Aka, Etim U. v. WA Hosp Ctr

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued in banc May 13, 1998 Decided October 9, 1998

No. 96-7089

Etim U. Aka,

Appellant

v.

Washington Hospital Center,

Appellee

Appeal from the United States District Court

for the District of Columbia

(No. 94cv01281)

Gregg D. Adler argued the cause for appellant, with whom

James L. Kestell was on the briefs.

Stewart S. Manela argued the cause for appellee, with

whom Henry Morris, Jr., and Anne M. Hamilton were on

the briefs. Samuel K. Charnoff entered an appearance.

Barbara L. Sloan, Attorney, Equal Employment Opportu-

nity Commission, argued the cause for amicus curiae, with

whom Lorraine C. Davis, Assistant General Counsel, was on

the briefs. Philip B. Sklover, Associate General Counsel,

entered an appearance.

Before: Edwards, Chief Judge, Wald, Silberman, Williams,

Ginsburg, Sentelle, Henderson, Randolph, Rogers, Tatel and

Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Wald.

Dissenting Opinion filed by Circuit Judge Henderson, with

whom Silberman, Williams and Ginsburg, Circuit Judges,

join.

Dissenting Opinion filed by Circuit Judge Silberman, with

whom Williams and Ginsburg, Circuit Judges, join.

Wald, Circuit Judge: In 1991, Etim U. Aka ("Aka") under-

went heart bypass surgery, and thereafter was unable to

perform his prior job as an orderly at Washington Hospital

Center ("WHC"). After several of his applications for vacant

positions at WHC were turned down, he sued WHC in the

United States District Court for the District of Columbia,

claiming that WHC in its hiring decisions had discriminated

against him on the basis of his age and disability, and that

WHC had also violated the Americans with Disabilities Act of

1990, 42 U.S.C. s 12101 et seq., ("the ADA") by failing to

reasonably accommodate his disability by reassigning him to

a vacant position. The district court granted summary judg-

ment to WHC, and Aka appealed; a divided panel of this

court vacated the summary judgment as to one of the hiring

decisions and as to Aka's reasonable-accommodation claim.

At the behest of WHC, we granted rehearing in banc as to

these two claims. We again vacate the original summary

judgment on Aka's two claims, though for reasons that differ

from the panel's in some respects.

I. Background

Aka, a 56-year-old man born and raised in Nigeria, began

working for WHC as an Operating Room Orderly in 1972, two

years after he emigrated from Nigeria. His job, which

involved transporting patients and medical supplies to and

from WHC's operating room, required substantial amounts of

heavy lifting and pushing. While working at WHC, Aka

earned a college degree from the University of Baltimore, and

then a master's degree in business and public administration

("MBPA") in health service management from Southeastern

University.

In 1991, after working at WHC for over nineteen years,

Aka was hospitalized with heart and circulatory problems.

He underwent bypass surgery in November 1991, and spent

several months thereafter in rehabilitation. While he was in

the hospital, a representative of WHC's personnel depart-

ment, at the request of a hospital social worker, visited Aka to

discuss the possibility of his returning to work. Aka had

obtained a medical leave of absence from WHC before his

operation, and WHC now arranged for an extension of that

leave. Aka was in rehabilitation until April 1992. His doctor

then told him he could return to work, with a warning that his

job could not involve more than a "light or moderate level of

exertion."

Aka's former orderly job did not meet that qualification;

thus, Aka asked the hospital to transfer him to a job that was

compatible with his medical restrictions.1 WHC declined to

do so, and instead told him that it was his responsibility to

review WHC's job postings and to apply for any vacant jobs

that interested him. WHC did, however, put Aka on an

eighteen-month "job search leave." The applicable collective

bargaining agreement ("CBA") provides that qualified WHC

employees "will be given preferential treatment over non-

Hospital employees in filling bargaining unit vacancies," and

also incorporates an additional preference for employees with

greater seniority. WHC's decision to place Aka on job search

__________

1 Aka also explained to WHC that he wished to remain employed

at the hospital in some capacity because he had a retirement plan

and other benefits which he might lose if he had to leave.

leave meant that Aka could retain these preferences during

the leave period.

Aka first applied for a position as a Financial Manager, but

was not given an interview. An employee of WHC's person-

nel department told him to apply for less elevated positions,

and specifically suggested the positions of File Clerk and Unit

Clerk. Aka followed this advice, and applied in May 1993 for

a position as Central Pharmacy Technician, a job that in-

volved a range of clerical tasks associated with filling pre-

scriptions, such as patient census checks, charge processing,

and stock replacement. Dr. Ann Breakenridge ("Breaken-

ridge"), WHC's Assistant Director of Pharmacy Clinical Ser-

vices, interviewed Aka for this job, but hired another hospital

employee, Jaime Valenzuela ("Valenzuela"), instead.

In July 1993, four vacancies opened up for File Clerk

positions. Aka again applied and was interviewed, but did

not get any of the four jobs. Among the four applicants who

were hired were two non-WHC employees. Aka, believing

that this violated the CBA's requirement that hospital em-

ployees be accorded preference in filling empty positions,

complained to the union, and the union filed a grievance on

behalf of Aka and another hospital employee. While this

grievance was in arbitration, WHC admitted its mistake,

removed the two non-employees from the File Clerk jobs, and

hired two hospital employees instead; it did not, however,

hire Aka. Aka then protested that he should have been

among those hired, given his greater seniority. The arbitra-

tor ultimately ruled (in November 1994) that WHC's decision

not to hire Aka did not violate the CBA. The arbitrator

found that Aka met the minimal qualifications for the job, had

"excellent" evaluations and "good marks" for his ability to

work with peers, and was a "highly intelligent and motivated

man" who "could be expected to grasp the technical aspects of

the job quite readily." Nevertheless, he said, the CBA allows

WHC to hire less senior applicants if they are more qualified,

and the applicants WHC hired for the File Clerk jobs had

substantial experience with office work, which Aka did not.

In the meantime, Aka continued to apply for other positions

at the hospital, but did not receive interviews for any of them.

(He eventually volunteered to do administrative work in

various parts of the hospital, but still did not succeed in

obtaining a job.) In June 1994, Aka filed suit in the United

States District Court for the District of Columbia. He

claimed that WHC's failure to place him in the Central

Pharmacy Technician or File Clerk jobs constituted discrimi-

nation on the basis of his disability and age, in violation of the

Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.

ss 621-34 (1994), and the Americans with Disabilities Act

("ADA"), 42 U.S.C. s 12101 et seq. (1994).2

WHC initially moved to dismiss the complaint, arguing that

Aka was required to exhaust the CBA's grievance procedures;

this motion was denied. Then, after discovery, WHC moved

for summary judgment as to Aka's disparate treatment

claims, which invoke WHC's failure to hire him for any of the

jobs he applied for; the district court granted this motion.

Aka cross-moved for summary judgment as to WHC's failure

to reasonably accommodate his disability, asserting that, un-

der the ADA, WHC was obliged to reassign him to a vacant

position for which he was qualified and which he could

perform despite his disability. As to his reasonable-

accommodation claim, the district court concluded that the

CBA barred WHC from reassigning disabled employees out-

side of the usual job-application process provided for in the

CBA, and that any reassignment obligation under the ADA

must give way if it conflicts with other employees' rights

under the CBA. The district court thus granted summary

judgment to WHC on this issue as well.

Aka appealed the denial of both the ADEA and the ADA

claims. A panel of this court concluded that the district court

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2 Aka originally also claimed that WHC had (1) discriminated

against him on the basis of his national origin in violation of Title

VII of the Civil Rights Act of 1964, 42 U.S.C. s 2000e et seq. (1994),

and (2) violated the District of Columbia Family and Medical Leave

Act, D.C. Code Ann. s 36-1301 et seq. He has subsequently

dropped these claims.

had correctly granted summary judgment to WHC as to

Aka's disparate-treatment claim based on the File Clerk

hiring decisions. As to the remainder of Aka's claims, the

panel was in disagreement. The majority reversed and re-

manded as to the grant of summary judgment to WHC on (1)

Aka's disparate-treatment claim based on the Central Phar-

macy Technician hiring decision and (2) Aka's reasonable-

accommodation claim. The dissent would have affirmed as to

the first of these claims, and would have remanded on differ-

ent grounds as to the second. WHC moved for rehearing in

banc as to these two rulings, which was granted. (Neither

WHC nor Aka asked that the panel's holding as to the File

Clerk positions be reheard in banc, so that the panel's ruling

on that issue stands.) We conclude that it was error for the

district court to grant summary judgment to WHC as to

Aka's Central Pharmacy Technician disparate-treatment

claim and as to his reasonable-accommodation claim.

II. Analysis

The principles of summary judgment are sufficiently famil-

iar as to require only brief restatement. We review grants of

summary judgment de novo; a party is only entitled to

summary judgment if the record, viewed in the light most

favorable to the nonmoving party, reveals that there is no

genuine issue as to any material fact. See Tao v. Freeh, 27

F.3d 635, 638 (D.C. Cir. 1994). "[S]ummary judgment will

not lie if ... the evidence is such that a reasonable jury could

return a verdict for the nonmoving party." Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

In addition to his age discrimination claim, Aka in effect

makes two distinct disability discrimination claims. The first

is based on the theory that WHC engaged in disparate

treatment in declining to hire him for the Pharmacy Techni-

cian position; the second, on the theory that WHC discrimi-

nated against him in declining to grant him the reasonable

accommodation of reassignment to a vacant position once he

became disabled. We will first analyze Aka's disparate treat-

ment disability discrimination claim (together with his age

discrimination claim) under the familiar three-part protocol

set forth by the Supreme Court in McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973). See DeLuca v. Winer Indus.,

Inc., 53 F.3d 793, 797 (7th Cir. 1995) (finding that the

McDonnell Douglas framework applies to ADA cases); see

also Barth v. Gelb, 2 F.3d 1180, 1186 (D.C. Cir. 1993) (finding

that in cases under a related statute, the Rehabilitation Act, it

is appropriate to apply the McDonnell Douglas framework to

claims that an employer has acted with discriminatory intent).

We then consider Aka's reasonable-accommodation claim,

which is not subject to analysis under McDonnell Douglas,

but has its own specialized legal standards. Cf. Barth, 2 F.3d

at 1186 (drawing a similar distinction under the Rehabilitation

Act).

A.Disparate Treatment

Under the McDonnell Douglas framework, the complainant

must first establish a prima facie case of prohibited discrimi-

nation. See McDonnell Douglas, 411 U.S. at 802. Once he

has done so, the burden then shifts to the employer to

articulate legitimate, nondiscriminatory reasons for the chal-

lenged employment decision. See id. Should the employer

succeed in presenting such reasons, the burden then shifts

back to the complainant, who then has an opportunity to

discredit the employer's explanation. See id. at 804-05.3 In

Texas Department of Community Affairs v. Burdine, 450

U.S. 248 (1981), the Court held that, in producing nondiscrim-

inatory reasons for its challenged action, the employer is not

__________

3 McDonnell Douglas actually said the employee "must ... be

afforded a fair opportunity to show that petitioner's stated reason

for respondent's rejection was in fact pretext." 411 U.S. at 804.

The term "pretext" can be slippery; sometimes it means that an

employer's explanation is incorrect, and sometimes it means both

that the explanation is incorrect and that the employer's real reason

was discriminatory. (As we explain below, the plaintiff's ultimate

obligation, under McDonnell Douglas and its progeny, is to show

the latter.) We will avoid using the term "pretext," and instead

refer (as appropriate) to evidence that the employer's explanation is

false, that it is a lie, or that the employer's real motivation was

discriminatory.

obligated to support these reasons with objective evidence

sufficient to satisfy the "preponderance of the evidence"

standard, see id. at 259-60, and that the plaintiff at all times

retains the ultimate burden of persuasion. See id. at 253.

The Court elaborated further on the McDonnell Douglas

framework in St. Mary's Honor Center v. Hicks, 509 U.S. 502

(1993). In that case, the plaintiff, Melvin Hicks, claimed that

he had been fired because of his race. The district court

found, after a bench trial, that he made out a prima facie case

and the reasons proffered by the employer for firing Hicks

were not its real reasons; the court concluded, however, that

other evidence undercut the employee's claim that the firing

was motivated by discrimination. The Eighth Circuit re-

versed, ruling that once the district court had found that the

employer's proffered reasons for its decision were incorrect,

there was no need to go further, and Hicks was entitled to

judgment in his favor. The Supreme Court disagreed, hold-

ing that a plaintiff who discredits the employer's stated

reasons for its employment decision is not necessarily entitled

to judgment in his favor as a matter of law.

We review Hicks in some detail, as the Court's most recent

explication of the workings of the McDonnell Douglas frame-

work. Hicks made clear that the function of the prima facie

case is to compel the employer to " 'produc[e] evidence' that

the adverse employment actions were taken 'for a legitimate,

nondiscriminatory reason.' " Id. at 507 (quoting Burdine, 450

U.S. at 254). Once the employer has done so, "the presump-

tion [of discrimination] raised by the prima facie case is

rebutted," and "drops from the case." Id. (quoting Burdine,

450 U.S. at 255 & n.10). Then, the plaintiff has " 'the full and

fair opportunity to demonstrate,' through presentation of his

own case and through cross-examination of the defendant's

witnesses, 'that the proffered reason was not the true reason

for the employment decision,' and that race [or some other

discriminatory basis] was." Id. at 507-08 (quoting Burdine,

450 U.S. at 256) (citation omitted).

Assuming then that the employer has met its burden of

producing a nondiscriminatory reason for its actions, the

focus of proceedings at trial (and at summary judgment) will

be on whether the jury could infer discrimination from the

combination of (1) the plaintiff's prima facie case; (2) any

evidence the plaintiff presents to attack the employer's prof-

fered explanation for its actions; and (3) any further evidence

of discrimination that may be available to the plaintiff (such

as independent evidence of discriminatory statements or atti-

tudes on the part of the employer) or any contrary evidence

that may be available to the employer (such as evidence of a

strong track record in equal opportunity employment). That

is not to say that every plaintiff must always present evidence

in each of these categories in order to avoid summary judg-

ment.4 In this case, Aka has presented evidence in the first

two categories, but neither Aka nor WHC has presented any

evidence in the third. We are therefore faced with the issue

of when evidence in categories (1) and (2) alone can suffice to

support a jury verdict for the plaintiff, or, as in this case, to

prevent summary judgment for the defendant.

