Cynthia J. Fisher, Plaintiff-Appellee-Cross-Appellant v. Vassar College, Defendant-Appellant-Cross-Appellee

CAL ABRE SI, Circuit Judge,

concurring in part and dissenting in part.

There are, it seems to me, four principal issues that divide this court. The first is the weight to be given to the plaintiffs prima facie ease of discrimination once the defendant has proffered an explanation for its actions. The second is the significance to be afforded to the fact that the explanation is found to be pretextual. The third is whether, given the in banc court’s answer to the first two questions and the history of this case, it is (a) appropriate, (b) permissible but unwise, or (c) simply illegitimate for the in bane court to leave standing the original appellate panel’s conclusions. The fourth and final point is whether — applying the in banc court’s answer to the first two questions to the facts of this case — a reversal of the trial court’s finding of discrimination is warranted. (Only the dissenters, Judge Jacobs, and — by implication — the original panel members, have spoken to this last issue).

On the first two questions, I agree with the majority of the in banc court. As to the third, I agree with the dissenters’ conclusions (though only as a matter of prudence rather than of propriety). Finally, I am not yet prepared to reach a final decision on the fourth issue, and think it unwise to do so now.

I. 1

What is the significance, once the defendant has proffered an explanation, of the fact that the plaintiff has, admittedly, made out a Burdine-St. Mary’s prima facie case of discrimination? See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-54 , 101 S.Ct. 1089, 1093-94 , 67 L.Ed.2d 207 (1981); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 , 113 S.Ct. 2742, 2746-47 , 125 L.Ed.2d 407 (1993). On this point, I join Parts 11(a), 11(c), and 11(d) of the majority opinion. I add a few words because I believe that the dissenting opinions are unduly reductionist in their view of presumptions and prima facie eases, and that Chief Judge Newman’s opinion in particular misconstrues those ancient Supreme Court railroad accident cases, Mobile, Jackson, & Kansas City R.R. Co. v. Turnipseed, 219 U.S. 35 , 31 S.Ct. 136 , 55 L.Ed. 78 (1910) and Western & Atl. R.R. v. Henderson, 279 U.S. 639 , 49 S.Ct. 445 , 73 L.Ed. 884 (1929). Properly understood, I believe these cases support the majority on this issue.

In Tumipseed, the Court found constitutional a state statute that permitted an inference of negligence to be drawn against the railroad defendant from the fact of a railroad accident. While requiring a rational connection between the fact shown (the accident) and the fact inferred (negligence), the Court found that such a link existed. It neither required nor found that reasonable people would believe more probably than not that the existence of a railroad accident bespoke railroad negligence. It simply found that the correlation between railroad accidents and railroad negligence was high enough to justify — constitutionally—the placement of the burden of explaining what happened on the railroad. Indeed, the connection was strong enough, the Court held, to allow a state to require a verdict against the railroad if it *1355 failed to answer. See Turnipseed, 219 U.S. at 43-44 , 31 S.Ct. at 137-38 .

Henderson did not overrule Tumipseed. It held, however, that the link between a railroad accident and railroad negligence, while strong enough to allow the placing of the burden of response on the railroad under Tumipseed, was not strong enough to survive and affect the jury’s determination once the railroad had proffered an answer. This was because reasonable jurors could not find that the fact to be proven (the railroad’s negligence) followed, more probably than not, from the fact demonstrated (the accident). In other words, the correlation between the two was high enough to impose on the defendant the duty to answer, but it was not strong enough to support a jury verdict after the defendant had proffered that answer. See Henderson, 279 U.S. at 642-14 , 49 S.Ct. at 447-48 .

