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

WINTER, Circuit Judge,

with whom Chief Judge JON 0. NEWMAN, Judges KEARSE and CABRANES concur, dissenting:

Although I concur in Chief Judge Newman’s dissenting opinion, I write separately because I hold views that are not fully reflected in that opinion.

The in bane court is unanimous in agreeing that Fisher established “a prima facie case,” in some sense of the term. The in bane court is also unanimous in affirming as not clearly erroneous Judge Motley’s finding that Vassar’s proffer of an explanation was not the “real reason” but “a pretext” for denying Fisher tenure. Agreement ceases at this point. The majority takes the view that a Title VII/ADEA plaintiff who has: (1) established a prima facie case, (2) shifted the burden of production to the employer, (3) demonstrated an unrehabilitated pretextual explanation by that employer, and (4) obtained a finding from the trier of fact that the employer acted out of an unlawfully discriminatory motive, may still lose on the ground that the evidence of discrimination was legally insufficient.

Much of my disagreement with my colleagues in the majority stems from their narrow focus on selective quotations from Supreme Court Title VII eases. I do not deny that they find legitimate comfort in those quotations. However, the very same cases contain other language that is equally or more supportive of the opposite conclusion. It is hardly necessary, or even appropriate, however, to rely exclusively upon cut- and-paste analysis of Title VII decisions to address the legal issues that divide us. Those issues are not peculiar to discrimination law; rather, they involve the law of evidence and arise in every area of substantive law. Concepts such as prima facie case, presumptions, burden of production, and pretext have been the subject of a vast number of judicial decisions and academic discussions. My colleagues in the majority avoid a discussion of the implications from other areas of the law for the use of these concepts in Title VII/ADEA eases simply by declaring that these concepts are “quite different” in discrimination law. Finding little in Supreme Court decisions that supports that conclusion, I believe that the use of these concepts in the other areas of the law must be addressed.

1. Prima Facie Case and Its Consequences

“Prima facie case” has two meanings, one stronger than the other: (i) the plaintiff has produced evidence sufficient to establish a disputed fact from which, if credited by the trier, arises a rebuttable presumption — the strong version; or (ii) the plaintiff has produced evidence sufficient to permit, but not compel, a trier of fact to find a disputed fact for the plaintiff (or party bearing the burden of persuasion on the disputed fact) — the weak version. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 , 254 n. 7, 101 S.Ct. 1089 , 1094 n. 7, 67 L.Ed.2d 207 (1981); Christopher B. Mueller & Laird C. Kirkpatrick, Evidence, § 3.4, at 137-38 (1995).

Meaning (ii) is subsumed within (i). As the Supreme Court said in Burdine :

The burden of establishing a prima facie case of disparate treatment is not onerous. The plaintiff must prove by a preponderance of the evidence that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination.

450 U.S. at 253 , 101 S.Ct. at 1094 .

Proof of “circumstances which give rise to an inference of unlawful discrimination” is surely sufficient to get to a jury. Moreover, footnote 6 to the quoted passage makes it *1387 clear that the four factor test as illustrated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973)— the Burdine 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.” Burdine, 450 U.S. at 253 n. 6, 101 S.Ct. at 1094 n. 6. At the very least, therefore, “prima facie case” means that a party bearing the burden of persuasion has proffered legally sufficient evidence to permit a trier to find the disputed fact — here, unlawful discrimination. Mueller & Kirkpatrick, supra, §§ 3.2, 3.4.

Under McDonnell Douglas, a prima facie case is initially of the stronger (i) variety. Burdine, 450 U.S. at 254 n. 7, 101 S.Ct. at 1094 n. 7. If the employer remains silent and the trier finds the facts that trigger the McDonnell Douglas presumption, the employer loses. Id. at 254 , 101 S.Ct. at 1094 . The employer thus bears the burden of production regarding the reasons for an adverse employment decision. Id. If the employer proffers evidence of lawful reasons, we move to the next step of the analysis.

Title VII and the ADEA do not require an employer to proffer a reason for an adverse employment decision with which the trier of fact agrees. An employer is free to make mistakes. For example, a faculty may regard a tenure candidate’s scholarship to be inadequate while the trier of fact believes that her writing is a major scholarly contribution. So long as the faculty truly, even if mistakenly, holds that negative view, there is no Title VII violation.

