason in many of law that under areas by the finder of fact. But the is not credited Douglas burden-shifting frame- McDonnell question: answer “pretext” does not label of minimal plaintiffs work a satisfaction cases, employ- for In some pretext what? prima facie does not requirements ease a mask unlawful proffered reason is for er’s mean, necessarily if the elements of even does not But discrimination discrimination. unchallenged, plain- prima go facie case every In- lurk behind inaccurate statement. ultimately sufficient to tiff will have evidence may intentionally decision-makers dividual plain- element that support a verdict on each to hide a that is order reason dissemble ultimately to prove tiff must win the case. non-discriminatory unbecoming or small- seen, furthermore, minded, back-scratching, log-rolling, such readily can be as It diminished, envy, horse-trading, politics, of this institutional the essential elements necessarily spite, personal hostility. For nepotism, do or prima minimal facie case example, of a tenure selection illegal inference of dis- member support a reasonable may be support protégé who will workplace, In our virtu- committee crimination. diverse year. If eligible following for ally any employment decision in which one tenure available, pool that committee qualified from a one tenure line is applicant chosen against be inclined to vote support candidates will a slew member junior faculty rejected member who candi- for eases of discrimination. tenure tenure, older, currently eligible thereby ensur- likely or dates are to be to differ many open. Any ployed, cases, types tenure line remains other ing that the member, given by the committee oth- speaker’s reveal the reason state of mind. To the preference protégé, his will er than the position that an extent actor defendant’s Furthermore, recommenders and be false. unlikely explanation proffered to have a false governed are such who decision-makers except discriminatory motive, conceal president will not advise the considerations explanation powerful then false will regents of the institution that their rec- discrimination. On other disingenuous. or vote was ommendation hand, if the circumstances show that short, fact that the reason gave the false defendant to con- necessarily mean that the true false does discrimination, something than ceal other illegal argued one motive was the inference discrimination will be weak or Pneumatics, plaintiff. See Wallace SMC if, nonexistent. And examination of the (7th Cir.1997) (Pos- Inc., F.3d circumstances, many possible are there rea- C.J.) ner, non-discriminatory (listing various explanation, sons the false stated or un- employer’s pretextual expla- for an reasons stated, illegal no more nation).3 likely others, pretext reason than then Vassar) (as multiple there Where gives support minimal claim of decision-makers, or recommenders discrimination. employment decision result where the is the (c) The combined among politicking deliberation those effect of pretext. and a finding We have seen decision-makers, prob- recommenders or that, while a a finding facie ease and complex. lem the more there is all Because may pretext powerfully in some cases show participants are numerous the decision- necessarily gives process, potentially having neither one making each indi- rejecting support discharging much plaintiff, vidual reasons for there his obli greater gation prove is a likelihood that he some of those was the victim of officially Indeed, will reasons differ from the reason discrimination. the combined effect given by the institution.4 capacity prove of both little what has the ultimate burden of sufficiency Thus, proving. pretext, together depends of discrimination comprising a on the circumstances of the case. This is an ease, always is not sufficient to sustain an principle: sufficiency unremarkable finding ultimate of intentional discrimination. any evidentiary finding depends on the other Hargett Bank, See v. National Westminster that findings accompany and evidence it. USA, (2d Cir.) 836, 78 F.3d 838 (quoting drawing at What is issue is the of inferences 1093-94), Burdine, 253, at 450 101 at S.Ct. from human behavior. Once the trial has — denied, U.S.-, 84, rt. 117 stage at S.Ct. plaintiff moved to the which the ce (1996); 136 L.Ed.2d 41 by Sobering Sutera v. prove preponder- must discrimination a (2d Cir.1995) evidence, 13, Corp., (“plaintiff a 16 ance of the defendant’s false nothing pieces statements are more than of must show that the defendant’s articulated evidence, may circumstantial which be pretext em- for reason its decision is fact a Materials, Inc., 3. See also Woods v. Friction 30 4. Chief Newman's dissent asserts that the 255, (1st Cir.1994) (noting F.3d 260-61 3n. multiple fact of decision-makers should not insu- reasons); possibility Mag- of other Pollard v. Rea permeated by late decisions the discrimination of Co., 557, (7th Cir.1987) net 824 Wire F.2d 559 correct, surely participants. individual This is ("Showing that the dissembled is not point. it misses our involvement of necessarily showing 'pretext the same as dis- multiple decision-makers increases the likelihood may '.... [I]t crimination mean that the em- stated institution's reason differ offense.”); ployer trying to hide some other by from the true held reasons some of the deci- Health, Dep't v. Illinois Mental 810 Benzies necessarily increasing sion-makers —without Cir.1987) (7th ("[S]ome F.2d 148 less seem- played any likelihood that discrimination role in favoritism, political ly personal or a reason — their decision. conduct, grudge, random an error in the admin- [may] actually istration of neutral ac- rules — decision.”). for the count!]

1339 false, Quaratino Tiffany shown that the reason was and discrimination”); & both Cir.1995) (“An (2d Co., em- that discrimination the real Id. was reason.” F.3d added). (emphasis cannot be at for termination at ployer’s reason recognized again again for discrimination and proven to be a We necessarily satisfy to be false and dis- plaintiff it is shown does not the ulti- unless reason.”). was the real showing crimination mate burden of intentional discrimi- showing pretext finding nation alone.5 A therefore, does not pretext, A pretext may advance the the ultimate appellate review insulate prevail but a cannot without estab- plain permit To finding of discrimination. lishing pre- discrimination intentional upon judgment tiff to win ponderance of the evidence. judgment subjecting that pretext, without review, impermissibly would shift error clear appellate court is role of the no differ- proof to the defendant dis the burden reviewing ent of discrimination prove offer evidence it reviewing any than other has ad reason. The “third” fact: monished, however, “nothing in law employer’s proffered That reason permit to substitute for re would us contrived, obviously unpersuasive, or even quired finding employer’s action was necessarily does establish that product unlawful plaintiff’s proffered reason race is cor- lesser) (and much much different question rect. That remains a for the action employer’s explanation of its answer, course, subject, factfinder to 514-15, Mary’s, St. 509 U.S. not believable.” appellate review—which should be con- again: Once “McDon S.Ct. at 2751. ease ducted on remand under the say ... that all Douglas does not nell “clearly erroneous” standard of Federal employer’s disprove the need do is 52(a). Rule of Civil Procedure fact, just says reason. asserted [plain respondent retrial opposite: ‘[0]n the (citation Id. at 113 S.Ct. at 2755-56 given opportunity must be a full fair tiff] omitted) added). (emphasis passage This by competent demonstrate evidence that parenthetical underscored Court’s rejec his presumptively valid reasons for course,” phrase which denotes that “of coverup racially were in tion principle fact clear review is “certain” error discriminatory Id. at decision.’” expect- “unquestionable,” “as Douglas, (quoting S.Ct. at McDonnell “obvious,” ed,” “natural,” thereby 1825) (emphasis assumption background for read- furnishes Mary’s). in St. opinion. Specifical- passages other assumption ly, background illuminates Accordingly, plaintiff may pre- a Title VII (like block-quoted passages that certain employer’s proffered if an vail reasons ability discrimination, passage) deal with the factfinder’s pretext are shown be a shown, pretext is find discrimination once pretext finding either because the itself find- not the caveat that such a points other do reiterate to discrimination evi- ordinary appel- rules ing subject is to the of points in the in that direction— dence record Thus, a “of course.” Supreme And tells us late as matter or both. Court review Mary’s, states be to be a elsewhere in St. proved that “a reason cannot (as here) though say rejection of unless it we ‘pretext “[e]ven discrimination’ Quaratino, See, (plaintiff proffers a e.g., [at trial] mere a 71 F.3d at 64 fact that defendant 5. employment challenged proffered false for a action show that was "false and reason must reason reason”); necessarily liability."); does establish Saul was the real Woro not that discrimination ski, (A (to plaintiff paugh, does summary judgment, at 142 "Title VII F.3d at defeat 4 F.3d persuasion by necessarily plaintiff must meet its burden show material fact as whether “(1) convincing employer's employer’s discharge the factfinder that asserted reason for credible; (2) likely non-discriminatory explanation is unworthy is false or of belief and more rather, plaintiff age of fact find that the employee's real the trier must than not was the reason discriminatory proven in discharge”); Holy High its DeMarco Cross for School, v. evidence.”). Cir.1993) ("[Tlhe (2d by preponderance tent a fair 4 F.3d proffered enough reasons is the defendant’s a mistake has plain- been made and that the finding a tiff law sustain has failed to establish intentional discrim- by preponderance there must be a of discrimination.” ination a of the evidence. n. Id. at 511 n. 2749-50 4. Two of the three other circuits that have power passages Such do not restrict our considered this issue have arrived at responsibility á to review of discrimi- Furthermore, same conclusion.6 of the vari- in the nation for clear error usual course: herewith, opinions ous except filed none even if we find that the has made out Judge disagrees Winter’s with the central prima pretext, facie case and has shown we proposition of this Point II —which is that a still must review a trial court’s determination prima meeting facie case the minimal stan- intentionally the defendant discrimi- (even Douglas dard McDonnell where ele- nated for clear error. acknowledged by defendant), ments are sum, supportable finding pretext together with a pretext, do not prima facie case necessarily do not alter our up add to a sustainable case of error, ordinary standard review clear discrimination.

or constrain us to conclude that the defen- (d) Some comments on the dissenting intentionally dant has discriminated: (i) opinions, Chief Newman’s dissent prohibitions against discrimination largely view, surprising based on his Rights in the Civil contained Act of 1964 Winter, by Judge prima shared important policy. reflect national case of specified in McDonnell “eyewitness” will There seldom testimo- Douglas strong is as conventional ny employer’s processes. as to the mental prima position squarely facie case. This But means none of this that trial courts or contrary broadly that, to the accepted view reviewing courts should treat discrimina- discrimination cases propound- under the law differently ques- tion from other ultimate Supreme Court, plaintiffs ed burden tions of fact. produce prima substantially ease is Id. at (quoting S.Ct. 2755-56 less onerous than the obligation conventional United States Postal Serv. Bd. produce Governors reasonably evidence that supports Aikens, 711, 716, on all the elements of the claim. If (1983)). 1482, 75 L.Ed.2d 403 If Binder v. requirements aof facie case under Co., (2d Long Lighting Island 57 F.3d 193 the discrimination statutes were no less oner- Cir.1995), is read as inconsistent with ous than normally holding, expressly reject Court, Accordingly, Court, we it. and our along with other cir- we reverse a district court’s cuits would not have again said over and over if accompanied by discrimination —even requirements facie case supportable finding we are of discrimination Douglas under McDonnell —if convinced, firmly here, as the are “minimal.”7 Circuit, banc, dine, sitting recently (describ The Fifth held 450 U.S. at 101 S.Ct. at 1094 prevail a vote of 16-1 that in order to under establishing burden of facie case as ADEA, must show onerous”). evidence that quick "not A search in the Westlaw was not motivated publish database reveals more than one hundred age reasons and that was a determinative factor. opinions appellate ed in which federal courts Tools, See Rhodes v. Guiberson Oil establishing have characterized the burden of (5th Cir.1996) (in banc). Likewise the First Douglas prima McDonnell facie case as "mini prima Circuit has held that a facie case and mal,” minimis," "de or “not onerous.” Further necessarily evidence of are not sufficient more, expressly at least three have circuits stated summary judgment to withstand in favor of the require less evidence is needed to meet the Inc., Computer, defendant. v. Smith Stratus 40 Douglas prima ments of the McDonnell facie 11, (1st Cir.1994), denied,-U.S. F.3d 16 cert. judgment case than to win a on the ultimate -, 1958, (1995). 115 S.Ct. 131 L.Ed.2d 850 issue of discrimination. Co., Sheridan v. E.I. DuPont de Nemours & Cf. characterizing Recent Second Circuit cases (3d Cir.1996) (in banc). 100 F.3d 1061 “minimal,” minimis,” prima facie case as "de 506, Mary’s, 7. St. 509 U.S. at 113 S.Ct. at Corp., 2746- "not onerous” include Luciano v. Olsten 210, (describing requirements (2d Cir.1997); 47 of the McDonnell 110 F.3d 215 Chertkova v. "minimal”); Douglas prima Co., 87, 81, facie case as Bur Connecticut Gen. Ins. 92 F.3d 90 Life

1341 Waters, 567, 577, 2943, his 438 98 S.Ct. comes from U.S. Judge Newman’s view 2949-50, (1978) misreading (emphasis 57 957 highly selective L.Ed.2d omitted)). He tells us opinion added, Burdine. quotation Court’s internal marks prima ease VII facie “Burdine defined Title words, wholly depends In other the inference Douglas ] to mean specified in McDonnell [as presumption, disappears on the which once cir- taken ‘under employment action adverse proffered explanation. has an an of give rise to inference which cumstances “prima phrase facie case” —as footnote 7 ” 114 F.3d at 1363 discrimination.’ unlawful says of Burdine used McDonnell —is (Newman). say, those goes on to “Since He Douglas not “to describe the bur- to to an infer- give rise facts sufficient enough permit producing den of evidence to they cannot cease to ence issue,” trier of fact to infer fact at simply because the em- such an effect have rather to of a le- “denote establishment 114 explanation.” ployer has gally mandatory, presumption.”8 rebuttable (Newman). at F.3d 1363 opinions oddly dissenting interpret interpretation Newman’s minimal prima this footnote to mean by is rebutted the next few clause Burdine Douglas ease facie identified McDonnell opinion. Two sentences sentences probative more of the ultimate fact in issue later, prima explains Powell that “the Justice (which, prima than a case conventional facie of discrimina facie case raises inference own, persuasive on its force sufficient acts, presume only we these tion the inference that the ultimate fact likely than unexplained, are more otherwise not). probable in issue more than Foot- impermissi the consideration of not based on 7, Burdine, 254, when note read combination with 101 factors.” 450 ble text, just says opposite. v. (quoting Constr. Co. at 1094 Furnco Cir.1996); (2d City appeals in at three de la v. New York Re Courts least circuits Cruz itself, Servs., 16, that, required the evidence Dep’t 82 F.3d remarked Admin. Soc. sources (2d Cir.1996); prima Schering facie under Corp., 73 establish case MicDonnell Sutera v. 20 13, Quaratino, invariably 16, (2d Cir.1995); Douglas is not sufficient sustain an 71 17 F.3d illegal Co., 64, 65; discrimination. See ultimate 46 F.3d Cronin v. Aetna Ins. Life (6th Cir.) Chambers, Avery Corp., 104 at 861 196, (2d Cir.1995); Dennison F.3d 43 F.3d 203-04 ("There proof must be a lower burden of 40; Sys. Philips Viola v. Med. North F.3d judgment case win a sustain a than to 712, America, (2d Cir.1994); Gallo 42 F.3d 716 discrimination____"); ultimate issue 1219, Servs., 22 v. Residential F.3d Prudential Airlines, Inc., 620, 72 v. Northwest F.3d London (2d Cir.1994); City v. New York 1225 Owens (8th Cir.1995); ("The prima facie burden is 624 Auth., 405, (2d Cir.), F.2d cert. Hous. 934 409 as, nor it be not so onerous should conflated 964, 431, denied, L.Ed.2d 116 with, racially-motivated ac- the ultimate issue Co., (1991); Greenberg 870 451 v. Hilton Int'l 885, Co., tion.”); Simplot 26 F.3d Wallis v. J.R. 926, (2d 1989). Cir. F.2d 934 ("The (9th Cir.1994) degree requisite 889 examples other courts of For of cases from necessary proof establish appeals describe the facie case judg- summary VII and ADEAclaims on for Title Avery way, see v. much the same EEOC Dennison does need to rise is minimal and not even ment 858, Cir.1997); (6th Corp., Kehoe v. 104 F.3d 861 preponderance of the evi- to the level of a 1095, Anheuser-Busch, Inc., 13 96 F.3d 1105 n. dence.”). (8th Cir.1996); Computer v. Science Marzano Inc., 497, (3d Cir.1996); Corp., 91 F.3d 508 opinion Footnote 7 in the Burdine reads 33, Vought Sys. Corp., v. 81 F.3d 41 Nichols Loral follows: Cir.1996); (5th Applications Evans Techs. & v. Co., (4th Cir.1996); 960 Rich may Serv. 80 F.3d phrase "prima facie case” not Dep’t, 71 806 ardson v. Leeds Police F.3d legally denote the establishment of a mandato- (11th Cir.1995); Byrd Ronayne, 61 v. F.3d ry, presumption, but also rebuttable Carlsbad, (1st Cir.1995); City v. plaintiff's Warren bur- used courts to describe Cir.1995); (9th enough producing permit 58 F.3d Neuren v. Addu den of Schill, ci, Mastriani, Meeks & J. trier to infer the fact at issue. 9 of fact (D.C.Cir.1995); (3d ed.1940). Crystal Spe § Wigmore, Hooks v. Diamond Evidence Inc., Foods, (10th cialty ap- Douglas Cir. made it F.2d McDonnell should have 1993); Hong Hosp., we use parent Memorial the Title VII context Children’s that in denied, 1257, (7th 1993), “prima the sense. cert 511 facie case” in former F.2d 1262 Cir. Burdine, 7, 48 450 at 254 n. 101 S.Ct. at 1094 S.Ct. 128 L.Ed.2d U.S. U.S. 114 (1994). 7.n.

1342 (ii) opinion goes on to explain, Judge argues Burdine in Newman further that the Mary’s closely terms reiterated St. Court cannot have meant opinion, “[e]stablishment in this that Douglas, followed and Mary’s McDonnell Burdine St. facie ease in effect prima of the creates what we meant understand to have because that presumption the discrimi- Mobile, that would be unconstitutional under nated____ The burden that shifts to the City Jackson Kansas Turnip & R.R. Co. v. presumption ... is to rebut the defendant of seed, L.Ed. 78 by producing discrimination evidence that (1910). making argument, In this the dissent rejected the was ... a ... non- again seems once have misread the Su reason____ discriminatory If the defendant preme precedent. Tumipseed, Court’s production, burden of pre- carries this the fact, upheld constitutionality the of a statute by sumption raised the case performed exactly which the function the rebutted____ Plaintiff retains the of burden Doug attributes the McDonnell persuading ... the court that she has been forcing las the defendant to ex formula — the of intentional victim discrimination.” plain. stated, The Court Burdine, Thus, 254r-56. Burdine statutory pro- effect of the rule is to presumption makes which clear bol- injury arising vide that of evidence an from transitory sters is a operation the actual of shall trains create thing. presumption Once served its negligence, an of inference which is the purpose forcing employer’s expla- of out the main only legal fact in issue. The effect of nation, capacity facie case loses its upon inference is to cast railroad presumed) support (previously infer- company duty producing some evi- discrimination, illegal ence of other than contrary. done, dence to the When that is intrinsic whatever force the constituent evi- end, question the inference is at an and the dence have. jury, of negligence upon is one for the all Finally, explains Burdine the infer- statute, not, of the evidence---- The does illegal simply ence of motive flows from therefore, ... law, fail in process due specified the set of facts Doug- McDonnell presumption it creates a because of liabili- coupled las but from those facts with the ty, operation only since its to supply an explanation. an absence Id. at liability inference of in the absence of other (“[T]he prima S.Ct. at 1094 facie case raises contradicting such inference. inference acts, Turnipseed, presume 219 U.S. at we these 31 S.Ct. at otherwise unex- added). (emphasis plained, likely Those words could are more than not serve based on factors.”). equally well describe effect illegal consideration As temporary reiterate, both inference raised Mary’s Burdine and St. McDon once Douglas simply nell framework. employer does what We do not McDonnell Judge argument. Douglas designed understand Newman’s rule was to force it to do— i.e., give presumption —the All admirably in Judge treated disappears. Having transitory lost the bene- opinion, join Calabresi’s we Part I of fit presumption, must then opinion. satisfy by showing the ultimate burden facts (iii) reasonably one can Judge which find that In Newman’s discussion probable forbidden discrimination was more pretext, force of observes he than not. Newman therefore mis- our view “seems odds” with statement in eases argues reads these when Mary’s opinion “rejection he St. initial, Douglas minimal McDonnell showing, permit defendant’s reasons will own, supports ultimate, on its sufficient trier of fact to infer the ultimate fact of of discrimination.9 proof and ... no additional Judges Newman Winter thus contend that themselves sufficient an ultimate find- presented quali- bare facts in Burdine —that a ing of discrimination. See F.3d at applicant fied rejected female favor of a (Newman) view, they our are not. man who had been her subordinate —are drops is ... the Mary’s, case rebutted required.” is St. discrimination ease.”) (internal quota 511, 113 at at S.Ct. omitted). marks, and brackets footnote tion Mary’s majority The main thrust of the St. Mary’s did presented in St. not The issues it, opinion, read mini- as we is that once the specify whether the Court to require prima purpose mal facie case has served its (“no required”) proof is additional statement reason, employer proffer forcing the to evidence to to the substance the refers presumptions pro- the drop all out and case say. procedure, and Court did not i.e., on ceeds like burden other — by prove to acknowledge that sentence We sufficiently persuasive to allow say plus a prima facie case be read to verdict to survive error favorable clear always sup- to pretext is sufficient meaning Mary’s review. This central of St. favor, that such port plaintiffs verdict in so would be contradicted we construe the “no ordinary for clear finding precludes review proof required” phrase ... to additional understanding of But that is not our error. plus mean that a facie case Scalia meant. what Justice necessarily pretext is sufficient sustain a plaintiff’s burden. First, meaning, he would if that his were mistaken, necessarily Judge Newman’s plausible reading A more statement The ma- dissenting opinion acknowledges. proof that “no additional of discrimination is ground

jority and the common dissent required” procedure. that it concerns coupled with a pretext, that a minuet in mo- opinion discussing was set always prima facie “is not sufficient by Douglas. For first tion McDonnell finding of an ultimate discrimination.” sustain produce step, plaintiff must evidence to meet (Newman). 114 F.3d at 1375 a Title the minimal demands of VII doing so shifts the case. Plaintiffs Second, interpretation be diffi would production to the defendant burden pointed with Justice Scalia’s cult to reconcile nondiscriminatory explanation. proffer opinion conclusion of statement that, has The statement once defendant subject review under that the verdict is proffer, plaintiff required made such a “clearly Finally, erroneous” standard. proof’ of produce “additional discrimina- incompatible with Jus a view would be such necessarily anything mean tion does not assertion that once the tice Scalia’s clear that, procedurally, more than produces explanation, employer proffer need not additional evidence but pre its Douglas framework with McDonnell already rely on received to re- the evidence longer operates. sumptions and no burdens prove dis- but defendant’s Mary’s emphasizes opinion “[t]o The St. procedural observation crimination. Such a later, after presumption] [the resurrect obligation in does not diminish fact determined that what was trier of of dis- the end to adduce sufficient evidence production produced to the burden of meet that discrim- crimination credible, holding in in the face of our flies probable than ination more not. was presumption ‘[t]he Burdina to rebut Thus not think that our view of we do persuade the court that it defendant need not at odds significance of actually proffered rea motivated statement, un- properly with Justice Scalia’s sons____ having presumption fulfilled derstood. forcing to come role of the defendant its (iv) opinion ex- simply drops think Winter’s response, We forward with some ” reasoning. 510-11, 113 hibits additional flaws picture.’ Id. at two out of the S.Ct. First, Burdine, moved what he Judge Winter is (quoting at 2748 anomaly 1094). who sees as an also id. at See —that (“If gives off than one who lies can be better at 2747 the defendant carries this (Winter). explanation. F.3d at production showing a [of burden of nondis illogic disappears one action], Any when eriminatory challenged apparent for the reason Douglas recognizes McDonnell presumption raised rule, burden-shifting sumption is a de- to employ- framework created smoke out the employer signed give to force the to an ex- proffer explanation; er’s and that once the planation. gives This burden shift therefore employer explains, presumption drops the a merely transitory advantage. plaintiff away, plaintiff prove then must dis- employer gives an explanation who by reasonably crimination capable off than who to better the one declines do so. supporting Supreme that inference. If the anomaly. That is Judge sug- Court had meant what Winter gests, employers subjected Second, would to liabil- meaning ambiguity of the ity for pres- discrimination where was “prima none caught Judge facie ease” has term ent and none trap. respectfully was shown. We a semantic That term is Winter Judge commonly believe Winter has used to describe two different misunderstood the original Supreme precedents. functions the course trial. Its Court’s quantum meaning refers to the of evidence a to escape must adduce dismissal at opinion proclaims Newman’s case; plaintiff’s conclusion majority opinion undermines law of used, however, frequently also to describe thing. discrimination. do no We such We quantum of evidence which must ulti- faithfully applied repeatedly law as mately justify be found in the to record by explained Supreme Court. Under (or jury to submission the case to law, notwithstanding the minimal re-

