The opinion
*688 CLARK, Circuit Judge,
dissenting:
Without disagreeing with the facts, I must dissent because the majority unwittingly permits the employer to use a discriminating practice in considering employees for promotion.
All of the judges considering this case start off evenly by acknowledging that Smith was a targeted employee against whom the employer would discriminate if it could. Smith’s prima facie case was made out by proving that first the employer had discriminated against women. This had been adjudicated unfavorably against the employer with Smith’s assistance as a witness for the women who had been the victims of sex discrimination.
No employer likes employees who assist other employees to secure a judgment against it. This would be against human nature. The statute and judges take into account this predictable reaction. See generally Civil Rights Act of 1964 § 704, 42 U.S.C.A. § 2000 (e)-(3) (“It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has ... testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”); East v. Romine Inc., 518 F.2d 332, 340 (5th Cir.1975) (“A person cannot be penalized for resorting to the legal procedures that Congress has established in order to right congressionally recognized wrongs.”); Pettway v. American Cast Iron Pipe Company, 411 F.2d 998, 1004-05 (5th Cir.1969) (“There can be no doubt about the purpose of § 704(a). In unmistakable language it is to protect the employee who utilizes the tools provided by Congress to protect his rights.”).
Additionally, in making out his acknowledged prima facie case of discrimination, Smith’s evidence shows that he had been employed since November, 1967, that he had been refused a promotion several times since his testimony in behalf of the women employees, and that time alone made likely his moving up the ladder in view of his overall good record. With this prima facie case, the majority permits the employer to use a discriminatory practice to again pass Smith over.
The Supreme Court has stated in United States Postal Service Board of Governors v. Aikens, 460 U.S. 711 , 103 S.Ct. 1478 , 75 L.Ed.2d 403 (1983), that:
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.”
Id. at 1482. In Aikens , Justice Blackmun in his concurring opinion indicated that the ultimate burden of persuading the court that the plaintiff has been a victim of discrimination can be met by: (1) persuading “the court that the employment decision more likely than not was motivated by a discriminatory reason”; or (2) showing “that the employer’s proffered explanation is unworthy of credence.” Id. at 1483. As noted earlier, it is clear that the plaintiff has established a prima facie case. It is less clear, in my view, that the defendant has articulated a legitimate nondiscriminatory reason for not promoting Smith. Assuming, however, that the majority is correct in concluding that the defendant advanced a legitimate nondiscriminatory reason for failing to promote the plaintiff, it is nevertheless obvious that the reason advanced was not the true reason underlying the decision not to promote Smith. Generally, “[w]here the defendant’s explanation lacks credibility or where discrimination is more likely the motive, a case is made for pretext.” Clark v. Huntsville City Board of Education, 111 F.2d 525 (11th Cir.1983). The practice here is so transparent it clearly rises to the level of a pretext.
Supervisor Bell in evaluating his four supervisees was unable or unwilling to give comparative scores on two subjects. He gave all of them the equivalency of an A. The other supervisors properly graded their supervisees with a variety of A’s, B’s and C’s on these two subjects. Smith did not receive Bell’s gratuitous boost because he was not a supervisee of Bell’s.
*689 The committee appointed to make recommendations to the employer immediately recognized the unfair result of Bell’s grading method. Since it could not compare apples and oranges, it made all of the applicants apples by giving those not supervised by Bell A’s on the two subjects. When everyone was made even on those two subjects, Smith’s eligibility for the promotion was established.
Jenkins, the department head who was the defendant in the women’s discrimination action, did not promote Smith. He chose one of Bell’s supervisees who was eligible instead of Smith because of the skewed result caused by Bell’s default in grading his supervisees. Jenkins’ decision was subjective, illogical, and unfair. The committee, as would anyone, recognized that Bell’s weighted evaluation automatically handicapped competing supervisees. 1
In Milton v. Weinberger, 696 F.2d 94 (D.C.Cir.1982), the court recognized that “an ‘extremely strong’ prima facie case may lend special probative force to a claim of pretext. Indeed, an especially strong prima facie case combined with a relatively weak rebuttal by the defendant may entirely obviate any need for further inquiry into pretext.” Id. at 100 n. 17. And, in Grano v. Dept. of Development, 699 F.2d 836 (6th Cir.1983), it was noted that the “legitimacy of the articulated reason for the employment decision is subject to particularly close scrutiny where the evaluation is subjective .... The ultimate issue in each case is whether the subjective criteria were used to disguise discriminatory action.” Id. In Hogan v. Pierce, 31 FEP 115 (D.C.Cir.1983), the court stated that the “fact of discrimination is usually not established by direct evidence, such as the admissions of selecting officials. Rather, it can be inferred from objective facts and the circumstances surrounding the employment decision.” Id. at 124.
In trying to evaluate a subjective decision, one tries to determine how a theoretically unbiased person would objectively and logically make a decision. Since Jenkins elected to adopt the unfair illogical method of comparing the competing employees, thus frustrating Smith’s promotion, it is clear to me that this subjective decision was a mere pretext to disguise discriminatory action. Thus, I would reverse and remand for entry of judgment for Smith.
. Even Jenkins at one point seemed to recognize the unfairness of this system:
Q. Other supervisors have fully evaluated, fully ranked people numerically on those two criteria that the one supervisor has not done but rather has just awarded full points.
Now, my question is, do you think that it’s fair to allow that ranking to stand. In other words, have that one supervisor give his candidates full points on two criteria whether [sic] than to rate them on it while the other people have not been so treated by their supervisors? [or] is a fairer treatment to in the process simply with respect to those two crite-rias give every one full points just as the one supervisor had done?
A. Well, I think you ought to apply the same rules. I — I would think that if one supervisor was giving his people full credit and the other people were ranking them down, that it might be, you know, at least, probably, ought to consider giving everybody full credit on those two points....
Smith v. Georgia, No. C79-1078A, slip op. at 12-13 (N.D.Ga. Sept. 23, 1983).