Tumipseed and Henderson do not fit within the dissenters’ tidy schema. The inference in Tumipseed is, in Judge Winter’s terms, a strong prima facie case. That is, it compels (rather than simply permits) a judgment for the plaintiff if it is not answered. Turnipseed, 219 U.S. at 43 , 31 S.Ct. at 138 . And yet, it is sufficiently weak — it does not reflect strong enough correlations between the fact shown and the fact to be inferred— to survive and be considered by the jury once the defendant has answered. See Henderson, 279 U.S. at 642-44 , 49 S.Ct. at 447 — 48. 2

Applying Tumipseed and Henderson to the situation before us, what do we see? We see that certain facts that correlate with discrimination have been deemed sufficient to require an answer from the defendant. That is the meaning of Title VII as read by Burdine and St. Mary’s. We also see that over time the facts the plaintiff must show to require such an answer have become relatively minor. Case after case emphasizes their de minimis nature. See, e.g., Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 90 (2d Cir.1996); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir.1994). 3 In other words, though still sufficiently correlated with discrimination to satisfy a requirement that the defendant answer on pain of losing, these facts, like the facts of an accident in Tumipseed that also required an answer, do not necessarily, and without more, support a finding of discrimination. Indeed, if Title VII required that facts so weakly correlated to discrimination as those we have deemed sufficient to make out a *1356 prima facie ease, be enough — in the presence of an answer by the defendant — to support a finding of discrimination, Title VII would give rise to significant constitutional doubts under Henderson and its progeny.

It will not do to say, as Chief Judge Newman’s dissent seems to, that since Henderson requires a strong relationship between the fact shown and that inferred, plaintiffs case necessarily meets that requirement. To the contrary, Henderson quite clearly distinguished between what is necessary to require an answer and what is necessary to permit a factfinder, without more, to find discrimination. On the one hand, the Henderson Court did not disturb Tumipseed’s holding that a statute was valid to the extent that it stated that an accident and railroad negligence were sufficiently linked to require an answer by the railroad. On the other hand, the Henderson Court struck down the Georgia statute insofar as that statute, on the basis of the same correlation, permitted a factfinder to find that there was railroad negligence whenever there was an accident.

Under the circumstances, there are only two ways out. We may follow the majority and say that all that the plaintiffs prima facie ease does is what the valid statute did in Tumipseed — require the defendant to speak. And once the defendant has spoken, the existence of sufficient evidence of discrimination must be determined anew by looking at all the evidence independently from the existence of the previous temporary inferenee/presumption. Alternatively, we may reject the majority’s view and declare that a plaintiff may not make out a prima facie case under Title VII without presenting evidence that is, in the first instance, sufficiently correlated with discrimination so that reasonable people can find more probably than not that there is discrimination whenever the plaintiff has made such a showing. This interpretation would, in my judgment, force us to demand, for a prima facie case, evidence of discrimination that goes well beyond the de minimis amount that the McDonnell Douglas factors, as accepted by Burdine and applied consistently by the circuit courts, have deemed sufficient.

The dissenters disagree. They believe that Burdine , in effect, limits the role played by the McDonnell Douglas factors by providing that those factors are enough to establish a prima facie case only in “circumstances which give rise to an inference of unlawful discrimination,” and that in such circumstances they are sufficiently correlated with discrimination to meet the requirements of Henderson . I think that the dissenters are wrong.

In the first place, Burdine defines “circumstances which give rise to an inference of unlawful discrimination” by giving the four McDonnell Douglas factors as an example. It makes clear that those factors are sufficient (but not necessary) to establish what it calls a prima facie case. See Burdine, 450 U.S. at 253 -54 & n. 6, 101 S.Ct. at 1093 -94 & n. 6. Accordingly, Burdine cannot fairly be interpreted to add any requirements for a prima facie case beyond what was demanded in McDonnell Douglas, and what it means by “inference” must be a Tumipseed inference. Indeed, after Burdine , courts have continued regularly to rely on the four McDonnell Douglas factors to determine when a de minimis prima facie ease exists.