justify upholding jury’s plaintiffs a verdict quirements specially prima defined favor). The reason the same term has come case, facie once the has functionally to to two be used describe differ- explanation, plaintiff may prevail ordinarily quantum ent is that tests that, own, without evidence by its unaided purposes both evidence needed for is the any artificially prescribed presumption, rea- satisfy In the same. usual either sonably supports the inference of discrimina- sup- test there must be sufficient evidence to tion. port in plaintiffs every favor on by preponderance. of the claim

element Ill Judge Winter thus assumes that if the four Douglas McDonnell factors are what need- We now turn to Fisher’s claim. Fisher prevent ed dismissal the close presented facie case of discrimina- (un- plaintiffs evidence, that same evidence by by tion reason of her marital status show- defendant conclusively less the rebutted (i) (ii) woman, that she awas married motive, proved third or dis- (in) tenure, that she qualified was factors) proved one of the four must also (iv) was she denied tenure and that tenure assure that has sufficient evi- granted was to a woman who was not mar- ultimately justify plaintiffs dence ver- (Pinina Norrod). ried Fisher established a But dict.10 Court has made age sufficiency clear that the test of at the close introducing the additional evidence that she direct ease is not the same as age was over the of 40 at the time she was Douglas, the ultimate test. In McDonnell tenure, reviewed eight and that of nine expressly the Court referred to the “initial professors other tenured Biology in the De- establishing burden ... of partment younger were than Fisher when case.” U.S. at they were reviewed for tenure. added). (emphasis explain went It on to quoted language above from production Burdine and St. burden of shifted then Mary’s that minimal proffer legitimate, four McDonnell Vassar non-discrimi- Douglas support natory factors are held to the infer- reason employment for its decision. ence pre- of discrimination because of Vassar satisfied that burden asserting states, Judge Winter "I do not that a light believe inference of discrimination and causation in should, Appeals can, O’Connor, or even hold that contrary statements to Burdine, the four factor test illustrated in McDonnell and Teamsters." 114 F.3d Douglas (Winter). itself sufficient to above, power within because she its do was denied tenure that Fisher tenure, so. posted standards did not meet qualified less than other she was and that panel opinion employed phrase the needs of the specific who filled candidates finding pretext “points the in that of this case Department. undertook

Biology Vassar nowhere.” The dissent makes much of by general points support more numer- these figure arguing of in that speech, essence first particularized assertions about ous more finding pretext point a must somewhere of juncture, At that Fisher Fisher’s record. points and that it “in same di- second actually dis- attempted to show that Vassar pretext findings point rection that all —to- introducing by her against evi- criminated [a] ward of discrimination.” As to proffered dence that the reasons that Vassar issue, reading simply the first the dissent is false, by and denying her tenure were rhetorical device with excessive literalness. introducing intended to show other evidence panel opinion by “points What meant actually This that discriminated. oth- Vassar nowhere” in was that inaccuracies Vas- anecdotes, purported er consisted of many explicable by sar’s so statements statistics, Vassar, made admissions possible equally none motivations testimony. expert force; emerged any persuasive more with particularly, panel that under concluded analysis of an exhaustive Fisher’s After gave Vassar’s inaccuracies circumstances of other credentials and credentials can- if any support little to the inference that Depart- Biology didates for tenure engaged Vassar had discrimination. ment, court found that Vassar’s the district pretextual ie., were asserted reasons sug- simply disagree — We with the dissent’s employer were not reasons stated gestion pretext of that a all but employment for the adverse real reasons specified categories reasonably of few eases reviewing After the evidence that action. discrimination, supports as introduced, Fisher the district court conclud- True, pretext true motivation. denying ed that real reason for Fisher many powerfully sup- inwill circumstances was intentional discrimination. The tenure others, In port of discrimination. found denied district court that Vassar Fish- above, explained it will not. Even where age and her er tenure because her status falsehood, outright is an reason woman, as married and found Vassar power support fact as for a find- of that Equal Pay by paying Act had violated the its not, ing of should not junior professors than its male more female be, logic. A a rule law but a function of junior against professors. court found sug- finding of pretext circumstances simple Fisher on her sex discrimination expla- possible unstated gest numerous other claim. likely than discrimination nations no less support finding of gives little to a inferential panel A the district of this Court sustained discrimination. findings that Fisher had established a court’s argument appears to be age sex-plus discrimi- dissent facie case assumption predicated that the laws panel also ruled that it could not on the nation. The evidence, in the court’s in the manner the U.S. Sentenc- find clear error district deter- Guidelines, assign special ing fixed or that certain Vassar’s assertions some mination in discrimination candidacy about were inaccurate. value false statements Fisher’s evidence, fact misguided view. The reviewing totality But of the cases. That is a given explana- a false panel it found insufficient Like a false actually piece tion is a of evidence. finding that Vassar discriminated statement, in- strength its as an against age exculpatory or Fisher on basis of her her vary the circum- guilt will status as a married woman. Because the dicator that a employer may An believe with a and firm convic- stances. was left definite merit, proffer committed, hiring on supervisor tion that a mistake had been jury may pretext find explanation, but a district decision. reversed the court’s having for belief a basis light principles forth in Part II nevertheless without set it) supervisor hiring on the plain- as to whether the can demonstrate that the bribery, friendship, a hatred for 42 basis of tiff likely injured the defendant’s against year-olds, animus Romanians —so illegal then gives the evidence that, pretext if the is attributed to the even issue, jury to a rise and verdict in circumstances, employer in these there is they favor must be left undisturbed. If can- for a evidentiary support finding that not, jury and the left to speculation, mere employer’s pretext is for discrimi- evidentiary then lack support compels up nation. one of the pick To dissent’s analo- the court to that a conclude mistake has been gies, flight scene of a from the crime ordi- made. The court those circumstances evidentiary narily weight, flight has from plaintiffs must find clearly the verdict to be nothing scene of arson shows the defen- erroneous aside. and set it department of a dant fled the scene store during inferno business hours. if the Even point plaintiff is that once the has testify being defendant to shop- does not requirements satisfied the minimal pri for a per, flight fact of such the bare does not ma Douglas, facie case under McDonnell support an the inference defendant is responded by the defendant proffering has the arsonist. nondiseriminatory explanation, special all drop rules case. See Mary's, the St. goes express on to disapproval dissent 510-11, S.Ct. at people who he or dissemble in their testi- (and mony. factfinding point 2748-50. At this no gives But rule of law review clear error) judgments; they artificially are not moral weight any piece enhanced to logic applied exercises in to as the observa- evidence. tion of human behavior. The issue is not showing Plaintiffs initial of discrimination disapprove

whether we the defendant’s weak, may strong be depending or on the candor; lack of plaintiff it is whether the has particular evidence. The mere fact that a proven party’s discrimination. If a conduct plaintiff has the reduced met demands of give logical support fails to to the of a Title prima gives VII for a facie case little issue, may fact fact not be found plaintiff significant assurance that has proof merely disapprove because we of the con- of discrimination. duct. A court judgments should enter unproved, nonexistent discrimination to employer’s proffer As to the of a nondis- express disapproval party’s its giving of eriminatory reason which the factfinder finds explanations inaccurate court. false, to probative be its highly force is also above, employers variable. As stated charac-

IV teristically give explanations false for em- ployment many decisions for summarize, different To rea- we consider how district sons. That an analyze employer courts should has done so discrimination means cases which something the that there is to advanced a hide. Discrimina- ease, the defendant has tion is without one of things doubt the em- explanation capable being false, found ployers may by giving seek to hide a false jury plaintiff. has found for the When explanation. It no means the one. should place, such a verdict be left in when The fact hiding that the some- set aside? thing necessarily does not mean that the something hidden is discrimination. Gener- The rule is that there is no peculiar rule ally speaking, stronger the the evidence that areas, discrimination cases. As all other illegal present, greater discrimination depends on forcefully answer how the likelihood that discrimination is what the evidence what has shown has the employer’s false statement seeks to conceal. showing burden of employ- adverse —that And, conversely, ment weaker by plaintiff action the evidence of suffered was attrib- discrimination, utable alleged to the discrimination. If the less reason there is to (and evidence reasonably the inferences employer’s flow- believe that false statement ultimate appeal whether or opposed concealed clearly erroneous under employers for which other reasons numerous 52(a). ruling our Fed.R.Civ.P. Because employ- false reasons for frequently give so question applicability reaffirms the decisions. ment employed panel rule no —that consider, either comes to court When given special weight is summary judg- motion for upon defendant’s supports facie ease and verdict, ment, whether or after conducting error of an ultimate clear review support a of discrim- verdict the evidence can no finder discrimination —we have reason ination, weight rules special affect panel suppose would now its alter the truthful- given be application views on of that rule to the employer’s explanation, falsity of the ness or findings. Accordingly, district court’s there any As piece other evidence. is no to remand to the for re- need ease, judge analyze must type other in light newed of the in consideration banc evidence, along with the inferences opinion.11 court’s mandate of it, reasonably and decide drawn from reversing judgment shall issue jury question as to whether the if it raises a court, authority drawing district its from If plaintiff was the victim discrimination. opinion in as to the appro- of the banc court so, judgment denied summary must be error, appellate for clear priateness of review must for jury verdict and/or disposition rulings to the panel’s as not, the is entitled If defendant sustained. appeal. in the of all other issues overturning summary judgment or to the to clearly plaintiff’s verdict erroneous. Conclusion judgment The of the district court is re- V in favor Judgment versed. shall be of the defendant. sitting in banc reconsider the are to We II, in Part and not

question of law discussed judges our Court in a to involve all the JACOBS, concurring: Judge, Circuit findings. review of the district court’s factual Therefore, hereby modify majority, naturally, our order for we has limited The in banc banc, hearing appeal in Fisher v. legal presented, this see its review to the issues (2d majority Feb. College, opinion No. 94-7737 Cir. does not ad- Vassar therefore the (order 1996) Judge fact-specific ar- rehearing) provide to Newman’s dress Chief panel wrong at the rehearing gument to the that the arrived in bane limited force togeth- case. the author of the pretext finding, taken result in this As and effect to considering opinion, separately I write meet the panel on with a er minority. justifica- no dissenting opinion argues We can see Judge Court to the Newman's tion for view. improp- this majority has somehow behaved Supreme Judge to Newman’s references erly by limiting our in banc review to the issue of practice completely inapposite because in law, declining panel’s assess- review majority principle Supreme rule is court,” Court the "[T]he ment of the facts. in banc potentially Rule in conflict with the “unwritten independent ought argues, “normally to make its minority place permits a of four of Four” appeal” (including all assessment of the issues Wright, 16B a case Court's docket. See on the (New- appeal). at 1378 in the involved Cooper, Practice and Proce- Miller & Federal man). support of No are cited in this authorities 4004.2(1996). §2d If the oth- dure: Jurisdiction imagine surprising argument, and we can none. it, then five of the Court can dismiss er members majority of the in court determines When banc hearing allowing four to secure the rule certain that in banc review warranted nullified. issues, specified can be to what reason there precedents and dis- Court's its judges all consume the time of the court's application issue no to our cussions of this in banc review? other issues that do warrant majority practice in our court a is need- majority goes argue that in on to these ed to in banc review. Newman secure proceeding, scope equally in banc of in free to dismiss the narrow circumstances control of regulate scope. pass its from the of the banc review should ground.1 The determining age best refutation dissent on discrimination had opinion; panel proven, is the there is been the dissent district court found that: short, complaint no that it is too and there is (1) Fisher made out a facie case I point reprinting it. no therefore re- showing the minimis de that she was over it, spectfully refer the reader and limit years age, that she was otherwise myself separate concurrence to rebut- qualified job, eight for the and that of nine ting arguments aspersions selected professors in Biology other tenured the dissent. Department years youn- were least nine

ger they than Fisher when were reviewed for tenure. (2) denying Vassar’s articulated reason critique panel’s The dissent’s work is pretextual. tenure to Fisher was rooted the dissent’s errors law. Absent F.Supp. at 1230-31. There is nothing “special existing “rare” and circumstances else. court The district noted two other (Newman), see record,” F.3d at up items of evidence were offered would dissent insulate reversal claim, age but the court premised ultimate of discrimination them, rejected as the dissent observes. A coupled on a facie case with a sustaina- opinion review of the district court confirms pretext. Appellate ble scrutiny age there is no other dis- would be limited dissent instances crimination, period. opinion con- in which record “overwhelmingly facts cluded that Fisher had shown more than pretextual third establish a motive for the she was oldest candidate in the proffer, component plain- undermine biology department been considered tiffs facie or demonstrate that tenure, for which was unremarkable because highly unlikely is defendant to have dis- few candidates for had an eight tenure have (Newman).2 criminated.” F.3d at 1377 year interruption in their careers. More- It is passage unclear “overwhelm- over, solely Fisher’s evidence consisted ingly” phrases just modifies all three or faculty eight youn- list of members who were first, hardly but in effect that matters. ger than Fisher when for considered tenure. sample, The too small to bear statistical application The dissent’s its new stan- weight place, in the first was selected on no appellate age dard of review to the discrimi- principle. panel evident The therefore held neatly nation claim this ease demonstrates Judge Motley that had committed clear error that the new away dissent’s rules would do in finding presented that evidence meaningful appellate with review discrimi- proof sup- Fisher amounted to sufficient nation awards. dissent would affirm the port an ADEA claim. district court’s award of more than one half million dollars under the ADEA. That award The dissent would find that was being erred; made —after on a finding doubled but the dissent will not contest that the rock age willfulness —on bottom minimum the evidence discrimination is scant. showing argues showing dissent is sufficient This scant embarrasses the dissent’s (or evade) appellate scrutiny withstand theory pretext that a bare to a added clear error.3 weight has special case some that indicated, (ii) 1. protect (an Unless otherwise all references to the desire to business secrets “the are to dissent” Chief Newman's dis- objective ordinarily by protective assured or- senting opinion. ders), (iii) disclosing employ- the fear of (an example utterly er’s own embezzlement re- Thus, says dissent that "clear error could experience). moved from common overwhelmingly occur if the record established” certain circumstances of a kind referenced earli- (on trial) 3.Judge Motley day dissent, the last (New- sua er in the 114 F.3d at sponte suggested man), plaintiff's attorney that specifically, amend circumstances in which a (i) following complaint despite may to add the claim mask the ADEA motives: employee wrongdo- day age reluctance to accuse the ing concession on the first of trial was (a trial), reluctance that not exist at would "not in the case.” T. at 2390. contrary, clear ab- where.” On the it starts out appellate review for error evades pointing in barely imaginable contin- the same direction that all a handful sent pretext findings point easy to this case gencies. It is see —toward simply weight would thumb special such inferable from constituting this self- Evidently to avoid on the scale. facts rule, of its the dissent case. refuting application proof new quantum adds (Newman) (emphasis F.3d 1372-1373 age dis- up ultimate to shore its added). begs question pre- But this still the district on which crimination —a panel: sented to the district court and the Thus, rely. ruling ADEA did not court’s ground? discrimination on what foot- from on Dr. Fisher’s hiatus dissenters dwell dangling passage note from concedes eight teaching: Dr. taken “had Fisher “complicated that the situation is the cir- children, years raise her teaching off from alleged plaintiff cumstance dis- faculty, she would joining the Vassar before grounds.” crimination two different Id. at which age group have been within (Newman). complication n. A further willing to select tenured apparently Vassar presented Dr. dissent Fisher (Newman).4 professors.” at 1384 F.3d grounds: age prima facie on both sex-plus-marriage. But the dissent never circularity. eight Dr. This is a Fisher of a pretext deals the vector years she be- older when arrived Vassar alleges happens plaintiff when —as often But eight year hiatus. she she took an cause —a four; grounds, or discrimination on three eight years older than she would have been actually plaintiff where a the victim of years eight was if she had devoted otherwise multiple grounds; discrimination on where a (which being a is what Dr. worker social alleges grounds of discrimina- two tenure), being or did after denied Fisher there is no tion when bears office, Olym- running training or for the other; specifically on one more than the or military, running pics, in the or serving or where a have suffered discrimi- book, business, per- writing a or farm or grounds, nation some of which are on several forming Aging goes on charitable work. circumstances, illegal. such the dis- pretty doing. much whatever we guidance little sent offers useful district nothing the hiatus to the fact of adds trials, require courts in and would (which bench already factors in case of course jury fugue-like charges explain these no- way saying age) except fancy as a that her jury. tions to a years eight was older than she would she eight youn- years if had have been she been In indeed does Dr. Fisher’s where than was. No wonder the district ger she pretext point? The district court found the this to be evidence of court did not consider grounds of two discrimination —three ei- age discrimination. The dissent wouldn’t them, bantamweight if one considers the anything were else. ther there Equal the discrimination under of sex Pay of riches Act. This an embarrassment II (unless dissent, the at least one because error) clear ground discrimination held betrays a language The of the dissent felt pretext point multiple must the just saying pretext to avoid where the need directions. word point. does “discrimina- passim the dissent without tion” used judges and have different Different courts any specification to the discrimi- (if as basis anywhere) pretext the ideas about where (A) nation. The dissent writes: points in this case. The district court points to willful dis- panel opinion quite wrong to held that the evidence as- [T]he age of Dr. Fisher’s pretext made crimination on the basis sert that the the status as a “points no- as well as on the basis her District Court fact-finder) dissent, (as proba- irony find court did not 4. It is an that district unintentional panel "super which as fact-find- criticizes age tive of discrimination. er,” rely upon proceeds evidence (B) agree employment married woman5 The dissenters It any is obvious that decision pretext points court that the preference the district reflects a candidate who decisively against Here, aged gets to discrimination spot. Dr. Pinina Norrod won against Biology married women. The dissenters tenure in Department the same feel, however, pretext points year “more that Dr. Fisher lost. district court sex-plus discrimination; strongly” to found that: they that it prerog was “within the conclude ... senior Biology members Judge Motley to infer ative” of discrimination Department were determined that Dr. grounds both because Fisher be denied tenure that Dr. Nor- realistically is not incompati “marital status promoted granted rod be tenure. ble with additional based on #92). (finding at F.Supp. (Newman). Thus, age.” at 114 F.3d adopts operating assumption dissent (out dissent, pretext for the of doctrinal ne potential there are two motives for that cessity) points many as directions as can (a) (“a preference: college usually merit [is] (C) Judge be deemed consistent.6 Calabre regarded aas bastion pursuit of uninhibited opinion si’s asks whether Vassar’s assertion truth,” (b) (Newman)), 114 F.3d at 1370 or spent that Fisher insufficient time in the illegal discrimination. That is an as- invalid laboratory premised on stereotyp could sumption creation of Ac- inferences. ical view that married women with children cepting district court’s “spend less time the lab.” 114 F.3d at process tenure selection pre- was skewed to (Calabresi). It could—if there were Norrod, fer question Dr. becomes: what any Vassar’s decision-makers evidence offers an explanation pref- for that grip stereotype. were in of such a But erence? Dr. Norrod had been married marriage point; would seem to be beside the the time she was hired Vassar. atT. pretext finding pos Calabresi Although she had been divorced at the point its as well could to discrimination based made, time the tenure decision was she was general stereotype on a of women as care long-term then in relationship that led to givers, against directed all working 2283-84; marriage soon after. T. at

women, (perhaps) against all working skewing 1475. Was Vassar its tenure (D) Finally, mothers. concluded Department, in the Biology decisions as the pretext finding that the district court’s point held, district get court rid of Dr. Fisher ed nowhere. grant she married in order to tenure to another woman because she was say The most that one can about the di- event, marriages? between does this pretext finding in rection of the this case is affirmance, finding command that, Pole, the dissent compass like a all wheels hold, scrutiny would without further for clear place. over the

error? dissent, (Newman), The 114 F.3d at 1383 Ill draws point confidence on this from the dis- Having that shown the dissent’s trict deferen- Biology Depart- court’s that “the age tial the district faculty” review of court’s discrimi- accepted ment’s senior had a “ster- deference, review, nation is all eotype I and that bias: a married woman with turn to what the dissent family believes is evidence on-going active and life cannot abe points supports that productive and, therefore, to and an ultimate find- scientist is not one ing of discrimination on the despite basis of Dr. contrary.” much evidence to the #87). Fisher’s status as a F.Supp. married woman. (finding reading at 1216 5. age presented court held district that the discrimina- 6. Had Dr. Fisher facie show- willful, Fisher, 1230-31, F.Supp. tion was at ing religion, of discrimination basis on the judgment and sup- entered a that could not be orientation, origin, national or sexual ported by solely a Title VII violation. Id. at dissent) pretext (according pre- to the would everything sesc-plus So sumably point in these directions also. holding is an alternative does and not add one judgment. thin dime to the upon couple also fixates keep in mind that the dissent should finding, one court, findings specific made the district Biology Department for of Vassar’s chairman now. to which turn Johnson, a years been Dr. Patricia had nine that daughters her who raised mother Teaching A. Evaluations. The district court dealt T. at 2283. time. by drawing fact that inconvenient panel’s As to the review of the statistical prejudice so to supposed as

contours and in the evidence anecdotal evidence operative discussion, words purposes Dr. Johnson: dissent “for of this exclude right. “on-going,” and ... assume[s]” are “married” #87 (Newman). divorced) (the points But dissent F.3d Dr. Johnson from excise which group findings supposedly that dem- “stereotype bit of bias” picture —a “discriminatory use of student eval- onstrate not that a divorced mother does the effect findings uations.” Id. I will review those as family on-going life.” “an active and briefly possible. as After district court reason, wording For the same #47) (finding that found Vassar students Norrod, Dr. the woman who #87 excludes five, a scale one to evaluate teachers on (between over marriages) won tenure 48) (finding # Dr. Fisher exceeded that Edward Tuck- Dr. Fisher as well as over Dr. Faculty “good what the Dean called er. combined, the statistic” of 70 fours and fives that tenure survey to court went on find review court also limited its The district (find- committee: in the “hard” sciences married women 80), further still

