where there is no evidence, direct or indirect, that racial animus played any part in denial of promotion plaintiff sought, and there was no reasonable possibility of plaintiff proving at trial that defendants’ articulation was pretext and plaintiff’s case consisted entirely of conclusory allegations of discrimination, defendants were entitled to judgment
How later courts described this case
- where there is no evidence, direct or indirect, that racial animus played any part in denial of promotion plaintiff sought, and there was no reasonable possibility of plaintiff proving at trial that defendants’ articulation was pretext and plaintiff’s case consisted entirely of conclusory allegations of discrimination, defendants were entitled to judgment
- within context of employment discrimination suits, conclusory allegations regarding intent that have no factual support are insufficient to create a genuine issue of material fact
- rehearsing evidence on grant of surnmary judgment to employer-defendant in Section 1981 action
- “Racial discrimination is frequently so difficult a phenomenon to prove or disprove that drifting from the settled landmarks, such as McDonnell Douglas, may be fraught with danger.”
Written by the judges who cited it.
The opinion
CUDAHY, Circuit Judge,
concurring:
I agree with the result and with a good deal of the majority’s analysis. I write separately in order to comment on the majority’s discussion of the appropriateness of the McDonnell Douglas analysis in a case such as this. McDonnell Douglas in its original form may require some adjustment to fit the facts before us. But there is substantial precedent, both in this and other circuits, as well as indirect indications from the Supreme Court, that McDonnell Douglas provides the basic form of analysis which is to be applied in cases involving promotions to jobs where the criteria may be somewhat subjective and the evaluation comparative in nature. See, e.g., Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24 , 99 S.Ct. 295 , 58 L.Ed.2d 216 (1978), on remand, Sweeney v. Board of Trustees of Keene State College, 604 F.2d 106 (1st Cir.1979), cert. denied, 444 U.S. 1045 , 100 S.Ct. 733 , 62 L.Ed.2d 731 (1980); Davis v. Weidner, 596 F.2d 726 (7th Cir.1979); Wright v. National Archives and Records Service, 609 F.2d 702, 713-15 (4th Cir.1979); Satz v. ITT Financial Corp., 619 F.2d 738 , 745 n. 13 (8th Cir.1980). Racial discrimination is frequently so difficult a phenomenon to prove or disprove that drifting from the settled landmarks, such as McDonnell Douglas, may be fraught with danger. And to be too demanding of the inferences we draw from common experience is to make proof of discrimination more elusive than it is under the best of circumstances.
In the instant case, there is sufficient evidence that Mason was “qualified,” and there is some evidence that she was “in line” for the promotion; thus a prima facie case under McDonnell Douglas seems to have been presented. Had Mason also presented evidence of facts which could be proved at trial to establish that the legitimate nondiscriminatory reason articulated by the employer for its decision was pretextual, her case could have escaped summary judgment. But evidence of pretext here is difficult to identify.
Cases turning upon subjective considerations of motive and intent are not ordinarily appropriate for decision upon summary judgment. See, e.g., Baldini v. Local 1095, UAW, 581 F.2d 145, 151 (7th Cir.1978). And plaintiffs should not be deprived by summary judgment of a “full and fair opportunity to demonstrate pretext.” Rowe v. Cleveland Pneumatic Co., Numerical Control, Inc., 690 F.2d 88, 97 (6th Cir.1982); see also Davis v. Weidner, 596 F.2d at 732 , quoting McDonnell Douglas, 411 U.S. at 805, 93 S.Ct. at 1825-1826. Yet, despite fairly extensive pre-trial discovery in this ease, in order to discern evidence of racial discrimination underlying the employer’s articulated nondiscriminatory reason, we would have to speculate. This we cannot do.
Therefore I concur.