*1 EDWARDS, Cir- Before WRIGHT McGOWAN, Cir- Senior Judges, and cuit Judge. cuit by Circuit filed the Court Opinion for EDWARDS. T. Judge HARRY EDWARDS, Judge. HARRY T. King appeals from a decision of Mabel Court, granting judgment for dismissing appellees and her claims of arising under Title VII sex discrimination of the Civil ly, Rights Specifical- Act of unlaw- King contends that she was supervisory fo- fully denied a the District of Co- rensic/clinical nurse at asserts lumbia Jail. position instead to was awarded Grant, who was en- a Ms. Norma Jean *2 relationship Dr. gaged entry findings in intimate with for the an the District Court Smith, the Medical Officer at Francis Chief and conclusions law. fact alleges Appellant the Jail. also of a discriminatory work victim Background I. subjected and that she to environment Appellant registered employed is a nurse filing complaint reprisal for with Department the D.C. Corrections as a Equal Employment Opportunity Commis- supervisory level clinical nurse. In DS-11 (“EEOC”). sion applied promotion for a to a 1981 she new Court held that Ms. District position, nurse, supervisory forensic/clinical easily made out a had DS-12, promotion in went particular, In sex discrimination. court found that nurse, to Norma Jean Grant. stead another Ms. had demonstrat- testimony that Dr. The trial revealed Fran ed that the sexual Dr. between Smith, cis Chief Medical Officer at D.C. Ms. Grant Smith and had been substan- Jail, Lee, approval Robert Dr. tial factor in the Services, for Health Assistant Director tried to have Ms. Grant had addition, the trial court held that the de- promoted to the the attempt explain fendants’ to the selection announcing position a before month pretextual. The clearly of Ms. Grant was District vacancy June, Department 1981. The judg- nonetheless Court entered rejected quired request because it was re defendants, holding Ms. ment that position competitively. to fill the King had not carried her ultimate burden However, instruction, even after this Drs. persuasion had of offer because she failed seriously not Smith and Lee did consider proof that the sexual relation- they had any pre candidate because other ship in had consummated. been position. Ms. selected Grant for Grant upon a The District Court’s decision rests promotion in September, received The had been faulty premise pro- plaintiff must a—that found Court that Ms. Grant evidence of intentional discrimi- duce direct nation suasion. The District Court also erred suggesting pre-selected position. for the carry per- ultimate burden of (D.D.C. Palmer, F.Supp. King v. 1984). finding there could be under Bundy of discrimination v. Jackson1 introduced Appellant showing (or and outstand- of an consum- record absent an excellent work had When, here, mated) had a relationship. that Ms. Grant as and ing credentials unprofes- behaved on the plaintiff successfully pri- makes out a and poor record work dishonestly job. Appel- and sionally ma discredits defend- and intimate explanation, she of an purported ants’ has car- also introduced lant Dr. and Ms. Her Smith ried ultimate burden. reliance between testimony of included upon indirect or circumstantial evi- some This evidence Grant. Moreover, Ms. Grant permissible. as Smith and dence that Dr. co-workers frequently plainly found, clearly there was together long lunches and took evidence of including some direct sexual conduct job, on the behavior their that physical intimacy contact, suggested be- between Ms. Grant and Dr. Smith that grounds King’s them; testimony the Adminis- sufficient vided Ms. tween Scott, Jail, had allegation sex Calvin was a substantial factor the D.C. trator seen kissing (in out- promotion; Ms. further Grant in the form of actual evidence Grant’s and Ms. Dr. Smith testimony of Ms. fully and work-place; con- side Grant’s Dock, Ronald relationship) boyfriend, and summated sexual essary was unnec- roommate frequently called Ms. King’s support Ms. claim of dis- that Dr. Smith under discuss nonwork-related crimination Title VII. home to Grant some- and Ms. Grant that Dr. Smith topics, improperly Because the District night long, together all stayed out times required produce Ms. direct evi- Ms. Grant Dr. wired Smith sexual relation- dence ship a consummated money sum of Dock a substantial and Mr. Ms. Grant Dr. we Carolina. South they were arrested reverse and remand this claim for the de- when favorit- testified as appropriate remedy. termination of also Co-workers dis- whose hereby remand toward shown ism unprofes- schedule and regard of work reprisal work environment and claims (D.C.Cir.1981). 