ing # and narrowed field reached its unfavorable conclusions as were by excluding teaching by applying the married women who record Dr. Fisher’s ap- Psychology Depart- to her than were in the different standards granted tenure plied other candidates. The ment, tenure ground psychology is on the that distorted numbers (notwithstand- Committee science deemed to be “soft” counting only Dr. Fisher while testimony Psy- undisputed Vassar’s fives for other can- counting chology part of the fours fives Department is considered evaluation didates to determine student largely due to its focus on hard sciences (R. 289-99,1146.) rankings. studies) (T. laboratory at 2216- experimental added)). (emphasis 18). (finding #49 Taken value, finding supports the conclu- face strategy # Dr. Finding 87 reflects Fisher’s give Dr. did not Fisher sion Vassar ground at trial. She defined discrimi- points find- to these fair shake.8 dissent nation reference to set of characteristics sex-plus ings weighty as discrimi- her, particular that describe but are so nation, Dr. they suggest do at all category in a field a create small disfavored because she had Fisher was lead, Following dis- Dr. Fisher’s one.7 husband; entirely they are her divorced the conclusion that trict court arrived Department’s preference consistent with Norrod, preference animus at work at Vas- could have there is a sex-based Dr. faculty differing one grounds, tenure to Dr. Fisher so that numerous sar denied the next. member to given preferment could be to women who divorced, yet women who have not mar- accepting in But the dissent errs ried, and married female scientists who work (as value, reading in at face and # 49 biology. psychology read) than The dis- rather being to mean language itself to lends enjoys a (1) hold this inference sent would that committee used that the tenure review ordinary procedural from score of special insulation combined numerical bench-mark —a and fives—to measure relative fours clear error review. panel opinion only not dwell on these find- fascinating did “How is that Whose 8. The 7. class/ adequately findings Auden, "Islands,” ings other assured because member is Me!” W.H. pretext finding would clear error survive that review. (1955). Shield Achilles (2) candidates; teaching ability tenure that what at our we do institution —at least my what I by were measured do in courses. “other candidates” underlying evidence. impressions do benchmark; teaching score of other candidates.9 These downgraded counting fives only not (3) —was her survive score—distorted Dr. lower look at the Fisher was than by without individuals was same standard was not It struck me that ^[*] frequent including ^[*] mention of were ^[*] the fours for being applied ^[*] Dr. only together. considered Fisher there ^[*] to the other fives, ^[*] tenure. In this fours and fives were gives The district court two record refer- lumped together. 298-99, support finding ences # 49: “R. at 1164. this passage, ap- R. Dr. Castellot F.Supp. 1146.” 852 at 1209. The first rec- parently referring was two of docu- sets testimony, Dr. ord cite is to Fisher’s own First, ments. he referred three “outside says testimony nothing about how the performed Dr. evaluations” of Fisher for the collegeused or did use the evalu- student Biology Department by biologists other numbers; passage, ation Dr. Fisher (Exhs. 12C). 12A, institutions 12B and prepared testified about charts for trial These evaluations do not refer to the one-to- tabulating her own counsel the numerical ratings, five numerical on the whole are results the student evaluation sheets Dr. favorable to Fisher. specified Dr. Fisher and the other candi- Second, Dr. Castellot referred the ten- arguably support dates. These charts prepared by ure assessment letters the Biol- good idea Dr. Fisher was teacher Suter, ogy Department Mehaffey, Drs. (hence adequately supported finding Hemmes, Norrod, (Exhs. 323, and Fisher they pretext), but do not show how if at all 304, 292, 216). 338, and These documents do college used this data. suggest teaching not indicate or ability of tenure was candidates measured (“1146”) The second record cite is to the single They formula or benchmark. testimony plaintiffs expert, Dr. John that, ability, in assessing teaching show Castellot, professor biology at Tufts tenure committee considered far more than University. Dr. taught Castellot never just evaluations, gauged student teach- Vassar involved the tenure ability on based various factors such as process; review he conceded that had he difficulty course and the introduction new never served on tenure review committee courses to important, the curriculum. Most Indeed, anywhere. testimony R. 1155. his employ the tenure assessment letters uni- primarily was offered to show that Dr. Fish- evaluating form statistical method biology er’s research in the field of compared teaching candidates, skills of tenure and did favorably colleagues. with the research her any disparate not use evaluating method in objection, Over Vassar’s Dr. Castellot testi- Dr. Fisher. Sometimes —for Dr. Fisher and process fied as the tenure review at Vas- others —the letters consider the combined sar as follows: fives; number of fours and sometimes the In looking over the data collected only particularly letters fives consider — teaching, what struck me was that number of reflect fives some remarkable fea- appears tenure committee ture, consider course, none, such as all fives for a or percentage (as top case) fives in the Dr. Fisher’s a fall-off over looking scale when teaching at Dr. many Fisher’s time from particu- fives to none. The evaluations, they consistently whereas lars the record are set forth lumped together, fours and fives margin.10 which is impression summary That sinister ability. is reinforced find- teaching number scores as a ing # which contains a table of Dr. Fisher's T. 1298-1300. categories and teaching fours fives in various of skill; but compilation that table is drawn from a Dr. Suter's tenure letter indicates that stu- prepared reviews, five, for trial gave Fisher's counsel rather than mixed dents him from two to any purporting assign from Vassar particular persis- document to and one course in received completed post- finding #49 fession. Dr. Fisher her on court relied

The district graduate in 1966. From until studies then (and chiefly to show findings) the related family she herself her full- devoted to qualifications for pretext and Dr. Fisher’s part- taught time. From 1974 to she findings relies on these The dissent tenure. College. first time Marist Her full-time disfavoring Dr. reason for that the to show employment biology in in 1977. at Vassar sex-plus-marriage candidacy was Fisher’s process, In the tenure evaluation some facul- findings begin These do discrimination. ty empha- members mentioned —and some inference. Dr. Castellot’s support to sized —that Dr. Fisher had been out of the in of struck terms “what “opinion” phrased— years. field for ten The dissent characteriz- of de- unsupported by evidence me” —is (actually, findings part close to es these as Dr. in between difference treatment tectable all) “strong” sex-plus of the case of discrimi- colleagues in terms of the use Fisher and her nation, discounting and chides the for And, as dis- evaluations. student them. concedes, argu- (barely) weight sent says by finding # which ably “lessened” argues The dissent that consideration comparison to Dr. why “[a]ny explains hiatus, and impact on such a absent adverse evaluations, teaching which-were attainments, unfairly Norrod’s person’s bur current excellent, give picture true does not “working 114 F.3d at 1383 dens women.” Thus, (Newman). However, ac- F.Supp. at 1210. agree. “working situation.” court, teaching cording category to district in that takes all women women” is only success- upon Dr. Norrod —the workplace evaluations in the and therefore bears to competed head ful who head simple candidate rather than sex- sex in 1985—cannot Dr. for tenure plus-marriage. Fisher Mainte See Coleman B-G Colorado, Inc., Dr. Fisher’s evalu- usefully compared with Management nance why (10th Cir.1997) (to think dissent —in 1199, 1203 ations. I cannot prove sex- F.3d place light that —would determinative plus-marriage must teaching order weight on the evaluations show that of married women were subclass why Dr. chosen and explain differently Norrod was than subclass of married treated men). however, Dr. was not. district happens, Fisher As it rejected Dr. Fisher’s claim of sex dis

court B. Hiatus. F.Supp. as at 1225. crimination baseless. avid than the set of find- The dissent much more identifies a second The dissent weight of the hiatus an ultimate district court about ings lending great as the hiatus com- The dissent deems sex-plus em- issue. discrimination: of discrimination pro- Dr. hiatus her ments “further evidence” phasis on Fisher’s good” Mehaffey’s "as because over tions for 1978 tently low student evaluations. Dr. catego- top in the of her students ranked her letter describes his student evaluations 50% tenure ry. had scores for of his students The committee characterized her "excellent” because 83% top categories unsatisfactory” for none "totally him the two instruc- ranked 1982-83 as top grade tenure letter given tor Dr. Hemmes's for two effectiveness. her had her a students think), only him in ability of his students ranked (clarity notes 78-100% and 29% skills top categories three consecutive grade two for given her a of her students had 17% years. letter that all of 1354 sex-plus-marriage. propriety). Finally, yet basis at than I am not (Newman). court,

1384 But the district after prepared to reach a final decision on the (ex- Department’s noting Biology position issue, fourth and it think unwise to so do faculty meeting) pressed committee now. Dr. “[o]ut Fisher was date —out years,” field 10 found: “these statements I.1 establish, themselves, do not direct evi- illegitimate F.Supp. an factor.” dence of significance, is the What once the defen (As above, at 1231 n. 25. discussed the dis- proffered explanation, dant has fact probative age sent the hiatus to be deems has, admittedly, that the made out a well, though the discrimination as district Mary’s prima Burdine-St. facie dis case of not.) court did Dep’t Community crimination? See Texas Burdine, event, 248, 252-54, 101 In of such a hiatus v. Affairs bearing only 1089, 1093-94, could have sex-based (1981); dis- S.Ct. 67 L.Ed.2d 207 However, parate impact claim. as the Hicks, Mary’s St. v. Honor Ctr. 509 U.S. opinion opinion empha- and the district court 506, 113 2742, 2746-47, 125 S.Ct. L.Ed.2d 407 size, disparate impact pleaded claim was (1993). 11(a), point, join On this I Parts or mounted See 70 F.3d here. 11(d) 11(c), majority opinion. of the I Thus, F.Supp. although n. 15. this add a few words because I believe that the potential pleading issue have dissenting opinions unduly reductionist theory development disparate under im- presumptions their view of pact, considering is there no basis for eases, Judge opin that Chief Newman’s claim in this case. particular ion in misconstrues those ancient cases, Court railroad accident Mo SI, Judge, concurring CALABRE Circuit bile, Jackson, & City Kansas R.R. Co. dissenting part. part and Turnipseed, 219 U.S. are, me, principal it seems to four There (1910) L.Ed. 78 and Western & Atl. R.R. v. issues that divide court. The first is the Henderson, weight given to be (1929). understood, Properly L.Ed. 884 I of discrimination ease once the defen- believe these cases support majority on explanation dant for its this issue. significance actions. The second is the to be Tumipseed, the Court to the found constitu- afforded fact tional a permitted state statute that pretextual. found to be an infer- third is wheth- er, given negligence ence of against the in court’s to be banc answer to the drawn questions history first railroad two and the defendant from the fact railroad (a) (b) appropriate, permissible requiring accident. While a rational connec- (c) unwise, simply illegitimate (the accident) the in tion between the fact shown standing bane original court to leave and the fact (negligence), inferred the Court appellate panel’s conclusions. The fourth found that such a link It existed. neither point applying and final the in required nor found that people reasonable whether — questions banc court’s to the first answer two would probably believe more than not that to the facts of this case —a reversal the existence of a bespoke railroad accident trial court’s discrimination war- negligence. simply railroad It found that the dissenters, (Only Jacobs, ranted. correlation between railroad accidents and by implication original panel and — —the negligence high railroad enough justi- members, issue). spoken to this last fy constitutionally—the placement — questions, explaining On burden of agree happened the first two what on the with the Indeed, majority of the in railroad. strong banc court. As to the connection was third, held, I agree with the enough, dissenters’ conclusions allow a state to (though only prudence as a matter of require against rather a verdict the railroad if it Miner, Walker, Jacobs, Judges val, McLaughlin, join my opinion. Le- and Parker this Part of

1355 fact to Turnipseed, 219 the fact shown and the be inferred— U.S. to answer. See failed 43-44, jury 137-38. 31 at to survive and be considered once at S.Ct. defendant answered. See Tumipseed. overrule did not Henderson Henderson, 642-44, 279 49 at U.S. at S.Ct. however, held, link that between It 447—48.2 negligence, and railroad railroad accident enough placing to allow the strong while Tumipseed to Applying and Henderson response on railroad under the burden of us, the situation before what do we see? We to strong enough sur- Tumipseed, was not see that certain facts that correlate with jury’s once vive and affect determination discrimination have been deemed sufficient proffered This had an answer. the railroad require an to answer the defendant. jurors could not find reasonable was because meaning That is of Title as VII read (the proven to railroad’s the fact be Mary’s. Burdine and St. We also see that followed, probably more than negligence) to plaintiff over time the facts the must show (the not, fact demonstrated acci- from the require such an answer have become rela- dent). words, In the correlation be- other tively emphasizes minor. after case Case impose high enough to tween the two was See, e.g., de their minimis nature. Chertko- answer, duty to it but was the defendant Co., v. Connecticut Gen. Ins. 92 F.3d va jury strong enough support to verdict Life (2d 81, Cir.1996); Copy 90 Chambers v. TRM had that an- after the defendant (2d Cir.1994).3 Henderson, 642-14, 29, Corp., 279 U.S. at 49 37 swer. See Ctrs. words, sufficiently though at 447-48. still correlat- S.Ct. other satisfy require- ed with discrimination to Tumipseed do not fit and Henderson with pain ment the defendant answer on tidy The schema. infer the dissenters’ facts, losing, these like the facts of an acci- is, Judge Tumipseed ence in Winter’s required in Tumipseed dent that also an is, terms, That strong prima facie case. answer, necessarily, and without (rather do not judg simply permits) compels than more, support finding of discrimination. if it is not answered. ment for the Indeed, required that facts so Title VII at Turnipseed, 219 at 138. U.S. weakly correlated to discrimination as those sufficiently does not yet, And it is weak —it sufficient to out a strong enough correlations between we have deemed make reflect easy why. question to Nothing law It is see of who in the later criminal cases cited non-persuasion policy Judge the risk of is a dissent undercuts the ba- should bear Chief Newman's rea- holdings issue that be made for number of Tumipseed sic and Henderson. is like the decision to hold a sons. As such it suggests Tumipseed Winter regardless liable for rail accidents railroad despite longer good law Henderson are depends logically on whether the fault. Neither Supreme Court has never overruled fact that the plaintiff has or has not shown facts demonstrat- (Winter) n. 2. them. See 114 F.3d instead, question, ing negligence. The of wheth- can, Leaving whether academic criticism aside showing sufficiently cor- er the accident is (as opposed legal systems to Civil Common Law negligence related to deprive legal systems), Law court decisions logical-empirical probably is a than not” "more authority, I the criticism of these their believe question Henderson and one. It is latter Judge Winter im- to be more limited than cases correctly progeny say must be answered its strings plies. Tumipseed and Henderson had two satisfy Due Process. proved— was that facts their bows. The first only mildly correlat- railroad accidents—that is that the "was 3. All that needed fault —can con- ed to facts to be shown—railroad rejected qualified, under circumstances but was stitutionally support temporary inference give which rise to an inference of unlawful dis- answer, requiring yet Burdine, negligence not be crimination." Burdine, constitutionally permit jury to relying find sufficient on McDonnell S.Ct. at 1093-94. probably showing negligence Douglas, recognized than not." The sec- "more made if constitutional, that, class, presumptions protected plaintiff belonged was to be ond to a (i.e. proof rejected despite of non- qualified job, shift the burden of the risk and was for it that persuasion) appli- high- open position facts that are must be based on the fact that this remained qualifications. ly proven. facts to be See id. correlated cants with similar indeed, has, (citing effectively S.Ct. at 1094 n. McDonnell been criticized. n. second Green, first, Douglas Corp. germane to the issues which what 1817, 1824, (1973)). us, similarly 36 L.Ed.2d 668 undermined. has not been before ease, enough presence factors, Douglas accepted by McDonnell —in by of an answer the defendant —to applied consistently by Burdine and the cir- finding of Title would courts, VII cuit have deemed sufficient. give significant rise to constitutional doubts disagree. They The dissenters believe progeny. under Henderson and its Burdine, effect, played that limits the role say, It will do not as Chief New- by Douglas by provid- the McDonnell factors to, man’s seems that since dissent Henderson enough that those are factors to establish requires strong relationship between the prima only facie case in “circumstances inferred, plaintiffs and fact shown that case give which rise to an inference of unlawful necessarily requirement. meets that To the discrimination,” and that in such circum- contrary, quite clearly Henderson distin- they sufficiently stances are correlated with guished necessary require between what is requirements discrimination to meet the necessary permit an answer and what Henderson. think that the dissenters are

factfinder, more, without to find discrimina- wrong. hand, tion. On the one the Henderson Court place, In the first Burdine “circum defines Tumipseed’s holding did disturb that a give stances which rise to an inference of it statute was valid to extent that stated by unlawful giving discrimination” the four negligence that an accident and railroad were Douglas example. McDonnell factors as an sufficiently require by linked to an answer It makes clear that those factors are suffi hand, the railroad. On other (but necessary) cient to establish what it Georgia Henderson Court struck down the Burdine, prima calls facie case. See 450 statute, statute that on insofar as the basis of 6, 101 at U.S. 253-54 & n. at S.Ct. 1093-94 & correlation, permitted same a factfinder Accordingly, fairly n. 6. Burdine cannot negligence to find that was there railroad interpreted any requirements to add for a whenever there was accident. prima beyond facie case what was demanded circumstances, Under there are Douglas, McDonnell it what means ways two out. We follow the “inference” must Tumipseed be a inference. say that all prima that Indeed, Burdine, after courts have continued facie ease does is what valid statute did regularly rely on the four McDonnell in Tumipseed require the defendant — Douglas factors to determine when a de min speak. spoken, And once the defendant has prima imis facie ease exists. the existence of sufficient evidence of dis- place, In the second while the dissenters crimination must be determined anew minimis, phrase criticize they de looking accept all at independently description requirements that previous from the temporary existence of the “ ” ‘not onerous.’ 114 at inferenee/presumption. F.3d n. 3 Alternatively, we (Newman) Burdine, (quoting may reject majority’s 450 at view and declare 1093), plaintiff may that a or “minimal” 114 F.3d prima not make out a (Newman) 1366, n. (quoting facie under Mary’s, Title VII without St. presenting 2746-47). is, instance, 506, 113 evidence that in the first U.S. at S.Ct. at suffi- And this ciently they correlated with find discrimination so that ease that Fisher has out made people reasonable can probably age find more facie case of discrimination on actuality than not that there is discrimination what simple whenev- is little than more 1) er the has made such showing. Douglas McDonnell showing that: she would, interpretation my 2) This judgment, years old; forty was over quali she was demand, 3) 4) fied; force us to rejected; she position goes evidence of discrimination that well given applicant be- was to another with similar yond the de minimis qualifications.4 amount that Yet the dissenters then as- part 4. The dissent relies in an)(quoting district College, court's Fisher Vassar " faculty (S.D.N.Y.1994)). 'all F.Supp. other tenured who were To the ex equally qualified or less than Dr. Fisher were at tent the district court found that some of years younger least nine younger Dr. faculty qual than Fisher when these members were not as they (Newm were tenured.'" plaintiff, finding manifestly ified as'the suf- (2) circuits; sufficiently undercut the emi- showing correlat- and other sert that this nently requirement to meet reasonable defen- ed with my opinion, it demon- Henderson explain test. Title be made to dants in VII cases the dissenters do strably is not.5 Whether relatively frequently.7 say- But actions their showing this they believe that enough case is not ing that a sufficiently point to discrimina- really does factfinding support a of discrimination has— instead, whether, they are confused tion, or problems. own point as the dissents out —its showing has been fact Mainly, requires say us to the term case,” this and that “prima a facie termed differently is in “prima facie case” used Title implies of the law phrase in other areas unpleasant. is VII than elsewhere. And this verdict, jury to a sustain evidence sufficient nevertheless, is, better solution. It right I that it say. But if am is for me to Tumipseed It would nice if and have been correlated, they sufficiently then what isn’t Henderson had said that the there Henderson, by and to is forbidden wish do prima negli- out of had made a facie case minimis, de failing call the factors neither to gence require sufficient to the defendants to “pri- a the factors establish calling nor what answer, support jury to a but insufficient “inference,” makes them or an ma facie case” given. They an verdict once answer right.6 (Their different words instead. used suggested ways out that I have Both of the conflating presump- and inferences words — requirement of Making the problems. problems.) own But tions —had their enough it strong so that a facie case prima made, majority point they and which the more, fact-finding a truly supports, without same, makes, a and is nonetheless discrimination, would, my judgment, in do of profoundly in wise one. There are situations in banc court things that no one two to which it makes sense force defendant (1) require the overturn- recommended: has actions, plain- explain and its once a to itself Douglas as ing of Burdine McDonnell and which, though too weak facts large of this tiff shown number decisions well as a I, Mary's. analogous in Burdine and St. to those I discuss in established flaws fers from myself necessarily speak only I and not here note infra. joined my Part for the which has skeptical. opinion, blood has am Too much enough case is 5. this kind Whether be, been, spilled to over who has and continues weight to be also considers the added when one evidence, coming with forward the burden pretextual given answer is a to a defendant's that, plead give me confidence under modem III, question in Parts II and consider infra. Moreover, ing, it doesn’t matter. the enormous discovery given judge ato district over discretion Judge opinion states that under Bur- 6. Winter's asked, questions and the the nature of the makes dine, (1) "plaintiff was a female the fact that the answers, likely specificity to be of the (3) (2) reject- job question qualified for the brought very explanations from the different (4) proof of a male—is alone ed in favor Mary’s St. rules. It also the Burdine and forth give an which rise to inference of 'circumstances process suggests very in the different role F.3d at discrimination."’ 1387 unlawful Appeals. Finally, some—not neces the Courts (quoting n. Burdine 450 U.S. sarily question appropriateness also I— 6). (Winter) use of the word at 1094 n. But the long Supreme of its of the Court’s abandonment no more than in Burdine need mean “inference" statutes, in standing interpretation of the relevant temporary requiring defendants inference “acquiescence,” light Congress’s em silent And, important, Tumipseed. explain, more as subsequent phasized enactment another derailment is insufficient- if the fact of railroad statute, Disabilities Act Americans jury ly railroad fault correlated with 101-336, (1990) Stat. 327 PubX. No. negligence probably than "more not” verdict of (codified seq.), §§ et U.S.C. seem held), (as describing Tumipseed it is Henderson ingly subject the same rules. See EEOC hiring of a hard understand how mere Inc., (1st Amego, Cir. F.3d 145 n. qualified place qualified male in female 1997) ("The interpreted a manner ADA say defendant finder of fact to allows a VII, frequently courts have to Title similar against probably than not” discriminated "more burden-shifting analysis of invoked familiar women! cases.”) (citation Douglas in ADA McDonnell omitted); Westmin see also Lawrence v. National (3d that, Jersey, n. given 68 & 7 suggest the avail- Bank New Winter does ster First, Sixth, 1996) (collecting ability discovery, cases from the Cir. Circuits). burden-shifting and Seventh framework wish abandon probably to demonstrate more than not that I cannot doubt that existence of liable, pretextual more, explanation, should be are neverthe- points without defendant sufficiently possible wrongdo- less linked to in the direction of discrimination. It does ing by justify explana- weaken, the defendant to minimally, must least end, says such potentially tion. whether one forcefully, strengthen the evi- showing plaintiff gives rise to an plaintiff orig- dence discrimination that the inference, temporary presumption, or inally part adduced. It was in because the (or, matter, Thucy- facie case I, deny seemed to and I Plaster) relatively dides or Mustard unim- well, believe others voted to rehear this portant. What counts is that we not let issue, case in bane.9 On this unlike the issue keep verbal confusions us the result of the there now at least long interpreted by that Title VII —as agreement, among verbal all members courts —seeks to achieve: (That agreement may, in banc court. howev- can force out the defendant er, weight mask division how much ease, with relative but that the defendant can practice given pretextual should be a an- to (once only given) be held hable an answer is swer.) The members of the have sup- a of truly when discrimination is joined an opinion stating original that their ported by majority stays facts. The true pretext “points a comment that no- course, join to I and therefore it in this device, where” was a rhetorical 114 F.3d at respect. 1346, (Majority) agree and the dissenters importance pretextual