A number of circuit courts have cited Hicks for the proposi-

tion that a plaintiff can always succeed in fending off sum-

mary judgment if he can demonstrate a genuine issue of

material fact as to whether the employer's stated reason for

its employment decision is the real reason. See, e.g., Sheri-

dan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1066-

72 (3d Cir. 1996) (in banc); Kline v. Tennessee Valley Auth.,

128 F.3d 337, 342-47 (6th Cir. 1997); Anderson v. Baxter

Healthcare Corp., 13 F.3d 1120, 1123-24 (7th Cir. 1994);

Washington v. Garrett, 10 F.3d 1421, 1433 (9th Cir. 1993);

Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995).

Other circuit courts have disagreed with this reading of

Hicks, saying that there are at least some situations in which

genuine issues of material fact as to the falsity of the employ-

er's explanation will not suffice alone to avoid summary

__________

4 Indeed, Burdine said that in some cases the plaintiff may be

able to prevail on the basis of his initial prima facie case alone,

"combined with effective cross-examination of the defendant." Bur-

dine, 450 U.S. at 255 n.10. This suggests that a prima facie case

that strongly suggests intentional discrimination may be enough by

itself to survive summary judgment.

judgment. See, e.g., Hidalgo v. Conado Insurance Agencies,

Inc., 120 F.3d 328, 335-37 (1st Cir. 1997); Fisher v. Vassar

College, 114 F.3d 1332, 1335-38 (2d Cir. 1997) (in banc);5

Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir.

1996) (in banc); Ryther v. Kare 11, 108 F.3d 832, 836-37 (8th

Cir. 1997) (in banc).

We ourselves do not read Hicks to say that a plaintiff who

creates a genuine issue of material fact as to whether the

employer has given the real reason for its employment deci-

sion will always be deemed to have presented enough evi-

dence to survive summary judgment. Instead, the court

must consider all the evidence in its full context in deciding

whether the plaintiff has met his burden of showing that a

reasonable jury could conclude that he had suffered discrimi-

nation and accordingly summary judgment is inappropriate.

Under Hicks and other applicable law, however, a plaintiff's

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5 We do not see the difference that Judge Silberman discerns

between our approach and that of the Second Circuit in Fisher. To

the contrary we view our approach as in accord with that of our

Second Circuit colleagues. Fisher holds that "evidence constituting

a prima facie case prior to the employer's proffer of a reason,

coupled with the error or falsity of the employer's proffered reason

may--or may not--be sufficient to show illegal discrimination by a

preponderance of the evidence." 114 F.3d at 1333. Fisher further

holds that "the fact that the proffered reason was false does not

necessarily mean that the true motive was the illegal one argued by

the plaintiff.... The sufficiency of the finding of pretext to

support a finding of discrimination depends on the circumstances of

the case." Id. at 1338 (emphasis added). Neither our decision, nor

that of the Second Circuit is in conflict with Judge Silberman's view

that the prima facie case "is only a burden of production shifting

device," infra at 4 (Silberman, J., dissenting). Indeed, we make

precisely the same point in our description of the McDonnell

Douglas framework, supra at 8; as we explain below, once the

burden-shifting process is complete, the evidence constituting the

prima facie case is then weighed, together with the parties' other

evidence, according to ordinary evidentiary principles. See infra

s II.A.2. In sum, neither our decision, nor that in Fisher,

"amounts, de facto, to a broad 'wrongful discharge' cause of action

discrediting of an employer's stated reason for its employ-

ment decision is entitled to considerable weight. As we will

explain, we therefore reject any reading of Hicks under which

employment discrimination plaintiffs would be routinely re-

quired to submit evidence over and above rebutting the

employer's stated explanation in order to avoid summary

judgment.

1.The meaning of Hicks

The principal support for the proposition that a plaintiff can

always avoid summary judgment by creating a genuine issue

of material fact as to whether the employer's stated reason

for its employment decision is the true reason derives from

the following passage in Hicks:

The factfinder's disbelief of the reasons put forward by

the defendant (particularly if disbelief is accompanied by

a suspicion of mendacity) may, together with the ele-

ments of the prima facie case, suffice to show intentional

discrimination. Thus, rejection of the defendant's prof-

fered reasons will permit the trier of fact to infer the

ultimate fact of intentional discrimination,4 and the Court

of Appeals was correct when it noted that, upon such

rejection, no additional proof of discrimination is re-

quired. But the Court of Appeals' holding that rejection

of the defendant's proffered reasons compels judgment

for the plaintiff disregards the fundamental principle of

Rule [of Evidence] 301 that a presumption does not shift

the burden of proof, and ignores our repeated admonition

that the Title VII plaintiff at all times bears the 'ultimate

burden of persuasion.'

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4 Contrary to the dissent's confusion-producing analysis, there

is nothing whatsoever inconsistent between this statement and

our later statements that (1) the plaintiff must show "both that

the reason was false, and that discrimination was the real

reason," and (2) "it is not enough ... to disbelieve the employ-

er." Even though (as we say here) rejection of the defendant's

proffered reasons is enough at law to sustain a finding of

discrimination, there must be a finding of discrimination.

__________

for a plaintiff in a protected class," infra at 3 (Silberman, J.,

dissenting).

Hicks, 509 U.S. at 511 (emphasis and ellipsis in original)

(citations omitted). Certainly, this passage indicates at a

minimum that a factfinder's reasonable rejection of the defen-

dant's proffered explanation will support an inference of

discrimination. But this passage can be and has been read

by some courts to go further, proclaiming that if the jury can

reasonably reject the defendant's proffered reason, no addi-

tional proof of discrimination is ever "required." See, e.g.,

Anderson, 13 F.3d at 1123-24; Washington, 10 F.3d at 1433.

For reasons discussed below, common sense compels us to

reject so broad a reading. The Court's every word and

sentence cannot be read in a vacuum; its pronouncements

must be read in light of the holding of the case and to the

degree possible, so as to be consistent with the Court's

apparent intentions and with other language in the same

opinion. As the Court itself cautions elsewhere in Hicks, "we

think it generally undesirable, where holdings of the Court

are not at issue, to dissect the sentences of the United States

Reports as though they were the United States Code." Id. at

515.

Two examples illustrate why we believe an unqualifiedly

literal reading of this passage of Hicks would not carry out

the Court's true purpose. First, let us consider a case in

which the plaintiff calls the employer's explanation into ques-

tion, but does so in a way that conclusively demonstrates that

the real explanation for the employer's behavior is not dis-

crimination, but some other motivation. For instance, in

Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328 (8th

Cir. 1996), the plaintiff claimed that he had been fired be-

cause of his age. When his former employer came forward

with a number of nondiscriminatory explanations, including

insubordination, the plaintiff responded with evidence that in

fact the real reason he had been discharged was that he had

discovered that his firm was not in compliance with Securities

and Exchange Commission rules and his employer wished to

cover the problem up--a contention that the panel rightly

concluded undercut the plaintiff's own claim of age discrimi-

nation. See id. at 1337-38; cf. Hazen Paper v. Biggins, 507

U.S. 604, 613 (1993) (noting that "inferring age motivation

from the implausibility of the employer's explanation may be

problematic in cases where other unsavory motives, such as

pension interference, were present."). If a plaintiff shoots

himself in the foot, surely there is no point in sending the

case to the jury. See also Visser v. Packer Engineering

Assoc., 924 F.2d 655, 657 (7th Cir. 1991) (in banc) (observing

that a plaintiff's evidence that he was fired because he was a

whistleblower does not tend to show discrimination, and

"tends if anything to show the opposite").

Second, there may be no legitimate jury question as to

discrimination in a case in which a plaintiff has created only a

weak issue of material fact as to whether the employer's

explanation is untrue, and there is abundant independent

evidence in the record that no discrimination has occurred.

The Hicks Court cited the example of a situation in which the

hiring officer, as well as 40% of the employer's work force,

were members of the same minority group as the plaintiff

(even though the group in question comprised only 10% of the

relevant labor market). See Hicks, 509 U.S. at 513. Where

an employer has a strong record of equal opportunity employ-

ment, any inference of discrimination arising from the dis-

crediting of the employer's explanation may be a weak one,

and in some cases not strong enough to let a reasonable

factfinder conclude that discrimination has occurred at all.

Accordingly, as we read Hicks, the plaintiff's attack on the

employer's explanation must always be assessed in light of

the total circumstances of the case; in some instances, as we

have pointed out, the fact that there are material questions as

to whether the employer has given the real explanation will

not suffice to support an inference of discrimination. It is

obviously impossible to provide an exhaustive list of such

situations. In the next section, however, we discuss the

(often great) evidentiary weight to be accorded to the plain-

tiff's exposure of the defendant's excuse as false, an analysis

that will assist in determining whether a particular showing

suffices to permit an inference of discrimination.

Although we find that rebuttal evidence alone will not

always suffice to permit an inference of discrimination, we do

not endorse a reading of Hicks under which employment

discrimination plaintiffs are presumptively required to submit

evidence over and above such a rebuttal in order to avoid

summary judgment. An example of a case adopting the

latter approach is Hidalgo v. Overseas Condado Ins. Agen-

cies, Inc., 120 F.3d 328 (1st Cir. 1997). In Hidalgo, the First

Circuit assumed for purposes of its decision that an age-

discrimination plaintiff had raised a triable issue as to wheth-

er the employer's explanation was incorrect,6 but nevertheless

concluded that because the plaintiff had "offered no evidence

that reasonably could be construed to indicate that [the

employer] intended to discriminate against him because of his

age," it was appropriate to grant summary judgment for the

defendant. Id. at 337. As we have said, the circumstances of

some cases may render evidence undercutting the employer's

explanation insufficient to infer discrimination; but Hidalgo,

rather than explaining why the showing in that case fell short,

simply said that the plaintiff had offered "no" evidence of

intentional discrimination, without addressing the significance

of the plaintiff's case at all. This suggests that the Hidalgo

court believed that employment-discrimination plaintiffs must

as a routine matter do more than discredit the employer's

explanation in order to avoid summary judgment. That

assumption we think would be inconsistent with Hicks, which

makes clear that "no additional proof of discrimination is

required" as a matter of course once a plaintiff has shown

that a jury could reject the employer's proffered explanation.

Hicks, 509 U.S. at 511; see also Rothmeier, 85 F.3d at 1333-

35 (reading Hicks to reject an approach under which a

showing that the defendant's proffered explanation is false is

presumptively insufficient to show discrimination); Anderson,

13 F.3d at 1123 (same);7 cf. Rhodes, 75 F.3d at 993 (saying

__________

6 Hidalgo actually uses the term "pretext." Id. at 337. In

context, it is apparent that the court meant this term in the sense of

"incorrect."

7 Both Anderson and Rothmeier make this point by saying that

Hicks rejected the so-called "pretext-plus" standard that had been

applied by some circuit courts. We have not used the term

"pretext-plus," as it obscures the distinction between (1) requiring

that evidence showing the employer's explanation to be false,

standing alone, will "ordinarily" permit an inference of dis-

crimination). Our reading of Hicks also accords with the

Supreme Court's rule, set forth in United States Postal Serv.

v. Aikens, 460 U.S. 711, 714 n.3, 717 (1983), that it is improper

to require plaintiffs to produce direct evidence of discrimina-

tory intent in order to prevail at trial.

2.The weight to be assigned to the plaintiff's rebuttal

Although the plaintiff cannot always avoid summary judg-

ment by showing the employer's explanation to be false, we

read Hicks (and other relevant caselaw) to mean that such a

showing does have considerable evidentiary significance.

First, when the plaintiff rebuts the employer's own explana-

tion of its challenged acts, this eliminates the principal non-

discriminatory explanation for the employer's actions.

Events have causes; if the only explanations set forth in the

record have been rebutted, the jury is permitted to search for

others, and may in appropriate circumstances draw an infer-

ence of discrimination. As the Court said in Furnco Con-

struction Corp. v. Waters, 438 U.S. 567 (1978):

A prima facie case under McDonnell Douglas raises an

inference of discrimination only because we presume

these acts, if otherwise unexplained, are more likely than

not based on the consideration of impermissible factors.

And we are willing to presume this largely because we

know from our experience that more often than not

people do not act in a totally arbitrary manner, without

any underlying reasons, especially in a business setting.

__________

that plaintiffs both discredit the employer's explanation and show

discrimination, and (2) presumptively requiring that plaintiffs pro-

vide more than discrediting evidence alone in order to show discrim-

ination. Both Anderson and Rothmeier read Hicks, as do we, to

adopt the first of these two approaches, but reject the second. See

generally Catherine J. Lanctot, The Defendant Lies and the Plain-

tiff Loses: The Fallacy of the "Pretext-Plus" Rule in Employment

Discrimination Cases, 43 Hastings L.J. 57 (1991) (explaining why it

is inappropriate routinely to require plaintiffs to adduce more

evidence than rebuttal evidence alone).

Thus, when all legitimate reasons for rejecting an appli-

cant have been eliminated as possible reasons for the

employer's actions, it is more likely than not the employ-

er, who we generally assume acts with some reason,

based his decision on an impermissible consideration

such as race.

Id. at 577 (citations omitted). In this passage the Court was

explaining why it is permissible to grant judgment for the

plaintiff on the basis of an unrebutted prima facie case:

because, in the absence of a legitimate explanation, we infer

the existence of an illegitimate one. Similarly when the

plaintiff has discredited the employer's explanation for its

acts, and no other plausible explanation is readily at hand,

Furnco's logic would seem to apply as well, and to at least

permit (if not compel, as in Furnco) an inference of discrimi-

nation in an appropriate case.