In the second place, while the dissenters criticize the phrase de minimis, they accept the description that the requirements are “ ‘not onerous.’ ” 114 F.3d at 1366, n. 3 (Newman) (quoting Burdine, 450 U.S. at 253 , 101 S.Ct. at 1093 ), or “minimal” 114 F.3d at 1366, n. 3 (Newman) (quoting St. Mary’s, 509 U.S. at 506 , 113 S.Ct. at 2746-47 ). And in this ease they find that Fisher has made out a prima facie case of age discrimination on what in actuality is little more than a simple McDonnell Douglas showing that: 1) she was over forty years old; 2) she was qualified; 3) she was rejected; and 4) the position was given to another applicant with similar qualifications. 4 Yet the dissenters then as *1357 sert that this showing is sufficiently correlated with discrimination to meet the Henderson test. In my opinion, it demonstrably is not. 5 Whether the dissenters do this because they believe that this showing really does point sufficiently to discrimination, or whether, instead, they are confused by the fact that this showing has been termed a “prima facie case,” and that this phrase in other areas of the law implies evidence sufficient to sustain a jury verdict, is not for me to say. But if I am right that it isn’t sufficiently correlated, then what they wish to do is forbidden by Henderson , and neither failing to call the factors de minimis, nor calling what the factors establish a “prima facie case” or an “inference,” makes them right. 6

Both of the ways out that I have suggested have problems. Making the requirement of a prima facie case strong enough so that it truly supports, without more, a fact-finding of discrimination, would, in my judgment, do two things that no one in the in banc court has recommended: (1) require the overturning of Burdine and McDonnell Douglas as well as a large number of decisions in this and other circuits; and (2) undercut the eminently reasonable requirement that defendants in Title VII cases be made to explain their actions relatively frequently. 7 But saying that a prima facie case is not enough to support a factfinding of discrimination has— as the dissents point out — its own problems. Mainly, it requires us to say that the term “prima facie case” is used differently in Title VII than elsewhere. And this is unpleasant. It is, nevertheless, the better solution.

It would have been nice if Tumipseed and Henderson had said that the plaintiffs there had made out a prima facie case of negligence sufficient to require the defendants to answer, but insufficient to support a jury verdict once an answer was given. They used different words instead. (Their words — conflating inferences and presumptions — had their own problems.) But the point they made, and which the majority makes, is nonetheless the same, and it is a profoundly wise one. There are situations in which it makes sense to force the defendant to explain itself and its actions, once a plaintiff has shown facts which, though too weak *1358 to demonstrate more probably than not that the defendant should be liable, are nevertheless sufficiently linked to possible wrongdoing by the defendant to justify an explanation. In the end, whether one says that such a showing by the plaintiff gives rise to an inference, a temporary presumption, or a prima facie case (or, for that matter, Thucydides or Mustard Plaster) is relatively unimportant. What counts is that we not let verbal confusions keep us from the result that Title VII — as long interpreted by the courts — seeks to achieve: that the plaintiff can force an explanation out of the defendant with relative ease, but that the defendant can only be held hable (once an answer is given) when a finding of discrimination is truly supported by the facts. The majority stays true to that course, and I therefore join it in this respect.

II.

What significance is to be given to the fact that the explanation given by the defendant is pretextual? One might have thought that the requirement of an answer would mean that an honest answer was required, and that absent an honest answer the defendant should be treated as having given no answer at all. That position was, of course, rejected by St. Mary’s. See St. Mary’s, 509 U.S. at 509 , 113 S.Ct. at 2748 . (Indeed, that is the only one of the many important statements in St. Mary’s that is holding and not dictum.) Some may find that holding paradoxical. There is, however, a plausible explanation for it, 8 and in any event, we are bound to follow it.

I cannot doubt that the existence of a pretextual explanation, without more, points in the direction of discrimination. It does not weaken, and must at least minimally, and potentially forcefully, strengthen the evidence of discrimination that the plaintiff originally adduced. It was in part because the panel seemed to deny this that I, and I believe others as well, voted to rehear this case in bane. 9 On this issue, unlike the issue of the prima facie case, there is now at least verbal agreement, among all members of the in banc court. (That agreement may, however, mask a division on how much weight in practice should be given to a pretextual answer.) The members of the panel have joined an opinion stating that their original comment that a pretext finding “points nowhere” was a rhetorical device, 114 F.3d at 1346, (Majority) and the dissenters agree that the importance of a pretextual explanation varies from virtually nil, in some circumstances, to great in others, 114 F.3d at 1342-1344. (Newman) All in all, I find the current discussion of pretext in Part 11(b) of the majority opinion satisfactory, and so I join it. I add a few words of explanation, however, because they will serve to explain, to some degree, my disagreement with the majority on points three and four.