641 F.2d 934 punished consist- behavior were sional ent with the Court finds “clearly pretex- credible” and policy practice toward (emphasis added). tual." Id. at 68 The District employees. other The District granted Court nonetheless investigate the made to that “no effort was judgment in the defendants’ favor because concerning Grant’s complaints numerous failed to offer “direct evi- *3 disregard frequent her of performance and dence of an sexual relationship” at 68. schedule.” Id. thus, between Ms. Grant and Dr. Smith and at trial also revealed that The evidence according Court, to the District failed to attempted Lee had to cover Drs. Smith and up carry her persuasion. ultimate burden of to Ms. irregularities respect with Id. The trial rejected King’s court Ms. and Lee promotion. Drs. Smith Grant’s argument that the sexual conduct in- meaningful investigate in a had refused promotion, fluenced Ms. Grant’s even if toward Ms. way complaints of favoritism unconsummated, should suffice to show a attempted trial to Dr. Smith at Grant. violation, Title VII tractiveness is too difficult stating that sexual at- deny any pre-selection, testifying that distinguish Oversight had members of the made the selection based of the candidates’ credentials. Committee from non-sexual attractiveness. comparison on a A commit- Analysis II. tee member disavowed this version of the parties note at the We outset events. agree King’s allegation, that Ms. based as Appellant also introduced evidence to Ms. it is on and unfair- demonstrate that favoritism Smith, cognizable presents and Dr. a Grant surrounding ness Ms. Grant’s prohibiting action under cause of sex discrimination in statutes demoralizing disruptive has created work been ment at work since Appel employment. environment, appellant and that challenge lees do not the District Court’s singled out for treat- pur case is conclusion view of such statutes. We District Court’s conclusion and its ratio nale: that unlawful sex discrimination oc curs within charges. bringing EEO agree appellees suggested that Mr. Dock’s testimony was motivated a desire for “ legitimate sex is ‘for no whenever revenge against Ms. and Dr. Grant discrimi reason nation.’ substantial factor com- and noted District Court did ” (quoting Bundy Id. at 66-67 v. ment that merits is the of this case on “[resolution Jackson, 934, (D.C.Cir. 641 F.2d 942-43 hampered by unreliability of 1981)). Nonetheless, testimony.” Id. proven court held that Ms. had prima four elements of her first, class; second, case: A. The Promotion Claim facie protected she was a member of a 1. The Failure to Produce Plaintiffs applied job that she Direct Evidence third, qualified; which she was was rejected applicant; favor of another Appellant contends that fourth, that there was a sexual rela- princi- properly apply failed tionship between Ms. Grant and Dr. Smith ples. announced in Postal United States factor in Ms. Grant’s Aikens, that was promotion. fourth substantial 460 75 L.Ed.2d 403 Board Governors v. Service respect 1478, Id. at 67. With to the U.S. 103 S.Ct. element, stated, (1983), Department and Texas Commu- evidence, summarizing Burdine, after nity v. 101 Affairs presented plaintiff’s (1981). on the 67 L.Ed.2d 207 She “[t]his direct case was sufficient for inference points out District Court case, rela- to be drawn that some kind of sexual prima had made out a that she which included facie tionship between Dr. Smith and Grant was permit sufficient to promotion.” factor in easily a substantial Grant’s the District Court to draw an infer- Id. ence that Dr. Smith and Ms. Grant were involved in a sexual rebuttal, regard With to the defendants’ that was a trial court testimony found the factor in the latter’s substantial Ms. found defendants’ responsible promoting points doctors Grant “not Ms. out that the trial court worthy proffered rationale for credence." It they found their promoting assertions that that she was better superior quali- qualified, “clearly moted Grant fications 598 pretextual.” to be pos- “unsupported by testimony case in this F.Supp. at 68. With the

881 unworthy explanation proffered argues, the District Court ture, credence. judg- to enter required under Burdine agree. Burdine, in her favor. at 101 S.Ct. at ment Aikens, added); see also (emphasis absolutely clear makes it Burdine 1482-83. 103 S.Ct. at U.S. who plaintiff establishes that a discrimination intentional In this the District Court ex rebuttal the defendants’ discredits who plicitly found that the defendants had not has of even if he or she prevail, should their minimal producing carried an burden of of discrimination. fered explanation the allegedly discrimina Burdine, Court elabo- Supreme tory conduct. Ms. had made out a shifting burdens on the model rated intentional discrimina Douglas in 792, forth McDonnell production set tion and had shown that the “evidence 1817, Green, U.S. presented plaintiff’s on the direct case was (1973). of estab- The burden L.Ed.2d 668 *4 sufficient for an inference to be drawn that case lishing the elements kind some of sexual belongs evidence preponderance the by a Dr. Smith and Grant was a substantial Burdine, 252- 450 U.S. at plaintiff. in promotion.” factor Grant’s 598 F.Supp. establishing “By 53, 1093-94. 