Once the employer proffers a lawful reason for the employment decision, then the “presumption [of unlawful discrimination] ... drops out.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 , 113 S.Ct. 2742, 2749 , 125 L.Ed.2d 407 (1993) (citing Burdine, 450 U.S. at 255 , 101 S.Ct. at 1094-95 ). The majority opinion holds that when the “presumption ... drops out,” proof of the McDonnell Douglas four factors without more no longer constitutes a prima facie case of discrimination. The basis offered by my colleagues for this conclusion, apart from the “drops out” language itself, is the fact that the burden of persuasion remains with the Title VU/ADEA plaintiff after the employer has met its burden of production.

The issue is hardly disposed of so easily. The role of rebuttable presumptions involves a debate that has spawned a vast body of commentary and resulted in competing schools of thought traced to such venerable scholars as James Bradley Thayer and Edmund Morgan. See, e.g., Edmund M. Morgan, Basic Problems of Evidence 28-15 (1962); James B. Thayer, Preliminary Treatise on Evidence 346 (1898); Edmund M. Morgan, Instructing the Jury upon Presumptions and Burden of Proof, 47 Harv. L.Rev. 59, 82 (1933); see generally Charles McCormick et al., McCormick on Evidence § 344 (4th ed.1992); 1 Jack B. Weinstein et al., Weinstein’s Evidence ¶ 300[01] (1996). Variations abound within each school of thought, see, e.g., Mueller & Kirkpatrick, supra, § 3.8, at 148-50; McCormick et al., supra, § 344; Weinstein et al., supra, ¶ 300[01], at 300-3 to 300-4, and there is no one solution of commanding persuasiveness, much less one to be found in Supreme Court Title VII decisions that contain language useful to all the antagonists.

In my view, the “drops out” language indicates only that the McDonnell Douglas rebuttable presumption, version (i), loses all evidentiary weight, leaving a prima facie case in the sense of version (ii). I reach this conclusion for the following reasons. “Prima facie case” and “presumption” are not synonymous, as Burdine footnote 7 indicates. 450 U.S. at 254 n. 7, 101 S.Ct. at 1094 n. 7. The term prima facie case, even when used in sense (ii), means that a party having the burden of persuasion regarding a disputed fact has presented legally sufficient evidence to allow the trier of fact to find that fact. Id.

Presumptions, on the other hand, are legal rules calling upon the trier to add weight to one party’s evidentiary scale if the evidence of the basic facts triggering the presumption is sufficient to allow the trier to find those facts. See, e.g., Mueller & Kirkpatrick, supra, § 3.4; 1 Weinstein et al., supra, ¶ 300[01]. Most presumptions, however, are rebuttable, and there is no general agreement among commentators or courts at large *1388 what, if any, residual effect a rebutted presumption has. To say that a “presumption ... drops out,” therefore, does not inexorably mean that there is no longer legally sufficient evidence — i.e., a prima facie case— to allow a trier to find the disputed fact; it may mean only that the trier now resolves the issue based on its view of the evidence as a whole without giving the facts constituting the prima facie case the added evidentiary weight that they formerly had.

The majority give two principal reasons why it believes that a Title VII/ADEA plaintiffs prima facie case disappears once the employer proffers evidence of any explanation for the adverse employment decision.

The first reason given is the familiar rule that the burden of persuasion remains with the Title VII/ADEA plaintiff even after the employer meets its burden of production. However, it is a non-sequitur to reason that, because the plaintiff bears the burden of persuasion once the defendant’s production is satisfied, a bare McDonnell Douglas case is no longer legally sufficient; there is no inconsistency between the proposition that a plaintiffs prima facie case survives a defendant’s satisfaction of a production burden and the proposition that the plaintiff still bears the burden of proof. Indeed, one must wonder why a federal court would puzzle over this issue because that is exactly what Fed.R.Evid. 301 provides.

Rule 301 was adopted by the Congress after it rejected a version proposed by the Advisory Committee and submitted to Congress by the Supreme Court. The Committee’s version would have shifted the burden of persuasion to the adversary upon a party’s establishing the basic facts that trigger a presumption. As adopted, 1 Rule 301 shifts only the burden of production of evidence to rebut or meet the presumption, leaving the burden of persuasion on the party asserting the presumption. However, in adopting that Rule, the Conference Report expressly noted that, even after the adverse party has carried the burden of production, “the jury ... may [still] infer the existence of the presumed fact [unlawful discrimination] from proof of the basic facts [the McDonnell Douglas prima facie case].” H.R. Conf. Rep. No. 93-1597, at 2 (1974), reprinted in 1974 U.S.C.C.A.N. 7098, 7099; see also Mueller & Kirkpatrick, supra, § 3.8; 1 Stephen A. Saltzburg & Michael M. Martin, Federal Rules of Evidence Manual 99-100 (5th ed.1990); Weinstein et al., supra ¶ 301[02]; 21 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5126, at 606 (1977) & 1996 Supp. at 324. 2