I begin by making explicit what is implicit in both the majority opinion and in Chief Judge Newman’s dissent — that the strength of the pretext, and therefore the amount of evidence required to counter it, 10 depends on context. This is, in part, because pretexts come in many varieties. Consider the following two examples:

*1359 Example 1: A university says that it denied someone tenure because she did not publish enough articles. It turns out that this is a lie — she published as many as those promoted, and the university knew it.

Example 2: A university says that it denied someone tenure because she was too aggressive to fit in. It turns out that this is a lie — males promoted were manifestly as aggressive.

The first example points to discrimination, but weakly. It does so only because a lie suggests an ulterior motive, and in the context of a claim brought — and a prima facie case made — under Title VII, the existence of any ulterior motive is some evidence of discrimination. The second example offers stronger evidence of discrimination. It is not only a lie, but a he linked to a discriminatory stereotype — namely, that women are and ought to be less aggressive than men. Many other examples of even stronger and weaker pretexts could be given, and all pretexts can be seen as arrayed on a continuum ranging from those that provide the weakest support for a finding of discrimination to those that provide the strongest support.

Under St. Mary’s, any pretext permits (but does not require) a finding of discrimination that will be upheld on appeal unless such a finding is clearly erroneous. 11 See St. Mary’s, 509 U.S. at 524 , 113 S.Ct. at 2756 . But whether a finding is clearly erroneous necessarily depends on the nature of the pretext as well as on what other evidence of discrimination has been presented. Where the pretext points strongly to specific discrimination, the existence of a “third reason” or clear evidence of a lack of discriminatory intent may well be required to counter the inference of discrimination. Where the pretext points only weakly or indirectly toward discrimination, evidence of non-discrimination may be much more general. Such evidence may, for example, amount to no more than hints of possible third reasons together with the existence of a generally non-discriminatory attitude or history on the part of the employer. And this would be especially so if the prima facie case for discrimination is — as it can frequently be in Title VII cases— minimal.

Based on this discussion of pretext and the preceding one of the prima facie case, we can formulate a standard for the weight to be ascribed to each. One could summarize the relevant standard — in the first instance for the trier of fact but subject to the normal rules of review — by making seven points. First, all pretexts point toward a discriminatory motive and, if uncontroverted, tend to support (but do not require) a finding of discrimination. Second, all pretexts may be countered by sufficient evidence of non-discrimination. Third, all pretexts do not give equal support to a finding of discrimination. Fourth, the quality and quantity of the evidence deemed sufficient to counter a pretext will depend on the pretext’s nature — weak or general evidence will suffice to overcome a pretext that gives rise only to a weak inference of discrimination, while strong and specific evidence will be required to counter a pretext that gives rise to a strong inference. Fifth, what evidence is sufficient depends also on the strength of the prima facie case and of the other evidence for discrimination that has been introduced. Sixth, it is therefore erroneous to believe that all pretexts can be overcome only by certain types of “strong” evidence (e.y. specific evidence of third reasons or specific evidence of a mistaken belief that the plaintiff was in the allegedly favored category). This is particularly true because of the de minimis nature of the prima facie case in the employment discrimination context. Seventh, quite apart from whether the pretext is countered or not, once the defendant has answered the plaintiffs prima facie case by giving an explanation, even if that explanation is pretextual, the plaintiffs case stands on its own and can be tested for sufficiency by an appellate court. The fact, in other words, that the plaintiff has made out a Burdine-St. Mary’s prima facie case, and that the defendant has strengthened that case by giving a pretextual explanation, may, but need not necessarily, mean that a factfinder’s determination of discrimination can stand.

*1360 III.

The majority modified the order granting this rehearing in bane to provide that the rehearing was “limited to the force and effect of a pretext finding, taken together with a prima facie case, in considering on appeal whether or not an ultimate finding of discrimination is clearly erroneous under Fed. R.Civ.P. 52(a).” 114 F.3d at 1347. (Majority) Because it found that the in banc rulings on these issues of law were consistent with the rules employed by the panel, the majority deferred to the panel’s assessment of the facts. While I do not believe that the majority had an obligation to engage in its own independent assessment of the facts, I think that it would have been prudent for it to do so. This is so because I find the question quite close on the facts, and also because I sense that an engagement with the facts might have clarified at least part of the disagreement between the majority and Chief Judge Newman’s dissent on the weight to be given, in practice, to a finding of pretext.