that the of explana- a nil, virtually tion varies from in some circum- II. stances, others, great to 114 F.3d at 1342- significance given What is to be to the fact (Newman) all, 1344. All in I find the current given by explanation that the the defendant 11(b) pretext discussion of in Part of the pretextual? is thought One that majority opinion satisfactory, join and so I it. requirement of answer would mean however, explanation, I add a few words of required, an honest answer was and that they will explain, because serve to to some absent honest answer the defendant degree, my disagreement majority with the given having should be treated as no answer points on three and four. was, course, position rejected at all. That of by Mary’s. Mary’s, St. St. begin by See I making explicit implicit what (Indeed, 113 S.Ct. at 2748. majority that is the in both opinion and Chief many only important one of the statements Newman’s dissent —that strength dictum.) in Mary’s holding St. that is and not pretext, of the and therefore the amount of holding paradoxical. it,10 Some find that required depends to counter is, however, plausible is, There a part, context. pretexts This because it,8 event, in any we are bound to follow many come in varieties. Consider the follow- it. examples: two majority Mary’s 8. presumably in St. given plaintiff's prima believed be to the facie case in such making a defendant a answer is matter of review. importance (despite availability crucial discovery) even, any perhaps since or answer — pretext always 10.Since I a believe that out starts especially, helps a false to look one — discrimination, pointing in the direction of I will for, find, maybe proven those facts that speak of what kind of evidence is needed to aim, demonstrate discrimination. This which respect, may counter that vector. In this I sound majority’s interpretation also central to the rather more like the dissent than the Mary’s requirements, explains why Burdine-St. opinion join. that I But I since also believe that answer, Mary's any St. including deems a false pretext plaintiff’s an uncountered added to the one, requirements. sufficient to meet those support facie case need not be sufficient discrimination, me, others, an ultimate I The other do not issue that moved require pretext rehearing permit vote for be an in banc countered to was what has law, judgment, times appellate been described as the as a matter of reviewabil- no discrimina- ity Accordingly, join majority's factfinder’s ultimate tion. determination discus- discrimination, significance but is in fact sion. frequently be in Title VII cases— says it it can de- Example 1: university A did not she tenure because minimal. someone nied out that enough It turns publish articles. pretext and the Based on discussion many published as as is a lie—she of the we can one preceding university knew promoted, and the those weight a standard for be formulate it. to each. One could summarize ascribed says Example 2: A de- university instance the first standard —in relevant was too she someone tenure because nied subject the normal trier of fact but It out that this to fit in. turns aggressive by making points. seven rules review — manifestly were promoted lie—males is a First, point a discrimina- pretexts all toward aggressive. uncontroverted, and, if tend to tory motive example points to first (but require) do not a lie weakly. It so does Second, pretexts may all discrimination. motive, and in the con- an ulterior suggests of non-dis- sufficient evidence countered brought of a claim text —and Third, give pretexts do not all crimination. VII, Title the existence made —under of discrimination. equal support to dis- motive some evidence ulterior Fourth, quality quantity evi- example offers crimination. second sufficient to counter deemed dence It stronger evidence of discrimination. depend pretext’s nature —weak on the will lie, discriminatory linked only a but he a will to overcome evidence suffice general stereotype namely, are and that women — gives only infer- that rise to a weak pretext Many aggressive than men. ought to be less discrimination, spe- strong and of while ence stronger and weaker examples of even other a required be to counter cific evidence will can given, pretexts all pretexts could be gives strong that rise to inference. pretext arrayed ranging on a be as continuum seen Fifth, depends is sufficient what evidence provide weakest from those that strength of the facie case on the also those that finding for of discrimination for evidence discrimination the other strongest support.

provide the Sixth, it there- introduced. is that has been Mary’s, permits pretext Under St. pretexts that can to believe all fore erroneous require) of discrimina- (but finding not does only types of by certain overcome be appeal unless such upheld will be on tion that (e.y. “strong” specific evidence evidence See St. clearly is erroneous.11 specific of a mis- evidence third reasons or at 2756. Mary’s, was in the taken belief clearly erroneous But whether particu- allegedly category). This favored necessarily depends of the on nature de minimis nature larly true as as other evidence pretext well on what employment in the facie case Where presented. been discrimination has Seventh, quite apart context. discrimination specific dis- points strongly the pretext not, or pretext is countered whether the crimination, a “third reason” the existence of plain- has answered once the defendant discriminatory of a lack or clear explana- by giving an prima facie case tiffs required to may counter well be intent pretextual, tion, if that even pre- Where of discrimination. inference on its own and can plaintiffs case stands indirectly only weakly toward or points text sufficiency by appellate an tested be non-discrimina- evidence of words, fact, in other court. evi- general. much more Such tion be Mary’s out a Burdine-St. made may, example, to more amount dence case, defendant has and that the prima facie together possible hints reasons than third giving pretextual strengthened that case generally non-discrim- with the existence of necessarily, explanation, may, need not of the inatory history part or on the attitude dis- determination of that a factfinder’s if mean especially so employer. And this would can stand. crimination is—as prima facie case plaintiff. non-persuasion rests on again, way the fact that risk in no alters Once just lie, III. could be viewed or as a discriminatory lie derives from a stereo- majority granting modified order claimed, type. incorrectly Vassar for exam- provide in rehearing bane to ple, spend enough did not Fisher time in rehearing was “limited to the force and effect simple the lab. Was this lie or was it pretext finding, together taken with a stereotypical based on a view that married appeal considering in on spend women with children less time whether ultimate of dis- question lab?12 I also find the close be- clearly crimination is erroneous under Fed. cause—like the believe the district —I 52(a).” (Majority) R.Civ.P. 114 F.3d at 1347. I findings, eourt erred some its am rulings it Because found that the banc significance unsure of the full of those errors. these issues of law were consistent with the circumstances, Under I therefore employed by panel, rules agree with the dissenters’ conclusion that the panel’s deferred to the assessment of the original court banc should defer to the majori- facts. I do not believe While panel’s emphasize, determinations. I howev- ty obligation engage had its own er, I grounds so do on the facts, independent assessment of the I think prudence. The deference accorded to the prudent that would have been for it to do panel by perfectly legiti- the in banc court is so. because I question This so find the simply mate —I think it is unwise. facts, quite close on the and also because I engagement sense that an with the facts have clarified least of the part dis- IV. agreement the majority between and Chief question The final is whether a reversal of weight Newman’s dissent on the to be the trial court’s of discrimination is given, practice, pretext. to a fact, warranted. Were the finder of

Assuming accept principles we set were I forced to stage decide at this forth in I and II of opinion, proceedings, Parts still we I think I that would not have have to decide whether in this case the evi- found that the had met her burden dence of non-discrimination is proving pri- sufficient to I discrimination. believe the suggestion weak, counter the very discrimination that ma facie ease is that little addi- dissembling, arose from Vassar’s and more tional discrimination been generally taking whether presented, pretext “semi-strong,” and that the whole, as a Judge defendant’s evidence generalized and that there is sufficient coun- Motley’s finding of clearly tervailing discrimination is pre- evidence to overcome both the question close, I part erroneous. find this in text and the supporting other evidence dis- strength suggestion time, because the of the applying crimination. At the same discrimination raised ordinary error, Vassar’s lie is less rules of review for clear I am easily gauged many than in cases. far from Vassar’s sure that I would find the district Judge separate opinion suggests 12. simply Jacobs in his stereotype to show that the offensive stereotype that while be there could plausible? Obviously, that mar- if one can show the for- spend ried women with children mer, less in time labs pretext points strongly more in the children, than unmarried women with there is no direction of discrimination than if one can evidence in the record “that Vassar's decision- show the But latter. I am inclined to think that grip stereotype." makers were of such a plausi- even a bare that a false answer is (Jacobs) pretend 114 F.3d 1350. I do not to bly stereotype connected to an offensive makes spent anywhere near as much time examin- considerably probative that false answer more has, Judge the record as Jacobs see Part infra pretextual discrimination than a answer that is result, assume, arguendo, IV. As I will that he is stereotype. unconnected to such This means lacking. correct that such evidence is only thing that the needed to raise a doubt as to something most, simple whether however, was lie or based was At that would raise an interest- stereotypical instead on view is ing question. that the determining give whether to plausibly stereotype. weight pretextual Judge be connected to more to answer plausible stereotype, linked to an offensive Jacobs concedes such a connection must one show gave my argument defendant exists in this who false answer is that is all grip stereotype,” enough requires. “in of such a is it (whatever to decision discrimination reconsidered court’s determination be). clearly erroneous. require a far would Either conclusion 11(a), Accordingly, I while concur Parts I of the record than have

deeper examination 11(b), II(c), 11(d), and IV I to make that examina- do not need made. opinion, judgment I would vacate tion, however, majority’s decision given the court, respectfully hence district dissent agree panel panel. to with to defer court’s from the banc reversal of that the district at least in some instances judgment judgment and from its award of to in how it went about court erred the defendant. whether, But I do not know discrimination. corrected, the district once these errors are NEWMAN, Judge, 0. JON Chief would find that on remand would or not court KEARSE, WINTER, Judges whom proving plaintiff met her burden dis- concur, dissenting: CABRANES Thus, ready I am as- crimination. sume, dissent as Chief Newman’s rehearing result of this banc is the do, sending the back for a case seems rejection of entirely unwarranted a trial free of errors would neces- reconsideration judge’s findings of discrimination ultimate sarily lead the same result. age against married women and discrimina- (Newman) Indeed, I believe that such a college tion in the denial of tenure to gives credit to the distin- view insufficient though find- professor, even those ultimate judge heard this guished district who has ings supported by establishing facts conclude, ready But I am also not ease. prima facie of discrimination on both case (and, effect, majority), panel as did the grounds, by a sustainable would be in- that —cleansed error —there employer’s proffered denying reason for ten- discrimination, and sufficient evidence of pretextual, ure additional sustain- any finding of therefore that findings pointing to discrimination. able require appeal. would reversal accomplished by This a combination result reasons, the in For I would have these panel of the in banc court and the of actions thorough court itself undertake a banc either Though I originally appeal. decided alleged errors of dis- examination that, do doubt some Title VII and trict court or remand the cases, an ultimate ADEA discrimi- Thereafter, for such an examination.13 clearly may properly nation be ruled errone- district court would be instructed recon- finding despite pretext, a of there is ous valid holding, light in of sider its the these errors. ruling appeal. a on this no basis such Finally, put any I would off determination as dissent, only respectfully I because of finding not to whether the ultimate of the district disagreement ap- with the outcome was under error court sustainable clear re- but, view, peal, significantly, because the until I had me new and more before its case, publications top disposition reviews one case but not in the the in 13. Because of another, go plausible only would waste time to over each of the non-discrimi- unless there one, alleged point actually change. I will out natory errors. the An absence reasons for would, goes primarily itself, to the existence of a rather in be evidence of such reasons question directly than to the ultimate of discrimi- pretext. not the court But that is what district it is error that is nation. I do so because an here. What the court did seems to found frequently in of this The dis- made cases sort. employer, the rather was to set standards the court concluded that the Vassar (non-discrimi- trict the set its own than let plaintiff published top jour- that the had not in always perni- natory) standards. And that published because the had nals false pernicious particularly in academic cious. It in a series of reviews district court athletics, contexts, where, only all we second scholarly leading journals. But believed were we than the coaches think that are better coaches is not what are first-class reviews district Gant, Lieberman v. F.2d themselves. Cf. is, perfect to determine. That Vassar has a court Cir.1980) J.). (2d (Friendly, right to what its decide for itself standards are Jacobs, Walker, Miner, McLaughlin, Judges promotion may premise publication and it in Leval, say they authorize journal and Parker me the district court thinks is awful. agree right these a set with observations. Vassar has no to characterize rulings in majority VII, bane combined facie case” under Title assessed without panel depart prac from settled law and regard persuasive to the oppos- force of respects in concerning tice several discrimi evidence, ing necessarily is not sufficient to law, review, appellate nation and in banc take the ultimate issue of discrimination to practice. aspects One of the most bizarre view, In majority’s fact-finder. majority’s opinion is its insistence that prima Title only VII facie case serves in deciding only very banc court is require proffer the defendant to explana- an majority narrow issue opinion even as the action; tion upon for its adverse lack of such significant advances views on matters far proffer, judgment is entitled to beyond the narrow issue identified. The ma But, says as a majority, matter of law. jority says deciding banc court is proffers explanation, defendant the issue of “whether of liabili plaintiffs prima necessarily facie case is VII, ty supported by prima under Title fact-finder, facie case and a sufficient to pre sustainable take the case to the text, subject to review for i.e., clear error.” support an inference of discrimination. 114 F.3d at 1333. That issue was never Though recognize I plain- that the facts of a question, findings since of discrimination had prima tiffs facie case be so under- always subject review, been to “clear error” mined or by opposing so overwhelmed evi- and the Court had confirmed the dence that no reasonable fact-finder could review, availability prior of such to this in disagree find with the view rehearing, Mary’s banc in St. Honor Center prima case, that the facts of a facie assessed Hicks, 502, 511, regard evidence, without opposing are in- 2749-50, (1993). 125 L.Ed.2d 407 Beyond sufficient to an inference of discrimi- reasserting availability the obvious of “clear nation. review, error” majority the in banc under express takes to concerning several views phrase “prima long facie case” has (or significance significance) lack of pri of a recognized been to have meanings. two It ma pretext, and the usually means evidence permit sufficient to combination both in the context of discrim (but require) a fact-finder to find a dis- ination cases. puted matter in party favor of the presenting Understanding my the reasons for dis- prima facie case. prima This is the agreement majority requires sepa- permissible case that creates a inference. (1) rate consideration of what the circumstances, mean, some limited it can law, has said about especially addition, require evidence sufficient to a find- significance of a facie case and the disputed of a party matter favor of the (2) significance pretext, presenting facie ease in the ab- appellate role of an panel in reviewing the proffer sence of (3) oppos- findings court, factual of a district the role ing party. banc court relation This to the facie case that (4) being reheard, whose decision is creates a presumption. rebuttable The Su- panel’s consideration of the merits of Dr. preme Depart- Court made it clear in Texas Fisher’s claims of discrimination. Since Burdine, Community ment v. 450 Affairs primarily these issues relate to Dr. Fisher’s 248, 1089, U.S. 67 L.Ed.2d 207 claim of against discrimination her as a mar- (1981), context, in the Title VII woman, ried context, consider them in that using phrase Court was “prima facie and discuss age thereafter her claim. case” to mean evidence that creates a rebut- presumption. table See id. at 254 n. A. The Claim of Against Discrimination S.Ct. at 1094 n. 7. Married Women 1. But, Discrimination Law Signifi- and the dissenting opinion Winter’s

cance of a Prima Facie Case and a points out, prima facie ease that creates a Finding “Pretext” presumption rebuttable stronger is an even (a) Significance concept version of prima a Prima facie case Facie Case. The majority “prima asserts that a than permits the version that an infer- Burdine, Moreover, Bur- 255 n. Supreme Court in 450 U.S. at 101 S.Ct. at ence. no prima simply way fade to 1095 n. 10. There is to a case recon- Title VII dine defined Supreme cile the “un Court’s statement Bur- employment action taken mean adverse prima dine that the four facts of give to infer a facie which rise an der circumstances case facts discrimination are sufficient “to Id. at unlawful discrimination.”1 ence of omitted). (footnote give rise an inference of unlawful discrimi- 1093-94 101 S.Ct. at majority’s nation” assertion that subsidiary given in McDonnell facts four judged a Green, “[t]he fact that to have 792, 802, 93 Douglas Corp. requirements satisfied these minimal a [of 1817, 1824, (1973), as an 36 L.Ed.2d 668 that, prima case] facie is no indication at the example prima a facie of discrimina ease case, plaintiff enough end of the will have of information tion not four isolated bits support evidence of discrimination to a ver- Supreme They are plucked from the air. (empha- dict in his favor.” 114 F.3d sufficient, example own facts Court’s added). sis words, “give Supreme Court’s rise discrimination.” an capacity supporting facts rebutta- of unlawful inference Burdine, 101 S.Ct. at presumption permit ble the inference of added). (emphasis those facts are suf Since opposing fact after the ultimate even side give to an inference discrimi explanation explicitly ficient to rise has an nation, they Congress cease to have such an recognized by adopting cannot Rule 301 prof Evidence, simply effect rule of the Federal Rules of proffer explanation. Supreme explain- That defeats fered an Court cited Burdine presumptive presumption. the four facts effect Title VII rebuttable See Burdine, explana n. had in the absence of 450 U.S. at 255 S.Ct. at would have (i.e., longer provides: Rule plaintiff is entitled to 1094-95 n. 8. tion four judgment as a matter law once the presumption In all ... a im- civil actions subsidiary proven), facts but it have been poses party against whom on it is deprive capacity of their does not these facts going directed the burden of forward with an inference of discrimination presumption, to rebut evidence or meet the proven finds these facts fact-finder party not shift to such the burden does then such an inference. The proof chooses draw nonper- in the sense of risk of this explicitly point suasion, made throughout remains the tri- which original- upon party Burdine: al on whom it was ly ease. satisfactory explanation A the defen- Fed.R.Evid. 301. destroys legally mandatory infer- dant Report explaining The Conference arising from the ence of Rule states: Nonetheless, initial evidence. amendment, pre- properly Under the Senate evidence and inferences sumption get party past by the is sufficient to drawn therefrom be considered party’s motion to dismiss made trier of fact the issue of whether the adverse If case-in-ehief. pretextual. end his defendant’s applicants ployer per- to seek 1. Burdine states: continued plaintiff's qualifications de- son's with —and establishing The burden of appropriate them as “an model for scribes disparate not onerous. The treatment case of racial discrimination." Id. at prove by preponderance must n. 101 S.Ct. at 1094 253-54 n. applied posi- for an available she say that some courts The reason qualified, was but was re- tion for which she requires the discrimination four facie case of give jected which rise to under circumstances (or by Douglas vari- facts illustrated McDonnell inference of unlawful discrimination.® them), pri- of while describe a 253, ants other courts Burdine, 450 at S.Ct. at U.S. 101 1093-94. employment action un- ma facie case as adverse quotes subsidiary the 6 then four facts Footnote giving rise to an inference of der circumstances Douglas plaintiff belongs to a from McDonnell — are, the facts is because four minority, plaintiff applied for and was racial view, Supreme sup- applicants Court's facts sufficient qualified job the for a for which were sought, rejected, port of was and the em- an inference discrimination. the 1364 party no evidence contra- The Court the

adverse offers understood statute east fact, the will dicting presumed upon the court producing the railroad the burden of jury that if it finds the basic instruct the disputing negligence, some evidence its with- facts, may presume it the existence of the out which the defendant lose would as a party If presumed fact. the adverse does upheld matter of law. Court the consti- presumed contradicting evidence the offer tutionality opera- the of because “its statute fact, jury court instruct the that the cannot supply liability tion is of inference presume pre- may it the existence of the in the of absence other evidence contradict- proof the sumed fact from of basic facts. ing such inference” and because there was however, may, jury The court instruct the “some rational connection between the fact pre- the existence that it presumed.” proved and the ultimate fact Id. of infer proof 43, the basic sumed at 31 S.Ct. 138. fact from of facts. adopts The conference Senate Though Tumipseed some view as a amendment. that permitted presumption case a rebuttable 93-1597, (1974), Rep. at 2 H.R. Conf. No. impose liability that was sufficient to in the 7098, reprinted in 1974 U.S.C.C.A.N. 7099 proffer opposing absence of a defendant’s of (second added). emphasis evidence, by but was facts created insuffi- Indeed, constituting if the facts a Title VII carry cient themselves to to a fact- permit facie case could an infer finder, e., injury i. fact of and the fact that (and majority’s ence of discrimination in the train, injury by was inflicted Su- they not), very view do then it sometimes preme thought Court otherwise: “It is not an likely that these facts could not constitution unreasonable inference that a derailment of ally presumptive that effect McDon railway cars due to negligence, some either Douglas they nell and Burdine hold that in construction or maintenance track have in the of a prof absence defendant’s trains, operation.” or or some carelessness in explanation. Supreme fered Court’s re 44, Id. 31 S.Ct. at 1382 presumption jurisprudence long ago buttable presumption requirement Tumipseed, established that a fact “one it satisfy from evidence of another” presumed will due must be to infer reasonable process requirements only facts, proven if “there be subsequently shall fact was some fact presump- rational connection between the invoked invalidate rebuttable proved presumed, cases, and the ultimate fact beginning tions a series of criminal States, 463, proof the inference one fact from Tot v. United 319 U.S. (1943). 1241, so another shall not be unreasonable be as to S.Ct. 87 L.Ed. Id. at 467- Mobile, Tot, a purely arbitrary mandate.” Jack 63 S.Ct. at 1244-45. be re- will called, son R. City Turnipseed, & Kansas Co. v. posses- involved statute made (1910). 55 L.Ed. by “pre- sion of a firearm a convicted felon Tumipseed constitutionality sumptive considered the evidence” that the firearm was of a providing “proof transported state statute or received interstate com- injury by running inflicted of locomotives felon. merce That the Court viewed or company pri [a railroad] cars of presumption merely by shall rebuttable ma the want of proffer opposing plain by reasonable evidence is made part skill and care on the of the servants of the Court’s statement the statute company.” jury Id. 31 S.Ct. at 137. presump- “leaves the free to act on the Subsequently, railway highway grade held Court uncon- train and a at a vehicle presumption against crossing stitutional a railroads that furnishes basis for as to inference shifted to a negli- railroad defendant the burden of whether the accident caused proving that equipment gence railway company an accident caused its or the traveler on negligence. highway was not any- result Western & both or without fault of Henderson, 642-43, R.R. v. (emphasis Atlantic one.” Id. at added). Thus, S.Ct. at 447 (1929). Though L.Ed. 884 Tumipseed, shift as in con- proof distinguished pre- burden of the rebuttable tinued to be concerned with the reasonableness sumption Tumipseed, pointed inferring presumed proven the Court also fact from the out "[t]he mere fact of a collision between facts.

