Iadimarco v. Runyon

Opinions of the United

1999 Decisions States Court of Appeals

for the Third Circuit

9-8-1999

Iadimarco v. Runyon

Precedential or Non-Precedential:

Docket 98-5150

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Filed September 8, 1999

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

NO. 98-5150

CHARLES A. IADIMARCO,

Appellant

v.

MARVIN T. RUNYON, POSTMASTER GENERAL

On Appeal from the United States District Court for the District of New

Jersey D.C. Civil No. 95-cv-05873 District

Judge: Hon. Garrett E. Brown, Jr.

Argued: February 9, 1999

Before: Becker, Chief Judge, McKee, Circuit Judges Lee, District Judge*

(Filed September 8, 1999)

Robert W. Beattie, Esq. (Argued) Beattie & Murray 800 Riverview Dr., Suite

103 Brielle, NJ 08730

Attorney for Appellant

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*The Honorable Donald J. Lee, United States District Judge for the Western

District of Pennsylvania, sitting by

designation.

Dorothy J. Donnelly, Esq. (Argued) Office of United States Attorney 402

East State Street Room 502 Trenton, NJ

08608

Attorney for Appellee

OPINION OF THE COURT

McKEE, Circuit Judge.

We are asked to review the District Court's grant of summary judgment in

favor of the United States Postal Service,

and against its employee, Charles Iadimarco. Iadimarco filed an action

under Title VII of the 1964 Civil Rights Act

alleging "reverse discrimination" after he was denied a requested

promotion within the Postal Service. The District

Court ruled that Iadimarco had not established a prima facie case of

illegal discrimination. The court also ruled in the alternative that,

assuming Iadimarco had established a prima facie case, he had not rebutted

the defendant's

race-neutral explanation for the challenged employment decision. For the

reasons that follow, we hold that Iadimarco established a prima facie case

under Title VII. We also hold that he produced sufficient evidence to

raise a genuine issue of material fact as to whether the defendant's

explanation was a pretext for illegal discrimination. Accordingly, we will

reverse and remand for further proceedings consistent with this opinion.

I. Factual and Procedural Background

In 1992, the Postal Service undertook a national reorganization in which

many jobs were consolidated or eliminated. After the reorganization,

managerial employees were informed that they had to submit a "991 form" to

indicate their preferences for available jobs. Employees could apply for

positions as long as they were within six EAS levels for processing and

distribution positions. Charles Iadimarco, a White male, submitted a 991

form indicating his preference for three positions: Manager of In-plant

Support at Kilmer (EAS 21), Manager of In-plant Support at Trenton (EAS

21), and Manager of In-plant Support at Monmouth (EAS 19).

After the Kilmer and Trenton jobs were filled by White males, Iadimarco

contacted Robert Towler, the selecting

official for Monmouth, about the Monmouth position. Towler had rated each

of the 41 applicants for the Monmouth

position according to a "knowledge, skills and abilities" matrix ("KSA")

that was part of the applicants' 991 form.1

Iadimarco was one of only three candidates for the Monmouth position who

received a rating of "superior" in every

KSA category.

The District Court found that Towler interviewed Iadimarco for the

Monmouth position in March 1993, though the

issue was disputed. In any event, Iadimarco claims that Towler told him

that he (Iadimarco) would be selected for the position pending approval of

Henry Pankey, Towler's supervisor. However, on March 25, 1993, and again

on April 1, 1993, Towler requested permission to re- post the Monmouth

position. At trial, Towler testified that the other two top candidates for

the Monmouth position had been placed in other positions before the

Monmouth position could be filled, and he did not think that Iadimarco

should be promoted by "default." According to Towler, he therefore re-

posted the position rather than merely hiring Iadimarco who was then the

only applicant remaining who had received a superior rating in every KSA

category. Iadimarco alleges that Towler re-posted the

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1. The KSAs for the position were the ability to:

(1) manage the implementation of national and area processing and

distribution programs and policies.

(2) manage the review and evaluation of local operations.

(3) manage the development of local requirements for resources.

(4) resolve issues with customers, major mailers, and suppliers.

(5) provide technical support to post offices.

(6) manage the work of people to meet organization goals, including

organizing and structuring the work, establishing effective work

relationships, and facilitating the flow of work-related information.

Dist. Ct. Op. at 2.

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position because Towler was having difficulty getting Iadimarco's name

past Pankey. Iadimarco's contention is based upon his belief that Pankey

wanted to hire a minority applicant for the Monmouth position to diversify

the work place.2 Iadimarco's assertion is based in large part upon a

memorandum that Pankey issued to all plant managers and installation heads

in December of 1992 (the "diversity memo"). The memo stated:

As we proceed to fill vacancies, I want to ensure that very serious

consideration is given to the issue of diversity - I cannot emphasize this

point more strongly. The management teams in our plants should reflect the

composition of our workforce and communities if we are to benefit from the

contributions that minorities, women, and ethnic groups can bring to our

decision making processes and the social harmony that this will instill in

our work environment.

Your personal commitment is needed -- if there are any questions on this

matter, please feel free to contact me.

Although Pankey admitted signing this memo, he denied writing it.

On or about March 25, 1993, Iadimarco and Towler discussed placing

Iadimarco into the position of Operations

Support Specialist (EAS 16) in the Monmouth facility. Iadimarco claims

that he did not accept the position, but Towler testified that Iadimarco

did accept it. Nonetheless, it is undisputed that Iadimarco did accept the

position of Operations Support Specialist in the Trenton facility in early

March or April. Thereafter, Toni Williams, a Black female, was promoted to

Acting In-plant Support Manager for the Monmouth facility. Towler formally

announced Ms. Williams' selection as the In-plant Support Manager

approximately two weeks later.