If the jury can infer that the employer's explanation is not

only a mistaken one in terms of the facts, but a lie, that

should provide even stronger evidence of discrimination. As

Hicks said, "[t]he factfinder's disbelief of the reasons put

forward by the defendant (particularly if disbelief is accom-

panied by a suspicion of mendacity) may, together with the

elements of the prima facie case, suffice to show intentional

discrimination." 509 U.S. at 511 (emphasis added). This is

so because, according to ordinary evidentiary principles

(which we have been instructed to apply in employment

discrimination cases, see Aikens, 460 U.S. at 716), a lie is

evidence of consciousness of guilt. The jury can conclude

that an employer who fabricates a false explanation has

something to hide; that "something" may well be discrimina-

tory intent. See Shager v. Upjohn Co., 913 F.2d 398, 401 (7th

Cir. 1990) ("If the only reason an employer offers for firing an

employee is a lie, the inference that the real reason was a

forbidden one ... may rationally be drawn"); Wallace v.

SMC Pneumatics, Inc., 103 F.3d 1394, 1400 (7th Cir. 1997).

Such an inference is of course in line with how evidence of

consciousness of guilt is treated in other cases, criminal or

civil. An employer that concocts a false explanation for an

employment decision is in a like position to a criminal defen-

dant who offers a false alibi: the jury may consider the fact

that the defendant has presented a false alibi in deciding his

guilt. See United States v. Hughes, 716 F.2d 234, 240-41 (4th

Cir. 1983); United States v. Zang, 703 F.2d 1186, 1191 (10th

Cir. 1982). In this circuit, we have repeatedly treated false

statements by a defendant as credible evidence of conscious-

ness of guilt. See, e.g., United States v. Morgan, 914 F.2d

272, 276 (D.C. Cir. 1990) (per curiam) (citing a defendant's lie

about possessing a claim check for a suitcase containing drugs

in assessing the sufficiency of the evidence); see also United

States v. Johnson, 46 F.3d 1166, 1171 (D.C. Cir. 1995) (finding

it appropriate to admit as evidence of consciousness of guilt a

drug defendant's false claim, made to explain the source of his

income, that he worked at a sporting goods store).

Of course, as the Court explained in Hicks, an employer's

lie does not automatically entitle the plaintiff to judgment as a

matter of law. But Hicks also made plain that a lie "carries

substantial risks," including the risk of sanctions, Hicks, 509

U.S. at 521-22, and the more mundane risk that the lie will

lead the jury to draw an adverse inference. Indeed, the

employer's fear that the jury will draw an adverse inference

from a false explanation is a vital element of the McDonnell

Douglas burden-shifting procedure. Without it, employers

would have little incentive to look for and present the real

reasons for their employment decisions, undercutting the

purpose of the McDonnell Douglas framework, which is "to

compensate for the fact that direct evidence of intentional

discrimination is hard to come by." Price Waterhouse v.

Hopkins, 490 U.S. 228, 271 (1989) (O'Connor, J., concurring);

see also TWA v. Thurston, 469 U.S. 111, 121 (1985).8

__________

8 The dissent observes that an employer may offer a lie to explain

its actions, not because it has discriminated but because it wishes to

conceal an "embarrassing, albeit lawful" motive, or "to spare the

feelings of an employee he considered unsatisfactory in perfor-

mance." Dissenting opinion at 3 n.3. Possibly; but the fact that a

lie could have multiple explanations, some of them well-intentioned,

cannot and should not foreclose the finder of fact, after hearing

witness testimony and assessing the evidence as a whole, from

To summarize, we can do no better than to quote Hicks

once more. In an appropriate case, "[t]he factfinder's disbe-

lief of the reasons put forward by the defendant" will allow it

to infer intentional discrimination. 509 U.S. at 511. (As we

observe above, it is difficult, if not impossible, to say in any

concise or generic way under what precise circumstances such

an inference will be inappropriate.9) If "disbelief is accompa-

nied by a suspicion of mendacity," id., the likelihood of

intentional discrimination is increased, permitting the

factfinder to infer discrimination more readily.

__________

deciding that the real motivation for lying was not innocent, but

discriminatory. (This is subject, of course, to the ability of the

courts to review any factual findings. See Hicks, 509 U.S. at 524.)

9 Our dissenting colleagues cite this acknowledgement in accusing

us of advancing a "framework (if one can call it that) that is both

devoid of intelligible standards and incompatible with the principle

that the plaintiff bears the burden of proof on the ultimate fact."

Dissenting opinion at 7. But the task of assessing whether a

plaintiff has presented enough evidence to permit an inference of

discriminatory intent is, as the author of the dissent herself ob-

served in her panel dissent, "intensely fact bound." See Aka v.

Washington Hospital Center, 116 F.3d 876, 899 (D.C. Cir. 1997)

(Henderson, J., dissenting). Accordingly we have limited ourselves

to identifying the general principles that govern the plaintiff's

burden on summary judgment and to providing a detailed applica-

tion of those principles to this case. The dissent appears to offer no

analytical framework of its own. Because the Supreme Court has

made clear that it is improper to require direct proof of discrimina-

tory intent, see Aikens, 460 U.S. at 714 n.3, 717, it must be possible

for a plaintiff to survive summary judgment in some cases by

showing that the defendant's explanation is a lie. The dissent

conspicuously fails, however, to identify those cases in which such

an inference is possible and those in which it is not. And as to the

dissent's claim that our approach is "incompatible with the principle

that the plaintiff bears the burden of proof on the ultimate fact,"

our entire analysis focuses on the precise question of when a jury

might reasonably conclude that the plaintiff's evidence suffices to

meet that burden.

3.The evidence in this case

The conflict of evidence in Aka's case involves, in large

part, a dispute over job qualifications, his and those of the

successful contender for the Pharmacy Technician job. WHC

claims that it hired Valenzuela because he was more qualified

than Aka. Aka replies that WHC is mistaken as to their

comparative qualifications, and that it was he, Aka, who was

more qualified for the position.

In cases involving a comparison of the plaintiff's qualifica-

tions and those of the successful candidate, we must assume

that a reasonable juror who might disagree with the employ-

er's decision, but would find the question close, would not

usually infer discrimination on the basis of a comparison of

qualifications alone. In a close case, a reasonable juror would

usually assume that the employer is more capable of assess-

ing the significance of small differences in the qualifications of

the candidates, or that the employer simply made a judgment

call. Cf. Combs v. Plantation Patterns, 106 F.3d 1519, 1543

(11th Cir. 1997). But this does not mean that a reasonable

juror would in every case defer to the employer's assessment.

If that were so, no job discrimination case could ever go to

trial. If a factfinder can conclude that a reasonable employer

would have found the plaintiff to be significantly better

qualified for the job, but this employer did not, the factfinder

can legitimately infer that the employer consciously selected a

less-qualified candidate--something that employers do not

usually do, unless some other strong consideration, such as

discrimination, enters into the picture.10

A plaintiff attacking a qualifications-based explanation is of

course not limited to comparing his qualifications against

those of the successful candidate. The plaintiff can instead

__________

10 An employer may of course select a candidate who on paper is

less qualified for other reasons, such as subjective reactions that

emerge in the interview. We discuss such subjective considerations

below.

seek to expose other flaws in the employer's explanation.

For example, the plaintiff can attempt to show that the

employer's explanation was fabricated after the fact by show-

ing that it contradicts other contemporaneous accounts of the

employer's decision. Or a plaintiff can attempt to show that

the employer's explanation misstates the candidates' qualifica-

tions. Thus, if the employer says that it did not hire the

plaintiff because he did not speak Portuguese, the plaintiff

can show that he did speak Portuguese, and that the employ-

er knew it. Adequate evidence of this type may suffice to

permit a jury to infer that the employer's explanation is

incorrect or fabricated, and thus to infer discrimination.11

A review of the evidence in this case reveals that a reason-

able factfinder could conclude both that the balance of qualifi-

cations weighed markedly in Aka's favor, and that there was

other evidence calling WHC's explanation into question.

Viewing the evidence "as favorably to [Aka] as reason will

permit," Shager, 913 F.2d at 401, as we are obligated to do at

summary judgment, we find that the evidence suffices for a

reasonable factfinder to infer discrimination. We begin with

a review of Aka's and Valenzuela's qualifications for the

Central Pharmacy Technician position, and then turn to other

evidence calling WHC's explanation into question.

a.Aka's and Valenzuela's Qualifications

WHC's official "position specification" form listed two qual-

ifications for the job, "previous hospital experience in phar-

macy services" and "knowledge of medical terminology."

The listed job responsibilities are quite varied, and include

accepting drug and narcotic orders, distributing medications,

answering questions and giving directions to the public, main-

__________

11 As we have already said, the plaintiff is not limited to challeng-

ing the employer's explanation, but can also avoid summary judg-

ment (and prevail at trial) by presenting other evidence, either

direct or circumstantial, that permits an inference of discrimination.

See Wallace, 103 F.3d at 1397. For instance, if a female plaintiff

claims sex discrimination, evidence that the defendant employs

women at rates far below their numbers in the applicant pool and

the general population may well help her case.

taining narcotic control records and inventory books, per-

forming "charging" (that is, billing) functions, stocking phar-

maceutical and IV supplies, performing patient census

checks, "evaluating, processing, and filling drug stock orders

for satellite pharmacies," and "monitoring the pharmacy's ex-

temporaneous pre-pack list to identify items that should be

pre-packaged." 12

Aka's application form for the Central Pharmacy Techni-

cian position listed his current position, "OR Orderly," his

hire date, August 6, 1972, and the highest degree he held, his

MBPA in health service management. Aka was interviewed

by Dr. Ann Breakenridge, WHC's Assistant Director of Phar-

macy Clinical Services. After the interview, Breakenridge

wrote on a WHC Interview Summary Report form: "Mr. Aka

is a longstanding WHC employee on MLOA [medical leave of

absence]. Performed duties in the OR with some exposure to

minimal pharmacy functions." Her assessment of Aka states:

"Mr. Aka has no skills which will be helpful as a pharmacy

technician. He is aware of the drug delivery aspect of the job

which is a minor part of the technician responsibilities.

Schedule [illegible] responsibilities [illegible]. Mr. Aka's

MBPA degree could be best utilized in other areas of the

hospital." In a later affidavit, she added that Aka had

displayed no "enthusiasm" during the interview, and said

"[i]ndeed he told me that he really was not interested in doing

pharmacy work." Aka denies saying this.

Valenzuela's application form said that he did not have a

college degree, and that he had been working at the hospital

laundry for slightly over a year; he listed his duties as

"prepare clean linen for delivery," and said "when needed, I

work in the folding machines and ironer." Valenzuela also

said: "For two months I worked as volunteer in Asco Phar-

macy. My duties are pricing, stocking, filling up cassettes. I

__________

12 The last three of these items are not on the official list of job

responsibilities that appears in the record, but are listed as respon-

sibilities in Breakenridge's affidavit.

pick up and deliver medicine from nursing units."13

In explaining her decision to hire Valenzuela instead of

Aka, Breakenridge cited Valenzuela's experience in pharmacy

services, his knowledge of medical terminology, and his great-

er enthusiasm. We will begin by discussing the more objec-

tive aspects of the candidates' qualifications, and then turn to

the question of their relative enthusiasm.

i. Pharmacy experience. Valenzuela's pharmacy experi-

ence was limited to two months of part-time volunteer work.

It is unclear how much time Valenzuela volunteered, as he

apparently continued to work full-time at the hospital. There

is no evidence that the volunteer work occurred in a hospital,

as the WHC position specification form required; "Asco"

Pharmacy does not suggest a hospital. His work involved:

(1) "pricing" medication, not a task listed in the Pharmacy

Technician job description; (2) delivering medication to nurs-

ing stations, something Aka also did; and (3) "stocking" and

"filling up cassettes," which (assuming that "cassettes" are

medicine containers) appear to correspond to a single item in

the job description, "receive, count and store pharmaceutical

supplies."

Aka on the other hand had spent nineteen years picking up

medicine and IV solutions from the central pharmacy for

delivery at the OR. As Aka describes this work, it was not

limited to picking up materials at a counter, but required him

to move around within the pharmacy; pharmacy staff would

show Aka the section of the pharmacy in which the item he

wanted could be found, and he knew "where to pick it up."

As Aka pointed out at his deposition, this meant that he

effectively already knew how to move materials within the

pharmacy itself:

My experience was while working as an orderly, they

used to send me to the pharmacy to pick up medication

__________

13 His application form also said that he had worked for a total of

six years as a courier, and for six months doing building and ground

maintenance.

needed in O.R. When I go there, they show me the

section [where] [t]hey put medication for O.R. I know

where to pick it up.... So I can take that as experience

in taking medication to any section of the unit if they

need it.

Appendix at 129 (emphasis added).14

A reasonable jury could find that Aka's ability to do the

less skilled parts of the pharmacy job was at least comparable

__________

14 Aka adds in an affidavit that he was also "regularly assigned"

to "stock medications in the nurses work area, and even sometimes

prepare orders for medications that were not in sufficient stock in

the nurses work area," and "had extensive knowledge and back-

ground with the forms used by [the] pharmacy for filling medi-

cations." WHC argues that because Aka did not specifically men-

tion this experience at his deposition, he should not be able to raise

it in a later affidavit. Aka was asked at his deposition: "Is my

understanding of your testimony correct, that your experience in

pharmacy services consists of transporting narcotics and drugs to

and from the pharmacy," and answered "Yes"; counsel for WHC

then asked "Is there any more experience that you had, other than

that?" and Aka said "No other experience." It is not clear that

Aka's later affidavit necessarily contradicts this testimony. It may

be that the broad task of transporting medications which Aka

mentioned at his deposition includes the sub-tasks of preparing an

order form, then going to get the medications, and then stocking

them in the nurses' work area. Or it may be that when Aka was

asked about his "experience in pharmacy services," he described

only the work he had done directly in a pharmacy, and not all of the

pharmacy-related work he had ever done. As we explained in

Pyramid Securities, Ltd. v. IB Resolution, Inc., 924 F.2d 1114, 1123

(D.C. Cir. 1991), although the courts frown on a party's attempt to

contradict previous testimony at summary judgment, "persuasive

reasons" for a correction are "more likely to be available where the

initial statement took the form of a deposition rather than [as in

Pyramid Securities] an affidavit. A deponent may have been

confused about what was being asked or have lacked immediate

access to material documents." Id. at 1123 (citation omitted). In

any event, because it is not clear on the present record that

Breakenridge knew about Aka's involvement in stocking or ordering

to Valenzuela's. Aka had been moving and handling pharma-

cy supplies for nineteen years, and knew the layout and

routines at WHC's pharmacy. It would not have taken him

long to pick up whatever stocking skills Valenzuela learned

during his short stint of volunteer work. Valenzuela would

likewise have needed some time to learn his way around

WHC's pharmacy (and hospital pharmacies generally).