1365 likely not specified proved, facts crimination is more than to flow. are tion alone once op- Surely, Supreme Court did not in comes forward with create unless the defendant 469, Douglas 63 at and a Id. at S.Ct. McDonnell Burdine rebutta- posing evidence.” presumption was presumption ble that was unconstitutional 1245-46. This rebuttable Tot, Leary. process Tumipseed, in with due under and It also invalidated as conflict because, oppos- necessarily proffer in that facts that the absence of follows suffice (which prov- Douglas/Burdine not have been create McDonnell ing evidence need to en), fact permitted presumption of an ultimate facts from which it inference rebuttable are rationally to facts discrimination. was not connected a reasonable trier infer that proved. support were these facts will constitution- that Since ally presumption only if valid rebuttable it is Supreme subsequently applied Court likely more than not that the ultimate fact— presumptions Tot to invalidate rebuttable subsidiary from the discrimination —flows Romano, 136, 382 U.S. 86 States v. United facts, it must be reasonable for trier to (1965) (rebuttable 279, 15 L.Ed.2d 210 S.Ct. draw the inference fact. ultimate presence from presumption of control of still Thus, support the facts that the rebuttable States, still), Leary at v. United 395 U.S. presumption in Title VII cases must also be 1532, 1544-57, 29-54, 23 57 89 S.Ct. L.Ed.2d prima to in the sufficient create (rebuttable (1969) illegal im- presumption ordinary they and to lesser sense suffice marijuana possession of portation of from to permit a fact-finder find the ultimate fact States, marijuana), Turner v. United plaintiffs of discrimination in the favor. 642, 653-54, 418-19, 90 S.Ct. (1970) (rebuttable Brushing presumption aside caselaw rebuttable L.Ed.2d 610 presumptions, majority as- posses- nonetheless illegal importation of cocaine from cocaine). “prima facie in Title Leary serts that ease” VII explained that rebut- sion only meaning, “it a third one far weaker than the presumptions are valid table where by Supreme only two identified Court can be said with substantial assurance Burdine, at at likely 450 U.S. 254 n. S.Ct. presumed not to fact more than view, a majority’s n. 7. In the Title VII proved on which it is made flow fact meaning facts “prima facie case” starts out depend.” Leary, at to 395 U.S. 89 S.Ct. (footnote omitted). presumption a rebuttable Leary made sufficient create also at then, upon proffer likely not” Court’s “more than clear defendant, a set facts that presumptions not in- becomes test for rebuttable only permits a fact-finder to infer sometimes fluenced the context of a criminal case Though does guilt proved beyond discrimination. which must be a reason- establishing say that the facts able doubt. The Court said that the rebutta- always insuf- facie case of discrimination presumption ble was invalid failure fact-finder, get it does assert likely ficient to not” test without pass “more than case is relative- that since such a reaching question of the further whether facts, sup- easy though such ly present, to meet the “rea- presumption would valid evidence, insuffi- ported will sometimes be Leary, at sonable doubt” standard. 395 U.S. as to even to create factual issue cient 36 n. at 1548 n. 64. majority’s In the words: discrimination. presumption constitu- Since rebuttable alleging can [A] tionally valid where “it can be said with satisfy dis- facie case avoid presumed fact substantial assurance that missal the conclusion likely more than to flow from the submitting direct case without fact,” proved Leary, his favor sufficient 1548, necessarily follows that the rebut- plaintiff must on each element presumption table ultimately prove to win. applied Title VII cases McDonnell (emphasis original). subsidiary F.3d at 1336-37 Douglas Burdine based on a novel majority has thus embraced facts from it can be said with substan- The which case. prima facie concept dis- insufficient presumed tial assurance that the fact of —the 1366 majority prima footnote, important views a facie discrimi- an which often over- as a collection of that al- says:

nation case facts It looked. explanation ways pry an out of a suffices necessarily vary The facts will in Title suffering pain an adverse defendant cases, specification VII above of proffered judgment if no prima proof required facie from [the permit jury also suffices to sometimes plaintiff] necessarily applicable is not in Supreme Court infer discrimination. every respect differing situa- factual prima has so characterized facie never tions. It is true discrimination case. that the Court establishing Douglas, 411 has characterized burden McDonnell U.S. at 802 n. 93 prima facie of discrimination oner- as “not at 1824 n. S.Ct. 13. ous,” Burdine, at 101 at U.S. in generalized Then the Court Burdine 1093-94, but it has not said that consti- facts prima for a stating test facie case ease, tuting prima if not facie undermined plaintiff prove “must a preponderance of evidence, by opposing per- are insufficient to the evidence” adverse action taken “under mit an inference of discrimination. In Bur- give circumstances which rise to an inference dine, precisely Court opposite. said Burdine, of unlawful discrimination.” that, Mary’s point St. made the further Again, at U.S. explana after a defendant has Court added a of explication. footnote It thereby presumptive tion and removed the referred the four factors that had sufficed case, plaintiffs prima force of the facie Douglas appropriate in McDonnell as “an prima compel not facie case does a directed prima for a model facie case of racial discri- Mary’s, favor. verdict in St. tion,” again explained mina that “this stan- 515, 113 (empha 509 U.S. at S.Ct. at 2751-52 inflexible,” quoted is not dard from foot- added). sis That is because the fact-finder Douglas important note 13 of McDonnell must or not decide whether to draw the language necessarily facts “‘[t]he will inference discrimination from the facts cases, vary specification Title VII and the constituting prima facie But case. prima proof required above of the facie though Mary’s quite understandably St. val plaintiff] necessarily applicable [the is not prima ues facie case less than what ” every respect differing factual situations.’ verdict, required to obtain a directed it does Burdine, U.S. 253 n. 101 S.Ct. at say, not majority reduce so far as to as the n. (quoting Douglas, McDonnell holds, case, prima here that a facie even 13). at 802 n. S.Ct. at 1824 n. credited, where its constituent facts are might get sometimes even to a fact-finder important qualifications These were to be Thus, Supreme for decision. Court is footnotes, relegated to and some courts that, say prof content to after a defendant always might kept not have them mind. explanation, one, prima fers an even a false Thus, repeat some courts four factors guarantee facie ease does not given Douglas that were in McDonnell as an victory. says here a sup example appropriate for that case seem portable prima guar facie case does not even regard always them enough prima for a opportunity antee the to have the though facie even the different fact fact-finder consider the case. patterns confronting such courts are general not meet Some of the Burdine’s test “circum- confusion this area of the give which way law from the stances rise to an inference of Supreme stems courts, unlawful Douglas/Bur- articulated the McDonnell discrimination.” And some ours, analysis including dine ap- prima and the said that lower courts have plied minimis,” Douglas it. McDonnell phrase identified four be “de present normally factors that were ease and associated facie case sufficed to constitute a facie case. The sufficient to take the ultimate issue to a fact- identifying sentence However, the four factors carried finder.3 even when we have la- 3. The Court has never called a VII Title case "de minimis." Burdine called it

1367 if, minimis,” prima presented, a. case is and we such facie “de prima a facie ease beled trial, always, done so with usually, perhaps at the end of the the remains inference pattern evidence, met Burdine’s a fact respect to despite reasonable the defendant’s give which rise to “circumstances then, standard in Mary’s, as Court said “no St. discrimination” of unlawful an inference proof additional of discrimination is re Centers, See, Copy 48 e.g., v. TRM Chambers 511, quired,” Mary’s, 509 at 113 St. U.S. (2d Cir.1994) 29, (collecting cases 37 F.3d (brackets emphasis at and omit S.Ct. 2749 case). facie upholding plaintiffs prima ted), goes and the case the fact-finder factors, Douglas without re- Focusing on four decision. facts in The McDonnell case, precise inference; facts of a is what gard qual to the support sufficed such an a that we in the majority to believe has led the rejected ified Black and “to subjecting employers liabili- favor dissent sought qualific other workers no better present none was ty discrimination where Burdine, also in ations.4 The facts sufficed at 1344.The was shown.” 114 F.3d and none rejected, and qualified where woman was us majority view to attributes that months, position after several was filled prima think a facie case they assume we supervi a male who had been under her is established whenever of discrimination Burdine, n.6, 101 at sion. 450 U.S. 254 S.Ct. Doug- in McDonnell factors illustrated four necessarily will at 1094 n.6. The facts not met, regardless of what facts las are protect every suffice time a member of some prima facie presents to establish facts, rejected. precise class not ed seri- That is not our view. We take ease. factors, repetition the rote of the four deter Douglas, re- ously caution in McDonnell prima mine facie sufficient to whether a Burdine, “necessarily facts in peated support an inference of discrimination cases,” and vary in Title will VII permit liability, thus to has been proof re- “prima facie “specification” presented. not Douglas “is quired” McDonnell neces- differing every respect any event, Supreme sarily applicable in I believe that the Douglas, 411 McDonnell recognize factual situations.” facie case prima Court wishes to 13, at 1824 13. n. 93 n. at 802 S.Ct. only present- under Title VII when the facts of discrim- ed a reasonable inference our mischaracterizes view terms ination. confusion such Whatever employer may saying that we think an be “presumption” might have “inference” of discrimina liable without evidence found the Court decided Henderson existed when case believe that facie tion. We 1929, that decided Burdine the Court Court said in Bur- requires, as Mary’s in 1993 understood St. dine, “un employment action taken adverse require, permits, but does not an inference give rise an infer der circumstances which Burdine, predicate fact from fact discrimination,” an ultimate unlawful ence of why 253, 101 facts.5 and that if or That is Title VII 450 U.S. S.Ct. ” Burdine, onerous,” impermissible U.S. at factors.’ 450 U.S. at S.Ct. "not (quoting Construc- requirements 101 S.Ct. at 1094 Fumco Mary’s and St. called Waters, 567, 577, “minimal,” Corp. tion 113 S.Ct. at 2746- U.S. at 2943, 2950, (1978)). Some may 57 L.Ed.2d 957 simply the low which mean at end of avail- this means that the inference range. think traditional longer prima facie is no able from the case explained. acts I are available whenever necessarily facts suffice

4. Even these would meant, said, "pre- as it that we believe the Court example, em- all circumstances. For unex- if the acts remain sume” discrimination force, predominantly ployer Black work had explana- plained; once we have defendant's rejection applicant Black would most one tion, longer presume we likely give rise to an inference discrimina- it, infer unless reasonable fact-finder tion. unreason- entire evidence makes inference able. opinion prior quoted a It is true that Burdine however, acknowledge, can that this sentence the effect that 'raises “the proffer of only pre- read that the defendant's because we to mean inference of discrimination acts, unexplained, consequences: it causes has two sume these if otherwise mandatory presumptive disappearance likely than on the consideration more not based predicate posted exist when the facts Fisher “did not meet case can standards tenure, qualified inference discrimina- support a reasonable that she was less cautioned, however, specific As the Court has than tion. other candidates who filled patterns Biology that meet standard will Department.”6 needs of the the fact vary case to case. at 1345. opinion F.3d concluded finding pretext that the District Court’s of course, prima facie case of discrimina- Of sustainable, College, Fisher v. Vassar might cease to have its normal effect of tion (2d Cir.1995) (“Fisher II”), F.3d jury permitting a to infer in majority disclaiming opinion, by any and the But some circumstances. these instances panel’s consideration of the assessment of (a) only in can arise where the evidence the findings, of the District Court’s leaves record is such that no fact- entire reasonable the ruling undisturbed critical that the present- could find to be true the facts finder finding pretext clearly is not erroneous. constituting prima the the ed as (e.g., indisputably majority says facie ease the evidence of what the in Some banc (b) unqualified), finding or pretext dispute. shows about a is not in We points in agree pretext the evidence the entire record so all that a of permits the (or away strongly from discrimination toward fact-finder draw an discrimi inference of reason) Supreme a third that no fact-finder explicitly reasonable nation. As the stated, “[Rejection infer discrimination. elimination prof could The of the defendant’s circumstances, prima facie in permit ease such will fered reasons the of fact to trier by being indisputably either undermined or infer the ultimate fact of discrimi intentional overcome, only nation, can indisputably occur where ... proof no additional of dis provides a basis for conclu- required.” Mary’s, evidence such crimination is St. ease, 511, 113 (internal sions. The facie sufficient the quota U.S. at S.Ct. at 2749 marks, footnote, Supreme permit omitted; Court’s view to an inference tion and brackets discrimination, cannot, absence emphasis original). agree We also evidence, undermining opposing or cease to the fact-finder need not infer discrimination just permit majority the inference proffered because after reason to be a believes, available, pretext. of this Court without reference to The inference is not re evidence, ought quired. such not to inference

be drawn. part begin company We the ma- when (b) Finding jority analysis The Pretext. pretext offers its of what a Effect Having meaning embraced a new and weak majority begins means. The its anal- case,” majority “prima then com- ysis by pointing pretextual out that a reason pounds by substantially downgrad- its error justifying employment adverse action pretext. effect of a might variety be advanced reasons. case, the trier of fact majority correctly found that Vassar’s The deci- observes that proffered denying reason for Fisher Dr. ten- “intentionally sion-makers dissemble” reason, pretext. ure was a to hide such true reasons as “back-scratch- acknowledged majority, ing, log-rolling, was that Dr. horse-trading, institutional depends only effect of the normally and it also renders on the reasonableness of necessarily longer inferring facie case no proven subsidiary suffi- an ultimate fact from facts, permissible cient even to inference of not on whether in some limited circum- reading deprive discrimination. That subsidiary would stances those facts are accorded the meaning word "inference” of its triggering normal mandatory extra force of rebuttable essentially equate "presump- it with the presumption disappears word upon opposing quoted problematic sentence proffer explanation. tion." is also side’s say seems because it that the inference from prima facie case is majority properly prof- available because of the 6. The identifies Vassar’s cases, presumption, yet presumption most in- fered reason the record as a See St. whole. cluding 522-23, opinions Turnip- Mary’s, Court’s 509 U.S. at 113 S.Ct. Tot, seed, Leary, reciprocal point (proffered make 'through "set reason forth the intro- ” evidence,’ mandatory presumption that a rebuttable duction of admissible than in rather Burdine, permit pleading) (quoting available facts reasonable formal 1094-95). permissible inference. Whether an inference is turn, mind, spite, personal probative and that state envy, nepotism, politics, Such-reasons, guilt (though of ultimate not alone hostility.” 114 sufficient F.3d convict). course, out, non-discriminatory. strength Of majority points flight depend starting point, the ma- inference from will on all of the unexceptional To equally indisputable slight If there is evidence case. some jority then adds pretext explanation of an innocent probative force of a point that flight, guilt issue of discrimina- inference consciousness of ultimate value, depending might be If the but varies lessened. evidence of is not a fixed tion strong, each innocent the inference the circumstances of case. upon guilt of consciousness of will be weak. And introduces three consid- then might arise eases where the evidence of an justify its view that the erations explanation strong innocent is so that no given may properly be finding in this case could draw infer- reasonable fact-finder the any, force. consid- slight, probative Each guilt, of of which event ence consciousness weakening the discrimi- risks law of eration finding a based on inference be would university nation, at in the context of least clearly erroneous. First, majority relies decisions. tenure propositions large why pre- a To assert these is number of reasons self-evident on the majority suggest, says a cir- of this explanation could be as not to as text dissent, I diminishing assign- of the that for force favor cumstance a finding ing “special” proffer made District a “fixed” or value to of pretext that was possibilities explanation a pretextual But of have for an adverse em- numbers Court. force, I ployment simply can be decision. I do not. ob- probative to do with as little serve, every appellate a court readily as that has ever demonstrated consideration observed, pretext permissible of a had a case has that find- common instance (not pretext normally permit will re- ing inference of consciousness state of mind —the finding of flight quire) from the of a crime. an ultimate guilt scene might possibility explanations that other running from a crime scene person A imagined many might is not a valid reason for done so for reasons. He can be appointment, depreciating significance pretext date of a for a or a be late doctor’s event; friend, any important finding, appellate and that an court cannot or other possibilities just validly point he left to such as a basis might have remembered that he declaring clearly apartment, erroneous trial court’s oven on his or the shower for to infer from a find- running; might he have heard a loud noise decision explosion ing pretext. thought was some endan- and there him; just gering jogger or be a who he amplifies argument its then every morning. The runs around that block possible explanations by multiple stat- about majority apparently believes that whenever pretext finding is to be accorded ing that a possible sug- explanations can be number “if, significance “minimal” on examination of normally proba- gested for conduct that circumstances, many possible are there probative of the significance, the force tive explanation, for the stated or reasons false diminishes, be triers fact should conduct unstated, illegal and discrimination is it, ap-

wary attaching significance likely a than others.” Id. more reason reject courts be pellate should emboldened added). This (emphasis statement clearly an as erroneous ultimate provide in an effort to offered normally part available infer- relies extraordinary by its what the meant drawn from such conduct. ence pretext the District Court’s statement II, totally “points unsupported nowhere.” See Fisher This view of the law is agree that a every at 1437. can unsupportable. case where F.3d fact-find- is no running that discrimination person is seen from the scene of er’s determination crime, may, likely proffer motive for the jury they more is instructed that explanations not, many pretext than other need draw an inference that such of a according guilt, ample basis for diminished flight probative of consciousness Third, finding. majori- weight pretext majority depreciates But the signifi- to a “points ty’s gloss pretextual explanation by of a on the nowhere” statement cance observ- depreciating challenged by provides no tenure decision basis many Dr. Fisher was finding in That is so because in the combined result of this case. reasons, nothing record to decision-makers. For several there was proper circumstance is also not a log-rolling, nepotism, basis depreciating pretext finding. majority’s force spite, any hypothe- or other explanations were the sized reason Vas- with, begin say, To did Vassar after proffer pretextual explanation, sar’s opportunity inquiry, full for internal dif- expla- the fact-finder did find that other participants process ferent in the tenure held pretextual proffer nations for the were as “log-rolling,” “envy,” “spite,” views related to major- likely as discrimination. Whether the suggested of the other reasons ity’s gloss “equal probability” its unflat- possibilities by majority. Vassar Dr. said tering speculation about how tenure decisions Fisher was denied tenure because she lacked strengthens argu- made at Vassar qualifications, tenure on an either absolute ruling ment for the discrimination basis, comparative or at least basis on a clearly appellate erroneous on review more Biology Department. view of needs of the A(2), in Part properly considered infra. Having proffered single explanation, its Vas- probative expect sar cannot the force majority’s The second reason for diminish- finding that pretextual this is pretext significance the of is the just be diminished because Vassar could have startling employer an notion that like Vassar proffered variety explanations of might quite understandably proffer a false might by have been its held various decision- employment simply reason for adverse action makers. of a “lack of candor.” 114 F.3d at Moreover, issue, whenever motivation is in Thus, college, usually regarded as a case, every as it is in discrimination identifi truth, pursuit bastion of uninhibited of is of cation motive is more difficult where deci proffering excused from its real reasons be- by by group sions made than an indi professors holding cause the them lack “can- fact, however, provide vidual. That cannot dor.” group insulation for decision-making per However, point three-part whole of the the by only Perhaps meated discrimination. if analysis Mary’s predecessors of St. its of 100 participating one out decision-makers (plaintiffs prima prof- defendant’s process in a impermis collective harbored an fer, prove ultimate burden to motive, group sible decision would not discrimination) to afford is the defendant an significant vulnerable. But if portion some opportunity proffer its real reason for the improper of the decision-makers shared the challenged A (or action. Title VII lawsuit not just perhaps very motive one of a small face-saving sort some of number), exercise to enable the decision is tainted. Su bashful decision-makers to excuse their lack preme recognized in principle upon of candor. The defendant is called to ruling that a state constitutional convention proffer what it believes the true reason for impermissible, racially-based acted with an its action. not precipitously. It need do so enacting provision, motive a constitutional appropriate It can inquiry though make within its even the evidence identified proffers ranks. it But once reason in delegates holding its convention some that mo court, subjects Underwood, it that reason to the assess- tive. See Hunter v. fact-finder, 222, 228-30, ment of the 1920-21, the fact-finder 105 85 S.Ct. concludes, record, (1985) (citing 222 L.Ed.2d evidence can proffered pretext, by reason appeals defen- court vassed Underwood v. Cir.1984)); (11th usually Hunter, dant is risk having the fact- 618-20 permissible O’Brien, finder draw the inference United v. 391 States cf . pretextual proffered 383-84, 1682-83, reason was to hide U.S. 20 S.Ct. (1968) the true (declining reason —discrimination. L.Ed.2d to declare act employer’s on lack of candor nor with a claim based mo Congress unconstitutional Congress nowhere,” “a expressed “points handful that such a tives men”). approach courts understanding “pretext” Whatever with an of what a group ascertaining the motives of really dictionary take is. A standard definition is pur for delegates legislators convention purpose alleged “a or motive ... order adjudication, of constitutional poses cloak the real intention.” Third Webster’s decision-making process employ of an group (1993). Dictionary New International er, determining a purposes for Title tested Thus, merely is not reason violation, may be found to be tainted VII true; on that are relies factual assertions not by any signifi impermissible motive held person proffers it is a that a but does reason process. in the participants Su cant is the real believe reason the action precise point preme Court made person supervisor has taken. If a be- City, City Bessemer Anderson funds, employee lieves has embezzled 1514-15, 579-80, discharge that belief not ren- based (1985), upheld when the rea L.Ed.2d 518 pretextual simply dered because at trial District Court’s sonableness of employee proves that he did not embezzle. citing expla pretextual supervisor’s reason just two five- nations of members pretext only if discharge supervisor is a rejected ap member committee that had says that embezzlement was reason plaintiff. plication of the Title VII discharge and does not believe that this group decision-mak- point A further about course, was the real reason. Of principle of re- ing concerns the venerable employee proba- did embezzle is superior. If an employer entrusts spondeat mind, supervisor’s tive of state true persons who act on personnel decisions persuaded employee and a did trier motives, impermissible basis might not embezzle well doubt the claimed resulting of discrim- responsible for the act is of belief.7 But the issue re- statement true, majority It be as the ination. supervisor mains —is it true that the believed the says, lying that is not about rea- Vassar employee that the embezzled? The reason just Fisher denying for tenure to Dr. son parlance) (“proffered” stated in Title VII is professors in the one more tenure or person if the pretextual does not believe majority prefers process lying, or as the saying. is What be what he or she must “intentionally dissembl[ing].” say, Never- proffered alleged for chal- is the reason the theless, legal can more avoid i.e., action, why lenged the action was taken. discriminatory responsibility for the unlawful for of its than it can their action subordinates discourse, ordinary person if In a asserts in negligent infliction of harm the course of something is and knows that it is true employment. their not, lying person would be described as (or, majority’s phrase, in “inten- the felicitous reasons, fundamentally For all of these tionally dissembl[ing]”), least in the ab- at disagree majority’s view that with the the debate, joking, rhetorical or mental sence of case, in in other pretext finding or ten- every not of disorder. But misstatement cases, generally denial is to be accorded ure fact, as to own even a misstatement one’s slight evidentiary significance on the ultimate belief, necessarily lie, in the of an or, is a sense panel’s in issue of even Though nowhere,” perjury. the distinction view, indictable “points more extreme Fisher knowingly false statement of one’s II, between a 70 F.3d at least the absence of describe, easy a lie is belief and not probative of evidence that blunts force Mary’s view, very drew this distinc- finding. my proper In St. pretext 520-21, analysis significance pretext a tion. See 509 U.S. at as to the of start, sig- The distinction inheres with excuses for an 2754-55. should observed, honestly Judge Friendly way relied that defendant could not [es- 7. As "One Gant, (2d proffered tablishing pretextual upon nature of a 630 F.2d it.” Lieberman v. course, reason], Cir.1980). would be to show that asserted neutral basis so ridden error opin- permitting Justice The reason for an inference sentence from Scalia’s nifieant pretext discrimination from ion: lawsuits, evident. the context Title VII factfinder’s disbelief the reasons defendant, likely for a motivation called (particularly put forward the defendant upon proffer explanation in court its by suspicion accompanied disbelief action, employment pre proffer adverse together mendacity) may, with the ele- explanation expla is to hide textual the true of the suffice to ments least, nation discrimination. At this is intentional discrimination. show generally plausible so in absence of some pretextual proffer. for the As (emphasis at 2749 add- Id. observed, previously we have “Resort to a ed). falsity (e.g., of the reason Since is, pretextual explanation flight from like late) did employee not embezzle was never crime, indicating scene con necessarily is not inconsistent with an em- is, course, guilt, sciousness of which evi true, ployer’s belief that the reason is illegal Long dence conduct.” Binder employer’s im- which case the motive is not (2d Co., Lighting Island Cir. permissible, Justice Scalia must have been 1995). In Douglas, McDonnell 411 U.S. at using phrase of the “disbelief reasons” 1825-26, 93 S.Ct. at mean a fact-finder’s “disbelief the defen- pretextual proffer “coverup” called really put- dant believed reasons it was course, just flight discrimination. Of so, ting being forward.” That Scalia Justice might explained, the scene a crime mendacity must have meant is some- explanations there be innocent thing putting additional to a defendant’s for- true, proffering a reason believed to be it ward a reason knows is not true. explanations weigh and evidence of such will explanations Justice Scalia offers two as to against drawing the inference of discrimina necessarily why pretextual is not reason tion. lie, criminally at least in the sense of a Thus, quite wrong opinion First, out, perjury. points actionable he pretext finding assert made dispute between two versions of an occur- “points District Court in this case nowhere.” employer’s underlying rence contrary, pointing On the out starts reason, though even resolved findings same direction that all evidence, aby preponderance favor point finding the of discrimination —toward guilt proving perjury. not tantamount constituting that is inferable from the facts Second,