On May 28, 1993, Iadimarco initiated a proceeding before the Equal

Employment Opportunity Commission because

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2. The majority of managers at the relevant level are White males. A197.

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he believed that he had been denied the Monmouth position because he is a

White male. The complaint was eventually heard by an Administrative Law

Judge who agreed that Iadimarco had been the victim of illegal race and

gender discrimination. However, the ALJ's findings were rejected by the

EEOC. The agency concluded that plaintiff failed to establish a prima

facie case of discrimination because he had accepted another position

before being denied the In-plant Manager position at Monmouth. Iadimarco

then filed a complaint in the United States District Court for the

District of New Jersey alleging illegal racial discrimination under Title

VII of the 1964 Civil Rights Act. Following discovery, the District Court

granted summary judgment in favor of the Postal Service and against

Iadimarco. This appeal followed.3

II. Discussion

A. The District Court's Decision.

The District Court concluded that it had to apply the ever-present burden-

shifting analysis announced in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). In conducting that

analysis, the District Court noted a split among the courts of appeals in

"reverse discrimination" cases as to the prerequisites of a prima facie

case required of a White male. See Dist. Ct. Op. at 5, n.2, and cases

cited therein. The court stated that although "the Third Circuit has yet

to address this issue, most of the [district] courts in this Circuit have

required plaintiffs to first establish background circumstances that

support an inference that the defendant employer is "the unusual employer

who discriminates against the majority." Id.

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3. The District Court had jurisdiction pursuant to 42 U.S.C. § 2000e et

seq. We have jurisdiction pursuant to 28

U.S.C.§ 1291. Our review is plenary. Waldron v. SL Industries, Inc., 56

F.3d 491, 496 (3d Cir. 1995). See also

Marzano v. Computer Science Corp. Inc., 91 F.3d 497, 501 (3d Cir. 1996)

(citing Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994)). We

"must view the evidence in the light most favorable to the nonmovant,

giving that party the benefit of all reasonable inferences derived from

the evidence." Waldron, 56 F.3d at 496 (citing Torre v. Casio Inc., 42

F.3d 825, 830 (3d Cir. 1994)).

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(quoting Wallick v. AT & T Communications Inc. , 1991 WL 635610 at *6

(D.N.J. 1991) ("Although Title VII .. . prohibits discrimination against a

majority group,`it makes little sense, within the historical context of

the Act, to infer discrimination against [the majority] in the same way

that discrimination is inferred against [minorities].' ")). The District

Court quoted Harding v. Gray, 9 F.3d 150 (D.C. Cir. 1993), in observing

that evidence of "background circumstances" "can be divided into two

general categories: (1) evidence indicating that the particular employer

at issue has some reason or inclination to discriminate invidiously

against [W]hites, . . . . and (2) evidence indicating that there is

something `fishy' about the facts of the case at hand that raises an

inference of discrimination." Harding, 9 F.3d at 153.4

The District Court then held that Iadimarco did not "sustain his burden of

showing the requisite background

circumstances," Dist. Ct. Op. at 6, under Harding. The court held that

"plaintiff has failed to present any evidence to

show that he was more qualified than Williams." Id. at 7. In reaching that

conclusion, the court rejected Iadimarco's

request that it examine the job applications of the two competing

candidates and find that he was more qualified than

Williams. The court stated "[p]laintiff does not . . . explain . . . how

his application exhibits that he has `superior

qualifications than Williams.' Moreover, from examining the applications,

this Court is unable to determine that plaintiff had `superior

qualifications.' " Id.5

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4. In Harding, the court clarified that the "[b]ackground circumstances

need not mean `some circumstances in the employer's background.' " Id.

Rather, the court merely required a plaintiff who was not a member of a

"historically disfavored" group to present evidence of circumstances that

would support a finding that the challenged actions were motivated by

racial animus.

5. Iadimarco did present evidence that the Trenton plant manager, Stuart

Gossoff, who eventually hired Iadimarco, felt that the latter's

qualifications were superior to Williams'. However, the District Court

concluded that Gossoff 's opinion was irrelevant because he was not

involved in the decision to hire the In-plant Manager in Monmouth. See

Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 528 (3d Cir.

1992).

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The District Court reasoned that the mere fact that both Pankey and Towler

were Black was "insufficient to show background circumstances supporting

the suspicion that the defendant is the unusual employer who discriminates

against the majority." Dist. Ct. Op. at 8. We agree that the race of the

selecting officials is not a sufficient circumstance to establish a prima

facie case of discrimination by itself. Although the race and/or gender of

the individual(s) responsible for a hiring decision is certainly relevant,

it is insufficient to establish a prima facie case of discrimination

without more.

In holding that Iadimarco had not presented any evidence of discrimination

other than the race of Pankey and Towler, the District Court rejected

Iadimarco's assertion that the diversity memo was a "smoking gun." See

Appellee's Br. at 22. The District Court held that the memo was

"insufficient to create the suspicion that the requisite background

circumstances existed" under Harding because the memo did nothing more

than restate policy enunciated in the Civil Service Reform Act. Dist. Ct.

Op. at 10. See also 5 C.F.R. § 720 App. to Pt. 720 at 13 ("The [Civil

Service Reform Act of 1978] establishes in law as the first merit

principle that recruitment should be designed to achieve a Federal

workforce from `all segments of society.' ").

The court also held that, assuming arguendo that Iadimarco's evidence was

sufficient to establish a prima facie case, he had not presented

sufficient evidence to allow a reasonable fact finder to conclude that the

employer's justification for hiring Williams was a pretext for illegal

discrimination. The court accepted Towler's explanation that he hired

Williams because she was "the right person for the job." Dist. Ct. Op. at

14. In doing so, the court relied in part upon the following exchange from

Towler's deposition:

Toni Williams seemed to be right for the plant at the time. She offered a

fresh approach to the work room floor. She offered a fresh approach to the

employees out there . . . I am not viewed as the gentlest person around. .

