Joanne Beaule Ruggles v. California Polytechnic State University, San Luis Obispo, Civ. A. No. 84-6223

NELSON, Circuit Judge,

concurring in the judgment:

I agree with the court’s result and much of its analysis. I write separately to clarify what I believe to be the proper allocation and order of proof, and to point out that we need not decide whether there was adequate support in the record for the district court’s finding that Ruggles would have received the 1980 Basic Design and Drawing position but for her protected activity.

In order to make out a prima facie case of retaliation, 1 the plaintiff must demonstrate a causal link between her protected activity and the adverse employment decision. My colleagues suggest that the requisite causal link can be established only by a showing that the plaintiff would not have suffered the adverse decision but for her protected activity. See ante, at 784-785. I disagree. My understanding of Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346 (9th Cir.1984), is that once the plaintiff succeeds in showing that her protected activity was the likely reason for the adverse employment decision, see Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir.1982) (cited in Wrighten, 726 F.2d at 1354 ), 2 and that the employer’s proffered explanation for the adverse decision was a pretext, “a presumption is created that the adverse employment [decision] was the product of discriminatory intent.” Wrighten, 726 F.2d at 1354 . At that point, the burden of persuasion shifts to the defendant-employer to show that “the adverse [decision] would have been taken even in the absence of discriminatory intent.” Id. (citing Perryman v. Johnson Products Co., 698 F.2d 1138, 1142 (11th Cir.1983)). 3 That is, the defendant may show that the *789 plaintiff's protected activity was not a “but for” cause of the adverse decision. 4

As Muntin v. State of California Parks and Recreation Department, 671 F.2d 360 (9th Cir.1982) (Muntin I), conclusively demonstrates, a rejected job applicant can prove intentional discrimination under Title VII without a showing that she would have received the job for which she applied. She need only prove that she was effectively eliminated from consideration because of her protected characteristic or activity. See id. at 362-63 (defendant employer unlawfully discriminated on the basis of sex by classifying applicants in such a manner as to deprive plaintiff of opportunity to compete for employment). Thus, Ruggles could make out her prima facie case by showing that she was eliminated from consideration because of her protected activity. 5

My colleagues and I agree that the district court erred in allocating to Ruggles the burden of showing that, but for her protected activity, she would have received the 1980 Basic Design and Drawing position over the sixteen other applicants. We also agree that the appropriate course is to give Cal Poly an opportunity to put before the district court “clear and convincing evidence,” see League of United Latin American Citizens v. City of Salinas Fire Department, 654 F.2d 557, 558 (9th Cir.1981), that Ruggles would not have been hired even in the absence of the proven discrimination. For in allocating to Ruggles the burden of showing she would have received the position, the district court might have lulled Cal Poly into believing that it did not have to put forth any evidence on its own behalf. Yet instead of simply remanding so that Cal Poly might have an opportunity to make its evidentiary presentation, my colleagues decide to reach the issue of whether the record supports the district court’s finding that Ruggles would have been hired had she not engaged in protected activity. Because the resolution of that issue is wholly unnecessary to our disposition, I cannot subscribe to that decision. 6

. My colleagues' assertion that retaliation is somehow distinct from discrimination, see ante, at 785, may cause some confusion. Retaliation is simply one sort of discrimination — discrimination on the basis of activity protected under section 704(a) of Title VIL I think the distinction my colleagues have in mind is the distinction between discrimination on the basis of protected characteristics (such as race, sex, and national origin), and discrimination on the basis of section 704(a) protected activity (i.e., retaliation).

. That her protected activity was the likely reason for the adverse decision does not necessarily mean that but for such activity she would not have suffered the adverse decision. Indeed, even if the sole motivation for the employer’s decision was the plaintiffs protected activity, it is still possible that the same decision would have been made on the basis of her non-protected activity. See Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287 , 97 S.Ct. 568, 576 , 50 L.Ed.2d 471 (1977) (once plaintiff carried burden of showing that defendant's decision not to rehire him was motivated by his protected conduct, district court should have gone on to determine whether defendant would have reached same decision in absence of protected conduct).

. I am puzzled by my colleagues’ similar assertion that "the defendant may rebut th[e] presumption [of discriminatory intent] by showing ... that the adverse action would have been taken even in the absence of discriminatory ... intent." Ante, at 786. If, as my colleagues contend, the plaintiff must prove “but for” causation in order to make out her prima facie case, then the defendant’s opportunity for rebuttal is only illusory. Once the plaintiff had conclusively proven that she would have been hired, how could the defendant conclusively prove that the plaintiff would not have been hired?

. I read our opinion in Kauffman v. Sidereal Corp., 695 F.2d 343, 345 (9th Cir.1982) ("[I]t must be established by a preponderance of the evidence that engaging in the protected activity was one of the reasons for the firing and that but for such activity the plaintiff would not have been fired.”) (emphasis added), to be consistent with this formulation of the retaliation case. Wrighten cites Kauffman with approval, all the while suggesting that it is the defendant’s burden to disprove "but for” causation once the plaintiff has succeeded in establishing that the adverse decision "was the product of discriminatory intent.” 726 F.2d at 1354 .

. It so happens that Ruggles was eliminated from consideration by virtue of Cal Poly’s decision to close the position for which she applied. Thus, Ruggles could make out her prima facie case by showing that the position was closed because of her protected activity. See ante, at 786. Of course (and my colleagues seem to suggest otherwise), not all retaliation in the failure-to-hire context is accomplished through a closing of the position for which the plaintiff applied. The employer simply might choose another applicant for the same position. Accordingly, my colleagues’ articulation of the plaintiffs prima facie requirements should not be read to apply to all retaliation cases in the failure-to-hire context.

. I note also my disagreement with the court’s conclusion that the record provides no support for the finding that Ruggles would have been hired had she not engaged in protected activity. As my colleagues readily acknowledge, Ruggles was able to show that Cal Poly closed the 1980 Basic Design and Drawing position in order to retaliate against her. See ante, at 787 (Ruggles made requisite "showing that but for her filing of the EEOC complaint the 1980 position would not have been closed”). Ruggles was also able to show, through the testimony of Cal Poly’s own witnesses, that Cal Poly closed the position only after it had reviewed the qualifications of all seventeen applicants. See R.T. 317 (testimony of T. Johnston) (noting that chairman of department and tenured faculty had completed their “reviews” of applications before they decided to close the position); R.T. 450 (testimony of C. Jennings) ("We made no decisions [concerning the position] until we had [completed our approximately two-week] review [of] all the candidates’ applications."). Thus, I think a finder of fact could reasonably infer that Cal Poly closed the position because Ruggles otherwise would have received it. That Walton Fosque was Cal Poly’s first choice for the job two years earlier is irrelevant, and the court’s reliance upon that fact, see ante, at 11, is misplaced. The proper inquiry is whether Ruggles was the most qualified applicant at the time the school eliminated the job in order to retaliate against her.

While perhaps the district court would be prudent to compare Ruggles’s qualifications *790 with those of the other candidates, see ante, at ,787, the particular circumstances of this case do not mandate such a comparison. In my view, the only reversible error committed by the district court was its improper assignment of proof burdens. Because that error may have resulted in an incomplete factual record, I cannot affirm the district court’s finding that Ruggles would have been hired. See ante, at 787, n. 2. However, I cannot agree with my colleagues’ conclusion that the factual record, as it has thus far been developed, provides no basis for the finding.