As to the more skilled parts of the pharmacy job, like

billing, accounting, tracking drugs and patients, and planning

pharmacy operations, Aka had a very strong advantage.

Aka's master's degree in business and professional adminis-

tration, with a concentration in health service management,

would presumably have been very helpful with these tasks.15

Valenzuela, by contrast, did not even have a college degree.

Moreover, Aka had worked directly with patients at WHC for

nineteen years, and so would have been familiar with many of

the relevant hospital procedures.16 Valenzuela, with his year

working in the hospital laundry, could not make this claim.

ii. Medical terminology. Breakenridge also cited Valen-

zuela's knowledge of medical terminology, derived "from a job

__________

pharmaceuticals, we do not rely on these elements of Aka's affida-

vit.

15 The dissenters give no weight to Aka's superior education

because there were no educational prerequisites listed in the job

description. Dissenting opinion at 8. But reasonable employers do

not ordinarily limit their evaluation of applicants to a mechanistic

checkoff of qualifications required by the written job descriptions.

Obviously, they will take additional credentials into account, if those

credentials would prove useful in performing the job.

16 The job description for Aka's orderly job lists a broad range of

responsibilities, including transporting patients, maintaining equip-

ment in clean and operational order, and performing "clinical sup-

port activities," such as administering procedures, assisting with

specimen collection, and patient preparation--all work that would

have provided Aka with important background knowledge on the

functioning of the hospital. Breakenridge, a fairly senior hospital

employee, would presumably have been familiar with this spectrum

of duties.

that he had held at Metpath, a medical laboratory." That job

lasted somewhat over a year, and involved picking up medical

specimens from nursing homes and doctors' offices and deliv-

ering them to a lab for analysis.

Aka says in his affidavit that, during his many years of

work as an orderly, "my duties ... required me to work

closely with the health care personnel servicing patients," and

he "knew how most of the medications were used by nurses in

their care of patients." (Aka does not claim that he knew

what considerations doctors took into account in prescribing

medication, which would be implausible, but only how nurses

administered them.) Aka thus had nineteen years of close

experience with the administration of medications, and proba-

bly knew (for instance) the name and general function of

many medications, and that certain of the medications were

dangerous or required special handling. It is not clear

whether Aka mentioned his familiarity with the uses of

medications at his job interview. But Breakenridge, whose

title was Assistant Director of Pharmacy Clinical Services,

presumably knew enough about the functioning of the hospi-

tal to be aware that a highly experienced orderly would

frequently see medications being used.17

A reasonable juror could conclude that Valenzuela would

have learned much less of the medical terminology relevant to

the pharmacy job in his year at Metpath than Aka did in his

nineteen years at WHC. Not only was Valenzuela's work

experience shorter, but Valenzuela was handling medical spe-

cimens, while Aka was working directly with drugs.

__________

17 When WHC asked him at his deposition about his pharmacy

experience, Aka did not mention his knowledge of the uses of

medications. See supra note 14. But he could not have been

expected to do so, just as someone asked about his experience

working in hardware stores would not necessarily be expected to

talk about his extensive experience with the proper use of tools. In

any case, we are principally concerned here with the candidates'

knowledge of medical terminology, not their pharmacy experience.

iii. Enthusiasm. Considerations of enthusiasm aside, a

reasonable juror could therefore find that Aka was signifi-

cantly better qualified than Valenzuela for the pharmacy job.

This leaves Breakenridge's conclusion that Valenzuela was a

highly enthusiastic candidate, and that Aka was not. There is

evidence in the record to support the conclusion that each of

the two candidates was enthusiastic. Valenzuela's pharmacy

volunteer work points to enthusiasm (perhaps more than to

actual experience). Breakenridge also noted that Valenzuela

had applied for the pharmacy job once before and been

rejected, so that he had demonstrated some previous interest

in the job.18

Aka claims that he, too, expressed enthusiasm at his inter-

view (contradicting Breakenridge's claim that he said that he

did not want the job). A juror could find that the circum-

stances corroborate this claim. Aka had earned two degrees

while working a full-time job, and was described by the

arbitrator adjudicating the dispute over the File Clerk jobs as

a "highly intelligent and motivated man." He applied for

numerous jobs at WHC, despite being repeatedly turned

down; indeed, in early 1995 he started volunteering in admin-

istrative jobs in various parts of the hospital, in an effort to

enhance his chances of being hired.

Of course, even if Aka was truly enthusiastic about the job,

Breakenridge could still have subjectively concluded that he

showed, in her words, "no enthusiasm for or interest in the

Pharmacy Technician job." However, we are reluctant to

give this possibility too much weight at summary judgment.

First, Breakenridge did not comment at all on Aka's enthusi-

__________

18 Actually, Breakenridge's affidavit said that it was "Plaintiff"--

Aka--who had previously applied for the pharmacy job and been

turned down. Aka does not make this claim in his affidavit,

however, and in context it seems likely that Breakenridge meant to

refer to Valenzuela, who is otherwise the subject of the relevant

paragraph. The principle we articulated in Pyramid Securities

that on summary judgment a party is strictly held to her words in

an affidavit does not necessarily mean that a party is bound by even

a slip of the pen.

asm (or the lack thereof) on the interview summary sheet,

weakening her claim that Aka's lack of enthusiasm motivated

her decision.

Furthermore, although employers may of course take sub-

jective considerations into account in their employment deci-

sions, courts traditionally treat explanations that rely heavily

on subjective considerations with caution. Particularly in

cases where a jury could reasonably find that the plaintiff was

otherwise significantly better qualified than the successful

applicant, an employer's asserted strong reliance on subjec-

tive feelings about the candidates may mask discrimination.

Indeed, we observed in Fischbach v. D.C. Department of

Corrections, 86 F.3d 1180, 1184 (D.C. Cir. 1996), that an

employer's heavy use of "highly subjective" criteria, such as

"interpersonal skills," could support an inference of discrimi-

nation. See generally Perfetti v. First Nat. Bank of Chicago,

950 F.2d 449, 457 (7th Cir. 1991) (discussing "the ease with

which employers may use subjective factors to camouflage

discrimination") (citation omitted); Lilly v. Harris-Teeter

Supermarket, 842 F.2d 1496, 1506 (4th Cir. 1988); Mark S.

Brodin, The Demise of Circumstantial Proof in Employment

Discrimination Litigation: St. Mary's Honor Center v.

Hicks, Pretext, and the "Personality" Excuse, 18 Berk. J.

Emp. Lab. L. 183, 218-24 (1997) (discussing the difficulties

presented by the "personality" rationale for employment deci-

sions). Moreover, we cannot altogether ignore the fact that

outward manifestations of "enthusiasm" are just the kind of

traits that advancing age and heart-related disability may

tend to diminish.19

An employer's reliance on disputed subjective assessments

will not create a jury issue in every employment discrimina-

__________

19 The dissent complains that Aka has offered no evidence that he

was more enthusiastic than Valenzuela at the interview. Dissenting

opinion at 9. It would be difficult to offer any such evidence, in the

absence of a videotape of the interview. Under the dissent's

approach, an employer could defeat any employment discrimination

claim by a job applicant by citing the interviewer's subjective

assessment that he was less enthusiastic than some other candidate.

tion case. For example, if this reliance is modest, and the

employer has other, well-founded reasons for the employment

decision, summary judgment for the defendant may be appro-

priate. Here, however, a jury could find that Aka was in all

other respects markedly better qualified for the job. A

reasonable jury might still credit Breakenridge's claim that

Aka "displayed no enthusiasm for or interest in the Pharmacy

Technician job," and hence find that no discrimination oc-

curred. But a jury might also decide after assessing Break-

enridge's and Aka's credibility that Breakenridge's claim was

untrue--indeed, a lie. This would, in turn, raise a strong

inference of discriminatory intent, an inference that would not

be undercut by any other facts in this case.

This case thus turns on whose account of Breakenridge's

interview with Aka is correct; that question will hinge on

Aka's and Breakenridge's credibility, an issue that is quintes-

sentially one for the finder of fact. "Determining the weight

and credibility of witness testimony ... has long been held to

be the 'part of every case that belongs to the jury, who are

presumed to be fitted for it by their natural intelligence and

their practical knowledge of men and the ways of men.' "

United States v. Scheffer, 118 S. Ct. 1261, 1266 (1998) (quot-

ing Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 88 (1891)).

b.Other evidence of discrimination

As we have said, an employment discrimination plaintiff is

not limited to arguing that the employer's explanation is

wrong on the merits, but he can also attempt to show by

other means that the explanation was made up to disguise

illegitimate bias. There is some evidence from which an

inference of that kind could be drawn in this case.

A juror might conclude from the record that Breakenridge

did not compare Aka's and Valenzuela's qualifications (in the

way we do above) and decide that comparatively Valenzuela

was the better candidate, but rather she decided not to hire

Aka immediately after his interview, before she had even seen

Valenzuela. On the interview summary sheet for Aka's inter-

view, she checked both the box for "not interested in this

individual" and the box for "will consider with other appli-

cants." More tellingly, she wrote in her summary that Aka

had "no skills which will be helpful as a pharmacy technician,"

and that his "MBPA degree could be best utilized in other

areas of the hospital." It is hard to see how an interviewer

could conclude that Aka had no skills that would be helpful as

a pharmacy technician; for instance, his MBPA was certainly

relevant to the accounting and billing work the job entailed.

This notation suggests that for some reason Breakenridge

came away from her interview with Aka with a strong aver-

sion to employing him, an aversion that colored her summary

of Aka's qualifications.20 This aversion may have had some

reasonable basis (such as Aka's asserted lack of enthusiasm),

or it might have been rooted in bias (a perception that Aka

was too old, or too disabled, to make a good employee).21

Moreover, Breakenridge claimed in a later affidavit that

Aka had told her during his job interview that he did not

really want the pharmacy technician job. Aka denies having

said this; there is thus a genuine issue of material fact on this

point alone. If Aka did say this, it is strange that Breaken-

ridge did not note that fact on the interview summary sheet.

An interviewer explaining why a candidate was not hired

would ordinarily take note of the fact that he has virtually

withdrawn his application. In a jury's eyes, this omission

__________

20 It is noteworthy that, while it took WHC two weeks to even

grant Aka an interview, Valenzuela seems to have been hired the

day after he applied. (There is no indication in the record that any

other WHC employees applied for the job.) WHC received Valen-

zuela's application nine days after Aka was interviewed, on May 26.

On May 27, WHC's personnel department made a notation on Aka's

application that he had not been selected for the Pharmacy Techni-

cian position. The handwritten dates May 27 and May 28 also

appear (without explanation) in the portion of Valenzuela's applica-

tion form reserved for notes by recruitment staff, suggesting that

this is when he was hired.

21 The interview summary sheet reveals that Breakenridge was

aware of Aka's age and disability. In the opening sentence, she

describes him as a "longstanding" WHC employee "on MLOA," or

medical leave of absence.

might also count as evidence that Breakenridge's account of

the interview was invented after the fact.

In summary, we think that there is sufficient evidence in

the record so that a reasonable jury could conclude that Aka

was markedly more qualified than Valenzuela was, thus

throwing into doubt the reason given for his rejection. Aka,

after all, was a 19-year employee with a good record who had

earned two degrees while on the job--yet after his bypass

surgery he lost out to an applicant who had worked at the

hospital for less than a year as a laundry-folder. Indeed, not

only did Aka lose out for the Pharmacy Technician position,

he was unable to secure any position at the several-thousand-

employee hospital, and after a while could not even get an

interview for positions for which he applied. There is in sum

enough evidence, we believe, to create a jury question as to

whether WHC's explanation for not hiring Aka was false, and

as to whether WHC acted with discriminatory intent, and

summary judgment should not have been granted.

B.Reasonable Accommodation

We now turn to Aka's claim that WHC should have accom-

modated his disability by reassigning him to a vacant position.

The ADA prohibits discrimination on the basis of disability,

and defines such discrimination to include

not making reasonable accommodations to the known

physical or mental limitations of an otherwise qualified

individual with a disability who is an applicant or employ-

ee, unless such covered entity can demonstrate that the

accommodation would impose an undue hardship on the

operation of the business of such covered entity.

42 U.S.C. s 12112(b)(5)(A). Under the ADA's scheme, then,

it is discriminatory for a covered employer to decline to take

reasonable steps to accommodate an employee's disability,

unless the steps in question "would impose an undue hardship

on the operation of the business" of the employer. The ADA

also provides a definition of the term "reasonable accommoda-

tion":

The term "reasonable accommodation" may include--

(A) making existing facilities used by employees readi-

ly accessible to and usable by individuals with disabilities;

and

(B) job restructuring, part-time or modified work

schedules, reassignment to a vacant position, acquisition

or modification of equipment or devices, appropriate

adjustment or modifications of examinations, training

materials or policies, the provision of qualified readers or

interpreters, and other similar accommodations for indi-

viduals with disabilities.

42 U.S.C. s 12111(9) (emphasis added). Citing this provision,

Aka argues that WHC's failure to reassign him to a vacant

position violated the ADA.

Aka moved for summary judgment on his reasonable ac-

commodation claim before the district court; the district

court denied this motion, and instead granted summary judg-

ment to WHC. The district court concluded that WHC could

not have reassigned Aka without violating other employees'

rights under the collective bargaining agreement governing

Aka's workplace. The district court found that the ADA can

never require an employer to violate such collectively bar-

gained rights, and that therefore Aka had no right to reas-

signment.

1.Was Aka "otherwise qualified"?

Before addressing the question of the effect of the collec-

tive bargaining agreement on this case, we consider a prelimi-

nary question raised by WHC. We will assume for purposes

of this appeal that Aka's inability to do heavy lifting after his

heart surgery meant that he could not perform the orderly

job, with or without a reasonable accommodation.22 WHC

argues that only a "qualified individual with a disability" can

request a reasonable accommodation under 42 U.S.C.

s 12112(b)(5)(A); the term "qualified individual with a disabil-

__________

22 Aka conceded that he could not do his former orderly job.

WHC assumes that this meant that Aka could not do the job even

with a reasonable accommodation, see WHC's Brief at 25-28, and

Aka does not challenge WHC's assumption on this appeal.

ity" is defined as someone who "with or without reasonable

accommodation, can perform the essential functions of the

employment position that such individual holds or desires."