. .

The In-Plant was meant to be a buffer. The Manager In-Plant was meant to

access those people on the work room floor with the problems that they

were having. . . . A person that had the ability to interface with people.

Had no problem in what operations were out there on the work room floor.

Q: You don't think Mr. Iadimarco had these qualities?

A: I could not recall Mr. Iadimarco having exhibited those qualities when

he was here in Monmouth.

Dist. Ct. Op. at 15.

The District Court correctly noted that we have not yet decided upon the

proper expression of a prima facie case in "reverse discrimination" cases.

Accordingly, we take this opportunity to provide guidance for the trial

courts in this

Circuit.

B. The Prima Facie Case in "Reverse Discrimination"

Suits Under Title VII.

42 U.S.C. Section 2000e-2 states that:

(a) Employer Practices

It shall be an unlawful employment practice for an employer -

(1) to fail or refuse to hire or to discharge any individual, or otherwise

to discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such

individual's race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-2 (West 1997).

The Supreme Court has recognized that an employer who discriminates will

almost never announce a discriminatory animus or provide employees or

courts with direct evidence of discriminatory intent. Accordingly, the

Court fashioned the McDonnell Douglas burden-shifting analysis to allow

plaintiffs to proceed without direct proof of illegal discrimination where

circumstances are such that common sense and social context suggest that

discrimination has occurred. In the "ordinary case" where a minority

plaintiff alleges race-based employment discrimination, the plaintiff

"must carry the initial burden under the statute of establishing a prima

facie case of racial discrimination . . . . by showing (i) that he belongs

to a racial minority; (ii) that he applied and was qualified for a job for

which the employer was seeking applicants; (iii) that, despite his

qualifications, he was rejected; and (iv) that, after his rejection, the

position remained open and the employer continued to seek applicants from

persons of complainant's qualifications." McDonnell Douglas, 411 U.S. at

802.

Once the plaintiff establishes a prima facie case,"the burden then must

shift to the employer to articulate some legitimate, nondiscriminatory

reason for the employee's rejection." Id. at 802. However, "the defendant

need not persuade the court that it was actually motivated by the

proffered reasons." Texas Dept. of Community Affairs v. Burdine, 450 U.S.

248, 254 (1981). For purposes of defeating a plaintiff 's motion for

summary judgment, "[i]t is sufficient if the defendant's evidence raises a

genuine issue of material fact as to whether it discriminated against the

plaintiff." Burdine, 450 U.S. at 254. If the employer offers some evidence

of a legitimate, nondiscriminatory reason then plaintiff must "be afforded

a fair opportunity to show that [employer's] stated reason for [plaintiff

's] rejection was in fact pretext." McDonnell Douglas, 411 U.S. at 804.

"The prima facie case serves an important function in the litigation: it

eliminates the most common nondiscriminatory reasons for the plaintiff 's

rejection." Burdine, 450 U.S. at 253-54.

Inasmuch as the first prong of this test requires plaintiff to establish

his or her identity as a member of a minority group, the literal

application of the test would preclude its use by White plaintiffs

alleging "reverse discrimination." In fact, the historical context of

Title VII allowed for some debate as to whether Congress intended to

extend its reach to practices that have come to be known as "reverse

discrimination." However, in McDonald v. Santa Fe Trail

Transp. Co., 427 U.S. 273, 283 (1976), Justice Marshall, writing for a

unanimous Court, stated: "[t]he Act prohibits All racial discrimination in

employment, without exception for any group of particular employees. . .

." Thus, it is now clear that the dictates of Title VII "are not limited

to discrimination against members of any particular race [and Title VII]

proscribe[s] racial discrimination in private employment against [W]hites

on the same terms as racial

discrimination against nonwhites." Id. at 278-79, 280. No doubt because of

this country's history of race relations, most Title VII plaintiffs have

been members of a minority group, and the first prong of the McDonnell

Douglas test was stated in the context of that history.

The premise underlying the varied McDonnell Douglas standards remains

unchanged. It stems from Congressional

efforts to address this nation's history of discrimination against racial

minorities, a legacy of racism so entrenched that we presume acts,

otherwise unexplained, embody its effect.

Murray v. Thistledown Racing Club, Inc., 770 F.2d 63, 67 (6th Cir. 1985).

However, the holding of Santa Fe Trail as well as the language of

McDonnell Douglas itself clearly establishes that the substance of the

burden-shifting analysis applies with equal force to claims of "reverse

discrimination."

Nevertheless, courts have struggled in attempting to apply the McDonnell

Douglas burden-shifting framework to Title VII suits by White plaintiffs,

and no universally accepted statement of the appropriate standard has

emerged. The confusion arises from the wording of the very first prong of

the McDonnell Douglas test. Obviously, a White plaintiff can not establish

"membership in a minority group" in the same way a Black plaintiff can. In

an effort to "cram"6 the "reverse discrimination" cases into the McDonnell

Douglas framework, most courts of appeals that have considered the issue

require White plaintiffs to present evidence of "background circumstances"

that establish that the defendant is "that unusual employer who

discriminates against the majority," Parker v. Baltimore & O. R. Co., 652

F.2d 1012, 1017 (D.C. Cir. 1981), instead of showing minority group

status. In Parker, the court

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6. See Eastridge v. Rhode Island College, 996 F. Supp. 161, 167 (D. R.I.,

1998) ("attempting to cram a reverse discrimination case into the

McDonnell Douglas framework is not a reasonable approach. . . ."); Cully

v. Milliman & Robertson, Inc., 20 F. Supp. 2d 636, 641 (S.D.N.Y., 1998)

(same).