In short, under Rule 301, once the adversary satisfies the burden of production and the presumption “drops out,” the prima facie case drops from version (i) to version (ii). Therefore, unless the Title VII/ADEA defendant’s evidence of a lawful explanation is so powerful that the plaintiff’s evidence is no longer sufficient to create a genuine dispute of fact, see Burdine, 450 U.S. at 255 , 101 S.Ct. at 1094-95 , the McDonnell Douglas *1389 prima facie case is sufficient to support (not compel) a finding of discrimination. 3

The second principal reason given by my colleagues in the majority for the extinction' of the plaintiffs prima facie case once a Title VII/ADEA defendant proffers an explanation for an adverse employment decision is that the term prima facie case has a “quite different” meaning in Title VII/ADEA cases. In their view, version (ii) of a prima facie case is not subsumed within version (i) when the McDonnell Douglas prima facie case is proven by the plaintiff. Version (ii) instead allows the plaintiff to complete the plaintiffs main case without legally sufficient evidence of either discrimination or causation, necessary elements they regard as absent from the McDonnell Douglas factors.

This admittedly “quite different” meaning of prima facie case is said to be designed to prevent the employer from remaining mute about its motives for an adverse employment decision and moving for summary judgment or a directed verdict when the plaintiff is unable to provide evidence of an unlawful motive. This purpose may be the source of the Title VII/ADEA prima facie case/pretext construct that has created so much confusion.

If the Supreme Court were to undertake a reexamination of this area, it might well consider whether its prior decisions with respect to the alteration of burdens were necessary, much less worth the enormous confusion they have caused. The Federal Rules of Civil Procedure entitle a plaintiff to take discovery of the defendant. The plaintiff is entitled to demand that the defendant furnish the reason for the adverse employment decision that is the subject of the suit. A defendant who refuses to answer such a discovery demand would be subject to sanctions forbidding it from contesting allegations of discriminatory motive and causation. See Fed.R.Civ.P. 37(b)(2). In reality, therefore, there is no such thing as a silent defendant, or if there is, it is a losing defendant. I therefore question whether the framework created by McDonnell Douglas and Burdine has furnished anything of value to weigh against the enormous confusion it has caused. The Supreme Court might do well to consider abandoning the entire experiment and rule explicitly that the burdens in a discrimination case are no different from those in other cases. 4

In any event, even if the risk of a silent defendant calls for a burden of production, it does not follow that prima facie has a “quite different” meaning in Title VII/ADEA. As noted, Fed.R.Evid. 301 provides that all presumptions shift the burden of production but not the burden of proof and, as the Conference Report explicitly states, once the burden of production is met, the jury may be instructed that it “may infer the existence of the presumed fact from proof of the basic facts.”

I then come to the crux — to the question of whether evidence satisfying the four factor test as illustrated in McDonnell Douglas is legally sufficient to allow a trier to find discrimination. The opinion of the court states with admirable candor that it does not. Judge Calabresi’s concurring opinion agrees. Both opinions are based on the view of those judges that more is needed to support an inference of discrimination and causation than is required by McDonnell Douglas. I think that this conclusion is foreclosed by Supreme Court decisions.

The fact that the Court has consistently used the term prima facie case in Title VII cases surely cuts strongly against the majority's conclusion. The opinion for the court concedes that the term usually refers to evidence legally sufficient to support a particular finding. If the Supreme Court is in fact using the term in a “quite different” way, some express recognition of the linguistic departure would be expected, but none has come forth. The majority's view is impliedly *1390 that the Court seems to have misspoken, and on repetitive occasions.

