stating that “[t]he prima facie threshold is no longer a relevant issue once the defendant has come forward with evidence of legitimate reasons for its actions that would rebut a prima facie showing of discrimination”
How later courts described this case
- stating that “[t]he prima facie threshold is no longer a relevant issue once the defendant has come forward with evidence of legitimate reasons for its actions that would rebut a prima facie showing of discrimination”
- discussion of policies which support requirement of prima facie by claimant in cases of disparate treatment analyzed under McDonnell Douglas framework
- prima facie threshold no longer relevant once defendant has come forward with evidence of legitimate reasons for its actions that would rebut a prima facie showing of discrimination
- "[T]he prima facie threshold is no longer a relevant issue once the defendant has come forward with evidence of legitimate reasons for its actions that would rebut a prima facie showing of discrimination.”
Written by the judges who cited it.
The opinion
POSNER, Circuit Judge,
concurring.
The district judge found that the plaintiff was unqualified for the promotion he sought, the finding is not clearly erroneous, and that ought to be the end of our consideration. Since the plaintiff must lose, it is irrelevant what he did or did not have to show to make out a prima facie case (United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 , 103 S.Ct. 1478, 1481-82 , 75 L.Ed.2d 403 (1983)); after trial, “questions regarding the establishment -of a prima facie case are irrelevant,” McCluney v. Jos. Schlitz Brewing Co., 728 F.2d 924, 927 (7th Cir. 1984). It thus is completely unnecessary for us to decide whether, in order to make out a prima facie case of employment discrimination, a plaintiff must show that he met not only the employer’s “objective” qualifications for the position but also the employer’s “subjective” qualifications for it. Judge Swygert, dissenting in a previous case, took the position that the plaintiff need only show that he met the employer’s objective qualifications, see Holder v. Old Ben Coal Co., 618 F.2d 1198, 1203-04 (7th Cir.1980) (dissenting opinion); and the Ninth and Tenth Circuits have taken the same position. See Lynn v. Regents of the University of California, 656 F.2d 1337, 1344-45 (9th Cir.1981); Burrus v. United Telephone Co., 683 F.2d 339, 342 (10th Cir.1982); Verniero v. Air Force Academy School Dist. #20, 705 F.2d 388, 391 (10th Cir.1983). Judge Friendly took the opposite position in a case that my brethren do not cite, Lieberman v. Gant, 630 F.2d 60, 64 (2d Cir.1980) (dictum). The cases, including two in this circuit, which hold that members of a comparison pool in a statistical analysis of discrimination need only possess objective qualifications (see Mozee v. Jeffboat, Inc., 746 F.2d 365, 372-73 (7th Cir.1984); Caviale v. Wisconsin Dept. of Health & Social Services, 744 F.2d 1289, 1294 (7th Cir.1984); DeMedina v. Reinhardt, 686 F.2d 997 , 1003 (D.C.Cir.1982); Valentino v. United States Postal Service, 674 F.2d 56 , 71 n. 24 (D.C.Cir.1982)) are distinguishable. You cannot determine the subjective qualifications of hundreds or thousands of people for purposes of doing a statistical analysis; but you can determine the subjective qualifications of one plaintiff.
Granted, to make the plaintiff prove as part of his prima facie case that he meets the employer’s subjective as well as objective qualifications gives the plaintiff a harder row to hoe; and maybe therefore Judge Swygert is right in the position he took in dissent in Holder , and that he repeats today; the weight of authority supports his view. But I have my doubts. If a job requires leadership, or good looks, or a loud voice, or anything else that is not “objective” — that is, is not a paper qualification — it seems odd to say that the failure to give the job to the person with the advanced degree, or more years of service, or better grades in high school, or whatever else might count as an “objective” qualification for the job is, prima facie, racial or sexual or some other form of discrimination. We stray awfully far from the accepted meaning of “prima facie” case, even in the employment-discrimination field, when we say that the failure to promote a person is prima facie evidence that he was a victim of discrimination, when in fact there is no reason to think he was even qualified for the promotion, let alone that he was the best qualified for it.
But this is not the case to resolve the issue. However it is resolved, the plaintiff loses. Let us wait till the issue is inescapably presented.