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explained the rationale for adopting that change to the traditional

McDonnell Douglas prima facie case:

The original McDonnell Douglas standard required the plaintiff to show

"that he belongs to a racial minority."

Membership in a socially disfavored group was the assumption on which the

entire McDonnell Douglas analysis was predicated, for only in that context

can it be stated as a general rule that the `light of common experience'

would lead a factfinder to infer discriminatory motive from the

unexplained hiring of an outsider rather than a group member. Whites are

also a protected group under Title VII, but it defies common sense to

suggest that the promotion of a Black employee justifies an inference of

prejudice against White co-workers in our present society.

Parker, 652 F.2d at 1017. After Parker was decided, the Court of Appeals

for the D.C. Circuit amplified its "background circumstances" modification

of McDonnell Douglas. The court stated:

The evidence that this Court has found in the past to constitute

"background circumstances" can be divided into two categories: (1)

evidence indicating the particular employer . . . has some reason or

inclination to discriminate invidiously against whites, and (2) evidence

indicating that there is something "fishy" about the facts of the case at

hand that raises an inference of discrimination.

Harding, at 153. The court also cautioned that " `background

circumstances' need not mean`some circumstances in the employer's

background.' " Rather, the court noted "[o]n the contrary, other evidence

about the `background' of the case at hand -- including an allegation of

superior qualifications -- can be equally valuable." Id. The court also

insisted that the "background circumstances" test "is not an additional

hurdle for white plaintiffs," and asserted that it was merely"a faithful

transposition of the McDonnell Douglas/Burdine test . . ." into the

context of "reverse discrimination." Id. at 154.

Despite that clarification, some courts have concluded that substituting

"background circumstances" for the first prong of McDonnell Douglas does

raise the bar, and those courts have rejected the Parker/Harding analysis

for that reason. For example, in Eastridge, the court concluded that the

Parker/Harding test "require[s] a reverse discrimination plaintiff to show

that the specific employer has displayed a pattern of discrimination

against the majority in the past [and therefore] imposes a more onerous

burden on such a plaintiff as compared to any plaintiff from any protected

group." 996 F.Supp. at 161. See also Ulrich v. Exxon Co., 824 F.Supp. 677,

683-4 (S.D. Tex. 1993) (describing the "background circumstances" test as

imposing a"heightened burden" and citing cases that have criticized it).

In Cully v. Robertson, Inc., 20 F.Supp. 2d 636, 641 (S.D.N.Y., 1998), the

court invited a comparison between Parker and Lucas v. Dole, 835 F.2d 532

(4th Cir. 1987), and described the former as requiring a "higher prima

facie burden for reverse discrimination plaintiffs" and the latter as

having "no higher prima facie burden." In Collins v. School District of

Kansas City, 727 F.Supp. 1318, 1320 (W.D. Mo., 1990), the court concluded

that the "background circumstances" test required a "special showing" of

White Plaintiffs, and rejected the test for that reason. The court also

concluded that the "unusual employer" prong of Parker established an

"arbitrary barrier which serves only to frustrate those who have

legitimate Title VII claims." Although the Court of Appeals for the Eighth

Circuit had not yet spoken on the issue, the court in Collins relied upon

Loeffler v. Carlin, 780 F.2d 1365, 1369 (8th Cir. 1985) to reason that the

court of appeals would also decline to follow the Parker line of cases. In

Loeffler, the court concluded that a male plaintiff had established a

prima facie case in a gender discrimination suit without showing any

background circumstances to suggest that the defendant was the "unusual

employer who discriminates against the majority." The Collins court

reasoned that the Court of Appeals for the Eighth Circuit would not,

therefore, adopt the heightened burden the district court believed was

endemic in the "background circumstances" inquiry. However, when the Court

of Appeals was finally called upon to address the issue of the appropriate

prima facie standard required in "reverse discrimination" cases, it did

adopt the Parker/ Harding requirement of "background circumstances." See

Duffy v. Wolle, 123 F.3d 1026 (8th Cir. 1997). In Duffy, the court had to

decide if a White male plaintiff who had alleged gender discrimination in

the context of a Bivens action7 had established a prima facie case. The

plaintiff was precluded from bringing a Title VII action by statute8 but

the court used a McDonnell Douglas analysis in analyzing the applicable

burdens in the context of a Bivens claim. In doing so, the court relied

heavily upon the Parker line of cases. The court concluded that the

plaintiff had presented evidence of at least three "background

circumstances [to] support the suspicion that [the defendant] was that

unusual employer who discriminates against the majority." Id. at 1037

(internal quotation marks omitted).

The "background circumstances" test has been adopted by the respective

circuit court of appeals in each of the

following cases: Mills v. Health Care Serv. Corp., 171 F.3d 450, 457 (7th

Cir. 1999); Duffy, 123 F.3d at 1036-37;

Reynolds v. School Dist. No. 1, 69 F.3d 1523, 1534 (10th Cir. 1995);

Notari v. Denver Water Dept., 971 F.2d 585

(10th Cir. 1992); and Murray, 770 F.2d at 66-67. However, application and

interpretation of the test has often proven difficult. In addition to the

concerns expressed by the aforementioned district courts, the Court of

Appeals for the Sixth Circuit has gone so far as to question its earlier

adoption of the test. In Murray, the district court had relied upon Parker

in concluding that the White plaintiff had failed to show the required

"background circumstances" necessary to establish his prima facie case

under McDonnell Douglas. On appeal, the Court of Appeals for the Sixth

Circuit had stated: "[w]e agree with the district court that a prima facie

case of `reverse discrimination' is established upon a showing that

`background circumstances support the suspicion that the defendant is that

unusual employer who discriminates against the majority'[.]" 770 F.2d at

67 (citing Parker). However, nine years later in Pierce v. Commonwealth

Life Ins. Co., 40 F.3d 796 (6th Cir. 1994), the same court noted that the

"background circumstances" test had been criticized for imposing a

"heightened standard," on White plaintiffs.