Courts do misspeak, and the chance that it has happened here can’t be dismissed. However, the Supreme Court has done more than simply use the term “prima facie.” As noted, in Burdine , the Court not only used the term prima facie case but also equated it with evidence of “circumstances giving rise to an inference of discrimination” adding a footnote flatly stating that the four factor test as illustrated in McDonnell Douglas was sufficient to support just such an inference. Burdine, 450 U.S. at 253, n. 6 , 101 S.Ct. at 1094 n. 6. Indeed, the footnote held that because the plaintiff in Burdine had met the McDonnell Douglas test, she had produced enough evidence to support an inference of discrimination. Similarly, in Int’l Bhd. of Teamsters, 431 U.S. 324 , 97 S.Ct. 1843 , 52 L.Ed.2d 396 (1977) the Court specifically described a McDonnell Douglas prima facie case as “evidence adequate to create an inference that an employment decision was based on a discriminatory criterion.” 431 U.S. at 358 , 97 S.Ct. at 1866 . This statement, which unqualifiedly asserts that a McDonnell Douglas prima facie case is sufficient to support an inference of discrimination and causation, was quoted with emphasis in O’Connor v. Consolidated Coin Caterers Corp., — U.S.-,-, 116 S.Ct. 1307, 1310 , 134 L.Ed.2d 433 (1996). I do not believe that a Court of Appeals should, or even can, hold that the four factor test illustrated in McDonnell Douglas is not by itself sufficient to support an inference of discrimination and causation in light of the statements to the contrary in O’Connor, Bur-dine, and Teamsters.

2. A Prima Facie Case and the Proffer of a Pretext

My colleagues in the majority also hold the following: (1) a Title VII/ADEA plaintiffs presentation of a McDonnell Douglas prima facie case will, if the defendant stands mute as to the reasons for the adverse employment decision, result in liability; but, (2) the very same plaintiffs case can, if the defendant responds with a he, be dismissed on insufficiency grounds. I take it that the majority would now disapprove the standard charge found in model jury instructions, 3 Edward J. Devitt et al., Federal Jury Practice and Instructions § 104.04 (1987); 5 Leonard B. Sand et al., Modem Federal Jury Instructions ¶ 87.01 (Instruction 87-27) (1996), that the jury may (not must) infer a discriminatory motive from the consciousness of guilt reflected by dishonest statements about an adverse employment decision.

This view leads to peculiar results. For example, under the majority’s reasoning, a prima facie case plus the proffer of a pretextual defense is weaker (from the plaintiffs standpoint) than an unanswered prima facie case. Moreover, it leaves Title VII/ADEA plaintiffs worse off than if McDonnell Douglas had provided for a version (ii) prima facie case than, as it did, for a version (i).

This puzzling ruling is also at odds with a vast body of law allowing inferences of consciousness of guilt to be drawn from dishonest behavior concerning facts material to litigation. For example, it is — or was until now — settled law that a false exculpatory statement by a defendant may (not must) support an inference of consciousness of guilt. See United States v. Sureff, 15 F.3d 225, 227 (2d Cir.1994); United States v. Gaviria, 740 F.2d 174, 184 (2d Cir.1984); United States v. Parness, 503 F.2d 430, 438 (2d Cir.1974); United States v. Lacey, 459 F.2d 86, 89 (2d Cir.1972); 1 Devitt et al., supra, § 14.06; 1 Sand et al., supra, ¶ 6.05 (Instruction 6-11). Binder v. Long Island Lighting Co., 57 F.3d 193, 200 (2d Cir.1995), did no more than apply this universally recognized principle to false exculpatory statements by employers. My colleagues hold that this principle does not apply to employers or, perhaps, that it no longer applies to any party to litigation, including criminal defendants.

For another example, one of the most routine of jury instructions — perhaps given hundreds of times by some of my colleagues in the majority who are former district judges — states that if a jury finds that a witness has lied in a material part of his or her testimony, the jury may (not must) disbelieve other material parts of that witness’s testimony. 1 Devitt et al., supra, § 15.06; 1 Sand et al., supra, ¶ 7.01 (Instruction 7-19). *1391 Do such false statements now “point[] nowhere?” Fisher v. Vassar College, 70 F.3d 1420, 1437 (2d Cir.1995).

Similar instructions have been routinely-given with regard to flight from the scene of a crime, 1 Devitt, et al., supra, § 14.08; 1 Sand et al., supra, ¶ 6.05 (Instruction 6-9), use of a false name, 1 Sand et al., supra, ¶ 6.05 (Instruction 6-10), fabrication of an alibi, id. (Instruction 6-12), use of disguised handwriting, id. (Instruction 6-13), falsification of evidence, 1 Devitt et al., supra, § 14.07; 1 Sand et al., supra, ¶ 6.05 (Instruction 6-14), intimidation of witnesses, 1 Devitt et al., supra, § 14.07; 1 Sand et al., supra, ¶ 6.05 (Instruction 6-16), and engaging in clandestine behavior, 1 Sand et al., supra, ¶ 6.06 (Instruction 6-19).