See id. at 2754. he plaintiff’s prima propo- the case.8 That notes, rely company might good a faith on consistently has recognized sition been supervisor’s a of a front-line false statement Supreme appellate every the Court and professed given belief the reason for some judge that has considered a VII case. Title employment 520- adverse action. See id. at pretext finding Whether the continues to supervisor, 113 S.Ct. at 2754-55. The point toward discrimination with sufficient maintains, liar, may Justice but Scalia be a probative persuade force to a fact-finder to (though agency company the is not under depends infer discrimination evidence the principles company may be for the liable case, in the can there be no doubt lie). event, supervisor’s any Justice Scalia pretext the initial a least direction which proffered explanation, does not doubt that a finding points. Supreme When the by a not to found fact-finder be the reason says Mary’s, in St. as all other courts have defendant, pretext, said, believed is a may a also that fact-finder infer dis- (whether not) perjurious an in- supports or finding crimination pretext, from a it is ference, coupled obviously when of a the facts in no doubt as to the direction in Moreover, that pretext finding points. true reason was a which discrimination. Court’s assertion that an infer- complicated by age. consequence This case is the circumstance an and I consider the of this alleged B, has discrimination on circumstance in Part infra. grounds two different as a wom- married —status discrimination, pretextual explanation a a of- from be drawn ence of discrimination any, inferring evi- any slight, without additional if discrimi- finding pretext, fers basis necessarily plaintiff, from the required dence nation. pretext finding generally

means that Second, persuade might the evidence considera- points discrimination with toward plain- component that some of the fact-finder force, enough force enable the ble prima facie case tiffs is not established. For win, cases, except in those rare considered example, might the evidence show below, finding of fol- where pro- in fact not plaintiff is a member of the pretext, may fairly be lowing finding against tected class which discrimination was clearly spe- erroneous because of viewed as alleged. existing cial in the record. circumstances Third, might persuade the evidence cases, a fact- some have doubt has fact-finder defendant such a fully finder be entitled to consider would strong making discriminatory of not tradition pretext probative of a to be force employment unlikely decisions as to make substantially or eliminated. diminished even discriminatory it acted on the basis of general This occur of three could example, motive in the ease. For First, might decline the fact-finder reasons. might employer that an the evidence show from the inference draw promoted unusually large hired and has in the pretext because evidence group allegedly members number of of the points persuasively to the existence record against disciplined discriminated also (neither explana- proffered motive third supervisors for of discrimi- isolated instances discrimination) explana- true tion nor circumstances, if In such even nation. employment tion defendant’s adverse for the proffered explanation pretextu- to be is found example, might For the evidence action. al, fact-finder would a sound basis have gave explana- show a false (chronic declining to infer that the true discharging an employee tion for lateness) spare employee the discrimination. in order to (stealing embarrassment of true reason examples possi- do These not exhaust the funds). Many recog- company courts circumstances ble which fact-finder falsity prof- nized defendant’s little, accord properly pretext could ultimate fered reason point, any, significance. important in the face of sub- of discrimination however, circumstances, is that all such blunting normally pro- stantial evidence significance find- the diminished pretext. See bative force in the record. Evi- ing arises Tools, Oil Rhodes Guiberson dence, speculation possibilities, will about (5th Cir.1996) (in banc) (example of one normally for diminish- soundest basis to be of several reasons shown force eliminating probative even (exam- Binder, questionable); 57 F.3d at 200 pretext. a of ple explained by reason desire pretextual of evidence, relying on a Beyond such fact- protect reputation to business secret or to draw also entitled to decline an finder is Materials, v. employee); Woods Friction of discrimination from (1st Cir.1994) inference Inc., 255, 260-62 & n. 3 simply pretext because of the fact-finder’s discharge pretextual (example of reason for pretex- that the own view of the unlikelihood prevent em- accomplished to disclosure of a cover embezzlement); explanation proffered was tual ployer’s Isenbergh see also regularly Sales, judges trial Inc., discrimination. When Knight-Ridder Newspaper (11th Cir.1996) juries rely to on their “common (example instruct F.3d 442-43 lateness, “experience” determining reason, or their sense” employer proffering inference, overstated). including an inference Obviously, if an falsely the whether drawn,9 motivation, they ought than to be points toward motive other evidence drawing following process of from facts typical jury A inferences instruction includes guesswork evidence is not a matter of language: speculation. An is a deduction or inference 405-18, apply their own inviting (possession these fact-finders to at S.Ct. at 646-53 likely it views about how is that a may import- individual heroin authorize conviction for alleged moti- person acted on the basis of an ing satisfactorily heroin unless defendant ex- fact-finders, no Bench trial less than vation. plains possession); Gainey, United States v. rely jurors, upon are entitled to their com- 380 U.S. 13 L.Ed.2d 658 experience deciding (1965) sense and wheth- mon (presence being operated still inference, including draw an the deci- er to operating authorize conviction for still unless whether to infer from a sion presence satisfactorily explained by defend pretext. ant). Though two members of Court permitting believed such an inference might my permitting think that view Some satisfactory absence defendant’s ex- pretext finding the force of a to be substan- planation proof shifted the burden tially diminished or even eliminated Turner, defendant, 432-35, 396 U.S. at evidence of a “third motive” or defendant’s (Black, J., Doug- S.Ct. at 660-61 with whom the in- other circumstance weakens las, J., joins, dissenting); Gainey, see also pretext ference available from a (Douglas, 85 S.Ct. at 759-60 placing be an instance of on an would em- J., dissenting in part on self-incrimination disprove ployer burden to discrimination. (Black, J., grounds); id. 85 S.Ct. at 761 entry judgment This not so. To avoid dissenting grounds), on law, various as a matter of a defendant has no obli- disagreed. anything proffer gation do other than evi- explanation of an adverse dence its em- say (subsidiary To set of facts facts However, ployment proffers action. if it plus facie ease evidence, such it takes the that a fact- risk pretext) permits an inference of discrimina- explanation pretext will find its to be a finder presents tion the defendant unless evidence further risk that a fact-finder will undermining over- ease or infer discrimination from the facts of the contrary whelming it with evidence does not strengthened per- assign proof. to the defendant a burden of proffering adverse inference missible from simply The defendant been afforded pretextual explanation. is free every defendant, opportunity of confronted mitigate by introducing that risk plaintiff’s evidence, pres- with a sufficient explains why pretextual evidence, opposing ent without takes which it explanation. obligation It has no or burden the risk that the trier draw the infer- so, but, litigants facing to do like all the risk liability ence of from the sufficient liability permissible based on inferences opportunity pres- evidence. Neither the adversary’s evidence, it declines to ent such evidence nor the risk infer- present opposing per- its own evidence at its might be ence drawn its ever absence has il, though even persuasion burden of on thought place proof been burden of plaintiff. the ultimate issue remains on party opposing the inference. point best illustrated the numer- permitting reasons, ous cases pro- adverse inferences to be For these disagree all of against drawn defendants in criminal foundly majority’s even with the view that a find- they provide cases unless in a discrimination ease is See, Turner, jury. e.g., satisfies the significance.10 often to accorded little al., Instructions, you, jury, permitted conclusion which are Jury 1 Sand et Modem Federal ¶ added). (emphases required to draw —but not 6.01 to draw —from the by facts which have been established either majority compari- interesting 10. makes an drawing direct circumstantial evidence. suggesting "strength” son in em- of an inferences, you your should exercise common statement, ployer's probative false as of discrimi- sense. nation, circumstances, vary will with the "a like So, you considering while are the evidence exculpatory false statement” of as "an indicator draw, presented you, you permitted guilt.” comparison F.3d at 114 1345. The dem- you proven, from the facts which find to be just extraordinary how onstrates it is for justi- such reasonable be inferences as would majorily pretext finding banc to indicate that a light your experience. may probative fied in of One often have diminished force.

1375 case, (c) Facie a facie a Prima tandem with evidence The Combined Effect of Having Finding rejection employer’s proffered of allowing Pretext. Case and a of “prima often, meaning weak of perhaps usually, permit a new and embraced reasons will a depreciated signifi then finding facie ease” and of discrimination without additional simply Rhodes, because pretext finding cance of 75 evidence.” F.3d at 994. exist, unproven explanations might possible appeal presents one of Whether those majority aggregates then its views cases, explicitly by contemplated rare St. [a of both assert that “the combined effect 524, 2756, Mary’s, 509 U.S. at 113 at S.Ct. pretext] finding case and a of finding may of where be may capacity prove little what clearly despite a deemed erroneous valid proving.” ultimate of has the burden finding pretext, requires of of consideration completely at 114 1338. This view is F.3d at findings appellate an court reviews of how in St. with Sealia’s statement odds Justice fact, including finding of discrimination. “rejection the defendant’s Mary’s that permit of fact will the trier reasons Findings Appellate 2. Review of Fact ultimate fact intentional dis to infer the crimination, proof ... no additional aspect appeal On concerns required.” Mary’s, 509 discrimination is St. findings appellate review of trial court’s (internal 511, 113 quota at U.S. at S.Ct. 2749 fact, agreement. again complete we start omitted; marks, footnote, tion and brackets agree any finding all of fact We emphasis original). judge may rejected appeal be district erroneous,” “clearly finding is see Fed. majority “a Though agree with 52(a), R.Civ.P. conclusion together finding pretext, appellate when the court is “left with always reached comprising is not firm the ‘definite and conviction that a mis- sufficient to sustain ultimate ”12 discrimination,” take has been committed.’ See Inwood 114 F.3d at 1343 intentional Laboratories, Laboratories, Inc., added), Inc. v. Ives (emphasis it will be a rare 844, 855, 2182, 2189, Surely 102 72 this is not so. the three 456 U.S. S.Ct. where (1982) (quoting for the lan- L.Ed.2d 606 United States v. cases11 cited Co., 364, just examples Gypsum 333 U.S. guage quoted are not of such United States (1948)). 525, 395, 542, was L.Ed. 746 insufficiency because none of them 68 S.Ct. 92 Furthermore, all, all any pretext finding agree much less a we basic there appellate applies to find- by opposing principle evi- review diminished noted, ings “In state of the Fifth Circuit has of fact about defendant’s mind dence. As Reporter person could find the Federal in vain for a can be said that reasonable will search Co., Ry. jury Brady did. See v. Southern guilt held to as in which a decision 476, 479-80, 232, 234-35, S.Ct. 88 320 U.S. 64 clearly strength he erroneous (1943); Mattivi v. South Ma- L.Ed. thought exculpatory to be false statement was African 163, Corp., "Huguenot", 618 F.2d 167-68 "circumstances," rine by the even those diminished Cir.1980). (2d reject clearly To erroneous a record, possible less the shown much finding, judge’s appellate need court trial appellate speculated that an court circumstances judge say reasonable could make such a that no explain why might make a defendant observed, finding. As the exculpatory false statement. ‘clearly significantly "the erroneous’ standard application [a]nd ... of a reasonable- deferential Bank, USA, Hargett 11. v. National Westminster ..., requir- even ness standard is more deferential Cir.1996); (2d Schering Corp., F.3d 836 Sutera v. reviewer to sustain a fact (2d Cir.1995); Tiffany Quaratino 73 F.3d 13 & unlikely person no reasonable unless it is so Co., (2d Cir.1995). true____” Pipe find it to be Concrete & would California, Inc. v. Construction Labor- Products of of a bench of fact Trust, Review trial ers Pension "clearly requires 2279-80, (1993) it is (empha- determine if erroneous” 124 L.Ed.2d 539 States, judge. added); to a district Laborato- “deference” Inwood see Perrero v. United F.2d sis ries, (5th Cir.1979) but less (noting distinction be- judge's jury’s jury accorded Be- deference than is verdict. and trial tween review of verdict considerations, Stokes, Casualty findings); v. cause of Seventh Amendment Continental Co. 249 (5th (same). 152, Cir.1957) jury's fact-finding may rejected not unless it 154 be F.2d 1376 Supreme significant cases. The Court evidence District discrimination overlooked Court); years ago. Mary v. point Washington fifteen See Jiminez Col

settled (4th Cir.1995) (re 369, Swint, lege, 57 F.3d 380-82 v. 456 U.S. Pullman-Standard 1789-90, 287-88, finding analyz of jecting 72 discrimination 102 L.Ed.2d after S.Ct. (1982) (intent deeming trial insubstantial evidence to discriminate is issue of 66 analyzing court relied and also fact, subject “clearly substantial erroneous” standard evidence); review). contrary Sumner v. United States Finally, agree we that clear all of (2d Service, Postal 899 F.2d 209-11 Cir. finding available for a of review is error 1990) (analyzing opposing evidence District finding pre made after a of rejected finding prof employer’s Court’s stated in As the Court St. text. discharge pretext). fered reason was not pretext, Mary’s, finding even after a of claim “remains a of discrimination case, the in decision that answer, subject, question for the factfinder to majority permitted has go banc into effect course, appellate should of review—which perform did not either task. It not even did ‘clearly ... under the errone be conducted purport to deem deficient the un- evidence of Federal Rule of Civil Proce ous’ standard derlying plaintiffs prima either the 52(a).” 524, 113 Mary’s, St. dure U.S. against of discrimination or married women (citing City at 2756 S.Ct. Anderson of pretext. of finding Not Dis- one of the 573-76, City, Bessemer subsidiary trict of fact findings Court’s (1985)). 1504, 1511-13, 84 S.Ct. L.Ed.2d unsupported by was ruled Nor evidence. panel attempt did to marshall evidence divide, however, not on whether an We opposed finding the record to the of ultimate may finding appellate court review a of dis- discrimination. clearly crimination to determine if it is erro- neous, but on how such review be made. not This does mean that a fact-finder’s simply appellate An court not review a inference of discrimination is from immune left record announce that it is with a clear An appellate review for error. court firm conviction that a mistake has been may reject finding an inferential if ultimate judge After a district an made. made erroneous, subsidiary clearly facts are if finding supported ultimate of fact and has complete subsidiary there is a absence of large with a of number subsid- facts, e.g., Alpert, Group, Goldhirsh Inc. v. fact, findings iary proper regard for the (2d Cir.1997) (inference 109-10 relationship appeals between a court rejected telephone content conversation requires district court a bare as- more than predicate), for lack of factual fact- or disagreement. reviewing sertion articulated, on, necessarily finder relied obligation analyze court has an either to aspect reasoning process its that was relied on to evidence ultimate merely appel- from different the views of the explain why seriously finding and it is defi- demonstrably late court but was unsound. cient, analyze or to other in the rejection But the must be based on evidence explain why substantially record so in the record. supports contrary to the one disagreement Our on the circumstances judge the district reached as create under which inference of discrimination firm judge’s conviction is may rejected is at the heart of the matter. Anderson, wrong. See 470 U.S. appellate believes that an court cases, In rare both tasks may reject a fact-finder’s dis- inference appellate rejection lead to finding. crimination, drawn from a pretext, (or