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7. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388 (1971).

8. See 42 U.S.C. § 2000e-16.

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The court then stated: "[w]e have serious misgivings about the soundness

of a test which imposes a more onerous standard for plaintiffs who are

[W]hite or male than for their non-[W]hite or female counterparts."

Pierce, 40 F.3d at 801 n. 7. However, the Pierce court did not have to

resolve the obvious tension between that pronouncement and Murray's

adoption of that test, because the plaintiff in Pierce could not meet the

second prong of the McDonnell Douglas test.

Here, as stated above, the District Court substituted the "background

circumstances" requirement for the minority group status otherwise

required under the first prong of the McDonnell Douglas test. We now

reject the"background circumstances" analysis set forth in Parker ,

Harding, and their progeny.

The prima facie case under McDonnell Douglas merely states "the basic

allocation of burdens and order of presentation of proof [under] Title

VII. . ." Burdine, 450 U.S. at 252 (1980). It raises an inference of

discrimination

only because we presume these acts, if otherwise unexplained in the

context of the prongs of the McDonnell Douglas prima facie case, are more

likely than not based on the consideration of impermissible factors. See

Furnco Const. Corp. v. Waters, 438 U.S. 567, 577 (1978). However, "[t]he

central focus of the inquiry . . . is always whether the employer is

treating some people less favorably than others because of their race,

color, religion, sex, or national origin." Id. (internal quotation marks

omitted).

Accordingly, all that should be required to establish a prima facie case

in the context of "reverse discrimination" is for the plaintiff to

present sufficient evidence to allow a fact finder to conclude that the

employer is treating some people less favorably than others based upon a

trait that is protected under Title VII.

The factual inquiry in a Title VII case is whether the defendant

intentionally discriminated against the plaintiff. In other words, is the

employer treating some people less favorably than others because of their

race, color, religion, sex, or national origin. The prima facie case

method established in McDonnell Douglas was never intended to be rigid,

mechanized, or ritualistic. Rather, it is merely a sensible, orderly way

to evaluate the evidence in light of common experience as it bears on the

critical question of discrimination.

U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983).

Stating the prima facie case in terms of "background circumstances" and

the uniqueness of the particular employer is both problematic and

unnecessary. As noted above, many of the courts that have tried to apply

such an analysis have concluded that it results in a heightened burden for

the plaintiff despite the aforementioned proclamations to the contrary by

the court that developed the test.9

The pronouncement in Harding that the analysis there did not heighten the

plaintiff's burden has not convinced several of the district courts that

have had to determine the appropriate analysis.

Moreover, the suggestion that a plaintiff must prove "background

circumstances" to establish that the defendant is a "unique employer that

discriminates against the majority" has a tendency to force the plaintiff

to initially present proof that would otherwise only become relevant to

rebut the employer's explanation of the challenged conduct. As noted

above, in Harding, the court defined "background circumstances" to

include: "(1) evidence indicating that the particular employer at issue

has some reason or inclination to discriminate invidiously against whites,

. . . and (2) evidence indicating that there is something `fishy' about

the facts of the case at hand that raises an inference of discrimination."

Harding, 9 F.3d at 153. The court further stated that the "background

circumstances" test requires a member of a majority group to proffer

evidence that the challenged actions were motivated by racial animus. But

this is the underlying inquiry in any Title VII case. Thus, the

Parker/Harding modification can undermine the basic point of the McDonnell

Douglas burden-shifting regime to make it easier for employees to bring

claims that would otherwise be extraordinarily difficult to prove. The

Supreme Court imposed the burden-shifting test to eliminate early on some

of the most common nondiscriminatory reasons for employment decisions, as

well as to place

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9. See Harding, 9 F.3d at 154.

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the burden of production on the party with the most access to the

employer's decision making process, i.e., the employer itself. Parker,

Harding, and their progeny go too far in amending the prima facie case to

include allegations of reverse discrimination.

Moreover, to the extent it might be argued that Harding does not go as far

as we suggest, we believe that the concept of "background circumstances"

is irremediably vague and ill-defined. For example, one of the alleged

background circumstances here is that Iadimarco was more qualified than

Williams. That can hardly be termed a "background circumstance," unless

that term is defined to include anything that suggests discrimination.

Indeed, some courts have proclaimed their adoption of the "background

circumstances" requirement as suggested by Parker and Harding, but have

further modified that test in a manner that renders the test itself

absolutely unnecessary. For example, in Notari, 971 F.2d 585 (10th Cir.

1992), the court stated:

we agree that a Title VII disparate treatment plaintiff who pursues a

reverse discrimination claim, and seeks to obtain the benefit of the

McDonnell Douglas presumption, must, in lieu of showing he belongs to a

protected group, establish background circumstances that support an

inference that the defendant is one of those unusual employers who

discriminates against the majority.

971 F.2d at 589.

However, the court then held that such a plaintiff could also establish a

prima facie case by direct evidence, or by indirect evidence that

supported afinding of discriminatory intent.

We adopt the set of prima facie case alternatives that the Fourth Circuit

has outlined. Thus, a plaintiff who presents direct evidence of

discrimination or indirect evidence sufficient to support a reasonable

probability, that but for the plaintiff 's status the challenged

employment decision would have favored the plaintiff states a prima facie

case of intentional discrimination under Title VII. Id., at 590 (emphasis

added). However, it is obvious that this alternative method of indirect

proof negates the need to ever present evidence of "background

circumstances." All that will ever be required of a White-male plaintiff

under this test is that he present sufficient evidence to support the

reasonable probability of discrimination. There is no need to embark upon

the problematic detour of showing "background circumstances."