Finally, in a criminal case, a defendant who takes the stand to deny the crime waives a sufficiency challenge to the prosecution’s main case considered alone. United States v. Khan, 53 F.3d 507, 515 (2d Cir.1995); United States v. Friedman, 998 F.2d 53, 57 (2d Cir.1993); United States v. Roldan-Zapata, 916 F.2d 795, 803 (2d Cir.1990), cert. denied, 499 U.S. 940 , 111 S.Ct. 1397 , 113 L.Ed.2d 453 (1991). Nevertheless, my colleagues in the majority hold that under Title VII/ADEA, an employer who proffers a lie about an adverse employment decision, can, precisely as a result of the act of lying, renew a previously rejected sufficiency challenge to a plaintiffs main case. Given that the prosecution’s burden of proof in a criminal case is heavier than that of the Title VII/ADEA plaintiff, this vastly different treatment of pretextual defenses seems inexplicable unless my colleagues are prepared to change the rule now prevailing in criminal cases.

3. Reviewability

The majority reasons at length that a trier of fact’s finding of discrimination is “reviewable.” I agree. A decision that a prima facie case has been made out in either sense (i) or (ii) is of course reviewable by an appellate court, or trial court for that matter. With regard to version (i), the reviewable question is whether the evidence presented by the plaintiff is legally sufficient to allow the trier to find the basic facts that trigger the rebut-table presumption. With regard to (ii), the weaker version, the reviewable question is whether the plaintiffs evidence is legally sufficient to permit a trier to find discrimination. If the evidence is not legally sufficient, then no prima facie case is established and a finding of discrimination is “reviewable,” i.e., clearly erroneous. Moreover, the employer may proffer evidence of a legitimate reason for the adverse employment decision so powerful that the plaintiffs prima facie case is undermined as a matter of law and is no longer sufficient to create a material dispute of fact. Burdine, 450 U.S. at 255 , 101 S.Ct. at 1094-95 .

A pretext finding may also be reviewed and found to be clearly erroneous. St. Mary’s, 509 U.S. at 524 , 113 S.Ct. at 2755-56 . Finally, as Binder explicitly stated, even if the proffered reason is pretextual, an employer may present evidence explaining the resort to the pretext and giving a legitimate reason for the adverse employment decision. 57 F.3d at 200 . Again, that evidence may be so powerful that the inference to be drawn from the prima facie case and resort to pretext are undermined as a matter of law.

What cannot be logically said is that a prima facie ease in sense (ii) has been established and sustained but that a finding of discrimination is clearly erroneous. One might as well say that the evidence was legally sufficient to allow the trier of fact to find discrimination, but that the trier of fact’s finding of discrimination is clearly erroneous because the evidence was not legally sufficient. Much less can one logically say that a finding of discrimination based on a prima facie case and supported by an unexplained resort to pretext is clearly erroneous.

I therefore dissent.

. Rule 301 reads:

In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.

. Chief Judge Newman and Judge Calabresi engage in a spirited debate concerning Mobile, J. & K.C.R.Co. v. Turnipseed, 219 U.S. 35 , 31 S.Ct. 136 , 55 L.Ed. 78 (1910), and Western & Atlantic R.R. v. Henderson, 279 U.S. 639 , 49 S.Ct. 445 , 73 L.Ed. 884 (1929).

In that regard, I would note that confidence in the continuing vitality of Tumipseed and Henderson is not widely shared. The original Advisory Committee that drafted the Federal Rules of Evidence found no existing barrier to its proposal (rejected by Congress) of giving all presumptions the burden-shifting effect that the Court invalidated in Henderson . Fed.R.Evid. 301, Advisory Committee Notes to 1972 Proposed Rules. The McCormick text concludes that Henderson is of "questionable status,” McCormick et al., supra, § 345 at 590; Lilly regards Tumipseed and Henderson as giving "no definitive answer” to an issue that presently "is usually a distant concern," Graham C. Lilly, An Introduction to the Law of Evidence 72, n. 3 (3d ed.1996); and Mueller and Kirkpatrick show their view of Henderson's current irrelevance by not mentioning it in their discussion of presumptions, Mueller & Kirkpatrick, supra, § 3.8.

. I do not, therefore, take the position attributed to me by the opinion of the court that a plaintiff’s establishing a McDonnell Douglas prima facie case by the close of her evidence assures that the evidence of discrimination will be legally sufficient when all the evidence is in. And, of course, nothing in this opinion states that an employer may be liable for discrimination “where none was present and none was shown.”

. I am authorized to state that Judge LEVAL concurs in this paragraph.