Appellate rejecting courts appellate district court court whenever the thinks 52(a) convinced”) findings clearly terms, regularly firmly erroneous have Rule “is See, e.g., Dayton undertaken these tasks. reasons other than as like- discrimination are Brinkman, ly pretextual Board Education v. explain proffer as discrimi- 526, 534-37, 2971, 2977-79, authority 61 nation itself. No for this cited (1979) (approving Ap- proposition, any L.Ed.2d Title VII not even peals rejection identifying any after decision other field of substan- Anderson, fundamentally disagree with the of where the tive law. Court re grant reviewing majority’s unprecedented appeals disagreeing versed a court of roving to second- panels of commission with a district court’s of inference discrimina guess courts on the relative likelihood district tion, pretextual explana which was based on possible explanations of for Title VII defen- tions. “This standard firm [a definite and proffer pretextual of reason. A dant’s conviction that a mistake has been made] reject reviewing may legitimately court an plainly reviewing does not entitle a court to discrimination, not of its inference of finding reverse a simply of the trier of fact general views about behavior because it is convinced that it would have university particular, behavior in but Anderson, differently.” decided the case provides where a record an articulable basis 573, 105 S.Ct. at 1511. exercising narrowly ap- circumscribed point majori- is well illustrated pellate determining finding function of that a clearly ty’s significance of fact is erroneous. comment on the of an infer- guilt arising of flight ence from from the where, imagine It is not difficult to cases burning budding: scene of a “[F]light from despite finding pretext, a sustainable ordinarily the scene of a crime has evidentia- justifies ap- record contains evidence that an ry weight, flight from a scene of arson pellate ruling that an court ultimate find- nothing if shows the defendant fled the scene clearly of discrimination is erroneous. department during store inferno busi- Just as the fact-finder entitled to decline to ness hours.” F.3d at 1346. What dimin- draw an inference of discrimination from a significance flight ishes the finding pretext, appellate example court is enti- (a) key tled to conclude evidence in the record is evidence that establishes facts: from (b) store, the inference of discrimination is so building department is a demonstrably unsupportable clearly as to be suspect during fled from it business hours. error occur if erroneous. Such clear could evidence, appellate gen- That not an court’s overwhelmingly any the record established why people eralized view flee from crimes discussed circumstances above' (or proffer pretextual explanations for tenure would entitle a fact-finder not to infer dis- decisions) significance day- diminishes the pretextual proffer. crimination from a These store, flight burning department time from a overwhelmingly include facts that establish a permits appellate and even court to deem pretextual proffer, third motive for the un- guilt flight clearly an inference of from such component plaintiffs prima dermine a erroneous. ease, or demonstrate that the defendant Having disclaimed review the ade- highly unlikely to have discriminated. But quacy of the District Court’s of dis- evidence, reviewing in the absence such crimination,13 majority instead has elect- reject court not of discrimina- simply reviewing scope appeal ed to narrow the of the in banc tion because the court does and authorize issuance of a mandate that believe the inference of discrimina- message rulings initially tion is warranted. That is the clear relies majority qualified 13. The closest the comes to to overwhelm the explaining for tenure as why clearly of discrimination is erro- rejected inference that because of dis- she (apart depreciating neous crimination, it is free to refer us to it. It is not pretext) following passage: is the however, surprising, majority opinion that the profes- A five-member committee of tenured task, majori- does not undertake this because the Department, Biology sors in the three men and ty accepted women, charged reviewing two were pretextual, reason was and that reason was that Fisher’s credentials in accordance with four posted Dr. Fisher "did not meet the standards leadership, scholarship, teaching criteria: abil- majority accepts tenure.” Once the as a ity, and service to Vassar. In a confidential meet the Vassar’s claim that Dr. Fisher did not report, the committee found Fisher deficient in standards, rely alleged tenure it cannot on her categories, unanimously all four recom- explana- failure to meet those standards as mended that she be denied tenure. Judge Motley's finding rejecting tion for of dis- 114 F.3d at 1334. crimination. say If the means to that there sois much evidence in the record that Dr. Fisher is to limit in banc review to procedural device Court has decided appeal. That this heard question whether a of the third matter resolution the requires consideration VII, liability supported by in banc court’s of under Title presented this ease—an finding of opinion. prima facie case and a sustainable panel to a relation subject pretext, is to review for clear error.” an In Banc Court to a Relation of omitted). (footnote Then, F.3d Panel (and framing indisputable) after this narrow question, majority moves on to consider the observes, fully agree, majority The majority other matters. The states several normally is not con an in banc court discrimination, that a facie case of panel’s assessment of a to reconsider vened apart persuasive force considered from the ease, findings. factual district court’s evidence, necessarily opposing is not suffi- however, in court was convened in an an banc Then, to take a ease to a fact-finder. cient largely panel’s the re appeal that concerned acknowledging rehearing that the in banc finding of dis jection the District Court’s question of whether not limited to the clear rehearing order contained crimination. said, possible, review is as it first error Fisher v. limitation of issues. See Vassar majority that the review is “limited to states (2d 1996) Cir. Feb. College, No. 94-7737 pretext finding.” of a the force effect (order rehearing). appeal an Once issue, majority fur- Id. 1347. On this plenary rehearing, the in banc ordered for a pretext that a ther states normally ought indepen to make its court little, any, significance appel- whenever course, appeal.14 dent assessment of Of possible late court believes that there are ex- deciding option has the an in banc court though in planations, even not established voting and then to dis certain issues evidence, why might explain an em- any undecided issues itself and return solve ployer a false for its light in panel for further consideration to the Later, majority, though action. disclaim- court, of the banc Peck of the decision cf. “rule,” any promulgation id. (2d Cir.1996) States, 102 F.3d 1319 v. United (“The rule is that there is no rule banc) (in (in banc court dissolves itself and cases.”), peculiar to discrimination announces appeal panel for reconsideration in returns analyzing employer’s novel method decision), light Supreme Court of recent statement, very false which looks much like has not done so this case. banc court “rule”: “the weaker the evidence of discrimi- Instead, majority pursues a most un- nation, is to the less reason there believe Despite grant plenary usual course. employer’s false statement con- review, majority first frames a banc discrimination,” id. at 1346-47. Final- cealed decision, for in then states limited issue banc majority, ly, though declining to consider majority’s “ruling” on the limited rejection panel’s the correctness of the of the applicability of the issue “reaffirms the rule District Court’s un- employed panel,” 114 F.3d at explain panel dertakes to what must finally of a orders issuance mandate that extraordinary have meant its statement authority draws its both from the banc pretext “points nowhere.” opinion rulings origi- and the of the Id. at 1345. made, nally without further consider- ation. majority’s proceeding novel method majority’s unprecedented approach of institutional con- raises two serious issues (a) internally consistent. At the out- cern: what issues should this in banc even (b) set, states, majority majority adjudicate, procedure “A of the court what authority majority's procedure simple citing 14. The faults me for not novel reason my that the in banc court should not for dissolve itself without view today that until no in banc court had ever acted considering the issue that changed to dissolve itself in the absence of cir- prompted panel rehearing the in banc needed, supporting authority —whether cumstances. If depreciate significance was entitled to supplied by taking the side that is should be pretext finding by asserting "points that it wholly unprecedented step. authority opposing nowhere.” I can cite no required panel after dissolu- whether or not the District Court’s use of a should the in bane court? tion of an inference of permissible. this case is (a) the in banc court. The ma Issues for But permissible whether such use is is the rehearing jority that the in banc asserts wds appeal. crucial issue on this To decline to a the issue of “whether ordered to resolve adjudication. rule on it is a default VII, supported liability under Title little, judges gain district of this Circuit if by prima a facie case and a sustainable find any, learning illumination from that a ma- subject to for clear ing pretext, is review assuredly jority That is of this Court believes that lack of error.” F.3d at 1333. review, why might explain why I in since that voted for banc candor a Title VII defen- decisively previously been settled proffers issue had pretextual. dant a reason that 524, 113 by Mary’s. 509 U.S. at St. See they know, especially What need to after banc, and, believe, I My at 2756. vote to in reading panel opinion in this the votes of some other members of the whether this Circuit holds the view that a Court, were cast to determine not whether nowhere, and, pretext finding points not, if available, how clear error review was but guidance to appropriate have some as to the Many should be conducted. such review role of a such in the of a resolution by deeply panel’s troubled un us were rehearing Title VII claim. This in bane ruling precedented that a providing guid- was the occasion for nowhere,” II, “points see Fisher 70 F.3d at Regrettably, opportunity ance. has contrary ruling in which was to the St. been missed. finding permits an ulti Mary’s that such provide guidance, Rather than such in finding of discrimination. mate court bane has voted to itself without dissolve many voting of those to in banc Even considering pretext finding whether the in primarily, only, appeal this did so or even case, plus findings this other of the District proposition that to confirm the clear error Court, support the ultimate of dis- permissible, appeal is re- review is once Though majority crimination. has the heard, discharge responsibili- should our we power edge undoubted use its one-vote by facing up major fairly pre- ties issues result, accomplish inap- this its action is an major by Manifestly, a sented the case. propriate procedure. use of the in A banc arising panel opinion issue from the is what majority judges clear of the active voted to significance reviewing give court should appeal plenary rehearing. this accord No pretext. it sustainable Does changed circumstance has arisen since nowhere,” “point[ panel as the stated? ] scope decision to warrant restriction of the point toward Does majority in simply of the banc.15 The force, probative per- minimal as with voting power elected to use its to remove haps point some believe? Or does it toward from in bane the resolution of consideration force, strong probative the issue that the in banc order.16 occasioned least in the absence of evidence that Court, Supreme minority In of four force, probative such believe? blunts justices permitted bring are a case questions, Rather than answer these review, majority majority expresses thoughts a Court for after which the few about adjudicates pretext finding presented.17 and then declines to rule on the issues See Thus, prior majority voting scope this case is unlike instances in narrow that is to limit the which an in banc court dissolved itself such as rehearing of the in banc so as to avoid reconsid- Peck, intervening 102 F.3d at where the panel's by of the eration decision formed Supreme decision of the Court made reconsider- unsuccessfully against of those who voted votes panel appropriate, ation or United States plenary rehearing. in banc Muniz, (2d Cir.1997) (on 112 F.3d 506 recon- sideration), intervening discovery where the majority 17.Whether a narrow one-vote of the transcript procedural step revealed a that elimi- power its to dis- Court should exercise nated the issue for which the in banc had been improvidently granted miss a writ of certiorari as ordered. dispute serious within the Court. has occasioned voting power especial- 16. The exercise of such ly questionable this case since the current Four, Leiman, judges and to the of the district prevail) Rule M. Leonard (1957). ease, authori- courts who will now not receive the L. Rev. 975 Colum. judges of the active majority guidance vote for which this banc rehear- despite a tative review, majority a narrow in favor of banc ordered.18 has now voted to remove court of the banc (b) Procedure in banc after consider- appeal issue on the basic limiting scope dissolution. After in banc court. ation dissolving rehearing banc banc that all members of an contend I do not court, wholly takes the then court, certainly of an in appellate ordering unprecedented step of a mandate to every court, obliged word of to read banc for reconsideration issue without the need responsible vote in order to cast a record majority’s light in in banc panel finding of an ultimate on the issue of whether step because of the opinion. This is taken Judges clearly are entitled erroneous. fact majority’s “ruling” on assertion its bane materials culled from the rely on the question of “the force and the now limited lawyers knowledgeable appellate record ... pretext finding of a reaffirms the effect They also entitled to opposing sides. on employed applicability of the rule independent verifica- accept, detailed without panel.” 114 F.3d at 1347. tion, analysis set forth of the evidence fact, that, In it is evident at least two But to majority minority opinions. de- panel proceed as respects, crucial did not any of these traditional tech- cline to use majority required of a now indicates key issue of niques and instead to remove reviewing diminishing significance court in banc consideration is appeal this from First, finding. the in bane ma- pretext Court who judges to the of this unfair both (whether says finding jority opinion pretext that a wish have that issue considered little, any, weight ultimately may be accorded where the merits or not their views on 246, grant among Uplinger, 467 U.S. 104 tiorari is selected for a from 100 CompareNew Yorkv. 2332, (1984) (5-4 petitions 201 vote to considered each week is itself an inter- S.Ct. 81 L.Ed.2d improvidently grant- majority vening permits of certiorari as circumstance that a 5-4 dismiss writ ed); J., 249, (Stevens, improvidently granted. S.Ct. at 2334 id. at 104 a writ to dismiss as action), 250, concurring) (justifying 5-4 Court's Uplinger, at S.Ct. at 2334-35 467 U.S. J., 104 637, 648, DeChristoforo, Donnelly U.S. 94 (Stevens, v. concurring). also relied He on 1868, 1874, (1974) (Opin- 40 L.Ed.2d 431 S.Ct. decide Court’s normal reluctance to constitution- J., White, Stewart, J., joins) 251, with whom ion of prematurely. id issues Id. 104 S.Ct. dismissals); Triangle Improvement (opposing 5-4 497, 7, Ritchie, 508 & n. Council v. 402 U.S. appropriate course for the Su- Whatever the (1971) 1655 & n. 29 L.Ed.2d follow, preme appeals ought a court of Court to J., (same); Ferguson (Douglas, dissenting) v. edge significant to remove not to use a one-vote Lines, Inc., Moore-McCormack purview issues from the of an banc court J., (1957) (Frankfurter, 77 S.Ct. plenary was convened for review. Our Court is (“No likely dissenting) to vote to dis- Justice is petitions. not burdened with a flood of certiorari granted improvidently as miss a writ of certiorari grant vote on whether to in banc review is a A heard, though argument even he is after has been Court, Newman, In rare event in this see Jon O. case is within the rules of not convinced that the Circuit, 1989-93, Practice in the Second Banc governing granting of certiorari. (1994), Brooklyn and the L.Rev. 501-02 instance, doubting respects In the Justice usual grant in this case was made after extended judgment that the case does of his brethren consideration. enough important for the Court's concern issues adjudication.”); United States consideration majority professes to be unable to think of 18. Shannon, 288, 298, 281, 285, might reasons that warrant the in banc J., (“If (1952) (Douglas, dissenting) 96 L.Ed. 321 discharge responsibility it under- court's grant certiorari] four can writ of and the [a granted plenary when review. 114 F.3d took dismiss, opposing get the four cannot five then thought I would have that concern 1347 n.ll. integrity decision of the case on the merits. Court, colleagues spent who have on this would then be of the four-vote rule on certiorari impaired."). considering the considerable time fact-based is- plenary prompted in banc sues that the call for judges, rehearing, as well as for district who Uplinger, maintained that Justice Stevens enlightened by seeing how the in banc scrutiny would be the intense Court case applies newly “principles,” announced briefing argument, compared to court its after full majority. might summary have occurred to the time a writ of cer- examination at the proba- majority make it clear that the Since the circumstances authorizes issuance of a bility pretext part to hide mandate that draws authority of its just likely panel opinion, obliged I am as several to turn my given by attention to the explanations that the defendant reasons other case, panel rejecting proffer. But in this the District Court’s have had for such a find- ing of equal discrimination. made no such the fact-finder rejected probabilities, panel and the Opinion’s Rejection 4. The Panel of the Judge Motley’s finding of discrimination Finding of Discrimination19 thought made no determination that it n Second, probabilities equal. were panel opinion starts with the District says rejection appellate banc pretext Court’s abruptly and then of discrimination must be based ensuing analysis eliminates it from But in the evidence the record. this case stating, “The affirmed in ” point opinion did not to evidence II, opinion points nowhere.... Fisher plaintiffs prima that undermined the above, 70 F.3d at 1437. As discussed case, supported non-diseriminatory reason rejection significance total pre- proffering pretextual explanation, text cannot reconciled with the that discrimination was not the rea- showed contrary view of the Court in St. course, son for the tenure denial. Of it is Mary’s. possible appeal if this is returned to the pending What then was there about the panel light in ma- for reconsideration of the panel weight case that led the to ascribe no jority’s panel in opinion, banc the would finding pretext to the and to rule that the again finding conclude that the of discrimina- finding clearly of discrimination was errone- clearly adjudication tion was erroneous. But panel ous? The steps took two further after majori- appeal of this should not rest on the First, disregarding finding pretext. the it ty’s prediction panel of what will do. Judge said that the District did herself prima believe that the combination of a facie reality by is that the issue framed plus finding pretext supported case an majority pretext force and effect of —“the finding ultimate of discrimination. Id. I see gains only finding” type of issue that —is nothing Judge Motley’s opinion support in slight illumination from abstract statements. statement, and, this even some basis for Only appellate the exercise of an court’s au- existed, proper doubt on this score reme- thority finding to review a discrimination dy Judge would not to reverse the District oblige explain clear error will that court to (or mind, reading misreading) her but to why, being how such review is conducted and Judge Motley remand the case so that can particular pretext finding in a lacks tell us whether she finds that the normally permits the “force and effect” that plus finding pretext case suffices to support finding. it to a discrimination Since her, fact-finder, persuade as the to make the has said so little about how a finding ultimate of discrimination. finding is to be reviewed and finding Lacking any pretext Judge Motley’s opin- how a be diminished words in significance, surprising support it is not it ion to the notion that she did not prefers shortcomings pretext finding in- supported not to demonstrate the believe the “ruling” by attempting apply panel of its it to ference bases its Judge Motley’s findings pretext Judge Motley’s thinking and dis- view of on fact finding crimination. that after both a facie case and spirited concurring opinion, Judge In a Ja- he of fact would not have been been trier cobs, However, opinion, panel clearly they the author of the undertakes erroneous. also demon- strate, respond following perhaps effectively anything to the discussion in the Part more than A(4), concerning panel's rejection dissenting panel rejected opinion, of the Dis- finding Judge Motley's trict Court’s ultimate of discrimination ultimate of discrimination Judge performed super based on marital Jacobs’s detailed because it fact-find- status. role er, persuasively reviewing the evidence demon- to which examination of not the more limited role why findings appellate appropriately strates would made had confined. he court is I, F.Supp. at 1209 catego- formance. Fisher identify three pretext, she went 45). (finding support that lent additional ries of evidence finding of discrimination. As ultimate to her Motley Judge found that Vassar students it, Motley Judge “felt com- panel views for various characteristics on rated teachers for evidence of comb the record pelled to five, male of one to and that for a scale convinced, discrimination, evidently as are candidates and non-married female tenure we, did not here per- candidates Vassar considered the tenure Id. justify of discrimination.” alone centage rated candidates of students who unfair characterization This is an Dr. Fish- top categories two but that for Judge pro- opinion. The District Motley’s er, only considered for married female judges frequently do: trial as bench ceeded tenure, percent- Vassar considered findings that the case law the two she made rating highest age of students her the one says and this Supreme Court Circuit result, had a category. As a Dr. Fisher an inference of dis- sufficient percentage student evalu- lower of favorable crimination, permissible she then drew women, than and unmarried ations males ulti- pretext and made the inference percentage and this lower was considered discrimination, and then she finding of mate (find- Id. at 1209-10 the tenure evaluation.20 findings make additional to dem-

went on to 47-49), ings 1228. This additional ruling. support for her onstrate added clearly panel, was not ruled erroneous given why and no was reject, step was to not the panel’s next weight finding of does not lend some to the pre findings of a basic Indeed, subsidiary find- discrimination. text, findings the additional some of accepted its discus- support to the ultimate lend further evidentiary sufficiency of the find- sion of the Judge Motley discussed of discrimination. II, 1435-36, pretext, of Fisher 70 F.3d at additional categories of evidence as three omitted, explanation, pan- without (a) finding of support for her discrimination — rejection Judge’s finding of the District el’s (b) evaluations, discriminatory of student use of discrimination.21 (c) evidence, evi and anecdotal statistical findings College, Though leaving v. Vassar undisturbed dence. Fisher (S.D.N.Y.1994)(“Fish 1193, 1228-29 discriminatory about use of student evalua- F.Supp. I”). tions, reject rejected panel proceeded to panel the statistical then er The II, 1442-47, evidence, Judge Motley’s findings aspects 70 F.3d at and that she Fisher evidence, 1438-40, and, categories id. at had not included the three the anecdotal discussion, assume, giving as I will she elected discuss purposes for argument, weight finding added to her of discrimination. the sake of the that the for findings catego aspects expert These other concern testimo- these two District Court’s admissions, 1447-48, ny, party id. clearly panel But the id. at ries were erroneous. explanation, Judge Again, purposes at 1440-42. for of this dis- disregarded, without Mot cussion, panel category of additional I will assume that ley’s first evidence. evaluations, reject findings. Nev- student which entitled to these other This concerned ertheless, exclusively” can a “almost the basis the basic issue remains: how she found were reject teaching per- panel finding Dr. of discrimination that Fisher’s assessment tenure, argument single granted give appeal "does not asked at oral on this woman 20. When I, specific evaluating instance of bias in picture about this true of the situation.” Fisher Fisher, compared 55). to male and unmarried Dr. F.Supp. (finding at 1210 As the not- candidates, female tenure counsel for Vassar ac- ed, significantly lighter carried a Dr. Norrod knowledged its unfairness. teaching load than did Dr. Fisher. It difficult probative to see how this observation lessens the remotely arguable significance It is the unfair evaluation method that was force of findings concerning discriminatory use of applied only consid- to the one married woman slightly by finding student evaluations is lessened tenure. The blunt fact remains that ered for Judge Motley pointed that a in which out rigorous applied method was more evaluation comparison to the of Dr. Fisher’s evaluations single women. Dr. Fisher than to men or Norrod, a favorable evaluations accorded to Dr. and, therefore, facts that establish a despite is based on the scientist is not one case, finding pretext, plus contrary. much evidence to plus undisturbed additional of discrimina- 87). (finding Id. tory ratings? evaluation use of student Though panel opinion discussed the Judge Motley evidence that sup- relied on to panel’s approach boils to three The down port findings her regarding Dr. Fisher’s hia- (a) disregard- steps: teaching tus from acknowledged (b) ed, discriminatory findings use of supports “[t]he evidence an inference that (e) ignored, and other student evaluations are eight-year Fisher’s absence from academia findings clearly are found to be erroneous. tenure,” hurt her chance for 70 F.3d at every approach This is inconsistent with in- it concluded that the District Court’s infer- appellate stance of of trial court fact- review ences about discrimination from such evi- finding in discrimination cases. Even if supportable. dence were not ex- subsidiary findings of the trial court’s some pressed the view that the adverse comments erroneous, clearly are deemed the most an specific” about her hiatus were not “sex appellate properly court could do would be to legally were insufficient to lend to a remand to the District Court to reconsider II, Title VII claim. Fisher 70 F.3d at 1448. its ultimate of discrimination on the panel agreed with Vassar’s contention subsidiary findings basis of the that are un- that the hiatus would be relevant to her claim disturbed —the facts of the only if experiences the tenure of women who pretext, findings took compared extended leaves of absence discriminatory ratings. use of student Since unfavorably with experiences the tenure Judge Motley’s opinion in no leaves me doubt men who took such absences. Id. that, even limited to these undisturbed strongly disagree with this assessment of matters, she would infer discrimination Judge Motley evidence that properly deemed women, against married I would affirm this significant. panel’s approach means aspect judgment entered. she women, working penalized taking years children, off to raise can disadvantaged

Moreover, there is an additional basis in workplace long so takes our findings supports the evidence and the society to become accustomed to the idea Judge Motley’s ultimate of discrimi- working responsibility men share a to against nation married women. Mot- raising devote their time children. Of to. ley against found evidence of bias married course, say Vassar was careful to women reflected in the adverse comments in comparison, necessary relevant to make the concerning the tenure review file Dr. Fish- probative, adverse comments should be be- eight-year teaching in er’s hiatus from order tween men women took extended who I, family. F.Supp. to raise Fisher regardless absences from work the reason. 84-87). (findings This hiatus occurred generalization Such a felicitous cannot mask from 1966 to after which Dr. Fisher predominant the obvious truth that rea- teaching, College resumed first at Marist for working son that women take absences from years Though three and then at Vassar. children; work is to bear and raise there is fully away aware that Dr. Fisher had been pervasively comparable reason for ab- teaching eight-year period men, among working sences and it is fatuous years applied ended three before she to Vas- college suggest for the that Dr. Fisher is sar, placed Vassar hired her and her on a producing to be faulted for not evidence of Judge Motley tenure track. As noted: experiences the tenure of men who took ab- persistent Biology fixation of the “regardless sences of the reason.” With rare Department’s faculty senior on a married exception, men do not take extended ab- pre-Vassar family (or woman’s choices reflects sences from work to raise children acceptance stereotype reason); and bias: any other their reluctance to share that a child-raising responsibilities fairly married woman with an active and cannot on-going family productive against penalize life cannot be a be turned Dr. Fisher to her giving age assembling concerning such non- stances rise to an inference of data

for not Judge Motley established absences. was discrimination —was existent male that, Biology Department’s showing distinguishable excep- with entirely correct: one tion, pre- n. “all other Fisher’s] fixation on see id. at 1230 tenured “persistent [Dr. acceptance family faculty equally qualified reflects the or less choices who were Vassar years stereotype and bias.” Dr. Fisher were at least nine than younger they than Dr. Fisher when were course, employ- college, other Of (find- 1230; at 1219 tenured.” Id. at see id. rating er, give an unfavorable is entitled 106). Moreover, Dr. tak- had Fisher not field, absence from a person whose years teaching eight off from to raise her en reason, person has left that defi- whatever children, joining faculty, before the Vassar necessary knowledge of current cient age group would have within the she been learning developments. But there was willing apparently from which Vassar is evidence, claim, much less not even professors. select tenured child-raising hiatus had left her Dr. Fisher’s contemporary any respect deficient The claim of discrimination on two distinct contrary, knowledge of her field. On the grounds, pretext, inferable from replete with evidence of her numer- record is complexity an added to this case. introduces publications, grant peer-reviewed ous exact, analogy Though the is not the situation awards, papers presented, and consultant- presented by comparable is somewhat to that ships institutions as the National to such person apprehended fleeing who is while Institutes of Health the National Science from the of two crimes. The fact- scene I, F.Supp. Fisher at 1198- Foundation. flight finder draw from an inference of 9-31). (findings Judge Motley en- guilt respect one consciousness justified considering tirely adverse crimes, crime, the other or both crimes. of Dr. Fisher’s hiatus to be further view However, that, it is also true some circum- against married women.22 evidence of bias stances, strength of the inference from flight prove guilt that tends to of one offense of Discrimination Based on B. The Claim unlikely makes most inference of Age guilt as to the other crime is reasonable. Court also found that Vassar The District example, person apprehended had Dr. Fisher tenure on the basis of For if a denied I, F.Supp. fleeing age. Fisher 1230-31. This from a scene where two victims have before, primarily entirely second ultimate was based been robbed moments it is (a) age guilt facie case of discrimina- reasonable infer consciousness of (b) crimes, both at least in the cir- tion and Vassar’s absence of denying significantly distinguishing reason for tenure —failure to meet cumstances hand, pretextual.23 Sig- person Id. tenure standards —was offenses. On the other nificantly, the District Court found that a fled from a scene where a bank was robbed defaced, component age elaborately facie ease of and a work of art was discharge strengthened under cireum- and circumstances the infer- discrimination — Judge Motley psychology properly regarded also found 22. that in at least the 30 Whether or not is 1986, years granted science, from 1956 to Vassar had not as "hard” the absence of tenure tenure to married in the six “hard” woman depart- awards to married women in Dr. Fisher’s biology, chemistry, geology, of mathe- sciences ment and in several "hard” other sciences de- matics, I, physics, computer and science. Fisher partments totally lacking probative is not val- 97). F.Supp. (finding panel at 1218 The findings ue. Since the evidence and discussed in disregarded significance the of this on abundantly Motley’s the text ulti- noted, first, grounds. three that Vas- finding, subsidiary point mate need not be regarded psychology sar as one of the "hard” pursued. second, sciences; that two married women in the psychology department granted tenure were after Judge Motley rejected pro- 23. considered and denial; and, third, Dr. Fisher's tenure that two by bative force of two items evidence claimed of granted married women were tenure in other proof age to be direct discrimina- departments, "hard” sciences also after Dr. Fish- II, I, F.Supp. tion. at 1231 n. er was denied tenure. Fisher 70 F.3d 1446. Fisher 25. guilt majority satisfactory rob- person’s expla of the bank offers no ence of the fleeing from the bank bery, very act nation for what it has done. In the absence unlikely that robbery highly it make explanation, only speculate would of such one can paused act of fleeing person to commit an majority’s about what underlies the decision. circumstances, the trier In such vandalism. likely explanation most the ma fully justified drawing an infer- would be jority reluctant to court have a confer and, robbery, guilt only as to the ence professor rejected tenure been on who has facts, an infer- depending on the additional by faculty colleagues, her tenure her vandalism, by if drawn ence as to the dean, college president, her her board of fact-finder, clearly might well be erroneous. reluctance, I share that trustees.24 and had fact, pending In where the I been trier of have declined presented facie case of discrimina- pretextual proffered explanation to find was a tion because she married woman noneompliance standards, with tenure or age, prerogative it was within the because of to draw the inference of even of the fact-finder draw from the But, pretext. after a as we have pretext an of discrimination on inference instructed, authoritatively been “the court of rob- grounds. both Unlike the bank appeals may finding] not reverse even [a above, example bery/vandalism discussed though sitting convinced that had it been as on is not discrimination based marital status fact, weighed it trier of would have realistically incompatible with additional dis- Anderson, differently.” evidence 470 U.S. at age. crimination An based 574, 105 at 1511. S.Ct. rationally deny decide to could tenure it Though possible majority also married to those over women and prefers fashion a approach less deferential likely deny a mar- would therefore tenure to appellate review of a discrimination find Thus, 40. a case ried woman over this is not employment because the adverse decision very where the of one discrimina- existence by highly respected college, has made tory strong been motive is itself evidence particular discriminatory is un- taken is alleged another motive action tenure, likely Though authority to have existed. the evidence denial of we have no strongly supported more the ultimate con- apply special appellate rules of review for against married University clusion of discrimination Pennsyl such reasons.25 See women, EEOC, permitted also inference vania v. age. (1990) (“The discrimination on basis of 583, 107 L.Ed.2d 571 effect exemption [for of the elimination of this edu Concluding Thoughts expose cational was to tenure institutions] pro determinations the same enforcement permitted rejection, erroneous, applicable employment cedures to other deci clearly findings of discrimi- sions.”) added); (emphasis entirely Zahorik Cor permissible nation that in view of (2d Cir.1984) University, 729 nell F.2d the fact that the is undis- (“Tenure Court, exempt Ti unexplained turbed decisions are not under VII____”); defendant, Syracuse in tle Powell v. Universi and uncontroverted (2d Cir.1978) (“[A]ca- unwarranted, rejection ty, the record. That fact, judgment showing requires Court’s did not fore much more the District than give unqualified Dr. ten- performance order Vassar to Fisher quality to merit 'of sufficient contin- tenure, Gant, ure. sub- It ordered reinstatement with employment'____” v. ued Lieberman ject by college to an evaluation after two (2d Cir.1980) (citing F.2d Flowers v. years promotion and rank "retention” to the (7th Corp., Crouch-Walker I, professor. F.Supp. of full Fisher at 1235. (footnote Cir.1977)) omitted). majority Since the accepts prof- District Court's 25. We have observed that tenure at an institution explanation "did not fered meet the Fisher —Dr. higher compared em- education to continued pretextual, posted standards for tenure” —was ployment significance appropri- that makes has there be no claim in this that Dr. Fisher can case qualification. higher ate a "[A]d- standard qualified for tenure. is not to a vancement to entails what is close tenure life-long university, there- commitment and legal address issues that divide us. [does not] embrace[] freedom demic discriminate.”). peculiar Those issues are not to discrimina- freedom to law; rather, they tion law of involve the end, adequate I am left with no In the every evidence and arise in area of substan- reject findings of married-woman basis case, Concepts tive law. such as facie age made the conscien- presumptions, production, pre- burden of Judge analy- a meticulous tious District after subject text have been the of a vast number if, record. Even as I sis of an extensive judicial decisions and academic discus- majority’s willingness suspect, to tolerate My colleagues majority sions. avoid a rejection findings is an aberra- of these implications discussion of the from other ar- review, appellate tional instance of excessive concepts eas of the law for the use of these upset college’s prompted by reluctance simply by declaring Title eases VII/ADEA tenure, agree I that such a denial of cannot concepts “quite that these different” in rejection applicable principles comports with Finding discrimination law. little in Su- law, respectfully I therefore dissent. preme supports Court decisions WINTER, Judge, conclusion, with whom Circuit Chief I believe use of these NEWMAN, Judges Judge JON 0. KEARSE concepts in the other areas the law must concur, dissenting: and CABRANES be addressed.