The "Fourth Circuit" case referred to in Notari is Holmes v. Bevilacqua,

794 F.2d 142 (4th Cir. 1986). Holmes involved a Title VII suit by a Black

plaintiff who alleged that he was denied a promotion based upon his race.

After the defendant employer selected a White applicant tofill the vacant

position, the vacancy ceased to exist, and Holmes could therefore not

establish that the position remained open after his rejection as required

by the fourth prong of the McDonnell Douglas analysis. Recognizing the

practical problem created by requiring a minority plaintiff in Holmes'

position to establish a continuing vacancy, the court made a common sense

adjustment to the fourth prong and simply required plaintiff to present

"some other evidence that his race was a factor considered by his employer

in not granting him the promotion." In adopting this substituted inquiry

the court stated: "[t]here must be some evidence that race was a

determining factor in the employer's decision." Holmes, 794 F. 2d at 147.

Prior to focusing on the problem presented by the original formulation of

the McDonnell Dougas inquiry, the court had stated:

This is a disparate treatment case, and a prima facie case may be

established by direct evidence of discrimination or

by indirect evidence whose cumulative probative force, apart from the

presumption's operation, would suffice under

the controlling standard to support as a reasonable probability the

inference that but for the plaintiff 's race he would

have been promoted. Without such evidence, the claimant must resort to the

McDonnell Douglas presumption with all of its ensuing complexities.

794 F.2d at 146 (footnote omitted).

The court in Notari used this statement of a methodology of proof under

the McDonnell Douglas analysis, and then incorporated it into the

McDonnell Douglas analysis it employed to fill the interstices left by the

"background circumstances" inquiry it had adopted.

Moreover, one might contend that a "background 960<!>circumstance" must be

something in the employer's background. Such a requirement does raise the

bar for the prospective "reverse discrimination" plaintiff,

notwithstanding the denial of this limitation in Harding. Moreover, a

review of cases addressing this issue illustrates that it is difficult, if

not impossible, to come up with a definition of "background circumstances"

that is clear, neither under- nor over inclusive, and possible to satisfy.

In Stock v. Universal Foods Corp., 817 F.Supp. 1300 (D. Md. 1993), the

court replaced the "background circumstances" requirement with the

requirement that plaintiff establish "he belongs to a class." 817 F.Supp.

at 1306. In Wilson v. Bailey, 934 F.2d, 304 (11th Cir. 1991), the court

also stated Title VII requires a White plaintiff to establish that "he

belongs to a class" as the first step in establishing a prima facie case

under McDonnell Douglas. However, neither court further defined the

"class" to which it was referring. The discussion in Stock and Wilson

illustrate just how vague and problematic the Parker/Harding approach can

be. Inasmuch as everyone belongs to some "class," substituting membership

in an undefined class for membership in a minority group is tantamount to

eliminating the first prong of the McDonnell Douglas framework sub

silentio.

Moreover, the amorphous nature of "background circumstances" can lead to

jury confusion. The Title VII plaintiff needs only to present sufficient

evidence to allow a fact finder to conclude that the unexplained decision

that forms the basis of the allegation of discrimination was motivated by

discriminatory animus. It is at the pretext stage that "background

circumstances" would normally be introduced. Courts struggling with

"cramming" the "background circumstances" inquiry into thefirst prong of

McDonnell Douglas may well require "pretextual" evidence as part of the

plaintiff 's initial evidence. Such evidence may be relevant to the

"background circumstances" surrounding the claim of discrimination or to a

finding that defendant is an employer that is likely to discriminate. The

result is the "heightened burden" many district courts have criticized and

that Harding disclaimed.

Accordingly, rather than require "background circumstances" about the

uniqueness of the defendant employer, a plaintiff who brings a "reverse

discrimination" suit under Title VII should be able to establish a prima

facie case in the absence of direct evidence of discrimination by

presenting sufficient evidence to allow a reasonable fact finder to

conclude (given the totality of the circumstances) that the defendant

treated plaintiff"less favorably than others because of [his] race, color,

religion, sex, or national origin." Furnco, 438 U.S. at 577. With this

standard in mind, we turn to the evidence Iadimarco presented to support

his Title VII claim.10

_________________________________________________________________

10. Judge McKee believes that the approach set forth in Parker and Harding

is merely a restatement of the McDonnell Douglas test just as the Court of

Appeals for the D.C. Circuit intended it to be. He concludes that

"[I]nvidious discrimination against[W]hite [men] is relatively uncommon in

our society, and so there is nothing inherently suspicious in an

employer's decision to promote a qualified minority [or female] applicant

instead of a qualified [W]hite[male] applicant." Harding, 9 F.3d at 153.

In his view, requiring a White male plaintiff to show certain "background

circumstances" merely requires that plaintiff to present some evidence

from which a reasonable fact finder could conclude that it is more likely

than not that the unfavorable employment decision is the result of

discriminatory animus. Judge McKee's belief is based in part upon

Livingston v. Roadway Exp., Inc., 802 F.2d 1250, 1252 (10th Cir. 1986),

set forth above, wherein the court explained:

the presumptions in the Title VII analysis that are valid when the

plaintiff belongs to a disfavored group are not necessarily justified when

the plaintiff is a member of an historically favored group. Accordingly,

when a plaintiff who is a member of a favored group alleges disparate

treatment, the courts have adjusted the prima facie case to reflect this

specific context by requiring a showing of background circumstances

[which] support the suspicion that the defendant is that unusual employer

who discriminated against the majority.

Accordingly, Judge McKee concludes that the Court of Appeals for the D.C.