Assuming we accept the principles set forth in Parts I and II of this opinion, we still have to decide whether in this case the evidence of non-discrimination is sufficient to counter the suggestion of discrimination that arose from Vassar’s dissembling, and more generally whether taking the plaintiffs and the defendant’s evidence as a whole, Judge Motley’s finding of discrimination is clearly erroneous. I find this question close, in part because the strength of the suggestion of discrimination raised by Vassar’s lie is less easily gauged than in many cases. Vassar’s pretext could be viewed as just a lie, or as a lie that derives from a discriminatory stereotype. Vassar incorrectly claimed, for example, that Fisher did not spend enough time in the lab. Was this a simple lie or was it based on a stereotypical view that married women with children spend less time in the lab? 12 I also find the question close because — like the panel — I believe the district eourt erred in some of its findings, and I am unsure of the full significance of those errors.

Under the circumstances, I therefore agree with the dissenters’ conclusion that the in banc court should not defer to the original panel’s determinations. I emphasize, however, that I do so only on the grounds of prudence. The deference accorded to the panel by the in banc court is perfectly legitimate — I simply think it is unwise.

IV.

The final question is whether a reversal of the trial court’s finding of discrimination is warranted. Were I the finder of fact, and were I forced to decide at this stage of the proceedings, I think that I would not have found that the plaintiff had met her burden of proving discrimination. I believe the prima facie ease is very weak, that little additional evidence of discrimination has been presented, that the pretext is “semi-strong,” and that there is sufficient generalized countervailing evidence to overcome both the pretext and the other evidence supporting discrimination. At the same time, applying the ordinary rules of review for clear error, I am far from sure that I would find the district *1361 court’s determination of discrimination to be clearly erroneous.

Either conclusion would require a far deeper examination of the record than I have made. I do not need to make that examination, however, given the majority’s decision to defer to the panel. I agree with the panel that at least in some instances the district court erred in how it went about finding discrimination. But I do not know whether, once these errors are corrected, the district court on remand would or would not find that the plaintiff met her burden of proving discrimination. Thus, I am not ready to assume, as Chief Judge Newman’s dissent seems to do, that sending the case back for a reconsideration free of errors would necessarily lead to the same result. 114 F.3d at 1347. (Newman) Indeed, I believe that such a view gives insufficient credit to the distinguished district judge who has heard this ease. But I am also not ready to conclude, as did the panel (and, in effect, the majority), that — cleansed of error — there would be insufficient evidence of discrimination, and therefore that any finding of discrimination would require reversal on appeal.

For these reasons, I would have the in banc court either itself undertake a thorough examination of the alleged errors of the district court or remand the case to the panel for such an examination. 13 Thereafter, the district court would be instructed to reconsider its holding, in the light of these errors. Finally, I would put off any determination as to whether the ultimate finding of the district court was sustainable under clear error review, until I had before me its new and reconsidered decision (whatever that might be).

Accordingly, while I concur in Parts 11(a), 11(b), II(c), 11(d), and IV of the majority opinion, I would vacate the judgment of the district court, and hence respectfully dissent from the in banc court’s reversal of that judgment and from its award of judgment to the defendant.

. Judges Miner, Walker, McLaughlin, Jacobs, Le-val, and Parker join this Part of my opinion.

. Nothing in the later criminal law cases cited in Chief Judge Newman's dissent undercuts the basic holdings in Tumipseed and Henderson .