Although I concur Chief New- Consequences 1. Prima Facie Case and Its dissenting opinion, separately I write man’s fully I hold views that are not re- meanings, “Prima facie case” has two one opinion. in that flected (i) stronger plaintiff than the other: has in agreeing in bane court is unanimous produced evidence sufficient to establish a case,” that Fisher established “a which, disputed fact from credited of the term. The in trier, some sense bane presumption arises a rebuttable —the affirming (ii) court is also unanimous as not version; strong plaintiff pro- or clearly Judge Motley’s finding erroneous permit, duced evidence sufficient to but not proffer Vassar’s of an was not compel, disputed a trier of fact to find a fact pretext” denying (or “a the “real reason” but plaintiff party bearing for the the burden Agreement fact) Fisher tenure. ceases at this persuasion disputed on the —the majority point. The takes the view that a Dep’t weak version. See Texas Communi- (1) Burdine, Title who has: estab- ty VII/ADEA 254 n. Affairs (2) prima facie lished a shifted the n. S.Ct. 67 L.Ed.2d 207 (3) production employer, to the (1981); burden Christopher B. Mueller & Laird C. pretextual an unrehabilitated Evidence, 3.4, demonstrated Kirkpatrick, § at 137-38 (4) explanation by employer, (1995). ob- tained a from the trier of fact that (ii) (i). Meaning is subsumed within As unlawfully acted out of an dis- Supreme Court said Burdine: motive, criminatory may still lose on the establishing The burden of ground that the evidence of discrimination disparate treatment is not onerous. legally insufficient. prove by preponder- must my disagreement my Much of col- applied ance of the evidence that she leagues in the stems from their position an available for which she was quotations narrow focus on selective rejected qualified, but was under circum- Court Title VII eases. do not give stances which rise to an inference of deny they legitimate find comfort in unlawful discrimination. However, quotations. very those same 253, 101 450 U.S. at at 1094. language equally cases contain other that is supportive opposite give or more conclu- Proof of “circumstances which rise to hardly necessary, appro- It sion. even an inference of unlawful discrimination” is however, Moreover, priate, rely exclusively upon surely get jury. cut- sufficient to to a and-paste analysis quoted passage 6 to of Title VII decisions to footnote makes it

1387 persuasion four factor test as illustrated the burden remains with the clear that the Green, Corp. employer 411 U.S. Title Douglas after the McDonnell VU/ADEA (1973)— 792, 1817, production. 36 L.Ed.2d 668 has met its burden of (2) (1) plaintiff was a female the Burdine hardly disposed easily. The issue is of so (3) job question re qualified for the presumptions The role of rebuttable involves (4) jected proof a male —is alone in favor of spawned body debate that has a vast give rise to an infer of “circumstances which commentary competing and resulted in Burdine, ence of unlawful discrimination.” thought schools of traced to such venerable 6, 101 n. at 1094 n. 6. 450 U.S. at 253 S.Ct. At Bradley Thayer scholars as James and Ed- therefore, least, very “prima facie case” See, Morgan. e.g., mund Edmund M. Mor- bearing party means that a the burden of gan, Basic Problems Evidence 28-15 legally persuasion sufficient ev (1962); Thayer, B. Preliminary James Trea- permit disputed a trier to find the idence (1898); tise on Evidence 346 M. Edmund here, unlawful discrimination. Mueller fact — Morgan, Instructing Jury upon Presump- 3.2, §§ Kirkpatrick, supra, 3.4. & Proof, tions and Burden of 47 Harv. L.Rev. 59, (1933); Douglas, generally Under McDonnell 82 see Charles McCor- (i) al., initially stronger variety. mick § case is of the et McCormick on Evidence (4th Burdine, ed.1992); al., n. 101 S.Ct. at Jack B. Weinstein et ¶ (1996). employer 1094 n. 7. If the remains silent and Evidence 300[01] Weinstein’s Vari- trigger thought, the trier finds the facts that ations abound within each school see, 3.8, Douglas presumption, e.g., Kirkpatrick, supra, § McDonnell the em- Mueller & 148-50; al., 344; ployer supra, § loses. Id. at 101 S.Ct. at 1094. at McCormick et ¶ al., 300[01], employer pro- supra, thus bears the et burden Weinstein at 300-3 to 300-4, regarding the reasons for an adverse and there is no duction one solution of com- employment employer manding persuasiveness, decision. Id. If the much less one to be reasons, proffers of lawful we move found in Court Title VII decisions step analysis. language of the that contain antag- to the next useful to all the onists. require ADEA do not Title VII and the view,

employer proffer my “drops language a reason for an adverse out” indi- employment Douglas decision with which the trier of cates that the McDonnell re- (i), agrees. presumption, fact An is free to make buttable version loses all example, faculty may evidentiary weight, leaving prima For mistakes. re- facie case (ii). gard scholarship a tenure candidate’s to be the sense of version I reach this inadequate following while the trier of fact believes conclusion for the reasons. “Prima major writing scholarly “presumption” synon- that her is a contri- facie case” and are not long faculty truly, ymous, bution. So as the even if as Burdine footnote 7 indicates. 450 view, mistakenly, negative holds that there is U.S. at 254 n. at 1094 n. 7. The S.Ct. no Title VII violation. term even when used (ii), party having that a sense means employer proffers Once the a lawful reason persuasion regarding disputed burden decision, employment “pre- for the then the presented legally fact has sufficient evidence sumption ... [of discrimination] unlawful to allow the trier of fact to find that fact. Id. Hicks, drops Mary’s out.” St. Honor Ctr. v. 502, 510-11, hand, Presumptions, legal on the other are (1993) Burdine, (citing calling upon weight to 125 L.Ed.2d 407 450 rules the trier to add 1094-95). evidentiary party’s U.S. at 101 S.Ct. at one scale if the evidence majority opinion “pre- triggering presumption holds that when the of the basic facts out,” sumption drops proof ... to allow the to find those is sufficient trier See, e.g., Kirkpatrick, Douglas McDonnell four factors without facts. Mueller & su- 3.4; al., supra, § longer pra, more no constitutes a facie case Weinstein et ¶ however, by my presumptions, 300[01]. of discrimination. The basis offered Most conclusion, rebuttable, general agree- colleagues apart for this from the and there is no itself, large “drops language among commentators or courts at out” is the fact that ment pre- gress by what, any, effect a rebutted the Court. Commit- residual say “presumption that a To sumption has. tee’s version would have shifted the burden therefore, out,” not inexora- does drops ... adversary persuasion upon party’s to the legally longer is no bly mean that there establishing trigger the basic facts that i.e., prima facie case— sufficient adopted,1 evidence — presumption. As Rule 301 shifts fact; disputed it a trier to find the to allow only production the burden of of evidence to may the trier now resolves mean presumption, leaving or the rebut meet of the evidence as the issue based on its view persuasion party asserting burden of on the giving constituting the facts a whole without However, adopting presumption. evidentiary prima facie case the added Rule, Report expressly noted Conference formerly weight they had. that, party even after the adverse has carried majority give principal two reasons production, jury “the ... the burden why plain- that a Title believes VII/ADEA presumed infer the existence of the fact [still] disappears prima facie case once the tiffs proof of discrimination] from [unlawful any explana- employer proffers evidence of Douglas prima McDonnell [the basic facts employment adverse decision. tion for the 93-1597, Rep. case].” H.R. Conf. No. given (1974), The first reason familiar rule reprinted 2at in 1974 U.S.C.C.A.N. persuasion remains with that the burden of 7099; 7098, Kirkpatrick, see also Mueller & the Title even after the 3.8; VII/ADEA § supra, Stephen Saltzburg A. & Mi- production. burden of meets its Martin, M. Federal chael Rules Evidence However, that, non-sequitur to it is a reason (5th ed.1990); 99-100 Manual Weinstein et plaintiff bears the burden of because the ¶ al., 301[02]; supra Wright 21 Charles Alan production persuasion once the defendant’s Graham, Jr., Kenneth Federal Practice & W. satisfied, Douglas McDonnell case is a bare 5126, (1977) § and Procedure & 1996 sufficient; longer legally there no in- Supp. at 324.2 consistency proposition between short, 301, plaintiffs prima under Rule once adver- facie case survives defen- production burden sary production dant’s satisfaction satisfies the burden of proposition still out,” and the presumption “drops Indeed, proof. one must bears the burden (i) (ii). drops to version version why puzzle court would wonder a federal Therefore, unless the Title defen- VII/ADEA exactly over this issue because that is what evidence of a lawful dant’s is so provides. Fed.R.Evid. 301 plaintiff’s powerful that evidence is no longer genuine dispute sufficient to create adopted by Congress Rule 301 was Burdine, fact, rejected proposed by see 450 U.S. at after it a version 1094-95, Advisory Douglas Committee and submitted to Con- S.Ct. the McDonnell widely original 1. Rule 301 reads: Henderson is not shared. The Advisory Committee that drafted the proceedings Federal In all civil actions and not oth- provided Congress existing Act erwise Rules of Evidence found no barrier to its rules, presumption imposes par- these on the proposal (rejected by Congress) giving pre- all ty against whom it is directed the burden of going forward with evidence to rebut or meet sumptions burden-shifting effect that invalidated in Henderson. Fed.R.Evid. presumption, but does not shift to such 301, Advisory Committee Notes to 1972 Pro- party proof the burden of in the sense posed Rules. The McCormicktext concludes that nonpersuasion, through- risk of out the which remains status,” "questionable Henderson is of McCor- upon party trial whom it was al., 590; supra, Lilly regards § mick et 345 at originally cast. Tumipseed giving and Henderson as "no defini- presently usually tive answer” to issue that "is Judge Newman Calabresi Chief en concern," Mobile, Lilly, gage spirited concerning distant Graham C. An Intro- debate J. & (3d Turnipseed, K.C.R.Co. v. 219 U.S. 31 S.Ct. Law duction to the Evidence n. 3 (1910), ed.1996); 55 L.Ed. 78 and Western & Atlantic Kirkpatrick and Mueller and show their Henderson, R.R. v. view of Henderson's current irrelevance (1929). L.Ed. 884 mentioning presump- it in their discussion of regard, tions, In that that confidence in I would note Kirkpatrick, supra, § Mueller & 3.8. continuing vitality Tumipseed (not support question therefore case is sufficient to whether the framework prima facie by Douglas finding of discrimination.3 created McDonnell and Burdine compel) a anything weigh has furnished of value to by principal given my The second reason against the enormous confusion it has caused. majority for the colleagues in the extinction' Supreme do towell consid- plaintiffs prima facie case once Title of the abandoning experiment er the entire proffers an defendant VII/ADEA explicitly rule that the burdens in a discrimi- employment adverse decision is that for an nation case are no different from those “quite prima facie case has a differ- the term other cases.4 In meaning in Title cases. ent” VII/ADEA (ii) view, prima version facie case is their event, In if even the risk of a silent (i) version not subsumed within when production, defendant calls for a burden of it Douglas prima prov- facie case is McDonnell prima “quite does not follow that facie has a (ii) plaintiff. instead al- en Version meaning different” in Title As VII/ADEA. plaintiff complete lows the noted, provides pre- Fed.R.Evid. 301 that all legally main case without sufficient evidence sumptions production shift the burden of but causation, of either discrimination or neces- and, proof not the burden of Confer- they regard from sary elements as absent states, Report explicitly ence once the bur- Douglas McDonnell factors. met, production jury may den be admittedly “quite meaning different” This “may it instructed that infer the existence of designed facie case is said to be presumed proof fact from of the basic prevent employer remaining mute facts.” employment an about its motives for adverse question I then come to the crux —to the moving summary judgment decision and satisfying whether evidence the four factor plaintiff or a directed verdict when Douglas test as illustrated in McDonnell provide unable to evidence of unlawful legally sufficient to allow a trier to find dis- purpose may This be the source of motive. opinion crimination. The of the court states case/pretext the Title VII/ADEA admirable candor that it does not. construct that has created so much confusion. Judge concurring opinion agrees. Calabresi’s Supreme If Court were undertake a opinions Both on the are based view of those area, might

reexamination of this it well con- judges support that more is needed to prior respect sider whether its decisions with inference of discrimination and causation necessary, to the alteration of burdens were required by Douglas. than is McDonnell I much less worth enormous confusion think that this conclusion is foreclosed they have caused. The Federal Rules of Supreme Court decisions. Civil Procedure entitle a to take

discovery consistently of the defendant. The The fact that the Court has entitled to demand that the defendant fur- used the term facie case in Title VII majori- employment surely strongly against nish the reason for the adverse cases cuts subject ty's opinion decision that is the of the suit. A for the conclusion. The court usually defendant refuses to answer such a dis- concedes that the who term refers evi- covery subject legally particu- demand would be to sanctions dence sufficient to forbidding contesting allegations finding. it from lar If the in fact Court is discriminatory using “quite way, motive and causation. the term in a different” See 37(b)(2). therefore, reality, express recognition linguistic Fed.R.Civ.P. some defendant, thing departure expected, would none there is such as a silent has is, losing majority's impliedly it there is a defendant. come forth. The view is not, therefore, position 3. I do take the attributed be liable for discrimination “where none opinion plaintiff’s to me of the court that a present and none was shown.” establishing Douglas prima a McDonnell by the close of her evidence assures that the I am authorized to state that LEVAL legally evidence of discrimination will be suffi- paragraph. concurs in this And, course, cient when the evidence is in. all nothing opinion in this states that an instructions, charge jury misspoken, to have found model seems that the Court al., Jury et Federal Prac- Edward J. Devitt repetitive occasions. (1987); § tice and Instructions 104.04 misspeak, and the chance that do Courts al., B. et Federal Leonard Sand Modem can’t be dismissed. How happened here ¶ (Instruction 87-27) Jury Instructions 87.01 ever, more than Supreme Court has done (not must) (1996), jury may that the infer a noted, “prima facie.” As simply use the term discriminatory motive from the consciousness Burdine, used the term the Court guilt by reflected dishonest statements equated case but also it with prima facie employment an adverse decision. about giving an “circumstances rise to evidence of peculiar This view leads to results. For adding a foot inference of discrimination” example, majority’s reasoning, under stating four factor as flatly note test prima plus proffer pretex- facie case Douglas was suffi illustrated McDonnell (from plaintiffs tual is weaker defense just support such an inference. Bur cient to standpoint) prima than an unanswered 253, 6, dine, n. 101 S.Ct. at 1094 Moreover, case. it leaves Title VII/ADEA Indeed, n. the footnote held plaintiffs Doug- worse off than if McDonnell in Burdine had met the McDon (ii) provided las had for a version test, produced enough Douglas she had nell (i). than, did, it for a case version support an inference of discrimi evidence to Teamsters, Similarly, in Int’l Bhd. nation. puzzling ruling This at odds with a also 324, 1843, 431 52 L.Ed.2d 396 U.S. body allowing of law of con vast inferences (1977) specifically described a the Court guilt sciousness of to be drawn from dishon Douglas facie case as “evi McDonnell concerning est behavior facts material to liti adequate dence to create an inference that gation. example, until For is—or was employment was on a decision based discrim exculpatory that a now—settled law false 358, inatory 431 97 (not must) criterion.” S.Ct. by a defendant statement statement, unqualifiedly at 1866. This which support an inference of consciousness of Douglas prima a McDonnell fa asserts that guilt. Sureff, v. See United States 15 F.3d support to cie case is sufficient an inference (2d 225, Cir.1994); 227 United v. States Gav causation, quoted of discrimination and (2d iria, Cir.1984); 740 F.2d 184 United emphasis O’Connor v. Consolidated (2d Parness, States v. 503 F.2d 438 — U.S.-,-, Corp., Coin Caterers 116 Cir.1974); Lacey, United States v. 459 F.2d (1996). 134 L.Ed.2d 433 (2d Cir.1972); al., supra, 1 89 Devitt et Appeals ¶ do not that a Court of (Instruc believe 14.06; al., § supra, 1 Sand et 6.05 can, should, hold that the four factor 6-11). or even Long Lighting tion Binder Island Douglas test illustrated McDonnell is not Co., (2d Cir.1995), did no itself sufficient inference of apply universally recognized more than light and causation in principle exculpatory to false statements O’Connor, contrary in statements to the Bur- employers. My colleagues hold that dine, and Teamsters. or, principle apply employers does not

perhaps, longer applies it no A2. Prima Facie Case and the party litigation, including criminal defen Proffer of Pretext dants.

My colleagues majority example, in the For also hold the another one of the most rou- (1) following: plaintiffs jury perhaps given a Title tine of hun- VII/ADEA instructions — presentation Douglas prima my colleagues of a McDonnell some of dreds times will, majority facie case if the defendant stands who are former district mute judges jury if employ- as to the reasons for the adverse finds that a —states (2) decision, but, liability; part result in in a ment the witness has lied material of his or (not must) can, very plaintiffs testimony, jury may same the defen- her dis- he, responds parts dant with a be dismissed on believe other material of that witness’s al., 15.06; insufficiency testimony. supra, § grounds. I take it Devitt et ¶ (Instruction 7-19). al., disapprove supra, et 7.01 would now the standard Sand (ii), “point[] presumption. regard no table statements now With Do such false version, College, question v. Vassar 70 F.3d weaker the reviewable Fisher where?” (2d Cir.1995). 1420, 1437 whether legally evidence is suf- permit ficient to a trier to find discrimina- routinely- have been instructions Similar sufficient, If legally tion. the evidence is not regard flight from the scene given with then no facie case is established al., 14.08; crime, Devitt, supra, § et “reviewable,” i.e., of discrimination is ¶ (Instruction 6-9), al., 6.05 supra, et Sand clearly Moreover, erroneous. name, al., supra, et of a false Sand use may proffer legitimate evidence of a reason ¶ (Instruction 6-10), fabrication of an 6.05 employment for the pow- adverse decision so (Instruction 6-12), alibi, disguised id. use of plaintiffs prima erful facie case is (Instruction 6-13), falsifica- handwriting, id. undermined as matter of law and is no al., evidence, supra, 1 Devitt et tion longer dispute sufficient to create a material ¶ (Instruc- al., 14.07; supra, § 1 et 6.05 Sand Burdine, of fact. U.S. S.Ct. witnesses, 6-14), intimidation of 1 Devitt tion at 1094-95. 14.07; al., al., supra, § supra, 1 Sand et et (Instruction ¶ 6-16), engaging in 6.05 pretext finding may A also be reviewed behavior, al., supra, 1 Sand et clandestine clearly and found to be erroneous. St. ¶ (Instruction 6-19). 6.06 524, 113 Mary’s, 509 U.S. at S.Ct. at 2755-56. Finally, in a criminal a defendant who Finally, stated, explicitly as Binder even deny stand to the crime waives a takes the pretextual, reason is an em sufficiency challenge prosecution’s to the ployer may present explaining evidence alone. v. main case considered United States pretext giving legitimate resort (2d Khan, Cir.1995); United 53 F.3d employment reason for the adverse decision. (2d Friedman, v. 998 F.2d States Again, 57 F.3d at 200. that evidence Cir.1993); Roldan-Zapata, United States powerful so the inference be drawn (2d denied, Cir.1990), cert. pre from the facie case and resort to 1397, 113 L.Ed.2d 453 text are undermined as a matter of law. (1991). Nevertheless, my colleagues in the logically What cannot be said is that a VII/ADEA, majority hold that under Title an (ii) prima facie ease in sense has been estab- proffers who a lie an adverse about lished and sustained but that a decision, can, precisely a re employment clearly discrimination is erroneous. One lying, previously renew a sult of the act of say might as well the evidence was rejected sufficiency challenge to a legally sufficient to allow the trier of fact to prosecution’s main case. Given that the bur find but that the trier of fact’s proof den of in a criminal case is heavier than clearly of discrimination erroneous plaintiff, that of the Title VII/ADEA legally suffi- evidence was pretextual vastly different treatment of de logically say cient. Much less can one that a my inexplicable col fenses seems unless finding of discrimination based on a leagues prepared change the rule now supported unexplained facie case prevailing in criminal cases. clearly resort to erroneous. Reviewability I therefore dissent. length reasons at that a trier of fact’s of discrimination is “reviewa- agree.

ble.” I A decision that a (i)

case has been made out either sense

(ii) appellate is of course reviewable

court, for that matter. or trial court With (i),

regard question the reviewable to version presented by

is whether legally sufficient to allow the trier trigger

to find the basic facts that the rebut- Dr. Norrod’s tenure notes categories. ex- The committee four those fives; gave "the her students in one course pressed evaluations concern that Dr. Fisher’s grade gave majority" of her students her years, noting period over a of five had declined five; and that she incurred an “occasion- four or who her percentage of students ranked or below. al” rank three clarity top category declined from in the 39% zero, percentage who her ranked letter, offers Fisher's tenure which overall Dr. top category to illuminate de- teaching ability favorable assessment of her less than respect to an to zero. With clined from 52% employ any ability, different standards. does not class, noted that the committee advanced "well for notes that Dr. Fisher scored letter gave her a (62% ranks), of Dr. Fisher's students 1982-83 none openness in the four and five rank), gave (8% top her rank four rank and clarity 20% in the five not so well rank) (31% (People ability who find ability to illuminate. mastery in the five forgotten (15% insignificant their in the five information difficult material illuminate college rank).” days.) considered her evalua- committee

Case Details

Case Name: Cynthia J. Fisher, Plaintiff-Appellee-Cross-Appellant v. Vassar College, Defendant-Appellant-Cross-Appellee

Court Name: Court of Appeals for the Second Circuit

Date Published: Jun 5, 1997

Citation: 114 F.3d 1332

Docket Number: 1179, 1303 and 2275, Dockets 94-7737, 94-7785 and 94-9125

Court Abbreviation: 2d Cir.