Circuit is correct in stating that the

"background circumstances" test "is not an additional hurdle for [W]hite

plaintiffs." Harding, 9 F.3d at 154. He agrees with that court's belief

that the test is merely "a faithful transposition of the McDonnell Douglas

/Burdine test . . ." into the context of "reverse discrimination," Id. at

154, so long as the analysis of "background

circumstances" and the "uniqueness" of the employer is undertaken in the

manner intended by the Court of Appeals

for the D.C. Circuit.

However, even though Judge McKee believes the test to merely be a

restatement of McDonnell Douglas, he

concedes that it is just too vague and too prone to misinterpretation and

confusion to apply fairly and consistently. He agrees that the approach

the court adopts today allows for less confusion and more consistency than

the

Parker/Harding approach.

_________________________________________________________________

1. Iadimarco's Evidence of Discrimination

As noted above, Ms. Williams, a Black female, was given the position

Iadimarco applied for. It is undisputed that Iadimarco had received a

ranking of "superior" in each KSA category, and that he was the only

candidate to be so ranked when the Monmouth position was filled. Williams

never received nor requested a KSA rating. As we also noted above, Towler

based his failure to hire Iadimarco on the fact that the other two

candidates who received a "superior" KSA rating had already taken other

positions and he (Towler) did not want to simply promote Iadimarco by

default. Although that may be true, the fact that Towler then offered the

position to someone who had no KSA rating at all certainly raises

suspicions. Towler did not simply recruit more applicants to compete with

Iadimarco. Rather, he recruited an additional applicant who wasn't even

evaluated using the KSA matrix. Moreover, Williams' application was

submitted after the deadline for applications had passed. In addition,

Iadimarco had previously been In-Plant manager in Trenton, and therefore

had experience as an In-Plant manager. Williams did not.

Most importantly, however, Iadimarco argues that he was told that an

engineering background was a prerequisite for the position of In-Plant

Manager at Monmouth. He had an engineering degree, and he alleges Williams

did not have one. Thus, although the employer may well have had legitimate

reasons for subsequently focusing on the applicant's human relations

skills, this does not explain why the initial focus on engineering

backgrounds was abandoned as Williams' candidacy emerged

Additionally, we must view these circumstances in light of Pankey's

diversity memo. In doing so, we caution that the memo is not, in and of

itself, sufficient to establish a prima facie case of illegal

discrimination. An employer has every right to be concerned with the

diversity of its workforce, and the work environment. Here, however, we

must draw all inferences in favor of Iadimarco, the nonmovant for summary

judgment. In doing so, we assume that Pankey did write the memo that he

signed and distributed even though he subsequently attempted to distance

himself from it. As noted above, Pankey admitted that he signed the memo,

but stated that it was nothing more than a "carbon copy" of a memo he had

received from headquarters. However, defendants were unable to produce any

such memo from headquarters. A reasonable fact finder could conclude that

Pankey was not credible, and that his attempt to deny authorship of the

memo was consistent with Iadimarco's allegations of bias.

A reasonable fact finder could also find Towler's denial that he had

interviewed Iadimarco significant. Towler originally conceded that

Iadimarco had been interviewed for the position, but later denied that any

interview had occurred. Rather, he dismissed his discussion with Iadimarco

by asserting that it was merely a "conversation."11 In Bray v. Marriott

Hotels, 110 F.3d 986 (3d Cir. 1997), the employer denied interviewing the

plaintiff/applicant, but we held that conflicting evidence about the

existence of an interview created a genuine issue of material fact. See

id. at 992

_________________________________________________________________

11. Q: Okay. The conversation that you had with him, was it a direct

result of him asking you could he come up to talk to you about the job?

A: Yes.

Q: Was it your own opinion to interview him for the job?

A: I can't say it was an interview. We had a conversation referencing

that particular position.

The Court: Face-to-face conversation?

The Witness: A face-to-face conversation.

App. at 83HH (Towler's testimony).

_________________________________________________________________

("there is no testimony to support either conjecture, and, even if there

were, it would be up to a jury to reconcile the conflicting testimony

surrounding [plaintiff's] interview and the ranking of candidates.").

Here, the District Court thought it significant that, except for Williams,

all of the supervisors that Towler hired were

White. See Dist. Ct. at 8-9; App. at A197 (noting that "out of the twenty-

seven plant managers hired, 74% of them

were [W]hite males."). The District Court reasoned that this suggested

that Towler did not discriminate against

Whites who applied to be supervisors. However, the inquiry is not whether

Towler and/or Pankey discriminated

against Whites in general, but whether they illegally discriminated

against Iadimarco.

A fact finder clearly could look at the number of White supervisors Towler

had hired and conclude that it suggested

that he treated Iadimarco fairly. However, a fact finder could also

conclude that Towler tried to manipulate the

process to hire Williams because he had already hired many White

supervisors. We cite this evidence not to suggest

our view of it, but because it shows that there are disputed issues of

material fact.12 "Summary judgment is precluded if a disputed fact exists

which might affect the outcome of the suit under the controlling

substantive law." Bray, 110 F.3d at 990 (citations and internal quotation

marks omitted). "A dispute regarding a material fact is genuine `if the

evidence is such that a reasonable jury could return a verdict for the

nonmoving party.' " Josey, 996 F.2d at 637 (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986); Fed.R.Civ.P. 56(c)).

The Postal Service has argued that Iadimarco's claim must fail because he

accepted another job before Williams was hired. That argument is based on

Iadimarco's acceptance of the position of Operations Support Specialist in

the Trenton facility in early March or April 1993. See Dist. Ct. Op. at 3.

Iadimarco counters by explaining that he

_________________________________________________________________

12. Nor do we mean to infer that Iadimarco was more or less qualified than

Williams. We take no position as to the

respective qualifications of those two employees. only accepted the other

position because it was becoming clear to

him that Pankey wanted to fill the In-Plant Manager position with

Williams.