101 at S.Ct. Having at 67. determined that Ms. case, in a Title plaintiff prima facie a explana had discredited the defendants’ tion, ‘presump- a action creates rebuttable VII required the trial court was grant to unlawfully discrimi- employer tion nated judgment words, in her favor. In other pre- against’ To rebut this [her]. prevailed Ms. the defendants never should have clearly set must sumption, ‘the defendant “ ‘pre rebutted forth, of admissi- through the introduction sumption criminated the employer unlawfully dis evidence, plaintiff’s for the the reasons ble rejection.’ must against’ Aikens, 460 [her].” words, the In other defendant 714, at (quoting U.S. 103 S.Ct. at 1481 plaintiff ‘produc[e] evidence that Burdine, 450 U.S. at 101 S.Ct. at preferred, was rejected, or someone was for 1094). It plaintiff’s matters not nondiscriminatory rea- legitimate, a ” proof indirect, vehicle of rather than 714, Aikens, at 103 S.Ct. son.’ direct evidence. The ex Burdine Burdine, 450 at 253- (quoting U.S. at 1481 plaintiff may a pressly carry stated that 1093-95). 56, case, Throughout 101 at S.Ct. directly her ultimate burden “either ... or per- burden of “plaintiff retains the indirectly,” Burdine, 256, at 101 of intention- ultimate issue suasion” on the al discrimination. added); (emphasis at S.Ct. 1095 that is to Burdine, 450 U.S. say, by direct or indirect evidence.2 256, de- Following the 101 at 1095. S.Ct. explanation in nondiscriminatory Thus, fendants’ rebuttal to the tiff is clear: a the mandate Burdine court plain- may require not direct evi- district op- of intentional discrimination as dence to evidence that carries the the posed indirect to demon- opportunity must have persuasion by discrediting proffered reason was not burden strate the Moreover, a district defendants’ rebuttal. court intentional discrimination as employment deci- true for the reason may require evidence of direct merges sion. This burden now opposed cir- to the court persuading ultimate burden evidence thereof.3 Insistence cumstantial been the victim intention- that al discrimination. She evi- may upon direct instead circumstantial succeed prob- would create insurmountable directly by persuading the dence this either plaintiffs in proof for discrimina- discriminatory more lems of reason court that likely cases.4 The District Court therefore employer tion or indi- motivated the produce to improperly required plaintiff rectly showing employer’s by Cuddy Carmen, (D.C.Cir.1984), (D.C.Cir. 694 Young, F.2d F.2d 701 859 In Krodel v. 748 2. 1982)). — U.S. -, denied, rt. ce Aikens, (1985), 3. See 460 U.S. at ratio this court reiterated the 714 n. L.Ed.2d 51 S.Ct. at (Title plaintiff 1481 n. 3 approach: “Employees may prove VII sound nale this evidence). direct or great circumstantial employment informa applicants have ("eyewitness” id. at disadvantages: they into the See cannot reach at 1482 tional decision-makers, they testimony rarely employer's and therefore available as to mo- minds making allegedly only discriminatory tivation in usually gather evidence circumstantial em- can decision). ployment (quoting Id. at 707 motives.” might advantage of any have the course in this of sex discrimination evidence direct case.5 test, “bright line” it would establish patently fore refuse legal principle. We absurd there- Produce to Failure Plaintiffs require plaintiff who has Relation- The Sexual That Evidence provided clear of sexual evidence conduct Consummated ship Was directly to do more and demonstrate The District Court also erred in its has been consummated. plaintiffs conclusion that case failed be District Here the Court found there cause there was no of “an was direct evidence of a sexual relation- explicit sexual relationship between Grant kisses, i.e., ship, and other embraces am- and Dr. Smith.” This is a curious state ment because there was no dearth of direct behavior, concededly played orous role selection substantial Ms. Grant’s evidence of a sexual relationship between enough This than was more Ms. Grant and Dr. and the trial satisfy plaintiff’s proof on burden of court specifically found that point. demonstrated that the sexual relationship hypotheti- not invoke does had motion This been a substantial factor in pro difficult, situation more arguably cal, Therefore, in which by the posed plaintiff Court could not have meant suggest candidate only that has shown otherwise in its statement that “there was “attractive” no direct selected of an is direct there Here selecting officials. relationship.”6 Apparently, by resort rela- proven in a sexual conduct the notion of an “explicit sexual relation *5 and selecting official ship,” tionship between suggest meant to And, for selected employee that there was the most that no the establishes importantly, the sexual relationship between Dr. Smith and of because promoted was Ms. doing, Ms. Grant