42 U.S.C. s 12111(8). WHC contends that, because Aka

could not perform the essential functions of his job as an

orderly with or without a reasonable accommodation, he was

not an "otherwise qualified individual with a disability," and

thus was not entitled to a reasonable accommodation at all

under s 12112(b)(5)(A).

WHC's argument misreads the statute. Section 12111(8)

defines an "otherwise qualified individual with a disability" to

mean someone who "with or without reasonable accommoda-

tion, can perform the essential functions of the employment

position that such individual holds or desires." 42 U.S.C.

s 12111(8) (emphasis added). An employee seeking reassign-

ment to a vacant position is thus within the definition if, with

or without reasonable accommodation, she can perform the

essential functions of the employment position to which she

seeks reassignment. See Daugherty v. City of El Paso, 56

F.3d 695, 698-99 (5th Cir. 1995).

The Equal Employment Opportunity Commission's

("EEOC's") interpretive guidelines and the ADA's legislative

history both support this reading. The EEOC's interpretive

guidelines provide that "reassignment should be considered

only when accommodation within the individual's current

position would pose an undue hardship." 29 C.F.R. app.

s 1630.2(o). If WHC's reading of the ADA is correct, this

guideline makes no sense. Under WHC's reading, an em-

ployee cannot obtain reassignment if he is not "otherwise

qualified" for his current position. But under the EEOC's

guidelines, only employees who cannot be accommodated in

their current job without undue hardship--that is, only em-

ployees who are not "otherwise qualified" for their current

position--should be reassigned. In other words, employees

should only be reassigned if they have no entitlement to

reassignment. This is a paradox worthy of Lewis Carroll,

whose White Queen gave her maid "jam tomorrow and jam

yesterday--but never jam today." Lewis Carroll, The Anno-

tated Alice 247 (New American Library 1960) (emphasis in

original). Although the EEOC's guidelines are "not control-

ling upon the courts by reason of their authority," they "do

constitute a body of experience and informed judgment to

which courts and litigants may properly resort for guidance,"

Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65 (1986), and we

are understandably reluctant to adopt a reading of the ADA

that is so at odds with those guidelines.

Notably, the ADA's legislative history supports the

EEOC's reading. In discussing reassignment, the House

Report says:

Reasonable accommodation may also include reassign-

ment to a vacant position. If an employee, because of

disability, can no longer perform the essential functions

of the job that she or he has held, a transfer to another

vacant job for which the person is qualified may prevent

the employee from being out of work and [the] employer

from losing a valuable worker. Efforts should be made,

however, to accommodate an employee in the position

that he or she was hired to fill before reassignment is

considered.

H.R. Rep. No. 485(II), 101st Cong., 2d Sess. at 63 (1990),

reprinted in 1990 U.S.C.C.A.N. 267, 345; see also S. Rep. No.

116, 101st Cong., 1st Sess. at 6 (1989). In other words,

Congress saw reassignment, as the EEOC does, as an option

to be considered only after other efforts at accommodation

have failed. See also Gile v. United Airlines, Inc., 95 F.3d

492, 496-98 (7th Cir. 1996) (reading the EEOC's guidance and

the statute's legislative history similarly). The one decision

of a court of appeals to adopt WHC's argument has since

been set for rehearing in banc; in any event, we find the

reasoning of the panel opinion unpersuasive. See Smith v.

Midland Brake, Inc., 138 F.3d 1304, 1308-10 (10th Cir. 1998),

rehearing in banc granted, No. 96-3018, slip op. at 1 (10th

Cir. May 5, 1998).

2.The collective bargaining agreement

The district court found that the collective bargaining

agreement governing Aka's workplace precluded WHC from

reassigning him to a vacant position, and hence Aka could not

claim a right to the accommodation of reassignment. As we

explain, on the present record we find it impossible to deter-

mine whether there is any conflict between the CBA and the

ADA, and thus do not reach the question of what would occur

on the particular facts of this case in the event of such a

conflict.

The district court found that the CBA's provisions govern-

ing posting and filling of job vacancies barred WHC from

reassigning Aka. The CBA's posting provisions require

WHC to give notice of any openings in designated locations

for at least five working days before they may be filled. CBA

s 14.19. As to filling of vacancies, the CBA provides:

It is expressly understood that employees with the ability

to perform the work and who possess an acceptable work

record will be given preferential treatment over non-

Hospital employees in filling bargaining unit vacancies.

If more than one employee bids for a particular job, and

if in the Hospital's judgment competing employees have

equal ability to perform the work and possess equally

acceptable work records, the employee with greater se-

niority shall be awarded the job. It shall be the obli-

gation of the employee first to make application for the

position involved. In any case where there is a dispute

as to whether an applicant possesses requisite "ability,"

the burden of proof shall be with the employee and/or

the Union....

CBA s 8.1(b). Finally, the CBA has a provision entitled

"Handicapped Employees," which states:

An employee who becomes handicapped and thereby

unable to perform his job shall be reassigned to another

job he is able to perform whenever, in the sole discretion

of the Hospital, such reassignment is feasible and will not

interfere with patient care or the orderly operation of the

Hospital.

CBA s 14.5.

Aka and the EEOC argue that section 14.5 permitted WHC

to reassign Aka to a vacant position without complying with

the CBA's provisions on seniority and posting vacancies.

WHC disagrees, arguing vigorously that section 14.5 is not

intended to function as an exception to those provisions, and

that an employee can only be reassigned under section 14.5

after the CBA's posting and seniority rules have been com-

plied with.23

WHC's reading of section 14.5 is at odds with that provi-

sion's plain meaning. To assign, according to Webster's Third

New International Dictionary, means "to appoint (one) to a

post or duty." An employee who is allowed to compete for

jobs precisely like any other applicant has not been "reas-

signed"; he may have changed jobs, but he has done so

entirely under his own power, rather than having been ap-

pointed to a new position. Moreover, WHC's reading would

render section 14.5 meaningless. As WHC interprets that

section, it would give neither WHC nor its employees any

rights or powers that they do not already enjoy under other

sections of the collective-bargaining agreement.24 We assume

__________

23 Arguably, the only tension that exists is between section 14.5

and the CBA's seniority rules, not its posting rules. If it chose,

WHC could (for example) comply with the posting requirement by

posting notice of several vacancies, and then, once applications were

in, reassign a disabled employee to the vacant position that WHC

considered most appropriate, in light of the applicant pool and the

disabled employee's capabilities.

24 WHC argues that its reading does not completely eviscerate

section 14.5, because that section allows it to grant extended job-

search leaves of the kind awarded to Aka. Not only is there no

textual basis for this reading of section 14.5, but WHC already has

authority to extend leave under the CBA. Section 7.4, which sets

time limits on leaves of absence, permits WHC to waive those limits

upon a written request.

WHC also claims that this situation is governed, not by section

14.5 of the CBA, but by section 7.3, which allows hospital employees

returning from leaves of absence to retain their seniority and their

preference over non-hospital employees. This misunderstands the

functions of the two provisions. Section 7.3 governs employees

returning from any type of extended leave of absence; such leaves

may be granted for reasons ranging from "emergency conditions,

that the parties intended for every part of the agreement to

have meaning; interpretations that would render a portion of

the agreement ineffective or mere surplusage are traditional-

ly disfavored by courts. See Farnsworth On Contracts

s 7.11 (1990); see also Conoco, Inc. v. NLRB, 91 F.3d 1523,

1526 (D.C. Cir. 1996).

Finally, collective bargaining agreements are interpreted

wherever possible so as to be consistent with federal labor

law. See International Union of Automobile, Aerospace and

Agricultural Implement Workers v. Yard-Man, Inc., 716

F.2d 1476, 1480 (6th Cir. 1983). Thus, an interpretation of

section 14.5 which allows WHC to implement its ADA obli-

gations is distinctly preferred. Indeed, Congress expressly

suggested that, as a way of avoiding conflicts between the

CBA and the ADA, collective bargaining agreements incorpo-

rate provisions "permitting the employer to take all actions

necessary to comply with this legislation." H.R. Rep. No.

485(II), 101st Cong., 2d Sess. at 63 (1990), reprinted in 1990

U.S.C.C.A.N. 267, 346.

It seems clear that WHC had power, under section 14.5 of

the CBA, to reassign its disabled employees to vacant posi-

tions in at least some circumstances. On the present record,

we cannot (and need not) reach the further question of

whether in every case in which the ADA would require WHC

to reassign an employee, section 14.5 would permit WHC to

do so. The ADA's reassignment standard and that of section

14.5 are worded differently. The ADA requires covered

entities to reasonably accommodate disabled employees un-

less they can demonstrate that such reassignment "would

impose an undue hardship on the operation of the business of

such covered entity." 42 U.S.C. s 12112(b)(5)(A). Section

14.5, by contrast, permits reassignment only if the hospital

__________

unusual home situations, education, travel or other serious cause."

CBA s 7.17. Section 14.5, by contrast, is directed solely at disabled

employees. Indeed, Aka could have become disabled, and thus have

been within section 14.5, without ever taking a leave of absence, and

so coming within section 7.3.

determines, in its "sole discretion," that "reassignment is

feasible and will not interfere with patient care or the orderly

operation of the Hospital." The language of section 14.5

seemingly grants quite broad reassignment powers to WHC.

But it may be that those powers are not as broad as they

seem. The union that negotiated the CBA has not participat-

ed in the proceedings before this court or before the district

court, and extrinsic evidence--as to, for instance, section

14.5's negotiating history--might show that there are in fact

limits to WHC's discretion to reassign employees under that

section.25 We will leave to the district court the determina-

tion of how broad WHC's reassignment powers under section

14.5 are, and whether reassigning Aka would have been

permissible under that provision, properly interpreted.

3.The dissents26

The dissenters appear to argue that Aka's ADA claim can

be rejected out of hand without reference to the CBA,

because (1) the only discrimination he alleged was his failure

to obtain the pharmacy position, and (2) his only right was to

be treated like any other applicant for that position, which the

dissent believes he indisputably was. Although under our

normal procedures we would not consider either argument

__________

25 We assume that if the ADA requires WHC to reassign Aka,

and WHC has the power to make the reassignment without violat-

ing the CBA rights of its other employees, WHC must make the

reassignment, and may not refuse to do so on the grounds that it

subjectively judges the CBA's standard not to be satisfied. This is

so because if the rights of WHC's other employees under the CBA

would not be violated by a reassignment, then the only CBA rights

WHC has to invoke are its own. WHC would thus effectively be

claiming that the CBA waives Aka's ADA rights. Although we

need not decide now whether such waivers are permissible, we are

skeptical. See Alexander v. Garder-Denver Co., 415 U.S. 36, 51

(1974) (Title VII rights may not be waived in a CBA); cf. Kralik v.

Durbin, 130 F.3d 76, 81 (3d Cir. 1997) (observing that if a union

declined to object to the accommodation of a disabled employee, this

would eliminate any risk of conflict between the CBA and the ADA,

without adverting to the employer's possible CBA rights).

26 Judge Sentelle does not join in Section B.3.

because they were not raised in the district court and were

not within the scope of this court's grant of in banc review, in

deference to our dissenting colleagues we will respond briefly.

We believe that Aka asserted below that he should have

been reassigned to some existing vacancy for which he was

qualified. This was how the district court interpreted his

claim and how the panel originally construed it. Thus, Aka

was not complaining only of his rejection for the pharmacy

position; rather, his claim was that, because his disability

rendered him unable to continue work at WHC unless he was

reassigned to a new position, WHC's failure to reassign him

in violation of its ADA obligations amounted either to con-

structively discharging him or to discriminating in filling

those vacancies to which he should have been reassigned,

both violations of section 12112(a).27

Turning to the second part of the dissenters' argument,

they claim that a disabled employee is never entitled to any

more consideration for a vacant position than an ordinary

applicant, because according to the disabled employee any

kind of help would be a prohibited preference. We believe

the dissents misunderstand both the text and legislative

history of the statute, and deviate from the construction of

the statute by other circuits. To begin with the statutory

text, the word "reassign" must mean more than allowing an

__________

27 Under the applicable caselaw, it is true that Aka had an

obligation to demonstrate that there existed some vacant position to

which he could have been reassigned. See, e.g., McCreary v.

Libbey-Owens-Ford Co., 132 F.3d 1159, 1165 (7th Cir. 1997). On the

other hand, WHC had a corresponding obligation to help him

identify appropriate job vacancies (since plaintiffs can hardly be

expected to hire detectives to look for vacancies). See, e.g., Dalton

v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 677 (7th Cir. 1998)

("[T]he ADA places a duty on the employer to 'ascertain whether he

has some job that the employee might be able to fill.' ") (quoting

Miller v. Illinois Dep't. of Corrections, 107 F.3d 483, 487 (7th Cir.

1997)); Mengine v. Runyon, 114 F.3d 415, 419-20 (3d Cir. 1997).

Thus far in the case, the parties have addressed neither the issue of

whether appropriate vacancies existed nor that of whether WHC

adequately discharged its duty to help Aka find them.

employee to apply for a job on the same basis as anyone else.

An employee who on his own initiative applies for and obtains

a job elsewhere in the enterprise would not be described as

having been "reassigned"; the core word "assign" implies

some active effort on the part of the employer.28 Indeed the

ADA's reference to reassignment would be redundant if

permission to apply were all it meant; the ADA already

prohibits discrimination "against a qualified individual with a

disability because of the disability of such individual in regard

to job application procedures." 42 U.S.C. s 12112(a); see

Ratzlaf v. United States, 510 U.S. 135, 140 (1994) (saying that

"[j]udges should hesitate" to read statutory provisions as

"surplusage").

Although the ADA's legislative history does warn against

"preferences" for disabled applicants, see H.R. Rep. No.

485(II), 101st Cong., 2d Sess., at 56 (1990), reprinted in 1990

U.S.C.C.A.N. 267, 338, it also makes clear that reasonable

accommodations for existing employees who become disabled

on the job do not fall within that ban. See H.R. Rep. No.