Judge Winter suggests that Tumipseed and Henderson are no longer good law despite the fact that the Supreme Court has never overruled them. See 114 F.3d at 1388, n. 2. (Winter) Leaving aside whether academic criticism can, in Common Law legal systems (as opposed to Civil Law legal systems), deprive court decisions of their authority, I believe the criticism of these cases to be more limited than Judge Winter implies. Tumipseed and Henderson had two strings to their bows. The first was that facts proved— railroad accidents — that are only mildly correlated to facts to be shown — railroad fault — can constitutionally support a temporary inference of negligence requiring an answer, and yet not be constitutionally sufficient to permit a jury to find negligence "more probably than not." The second was that, to be constitutional, presumptions that shift the burden of proof (i.e. the risk of non-persuasion) must be based on facts that are highly correlated to the facts to be proven. The second has, indeed, been effectively criticized. The first, which is what is germane to the issues before us, has not been similarly undermined.

It is easy to see why. The question of who should bear the risk of non-persuasion is a policy issue that may be made for any number of reasons. As such it is like the decision to hold a railroad liable for rail accidents regardless of fault. Neither depends logically on whether the plaintiff has or has not shown facts demonstrating negligence. The question, instead, of whether the showing of an accident is sufficiently correlated to negligence to support that finding "more probably than not” is a logical-empirical one. It is this latter question that Henderson and its progeny say must be answered correctly to satisfy Due Process.

. All that is needed is that the plaintiff "was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination." Burdine, 450 U.S. at 253 , 101 S.Ct. at 1093-94 . Burdine , relying on McDonnell Douglas, recognized that this showing is made if the plaintiff belonged to a protected class, was qualified for a job, and was rejected for it despite the fact that this position remained open to applicants with similar qualifications. See id. at 253 n. 6, 101 S.Ct. at 1094 n. 6 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 , 93 S.Ct. 1817, 1824 , 36 L.Ed.2d 668 (1973)).

. The dissent relies in part on the district court's finding that " 'all other tenured faculty who were equally or less qualified than Dr. Fisher were at least nine years younger than Dr. Fisher when they were tenured.'" 114 F.3d at 1383 (Newman)(quoting Fisher v. Vassar College, 852 F.Supp. 1193, 1230 (S.D.N.Y.1994)). To the extent that the district court found that some of these younger faculty members were not as qualified as'the plaintiff, that finding manifestly suf *1357 fers from flaws analogous to those I discuss in note 9, infra.

. Whether this kind of prima facie case is enough when one also considers the added weight to be given to a defendant's pretextual answer is a question that I consider in Parts II and III, infra.

. Judge Winter's opinion states that under Bur-dine, the fact that the "plaintiff was (1) a female (2) qualified for the job in question but (3) rejected (4) in favor of a male — is alone proof of 'circumstances which give rise to an inference of unlawful discrimination."’ 114 F.3d at 1387 (quoting Burdine 450 U.S. at 253 n. 6, 101 S.Ct. at 1094 n. 6). (Winter) But the use of the word “inference" in Burdine need mean no more than a temporary inference requiring defendants to explain, as in Tumipseed. And, more important, if the fact of a railroad derailment is insufficiently correlated with railroad fault to support a jury verdict of negligence "more probably than not” (as Henderson describing Tumipseed held), it is hard to understand how the mere hiring of a qualified male in place of a qualified female allows a finder of fact to say that the defendant "more probably than not” discriminated against women!

. Judge Winter does suggest that, given the availability of discovery, the Supreme Court might wish to abandon the burden-shifting framework established in Burdine and St. Mary's. I, and here I speak only for myself and not necessarily for the majority which has joined this Part of my opinion, am skeptical. Too much blood has been, and continues to be, spilled over who has the burden of coming forward with the evidence, to give me confidence that, under modem pleading, it doesn’t matter. Moreover, the enormous discretion given to a district judge over discovery makes the nature of the questions asked, and the specificity of the proffered answers, likely to be very different from the explanations brought forth by the Burdine and St. Mary’s rules. It also suggests a very different role in the process for the Courts of Appeals. Finally, some — not necessarily I — may also question the appropriateness of the Supreme Court’s abandonment of its longstanding interpretation of the relevant statutes, in the light of Congress’s silent “acquiescence,” emphasized by the subsequent enactment of another statute, the Americans with Disabilities Act of 1990, PubX. No. 101-336, 104 Stat. 327 (1990) (codified at 42 U.S.C. §§ 12101 , et seq.), seemingly subject to the same rules. See EEOC v. Amego, Inc., 110 F.3d 135 , 145 n. 7 (1st Cir.1997) ("The ADA is interpreted in a manner similar to Title VII, and courts have frequently invoked the familiar burden-shifting analysis of McDonnell Douglas in ADA cases.”) (citation omitted); see also Lawrence v. National Westminster Bank New Jersey, 98 F.3d 61 , 68 & n. 7 (3d Cir.1996) (collecting cases from the First, Sixth, and Seventh Circuits).