Grant had been consummated. In so Had relationship. sexual the District Court seemingly at promoted that Ms. Grant tempted to draw an court for some inexplicable distinction entirely than, or reason other between sexual (ar intercourse and other relationship, then from, the sexual guably lesser) apart forms of sexual conduct. But case. a different have been might Such a distinction finds support no in the found to were here explanations governing good appellees’ case law and we can discern no pretextual.” “clearly reason to be carve out such an exception in this case. reverse we foregoing, view pro- regarding imagine qualitative holding even how court cannot We Court’s District motion trict the Dis- begin to make distinctions matter remand the could and King judgment enter encoun- forms of sexual different remedy.7 appropriate inter- requirement proof of to determine A and ters. 6. If the attempt Appellees Court meant to to defend make a factual finding that there arguing trial court was no Court’s decision direct evidence of a that, relationship sexual although proffered implicitly found their between Dr. Smith and Ms. Grant, we would reverse such a promoting determination reason for Ms. Grant instead Ms. "clearly as erroneous.” Pullman-Standard "clearly pretextual,” v. their evidence on Swint, 273, 287-88, points fatally King's pri- other undermined Ms. However, (1982). 72 L.Ed.2d 66 wholly we This con- ma case. is a untenable facie believe that there is point no real issue on this opinion. No- struction of the District Court’s because the District Court found a sexual rela- opinion we where in the trial court’s do discern tionship between Dr. Smith and Ms. finding appellees argue al- such as a implicit. explicit (or consummated) not an beit one. rely Court’s instead on the District minimum, appropriate finding appears it express At a that Ms. had established pro all the elements case of inten- remedy in this case should include Therein, given question, tional discrimination. the Dis- position of Ms. motion trict Court's receipt backpay, formulation of and a full consideration her necessarily by preponderance Paper established further relief. See Albemarle Co. 405, 418, of the evidence that a existed Moody, v. (1975) ("[t]he influ- between Ms. Grant and Dr. Smith that court has not 45 L.Ed.2d And, Dis- duty enced the as the merely power to render a found, appellees’ trict Court defense was "un- possible will as eliminate decree which so far supported by testimony discriminatory past----”); court finds credible" effects 948-53; "clearly pretextual.” Jackson, and was Nord v. Bundy F.2d at Reprisal rehearing, Environment and noted the con- regarding B. The ae cern of the United States that the we Work Claims panel significant “may represent a ex- decision complaint alleged coverage.” of Title VII The pansion Unit- during her and maintained trial ed States wished time consider whether work the victim of was environment filed a addressing to file brief having reprisals and of whether Title VII affords a claim for relief complaint The Dis- with the EEOC. to a for sex-based discrimination woman findings yet has to enter of fact trict Court or conclusions of alleges that she was denied a who motion allegations. law on these favor another woman who had remand these matters to the We therefore supervisor. a sexual with their for further consideration and District Court entry Rehearing of that issue would en banc be findings, appropriate conclusions inappropriate party challenged judgment. and application appeal, of Title onVII and argued the issue was panel. briefed or and remanded. Reversed Indeed, losing parties’ petition Banc Rehearing En rehearing suggestion rehearing On again did not raise en banc Because the issue. Judge; ROBINSON, Chief Before: point panel was not before EDWARDS, MIKVA, WALD, WRIGHT, on there is no occasion to address appeal, SCALIA, STARR, BORK, GINSBURG, the issue en banc. BUCKLEY, Circuit SILBERMAN Judge. McGOWAN, Senior Judges; * ORDER Curiam.

Per rehearing en banc suggestion full circulated has been

appellees requested no member *6 considera- Upon thereon. of a vote taking tion isit foregoing, of the sug- Court, ORDERED, by the LeBOUTILLIER, Appellant, David denied. gestion AIR LINE PILOTS ASSOCIATION ORDER INTERNATIONAL, et al. PER CURIAM. No. 84-5940. the motion Upon consideration time Appeals, an extension United States Court States United curi- as amicus to file brief which within ae Columbia Circuit. banc, it is rehearing en regarding Argued Nov. Decided Dec. banc, that ORDERED, en the Court is denied. motion Judge, with whom BORK, Circuit STARR, SCALIA, GINSBURG, Judges join: BUCKLEY SILBERMAN re- deny suggestion voting to motion and the

hearing banc en of time an extension United States within curi- as amicus to file a brief * participate Corp., Judge in this 758 F.2d did not Steel Robinson United States Chief Cir.1985). (11th order.