485(II), 101st Cong., 2d Sess. at 63 (1990), reprinted in 1990

U.S.C.C.A.N. 267, 345 ("If an employee, because of disability,

can no longer perform the essential functions of the job that

she or he has held, a transfer to another vacant job for which

the person is qualified may prevent the employee from being

out of work and [the] employer from losing a valuable work-

er.") (emphasis added). Had Congress intended that disabled

employees be treated exactly like other job applicants, there

would have been no need for the report to go on to explain

that " 'bumping' another employee out of a position to create

a vacancy is not required," and that "if a collective bargaining

agreement reserves certain jobs for employees with a given

amount of seniority, it may be considered as a factor in

determining whether it is a reasonable accommodation to

assign an employee with a disability without seniority to the

job," id.; there would have been no danger that an employee

__________

28 See supra s II.B.2 (similiarly interpreting the word "reassign"

in a collective-bargaining agreement).

would be "bumped," or that a job would go to a disabled

employee with less seniority.

Numerous courts have assumed that the reassignment

obligation means something more than treating a disabled

employee like any other job applicant. See, e.g., Gile, 95 F.3d

at 496-99 (describing what a plaintiff must show in order to

demonstrate entitlement to reassignment, without mentioning

a requirement that he show he would have been awarded the

position over all other applicants); Mengine, 114 F.3d at 418

(same); Benson v. Northwest Airlines, Inc., 62 F.3d 1108,

1114-15 (8th Cir. 1995) (same). Furthermore, the courts that

have said that the ADA does not permit "preferences" in

awarding jobs to the disabled have generally said so in the

course of rebuffing requests which would have been especially

disruptive to the employer's ordinary operations. See, e.g.,

Dalton, 141 F.3d at 679 (concluding that requiring an employ-

er to make a reassignment in violation of a legitimate, nondis-

criminatory policy, such as a policy against demotions, would

grant an improper preference, but without making a similar

objection to the reassignment requirement itself); Daugherty

v. City of El Paso, 56 F.3d 695, 699 (5th Cir. 1995) (plaintiff

sought to escape the requirement, applied to all employees,

that he take a written exam in order to move from a part-

time to a full-time job).29

__________

29 The ADA's reasonable accommodation requirement treats dis-

abled and non-disabled employees differently in a number of other

respects. Among the accommodations it lists are "job restructur-

ing," "part-time or modified work schedules," "training materials or

policies," and "the provision of qualified readers or interpreters."

42 U.S.C. s 12111(9)(B). Non-disabled employees may not request

part-time or modified work schedules, or ask that they be provided

with a reader, even though they may have excellent reasons to want

these conveniences.

Treating a disabled employee who is no longer able to perform

his existing job somewhat differently from other applicants for the

same position need not always be highly disruptive to an employer's

operations or seriously infringe the interests of other employees.

After all, seniority systems are not equated with undesirable prefer-

ence schemes, even though they may have a much more profound

Recognized constraints on an employer's obligation to reas-

sign a disabled employee further limit the disruption associat-

ed with reassignments. Most importantly, the ADA does not

require that a disabled employee be reassigned to a position

for which he is not otherwise qualified, see 42 U.S.C.

s 12112(b)(5)(A), or if reassignment would be an undue hard-

ship on the operation of the business of the employer, see id.

An employee need not be reassigned if no vacant position

exists, see id. s 12111(9); likewise, employers are not re-

quired to "bump" an employee, or to create a new position.

Terrell v. USAir, 132 F.3d 621, 626 (11th Cir. 1998). An

employer is not required to reassign a disabled employee in

circumstances "when such a transfer would violate a legiti-

mate, nondiscriminatory policy of the employer," Dalton, 141

F.3d at 679 (also noting some limitations to this rule). Final-

ly, "[a]n employer is not required to provide an employee that

accommodation he requests or prefers, the employer need

only provide some reasonable accommodation." Gile, 95 F.3d

at 499.

Without briefing or any record on the issue we decline to

decide the precise contours of an employer's reassignment

obligations. To adopt the dissenters' interpretation of the

reassignment provision as mandating nothing more than that

the employer allow the disabled employee to submit his

application along with all of the other candidates, however,

would render that provision a nullity. That is all that we

need say at this point.

III. Conclusion

As to Aka's disparate treatment claim based on the Phar-

macy Technician hiring decision, we conclude that he has

made out a case sufficient to survive summary judgment

__________

effect on the workplace. (For instance, unlike the ADA, seniority

systems often provide that less senior employees are laid off first,

and allow for "bumping.") And moving a disabled employee to a

new position necessarily creates a job vacancy, which may well be

more desirable to third parties than was the position to which the

employee was reassigned.

under the appropriate reading of McDonnell Douglas and

Hicks. We accordingly vacate the district court's grant of

summary judgment to WHC on this issue.30 The question of

whether WHC intentionally discriminated against Aka in the

Pharmacy Technician hiring decision because of his age

and/or his disability is one for a jury to decide.

As to Aka's reasonable accommodation claim, we reject

WHC's claim that Aka's inability to perform his orderly job

even with a reasonable accommodation rendered him ineligi-

ble for the reasonable accommodation of reassignment. We

also find that the district court was incorrect in perceiving a

conflict under all circumstances between the terms of the

CBA and the ADA, and so need not have reached the issue of

what would occur in the event of such a conflict. We thus

reverse the district court's grant of summary judgment to

WHC on this issue. On remand, the district court should

determine, through summary judgment or trial, whether on

the facts of this case WHC had an obligation under the ADA

to reassign Aka to a vacant position. This entails deciding,

among other questions, whether a vacant position for which

Aka was qualified was available, and whether reassigning Aka

would have been an undue hardship. If WHC was obliged to

reassign Aka, the district court should then decide whether

section 14.5 of the CBA permitted WHC to perform this

reassignment. Only if the district court concludes that WHC

did not have the power to reassign Aka under section 14.5 but

that the ADA required WHC to reassign him will the ADA

and the CBA be in conflict. Given the large number of

contingencies that could preclude such a conflict, we see no

need to address whether, if such a conflict arose, the CBA or

the ADA would give way in the circumstances of this case.

So ordered.

__________

30 Those portions of the panel judgment, vacated on the grant of

rehearing in banc, which affirm the trial judge's summary judgment

rulings in favor of WHC as to Aka's remaining claims, are hereby

reinstated.

Karen LeCraft Henderson, Circuit Judge, with whom

Silberman, Williams and Ginsburg, Circuit Judges, join, dis-

senting:

What remains of this case is neither complex nor difficult.

Etim U. Aka contends that the district court incorrectly

granted summary judgment on his claims against his former

employer, Washington Hospital Center (Washington Hospi-

tal), under the Age Discrimination in Employment Act of

1967, 29 U.S.C. ss 621 et seq., (ADEA) and the Americans

with Disabilities Act (ADA), 42 U.S.C. ss 12101 et seq. Aka

has alleged that Washington Hospital (1) failed to hire him as

a pharmacy technician on account of his age and disability in

violation of both the ADEA and the ADA and (2) failed to

reassign him to another position as a reasonable accommoda-

tion under the ADA when his disability prevented him from

performing the duties of his former job as an orderly.1 Aka's

first claim fails because he produced no evidence in the

district court to prove, as he must under a long line of

decisions culminating in St. Mary's Honor Center v. Hicks,

509 U.S. 502 (1993), that Washington Hospital's nondiscrimi-

natory reasons for rejecting his application were proffered as

a pretext for its true motive which was discriminatory. Aka's

second claim fails because he has not tied the alleged failure

__________

1 In his all-inclusive complaint, Aka also alleged other claims of

discrimination. The panel affirmed (and rehearing was not grant-

ed) on Aka's ADA and ADEA claims based on his failure to secure

file clerk positions with Washington Hospital and Aka himself

eventually dropped his claims of violation of the District of Colum-

bia Family and Medical Leave Act, see Aka v. Washington Hospi-

tal, 116 F.3d 876, 879 n.2 (D.C. Cir. 1997), and discrimination on the

basis of race and national origin, see Brief of Appellant Etim U. Aka

on Rehearing in Banc at 5 n.2; see also Aka v. Washington

Hospital 116 F.3d at 902 n.6 (Henderson, J., dissenting in part)

("The record manifests Aka's successful twenty-year employment

relationship with Washington Hospital. To note the obvious, his race

and national origin did not change during that time. To infer that

Washington Hospital would begin discriminating on the basis of his

race and national origin after twenty years of non-discrimination

strains credulity.").

to accommodate to a specific actionable employment decision,

as explained in our holding in Marshall v. Federal Express

Corp., 130 F.3d 1095 (D.C. Cir. 1997).

I.

First, the district court correctly granted summary judg-

ment on Aka's discrimination claims under the ADEA and the

ADA because Aka produced no evidence raising a triable

issue of fact about either whether Washington Hospital's

articulated reasons for rejecting Aka's application were false

and or whether its real reason was discriminatory.

In both ADEA and ADA discrimination cases we apply the

burden allocation scheme first announced in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). See Paquin v.

Federal Nat'l Mortgage Ass'n, 119 F.3d 23, 26 (D.C. Cir.

1997) (ADEA case); Marshall v. Federal Express Corp., 130

F.3d 1095, 1099 (D.C. Cir. 1997) (ADA case).2 As we have

previously explained:

Under the first step of McDonnell Douglas the complain-

ant must establish a prima facie case of discrimina-

tion.... If the complainant succeeds in establishing a

prima facie case, the second step of the McDonnell

Douglas framework shifts the burden to the defendant

employer to articulate a legitimate, nondiscriminatory

reason for its adverse employment action. If the defen-

dant does so, then under the third step of McDonnell

Douglas the complainant must produce evidence showing

that the defendant's proffered reason is but a pretext for

discrimination.

Paquin, 119 F.3d at 26-27 (internal citations omitted). Key

to the third step of the analysis is the phrase "pretext for

__________

2 In O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308,

311 (1996), the Supreme Court "assumed," without actually decid-

ing, that the McDonnell Douglas framework applied in ADEA

cases. The Court has yet to address whether the framework

applies to ADA cases.

discrimination," which has sometimes been construed (incor-

rectly) to mean simply a false reason.

The word "pretext" is defined as "[t]hat which is put

forward to cover the real purpose or object." See XII Oxford

English Dictionary 437 (2d ed. 1989). Thus, a pretext is not

merely a false reason but a false reason proffered to cover up

the true reason. See Fisher v. Vassar College, 114 F.3d 1332,

1337-38 (2d Cir. 1997) (en banc) ("[D]iscrimination does not

lurk behind every inaccurate statement.... In short, the

fact that the proffered reason was false does not necessarily

mean that the true motive was the illegal one argued by the

plaintiff."), cert. denied, 118 S. Ct. 851 (1998). Recognizing

this, the Hicks majority repeatedly explained that a plaintiff

must do more than simply cast doubt on the truth of the

employer's proffered legitimate reason; he must also affirma-

tively show it was proffered as a cover-up for a discriminato-

ry reason.3 See 509 U.S. at 507-08 (" 'If the defendant

carries this burden of production, the presumption raised by

the prima facie case is rebutted' and 'drops from the case.'

The plaintiff then has 'the full and fair opportunity to demon-

strate,' through presentation of his own case and through

cross-examination of the defendant's witnesses, 'that the prof-

fered reason was not the true reason for the employment

decision,' and that race was. He retains that 'ultimate bur-

den of persuading the [trier of fact] that [he] has been the

victim of intentional discrimination.' ") (quoting Texas Dept. of

Community Affairs v. Burdine, 450 U.S. 248, 255, 255 n.10,

256 (1981)) (emphasis added); id. at 514-15 ("[N]othing in law

would permit us to substitute for the required finding that the

employer's action was the product of unlawful discrimination,

the much different (and much lesser) finding that the employ-

er's explanation of its action was not believable."); 509 U.S. at

515 ("A reason cannot be proved to be 'a pretext for discrimi-

__________

3 There are many explanations for an employer's reluctance to

disclose a true, nondiscrimnatory reason for an adverse employ-

ment decision. For example, the real motive might be embarrass-

ing, albeit lawful, or the employer might simply wish to spare the

feelings of an employee he considered unsatisfactory in perfor-

mance, personality or some other regard.

nation' unless it is shown both that the reason was false, and

that discrimination was the real reason."). This is how four

other circuits--and even the Hicks dissent--have interpreted

the plain language in the Hicks majority opinion. See

Vaughan v. Metrahealth Cos., 145 F.3d 197 (4th Cir. 1998);

Ryther v. Kare 11, 108 F.3d 832, 836-37 (8th Cir.) (en banc),

cert. denied, 117 S.Ct. 2510 (1997); Hidalgo v. Conado Ins.

Agencies, Inc., 120 F.3d 328, 335-37 (1st Cir. 1997); Fisher v.

Vassar College, 114 F.3d 1332, 1337-38 (2d Cir. 1997) (en

banc); Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th

Cir. 1996) (en banc); 509 U.S. at 535 (Souter, J., dissenting).

I would do likewise.

It is true that the majority opinion in Hicks also included

the following language, routinely cited by courts that require

a plaintiff to show only that the proffered reason is false:4

The factfinder's disbelief of the reasons put forward by

the defendant (particularly if disbelief is accompanied by

a suspicion of mendacity) may, together with the ele-

ments of the prima facie case, suffice to show intentional

discrimination. Thus, rejection of the defendant's prof-

fered reasons will permit the trier of fact to infer the

ultimate fact of intentional discrimination, and the Court

of Appeals was correct when it noted that, upon such

rejection, "[n]o additional proof of discrimination is re-

quired."

509 U.S. at 511 (first emphasis added; footnote omitted)

(quoting Hicks v. St. Mary's Honor Center, 970 F.2d 487, 493

(8th Cir. 1992)). The quoted passage does not mean, as some

courts have construed it, that disbelief coupled with proof of a

prima facie case is always sufficient either to survive sum-

__________

4 See, e.g., Combs v. Plantation Patterns, 106 F.3d 1519, 1529

(11th Cir. 1997), cert. denied, 118 S.Ct. 685 (1998); Kline v. Tennes-

see Valley Auth., 128 F.3d 337, 343-44 (6th Cir. 1997) (en banc);

Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1066-67

(3d Cir. 1996) (en banc), cert. denied, 117 S.Ct. 2532 (1997);

Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1123-24 (7th

Cir. 1994); Washington v. Garrett, 10 F.3d 1421, 1433 (9th Cir.