. The majority in St. Mary’s presumably believed that making a defendant answer is a matter of crucial importance (despite the availability of discovery) since any answer — even, or perhaps especially, a false one — helps a plaintiff to look for, and maybe find, those facts that if proven demonstrate discrimination. This aim, which is also central to the majority’s interpretation of the Burdine-St. Mary’s requirements, explains why St. Mary's deems any answer, including a false one, sufficient to meet those requirements.

. The other issue that moved me, and others, to vote for an in banc rehearing was what has at times been described as the appellate reviewability of a factfinder’s ultimate determination of discrimination, but is in fact the significance to be given to the plaintiff's prima facie case in such review.

.Since I believe that a pretext always starts out pointing in the direction of discrimination, I will speak of what kind of evidence is needed to counter that vector. In this respect, I may sound rather more like the dissent than the majority opinion that I join. But since I also believe that an uncountered pretext added to the plaintiff’s prima facie case need not be sufficient to support an ultimate finding of discrimination, I do not require that the pretext be countered to permit a judgment, as a matter of law, of no discrimination. Accordingly, I join the majority's discussion.

. Once again, this in no way alters the fact that the risk of non-persuasion rests on the plaintiff.

. Judge Jacobs in his separate opinion suggests that while there could be a stereotype that married women with children spend less time in labs than unmarried women with children, there is no evidence in the record “that Vassar's decision-makers were in the grip of such a stereotype." 114 F.3d at 1350. (Jacobs) I do not pretend to have spent anywhere near as much time examining the record as Judge Jacobs has, see infra Part IV. As a result, I will assume, arguendo, that he is correct that such evidence is lacking.

At most, however, that would raise an interesting question. In determining whether to give more weight to a pretextual answer because it is linked to an offensive stereotype, must one show that the defendant who gave the false answer is “in the grip of such a stereotype,” or is it enough simply to show that the offensive stereotype is plausible? Obviously, if one can show the former, the pretext points more strongly in the direction of discrimination than if one can only show the latter. But I am inclined to think that even a bare finding that a false answer is plausibly connected to an offensive stereotype makes that false answer considerably more probative of discrimination than a pretextual answer that is unconnected to such a stereotype. This means that the only thing needed to raise a doubt as to whether something was a simple lie or was based instead on a stereotypical view is that the pretext be plausibly connected to the stereotype. Judge Jacobs concedes that such a plausible connection exists in this case, and that is all my argument requires.

. Because of the disposition of the case, it would only waste time to go over each of the alleged errors. I will point out one, that actually goes primarily to the existence of a pretext rather than directly to the ultimate question of discrimination. I do so because it is an error that is frequently made in cases of this sort. The district court concluded that the finding by Vassar that the plaintiff had not published in top journals was false because the plaintiff had published in a series of reviews that the district court believed were leading scholarly journals. But what are first-class reviews is not for the district court to determine. That is, Vassar has a perfect right to decide for itself what its standards are and it may premise promotion on publication in a journal that the district court thinks is awful. Vassar has no right to characterize a set of publications as top reviews in one case but not in another, unless there are plausible non-discriminatory reasons for the change. An absence of such reasons would, in itself, be evidence of a pretext. But that is not what the district court seems to have found here. What the court did was to set the standards for the employer, rather than let the employer set its own (non-discriminatory) standards. And that is always pernicious. It is particularly pernicious in academic contexts, where, second only to athletics, we all think that we are better coaches than the coaches themselves. Cf. Lieberman v. Gant, 630 F.2d 60, 67 (2d Cir.1980) (Friendly, J.).

Judges Miner, Walker, McLaughlin, Jacobs, Leval, and Parker authorize me to say that they agree with these observations.