It defies all logic to hold that an alleged victim of discrimination is

precluded from recovering damages under Title VII merely because he or she

accepted another position after concluding that racial bias would govern

the challenged hiring decision. If that were the law, an employer could

freely discriminate by dillydallying until the discrimination victim was

forced to take another position. The employer could then insulate itself

from its discriminatory animus, and reap the fruits of its bias merely by

arguing that the applicant had removed himself or herself from

consideration. That would protect and reward the unscrupulous employer

willing to delay ultimate hiring decisions in order to force the unwanted

applicant to look elsewhere. Accordingly, we hold that the District Court

erred in ruling that Iadimarco failed to establish a prima facie case of

illegal race discrimination under Title VII.

However, that conclusion does not end our inquiry. The District Court

ruled that even if Iadimarco had established a

prima facie case, the Postal Service presented a race- neutral explanation

for its decision to hire a Black female, and

Iadimarco had not met his burden of presenting sufficient evidence of

pretext to rebut it. Accordingly, we will examine what, if any, evidence

of pretext Iadimarco presented.

2. Pretext

"[T]o defeat summary judgment when the defendant answers the plaintiff 's

prima facie case with legitimate, non-discriminatory reasons for its

action, the plaintiff must point to some evidence, direct or

circumstantial, from which a fact finder could reasonably either (1)

disbelieve the employer's articulated legitimate reasons; or (2) believe

that an invidious discriminatory reason was more likely than not a

motivating or determinative cause of the employer's action." Fuentes v.

Perskie, 32 F.3d 759, 764 (3d Cir. 1994) (emphasis added). However, "if

the plaintiff has pointed to evidence sufficient[ ] to discredit the

defendant's proffered reasons, to survive summary judgment the plaintiff

need not also come forward with additional evidence of discrimination

beyond his or her prima facie case ." Id. (emphasis added).

In Fuentes, we held: "to avoid summary judgment, the plaintiff's evidence

rebutting the employer's proffered legitimate reasons must allow a

factfinder reasonably to infer that each of the employer's proffered non-

discriminatory reasons . . . was either a post hoc fabrication or

otherwise did not actually motivate the employment action." Id. (citations

omitted). The complainant must show "such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer's

proffered legitimate reasons for its action that a reasonable factfinder

could rationally find them`unworthy of credence,' and hence infer `that

the employer did not act for [the asserted] non-discriminatory reasons.' "

Id. at 765 (citing Ezold, 983 F.2d at 527).

"The plaintiff must be given the opportunity to introduce evidence that

the proffered justification is merely a pretext for discrimination."

Furnco, 438 U.S. at 577. Where the plaintiff does offer evidence that

would allow reasonable minds to conclude that the evidence of pretext is

more credible than the employer's justifications, the employer's motion

for summary judgment must fail. White v. Westinghouse Elec. Co., 862 F.2d

56, 62 (3d Cir. 1989) ("[i]n the context of a motion for summary judgment,

the District Court cannot decide issues of fact").

Here, the District Court held:

when examining the "overall scenario" in the matter at hand, plaintiff has

not presented evidence such that a factfinder could reasonably disbelieve

defendant's articulated legitimate reasons or that an invidious

discrimination reason was more likely than not a determinative cause of

defendant's actions. In light of the objective evidence presented in the

record, no reasonable factfinder could conclude that defendant's

articulated reasons for not selecting plaintiff were pretextual.

Consequently, defendant's motion for summary judgment will be granted.

Dist. Ct. Op. at 19. However, based upon all the evidence we have already

mentioned in our discussion of Iadimarco's prima facie case, we believe

that this record clearly allows a reasonable fact finder to conclude that

the proffered explanation was a pretext for race-based discrimination. See

Fuentes, 32 F.3d at 764.

The District Court accepted Towler's explanation for hiring Williams. The

court capsulized that explanation as follows:

" [Towler] did not believe that plaintiff was the right person for the

job." Dist. Ct. Op. at 14. As we noted above,

Towler explained that Williams "seemed to be right for the plant at the

time." Id. at 15. This was based upon Towler's purported belief that the

position in question required someone with a human resources dynamic that

Williams had, and Iadimarco lacked.

However, an employer can not successfully defend a hiring decision against

a Title VII challenge merely by asserting that the responsible hiring

official selected the man or woman who was "the right person for the job."

The problematic nature of such an explanation is most easily seen in the

context of discrimination against a minority or female applicant. Such an

applicant may never be the "right person for the job" in the eyes of one

who feels that the job can only be filled by a White male. The biased

decision maker may sincerely believe that the White male who was offered

the job was the right person, and minority and female candidates who were

rejected were simply wrong for the job. The mere fact that one who

discriminates harbors a sincere belief that he hired the "right person"

can not masquerade as a race-neutral explanation for a challenged hiring

decision. Such a belief, without more, is not a race-neutral explanation

at all, and allowing it to suffice to rebut a prima facie case of

discriminatory animus is tantamount to a judicial repeal of the very

protections Congress intended under Title VII. Here Towler's professed

belief that he hired Williams because she was "right for the job" can not,

by itself, be accepted as an adequate race- neutral explanation for

rejecting Iadimarco. Accordingly, the District Court erred in concluding

that Iadimarco had not come forward with sufficient evidence to allow a

factfinder to believe that the defendants' explanation of this personnel

decision was pretextual.

III. Conclusion

For the reasons set forth herein, we hold that Iadimarco did establish a

prima facie case of employment discrimination, and that there was a

genuine issue of material fact as to whether the proffered explanation for

not hiring him was a pretext for illegal discrimination. Accordingly, we

will reverse and remand for proceedings consistent with this opinion.

A True Copy: Teste:

Clerk of the United States Court of Appeals for the Third Circuit 26

FOOTNOTES