1993) (as amended).

mary judgment or to support a jury verdict. "The word

'may' is ambiguous. It might mean that the factfinder is

completely free to find discrimination, in the sense that an

appellate court could never reverse such a decision on the

evidence. Alternatively, it might mean that in some cases the

combination will be adequate to sustain a finding of discrimi-

nation, in others not, to be determined by the factfinder

initially, and the appellate court on review, according to the

usual principles." Barbour v. Merrill, 48 F.3d 1270, 1281

(D.C. Cir. 1995) (Williams, J., concurring in denial of rehear-

ing). Given the Hicks majority's repeated emphasis on the

need to prove that an employer's proffered reason for an

employment action is a pretext for discrimination, I can only

conclude, as did Judge Williams, that the Court intended

"may" to bear the second meaning. As the Fourth Circuit

explained:

Undoubtedly, the quoted passage suggests that some

plaintiffs may reach the jury solely on the basis of "[t]he

factfinder's disbelief of the reasons put forward by the

defendant ... together with the elements of the prima

facie case." This is unremarkable, as a prima facie case

of age discrimination often requires "some other evidence

that the employer did not treat age neutrally," such as

discriminatory comments or marked favoritism towards

younger, less qualified workers. Depending on the char-

acter of the evidence in each case, a discrimination claim

may survive summary judgment solely on the strength of

the prima facie case and the evidence that contradicts the

employer's proffered justification--if that evidence pro-

vides a factual basis for the ultimate finding of discrimi-

nation.

Vaughan v. Metrahealth Cos., 145 F.3d at 201 (quoting Equal

Employment Opportunity Comm'n v. Western Electric Co.,

713 F.2d 1011, 1015 (4th Cir. 1983)); see also Isenbergh v.

Knight-Ridder Newspaper Sales, Inc., 97 F.3d 436, 441 (11th

Cir. 1996) (per curiam) ("The first sentence of [the quoted

Hicks] passage shows that disbelief of the employer's prof-

fered reason may (and by implication, may not) be enough for

a plaintiff to overcome an employer's motion for judgment as

a matter of law. The second sentence is potentially more

confusing in saying that rejection of the proffered reason 'will

permit' the inference of discrimination. But keeping in mind

that the word 'will' sometimes means 'can' (for example, 'can

permit') or 'capable of,' (for example, 'capable of permitting'),

both sentences, when read together, at least strongly suggest

that rejecting the employer's proffered reason is not always

sufficient to allow a finding of discrimination, although some-

times '(particularly if disbelief is accompanied by a suspicion

of mendacity)' it might be."), cert. denied, 117 S.Ct. 2511

(1997); Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th

Cir. 1996) (en banc) ("The evidence necessary to support an

inference of discrimination will vary from case to case. A

jury may be able to infer discriminatory intent in an appro-

priate case from substantial evidence that the employer's

proffered reasons are false. The evidence may, for example,

strongly indicate that the employer has introduced fabricated

justifications for an employee's discharge, and not otherwise

suggest a credible nondiscriminatory explanation."); Kelley v.

Airborne Freight Corp., 140 F.3d 335, 348 (1st Cir. 1998)

("Thus, under the ADEA, if the plaintiff establishes that the

defendant's proffered reasons for the adverse employment

action are not the true reasons, the trier of fact may, depend-

ing on the overall evidence, but is not required, to infer that

intentional age-based discrimination was a determinative fac-

tor in the adverse employment action.") (emphasis added).

In a welcome concession to common sense, the majority

seems to agree that the plaintiff, to survive summary judg-

ment, must do something more than simply show that the

proffered reason could be false. See, e.g., Maj. Op. at 9-10.

The problem is that in its very next breath the majority

rejects "any reading of Hicks under which employment dis-

crimination plaintiffs would be routinely required to submit

evidence over and above rebutting the employer's stated

explanation in order to avoid summary judgment." Id. In

other words, once the defendant has offered a non-

discriminatory rationale and the plaintiff has raised a jury

question as to its veracity, the majority would place some sort

of additional burden on the defendant--to show, perhaps that

the plaintiff's own evidence points to a permissible (although

perhaps embarrassing) "third" motive, see Maj. Op. at 11 or

that the defendant has a sterling record on equal employment

opportunity matters in general, see id. at 12. If the defen-

dant does not carry this burden, then the jury will be allowed

to infer the ultimate fact of discrimination from the existence

of some rebuttal evidence--evidence which, by its very he-

said-she-said nature, tends to be easy to come by. To make

matters worse, the majority refuses "to say in any concise or

generic way when such an inference will be appropriate." Id.

at 17. The result is a framework (if one can call it that) that

is both devoid of intelligible standards and incompatible with

the principle that the plaintiff bears the burden of proof on

the ultimate fact. See Hicks, 509 U.S. at 511 ("[T]he Court of

Appeals' holding that rejection of the defendant's proffered

reasons compels judgment for the plaintiff disregards the

fundamental principle of Rule 301 that a presumption does

not shift the burden of proof, and ignores our repeated

admonition that the Title VII plaintiff at all times bears the

'ultimate burden of persuasion.' ").

In light of the plain meaning of Hicks, I conclude that an

employment discrimination plaintiff must offer evidence not

only that the employer proffered an untrue reason for the

challenged employment action but also--whether as part of

the prima facie case or independently--that the employer did

so in order to cover up the true reason--which reason was

discriminatory. Aka has failed to point to any such showing

in the record, which contains no evidence raising a triable

issue of fact as to whether Washington Hospital's proffered

reasons for rejecting his application for the pharmacy techni-

cian opening were false, much less whether they were pre-

texts for discrimination.

In the district court Washington Hospital offered two non-

discriminatory reasons for hiring Jaime Valenzuela over Aka:

(1) Valenzuela had more relevant experience for the pharma-

cy technician position and (2) Valenzuela displayed more

enthusiasm during his interview than Aka did in his. Aka has

failed to identify evidence discrediting either reason.

To counter Washington Hospital's assertion that Valenzuela

was more qualified, Aka argues that both his education

(Bachelor's and Master's degrees in Public Health Service

Management) and his experience (twenty years as an orderly

at Washington Hospital) made him more qualified that Valen-

zuela who had "extremely little relevant experience, and no

relevant education." Appellant's Brief at 27. That Aka had

more education and more hospital experience is undisputed.

But neither was particularly "relevant."

The published "qualifications" for a pharmacy technician

list no educational requirement--not even a high school diplo-

ma.5 Nor is there any evidence that its duties require--or

would benefit from--either a Bachelor's or a Master's degree.

Ann Breakenridge, who interviewed both applicants for the

pharmacy technician opening, recognized that Aka's education

degrees would be wasted in the pharmacy technician job,

noting in her "interview summary report" that "Mr. Aka's

MBPA degree could be best utilized in other areas of the

Hospital." JA 230. Put simply, Aka's academic credentials

did nothing to enhance his qualifications for the position for

which he applied.6

Nor did Aka's experience--at least insofar as it was known

to Dr. Breakenridge at the time she chose Valenzuela over

him--make him a better candidate for the technician opening.

Aka asserted in an affidavit below (and we must accept as

true here) that as an orderly he "was regularly assigned to

pick up medications from Pharmacy, stock medications in the

nurses work area, and even sometimes prepare orders for

__________

5 The qualifications for the position of orderly--which Aka for-

merly occupied--required a "[h]igh school diploma or equivalent."

JA 324.

6 In fact, in contrast to the majority's observation, see Maj. Op. at

24 n.15, some courts have concluded that claimed reliance on

criteria not mentioned in a job description supports an inference of

discrimination. Courtney v. Biosound, Inc., 42 F.3d 414, 421 (7th

Cir. 1994); Gallo v. Prudential Residential Servs., 22 F.3d 1219,

1225 (2d Cir. 1994); Gaworski v. ITT Commercial Fin. Corp., 17

F.3d 1104, 1109 (8th Cir.), cert. denied, 513 U.S. 946 (1994).

medications that were not in sufficient stock in the nurses

work area," that he "had extensive knowledge and back-

ground with the forms used by the pharmacy for filling

medications" and that he "knew how most of the medications

were used by nurses in their care of patients." JA 391. Yet

there is no record evidence that Aka ever brought this

"relevant experience" to the attention of Breakenridge or that

Breakenridge was aware of it7--as she was of Valenzuela's

two months of actual pharmacy employment and his experi-

ence in "pricing, stocking, [and] filling up cassettes," noted on

his application. JA 226.

Aka also disputes Breakenridge's assessment that he was a

less enthusiastic applicant than Valenzuela, maintaining that

he too displayed enthusiasm for the position during his inter-

view. But Breakenridge's judgment about the two applicants'

enthusiasm was an inherently comparative one. See JA 222-

23. Assuming that Aka was enthusiastic, he offers no evi-

dence to show that Valenzuela was not more so (or at least

that Valenzuela did not appear that way during his interview).

More to the point, Aka cited no evidence that Washington

Hospital offered either lawful justification as a pretext to

conceal an unlawful motive. If Aka's claim, devoid as it is of

any discriminatory showing, can survive summary judgment,

I cannot envision a claim that would not.

II.

I would also affirm the district court's summary judgment

on Aka's ADA reasonable accommodation claim. Aka alleges,

as far as I can tell, that Washington Hospital breached its

duty under the ADA to transfer Aka, as a reasonable accom-

__________

7 In her interview summary report Breakenridge noted only that

Aka's orderly position had a "drug delivery aspect," JA 229, which

is consistent with both the published description of the orderly

position (orderly "[c]ollects and/or delivers a variety or items to and

from the unit," including "Medical Materials," JA 323) and Aka's

own deposition testimony (that his "experience in pharmacy services

consists of transporting narcotics and drugs to and from the phar-

macy" and that he had "[n]o other experience," JA 129).

modation, to a job that he could perform notwithstanding his

disability. I do not question that under certain circumstances

an employer has a duty to reasonably accommodate an em-

ployee's disability by reassigning him to an open position for

which he is qualified. See 42 U.S.C. s 12112(a) ("No covered

entity shall discriminate against a qualified individual with a

disability because of the disability of such individual in regard

to job application procedures, the hiring, advancement, or

discharge of employees, employee compensation, job training,

and other terms, conditions, and privileges of employment.");

42 U.S.C. s 12112(b)(5)(A) ("[T]he term 'discriminate' in-

cludes--... (5)(A) not making reasonable accommodations to

the known physical or mental limitations of an otherwise

qualified individual with a disability who is an applicant or

employee, unless such covered entity can demonstrate that

the accommodation would impose an undue hardship on the

operation of the business of such covered entity."); 42 U.S.C.

s 12111(9)(B) ("The term 'reasonable accommodation' may

include--... reassignment to a vacant position.... "). But

the only adverse decision Aka has cited--the failure to reas-

sign him to the pharmacy technician position--was not a

refusal to reasonably accommodate Aka's disability. Wash-

ington Hospital accommodated Aka's disability by affording

him the opportunity to apply for reassignment to the vacant

position. It accepted his application and interviewed him for

the opening. There is no reason to doubt that Washington

Hospital also would have hired Aka had he proved the more

qualified candidate for the job. As explained earlier, he did

not. Washington Hospital was under no duty to afford Aka a

hiring preference--because of his disability--over a more

qualified, non-disabled applicant. The Congress made clear

when the ADA was enacted that employers were not expected

or required to extend such preferences. See H.R. Rep. No.

101-485, pt. 2, at 56 (1990) ("[T]he employer would be permit-

ted to reject the applicant with a disability and choose the

other applicant for reasons not related to the disability or to

the accommodation or otherwise not prohibited by this legis-

lation. In other words, the employer's obligation is to consid-

er applicants and make decisions without regard to an individ-

ual's disability, or the individual's need for a reasonable

accommodation. But, the employer has no obligation under

this legislation to prefer applicants with disabilities over other

applicants on the basis of disability."); see also Wernick v.

Federal Reserve Bank of New York, 91 F.3d 379, 384 (2d Cir.

1996) ("Congress intended simply that disabled persons have

the same opportunities available to them as are available to

nondisabled persons."); Daugherty v. City of El Paso, 56

F.3d 695, 700 (5th Cir. 1995) ("[W]e do not read the ADA as

requiring affirmative action in favor of individuals with dis-

abilities, in the sense of requiring that disabled persons be

given priority in hiring or reassignment over those who are

not disabled. It prohibits employment discrimination against

qualified individuals with disabilities, no more and no less."),

cert. denied, 116 S.Ct. 1263 (1996); cf. Duckett v. Dunlop Tire

Corp., 120 F.3d 1222, 1225 (11th Cir. 1997) (no duty to

transfer "where the employer (independent of concerns about

disability) has a business policy against the pertinent kind of

transfer."); Dalton v. Subaru-Isuzu Automotive, Inc., 141

F.3d 667, 679 (7th Cir. 1998) ("[W]e have been unable to find

a single ADA or Rehabilitation Act case in which an employer

has been required to reassign a disabled employee to a

position when such a transfer would violate a legitimate,

nondiscriminatory policy of the employer."). Accordingly,

Washington Hospital's refusal to hire Aka over the more

qualified Valenzuela is not actionable.8

Finally, the majority would remand for the district court to

determine the contours of Washington Hospital's right under

the collective bargaining agreement to reassign Aka as a

reasonable accommodation and of Aka's right to such an

accommodation under the ADA. Maj. Op. at 36-37. I have

no idea how the majority expects the district court to fulfill its

__________

8 I find it unnecessary to consider how the collective bargaining

agreement might affect Washington Hospital's reasonable accom-

modation duty under the ADA both because Aka has not shown

Washington Hospital was under any such duty and because the

majority opinion expressly declines to resolve "whether reassigning

Aka would have been permissible under [the collective bargaining

agreement], Maj. Op. at 37.

mandate. Having claimed no adverse personnel action other

than denial of the pharmacy job, and specifically having made

no claim of wrongful termination, Aka is not in a position to

argue that failure to accommodate him in some other position

breached any duty under the ADA. See Marshall v. Federal

Express Corp., 130 F.3d 1095-98 (D.C. Cir. 1997) ("[F]or

discrimination (including denial of reasonable accommodation

to be actionable, it must occur in regard to some adverse

personnel decision or other term or condition of employ-

ment.") (emphasis original). And the majority has failed to

fill in the gap. Further, given that the Congress did not

intend to establish a preference regime under the ADA, I

cannot accept the majority's suggestion that reasonable ac-

commodation requires that a disabled person be transferred

to any open position for which he is qualified (such as the

pharmacy technician position here), regardless of other appli-

cants' qualifications, so long as the reassignment does not

impose "undue hardship" on the employer. See Maj. Op. at

36-37.9

For the preceding reasons I would affirm the district

court's summary judgment in toto. I therefore dissent.

__________

9 The majority, while eschewing express endorsement of prefer-

ences, nonetheless appears to adopt the position, urged by Amicus

Curiae Equal Employment Opportunity Commission in its brief, see

Brief of Amicus Curiae at 22-23, that such a preference is what the

ADA envisions. Otherwise, the majority's discussion of reasonable

accommodation is irrelevant.

Silberman, Circuit Judge, with whom Williams and

Ginsburg, Circuit Judges, join, dissenting: I join Judge

Henderson's opinion, but wish to make a few brief additional

comments. With respect to the first issue in the case, there

really is a rather stark difference between the majority's

approach and that of the Second Circuit in Fisher v. Vassar

College, 114 F.3d 1332 (2d Cir. 1997) (en banc), cert. denied,

118 S.Ct. 851 (1998). To be sure, both the majority and the

Second Circuit en banc opinion purport to take a middle

ground. Compare Maj. Op. at 13 (emphasis added) ("[I]n

some instances ... the fact that there are material questions

as to whether the employer has given the real explanation will

not suffice to support an inference of discrimination."); with

Fisher, 114 F.3d at 1333 (emphasis added) ("[E]vidence con-

stituting a prima facie case prior to the employer's proffer of

a reason, coupled with the error or falsity of the employer's

proffered reason may--or may not--be sufficient to show

illegal discrimination by a preponderance of the evidence.").

But a middle ground--where a plaintiff "in some instances"

does, and "in some instances" does not, survive summary

judgment merely by undermining the employer's proffered

reason--is an illusion. The truth is that the majority's hold-

ing ineluctably devolves into the "pretext-only" approach

earlier embraced by the panel and by several of our sister

circuits, see, e.g., Aka v. Wash. Hosp. Ctr., 116 F.3d 876, 881

(D.C. Cir. 1997); Sheridan v. E.I. DuPont de Nemours & Co.,

100 F.3d 1061, 1066-72 (3d Cir. 1996) (en banc); Anderson v.

Baxter Healthcare Corp., 13 F.3d 1120, 1123-24 (7th Cir.

1994). That becomes apparent when one scrutinizes the

scenarios offered by the majority to reassure us that a

plaintiff who discredits an employer's proffered reason will

not always survive summary judgment.

The majority's first scenario is "a case in which the plaintiff

calls the employer's explanation into question, but does so in

a way that conclusively demonstrates that the real explana-

tion for the employer's behavior is not discrimination, but

some other motivation"--what might be called the plaintiff-

shooting-himself-in-the-foot scenario. Maj. Op. at 12. As an

example, the majority points us to a situation where the

plaintiff had claimed that he had been fired because of his

age. When his employer proffered a number of nondiscrimi-

natory explanations, including the plaintiff's insubordination,

the plaintiff responded with evidence that in fact the real

reason he had been discharged was that he had discovered

that his employer was violating Securities and Exchange

Commission rules and the employer wished to cover this

problem up; in so responding, the plaintiff undermined his

own claim of age discrimination. See Maj. Op. at 12-13

(citing Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328

(8th Cir. 1996)). The majority thus assures us, rebutting an

employer's proffered reason is not invariably enough: this

"class" of plaintiffs will continue to be weeded out at the

summary judgment stage. But it should be obvious that this

hypothetical--although it once arose--is a sport; a plaintiff's

lawyer cannot be expected to put on such self-destructive

evidence.

The majority's second scenario is "a case in which a plain-

tiff has created only a weak issue of ... fact as to whether

the employer's explanation is untrue, and there is abundant

independent evidence in the record that no discrimination has

occurred." Maj. Op. at 13. The majority explains that "inde-

pendent evidence ... that no discrimination has occurred"

might include whether the hiring officer belonged to the same

protected class as the plaintiff or whether the employer has a

strong record of equal opportunity employment. See id.

This hypothetical betrays the majority's misunderstanding of

the requisite burden of proof in a Title VII case. The

majority implicitly requires the employer to produce, in sup-

port of its summary judgment motion, "abundant independent

evidence ... that no discrimination has occurred."1 That

approach is inconsistent with the McDonnell Douglas frame-

__________

1 To be sure, a Fed. R. Civ. P. 56(c) movant does bear the

burden of demonstrating that there is "no genuine issue as to any

material fact." See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157

(1970); Rodway v. United States Dep't of Agriculture, 482 F.2d 722,

727 (D.C. Cir. 1973). Here, the employer met that burden by

pointing out that the plaintiff admitted in his deposition that he had

no evidence for asserting that his alleged disability was a factor in

work because it places the burden of persuasion on the

defendant. As the Supreme Court made clear in Hicks, once

the employer produces a legitimate nondiscriminatory reason

for the challenged decision, the presumption that the employ-

er discriminated "drops out of the picture" and the plaintiff

"at all times bears the burden of persuasion." St. Mary's

Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993) (citations and

internal quotation marks omitted). I agree that "independent

evidence" is crucial at the summary judgment stage. But it

is independent evidence of discrimination put forth by the

plaintiff, not--as the majority suggests--independent evi-

dence of non-discrimination put forth by the defendant.

In practical application, then, the majority's position prom-

ises that plaintiffs will "routinely," Maj. Op. at 11, be able to

get to juries based on a collateral issue without ever really

showing evidence of discrimination--what amounts, de facto,

to a broad "wrongful discharge" cause of action for a plaintiff

in a protected class.

As noted, the Second Circuit, like the majority, appeared to

claim that it too was adopting a middle ground by saying that

"the falsity of the employer's proffered reason may--or may

not--be sufficient to show illegal discrimination by a prepon-

derance of the evidence," 114 F.3d at 1333, and later that

"[t]he sufficiency of a finding of pretext to support a finding

of discrimination depends on the circumstances of the case,"

id. at 1338. At the end of the day, however, when one looks

at the holding rather than general language, the Second

Circuit diverges from the majority in this case. The en banc

court left intact the Second Circuit panel's holding that the

district court committed clear error in concluding--based

solely on a finding that the university's proffered non-

discriminatory reasons were pretextual--that the real reason

for the challenged tenure decision was discrimination. See id.

at 1347. By contrast, the majority here holds that appellant

__________

the decision not to hire him. See Washington Hospital Center's

Statement Of Material Facts As To Which There Is No Genuine

Issue, p 29 at 10 [J.A. 22] (citing Plaintiff Tr. 105-106).

Aka should have survived summary judgment merely because

he created a jury question as to whether the employer's

explanation for not hiring him was false. See Maj. Op. at 30.

Thus, in the Second Circuit, a plaintiff will lose on summary

judgment unless he presents independent evidence of discrim-

ination, while in our circuit, a plaintiff will survive summary

judgment merely by putting in issue the employer's proffered

nondiscriminatory explanation.

I think the Second Circuit's actual holding, which accords

with the position adopted by the First and Fourth Circuits,

see Hidalgo v. Overseas Condado Ins. Agencies, Inc., 120

F.3d 328, 337 (1st Cir. 1997); Vaughan v. MetraHealth Cos.,

Inc., 145 F.3d 197 (4th Cir. 1998), is faithful to the notion that

the McDonnell Douglas prima facie case is only a burden of

production shifting device and really has minimal probative

value. If an employer meets its burden of producing a

nondiscriminatory explanation, then it will not do for the

plaintiff simply to rebut that explanation. To survive sum-

mary judgment, the plaintiff must always produce indepen-

dent evidence of discrimination. Only if we require such a

showing do we preserve the plaintiff's congressionally-

mandated burden to show that the employer's real reason for

its personnel decision was discrimination on the basis of the

plaintiff's membership in a protected class.

* * * *

Turning to the reasonable accommodation claim, a prelimi-

nary point is in order. The majority asserts that this issue is

not properly before us. See Maj. Op. at 37-38 ("Although

under our normal procedures we would not consider [the

issue] because [it] was not raised in the district court and

[was] not within the scope of this court's grant of in banc

review, in deference to our dissenting colleagues we will

respond briefly."). If the majority were to follow our "nor-

mal procedures," however, plaintiff's claim would not be

before the court at all. As Aka's counsel conceded at oral

argument, Aka never (i.e., neither before the district court,

the panel, nor the court en banc) connected his reasonable

accommodation claim to any personnel decision or job oppor-

tunity, as he is required to do under Marshall v. Federal

Express Corp., 130 F.3d 1095, 1099 (D.C. Cir. 1997). Even

though Marshall would not be controlling in an en banc, the

majority does not overrule it or even cite it. Thus, it is the

majority that has done Aka's pleading work for him at this

late hour by tying Aka's reasonable accommodation claim to

the specific pharmacy technician position. I also find puz-

zling the majority's assertion that the reasonable accommoda-

tion issue was not within the scope of our grant of en banc

review. Question two of our order granting en banc review

asked:

Does a collective-bargaining agreement that permits a

disabled employee to be reassigned to a vacant position

if, in the "sole discretion" of the employer, the reassign-

ment is "feasible" and "will not interfere with patient

care or the orderly operation" of the workplace incorpo-

rate a different standard than that of the Americans with

Disabilities Act, which requires that a disabled employee

be reassigned to a vacant position if doing so would not

impose an "undue hardship"?

Order, No. 96-7089 (Jan. 30, 1998). Before one is able to

compare the standard of the ADA with that of the collective-

bargaining agreement, one must first ascertain the standard

of the ADA itself. Thus, analysis of the scope of an employ-

er's obligation to make reasonable accommodations by "reas-

sign[ing a disabled employee] to a vacant position," 42 U.S.C.

s 12111(9)(B) (1994), is clearly within the scope of our order

granting en banc review.

Although the majority's discussion of Aka's reasonable

accommodation claim obscures its relationship to his basic

claim, it should be obvious that if Aka's disparate treatment

claim survives the employer's summary judgment motion and

the jury returns a verdict for Aka on this claim, then his

reasonable accommodation claim is redundant. Only if Aka

loses on his disparate treatment claim could the reasonable

accommodation claim become meaningful. But that necessar-

ily means that the reasonable accommodation claim--recall

that the contended-for reasonable accommodation is reassign-

ment to a vacant position--requires more of the employer

than the disparate treatment claim, which merely relies on an

antidiscrimination rule. That is, on Aka's (and the majority's)

view, the reasonable accommodation claim mandates that the

employer grant a preference to disabled employees over non-

disabled employees in filling vacant positions.

I think the majority's reading of the ADA is simply wrong.

The majority overemphasizes the dictionary definition of the

word "reassign" and declines to read "reassignment to a

vacant position" in the context of the other types of reason-

able accommodation listed in 42 U.S.C. s 12111(9). Those

examples share the common theme of regulating the relation-

ship of the disabled employee vis--vis the employer, making

no mention of the disabled employee's rights vis--vis other

non-disabled employees or applicants--that is, none even

alludes to the possibility of a preference for the disabled over

the non-disabled. The first type of reasonable accommoda-

tion, "making existing facilities used by employees readily

accessible to and usable by individuals with disabilities,"

imposes an obligation on the employer but has no immediate

impact on non-disabled employees. Likewise, "job restruc-

turing" and "part-time or modified work schedules" involve

accommodations made to the disabled employee in his current

position and thus have no direct effect on non-disabled em-

ployees or applicants. And the "acquisition of equipment or

devices, appropriate adjustment or modifications of examina-

tions, training materials or policies, the provision of qualified

readers or interpreters, and other similar accommodations for

individuals with disabilities," 42 U.S.C. s 12111(9)(B), may

impose costs on the employer, but work no harm on non-

disabled employees. In short, all of these sorts of reasonable

accommodation deal with the relationship between the dis-

abled employee and the employer, and have no direct impact

on the situation of non-disabled employees or applicants.

If the Congress had intended to grant a preference to the

disabled--a rather controversial notion--it would certainly

not have done so by slipping the phrase "reassignment to a

vacant position" in the middle of this list of reasonable

accommodations. Indeed, the catch-all "and other similar

accommodations for individuals with disabilities," 42 U.S.C.

s 12111(9)(B) (emphasis added), strongly indicates that the

Congress perceived each of the enumerated types of reason-

able accommodation to be of the same character. If "reas-

signment to a vacant position" is read in context, therefore, it

must mean that an employer is obligated--if another type of

reasonable accommodation cannot be made in the disabled

employee's current position--to allow a disabled employee to

compete (on equal terms with non-disabled employees) for

vacant positions. On this understanding of "reassignment to

a vacant position," the phrase fits in with the common theme

of regulating the relationship between disabled employee and

employer without directly affecting non-disabled employees.

This reading accords with the House Report's recognition

that "the employer's obligation is to consider applicants and

individuals without regard to an individual's disability, or the

individual's need for a reasonable accommodation. But, the

employer has no obligation under this legislation to prefer

applicants with disabilities over other applicants on the basis

of disability." H.R. Rep. No. 485(II), 101st Cong., 2d Sess.,

at 56 (1990) (emphasis added).

Contrary to the majority's assertion, this interpretation of

the statute does not render the "reassignment to a vacant

position" phrase a "nullity." Maj. Op. at 41. I read that

provision as designed to prevent an employer from as a

matter of policy--either blanket or ad hoc--forbidding em-

ployees, including disabled ones, from applying for other

positions. See H.R. Rep. No. 485(II), 101st Cong., 2d

Sess., at 58 ("[I]t would be a violation for an employer to

adopt ... a presumption that no individual with a disability

would be interested in moving into a particular job.").