Etim U. Aka v. Washington Hospital Center

KAREN LeCRAFT HENDERSON, Circuit Judge,

with whom SILBERMAN, WILLIAMS and GINSBURG, Circuit Judges, join, dissenting:

What remains of this case is neither complex nor difficult. Etim U. Aka contends that the district court incorrectly granted summary judgment on his claims against his former employer, Washington Hospital Center (Washington Hospital), under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq., (ADEA) and the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq. Aka has alleged that Washington Hospital (1) failed to hire him as a pharmacy technician on account of his age and disability in violation of both the ADEA and the ADA and (2) failed to reassign him to another position as a reasonable accommodation under the ADA when his disability prevented him from performing the duties of his former job as an orderly. 1 Aka’s first claim fails because he produced no evidence in the district court to prove, as he must under a long line of decisions culminating in St. Mary’s Honor Center v. Hicks, 509 U.S. 502 , 113 S.Ct. 2742 , 125 L.Ed.2d 407 (1993), that Washington Hospital’s nondiseriminatory reasons for rejecting his application were proffered as a pretext for its true motive which was discriminatory. Aka’s second claim fails because he has not tied the alleged failure to accommodate to a specific actionable employment decision, as explained in our holding in Marshall v. Federal Express Corp., 130 F.3d 1095 (D.C.Cir.1997).

I.

First, the district court correctly granted summary judgment on Aka’s discrimination claims under the ADEA and the ADA because Aka produced no evidence raising a triable isstie of fact about either whether Washington Hospital’s articulated reasons for rejecting Aka’s application were false and or whether its real reason was discriminatory.

In both ADEA and ADA discrimination cases we apply the burden allocation scheme first announced in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973). See Paquin v. Federal Nat’l Mortgage Ass’n, 119 F.3d 23, 26 (D.C.Cir.1997) (ADEA case); Marshall v. Federal Express Corp., 130 F.3d 1095, 1099 (D.C.Cir.1997) (ADA case). 2 As we have previously explained:

*1307 Under the first step of McDonnell-Douglas the complainant must establish a prima facie case of discrimination.... If the complainant succeeds in establishing a prima facie case, the second step of the McDonnell-Douglas framework shifts the burden to the defendant employer to articulate a legitimate, nondiscriminatory reason for its adverse employment action. If the defendant does so, then under the third step of McDonnell-Douglas the complainant must produce evidence showing that the defendant’s proffered reason is but a pretext for discrimination.

Paquin, 119 F.3d at 26-27 (internal citations omitted). Key to the third step of the analysis is the phrase “pretext for discrimination,” which has sometimes been construed (incorrectly) to mean simply a false reason.

The word “pretext” is defined as “[t]hat which is put forward to cover the real purpose or object.” See XII Oxford English Dictionary 437 (2d ed.1989). Thus, a pretext is not merely a false reason but a false reason proffered to cover up the true reason. See Fisher v. Vassar College, 114 F.3d 1332, 1337-38 (2d Cir.1997) (en banc) (“[Djiserimi-nation does not lurk behind every inaccurate statement.... In short, the fact that the proffered reason was false does not necessarily mean that the true motive was the illegal one argued by the plaintiff.”), cert. denied, — U.S. -, 118 S.Ct. 851 , 139 L.Ed.2d 752 (1998). Recognizing this, the Hicks majority repeatedly explained that a plaintiff must do more than simply cast doubt on the truth of the employer’s proffered legitimate reason; he must also affirmatively show it was proffered as a cover-up for a discriminatory reason. 3 See 509 U.S. at 507-08 , 113 S.Ct. 2742 (“ ‘If the defendant eames this burden of production, the presumption raised by the prima facie case is rebutted’ and ‘drops from the case.’ The plaintiff then has ‘the full and fair opportunity to demonstrate,’ through presentation of his own case and through cross-examination of the defendant’s witnesses, ‘that the proffered reason was not the true reason for the employment decision,’ and that race was. He retains that ‘ultimate burden of persuading the [trier of fact] that [he] has been the victim of intentional discrimination.’ ”) (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 255 , 255 n. 10, 256, 101 S.Ct. 1089 , 67 L.Ed.2d 207 (1981)) (emphasis added); id. at 514-15, 113 S.Ct. 2742 (“[N]othing in law would permit us to substitute for the required finding that the employer’s action was the product of unlawful discrimination, the much different (and much lesser) finding that the employer’s explanation of its action was not believable.”); 509 U.S. at 515 , 113 S.Ct. 2742 (“A reason cannot be proved to be ‘a pretext for discrimination’ unless it is shown both that the reason was false, and that discrimination was the real reason.”). This is how four other circuits— and even the Hicks dissent — have interpreted the plain language in the Hicks majority opinion. See Vaughan v. Metrahealth Cos., 145 F.3d 197 (4th Cir.1998); Ryther v. KARE 11, 108 F.3d 832, 836-37 (8th Cir.) (en banc), cert. denied, — U.S.-, 117 S.Ct. 2510 , 138 L.Ed.2d 1013 (1997); Hidalgo v. Overseas Condado Ins. Agencies, Inc., 120 F.3d 328, 335-37 (1st Cir.1997); Fisher v. Vassar College, 114 F.3d 1332, 1337-38 (2d Cir.1997) (en banc); Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir.1996) (en banc); 509 U.S. at 535 , 113 S.Ct. 2742 (Souter, J., dissenting). I would do likewise.

It is true that the majority opinion in Hicks also included the following language, routinely cited by courts that require a plaintiff to show only that the proffered reason is false: 4

*1308 The factfinder’s disbelief of the reasons put forward by the defendant (particu--larly if disbelief is accompanied by a suspicion of mendaeity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant’s proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination, and the Court of Appeals was correct when it noted that, upon such rejection, “[n]o additional proof of discrimination is required.”

509 U.S. at 511 , 113 S.Ct. 2742 (first emphasis added; footnote omitted) (quoting Hicks v. St. Mary’s Honor Center, 970 F.2d 487 , 493 (8th Cir.1992)). The quoted passage does not mean, as some courts have construed it, that disbelief coupled with proof of a prima facie case is always sufficient either to survive summary judgment or to support a jury verdict. “The word ‘may’ is ambiguous. It might mean that the factfinder is completely free to find discrimination, in the sense that an appellate court could never reverse such a decision on the evidence. Alternatively, it might mean that in some cases the combination will be adequate to sustain a finding of discrimination, in others not, to be determined by the factfinder initially, and the appellate court on review, according to the usual principles.” Barbour v. Merrill, 48 F.3d 1270, 1281 (D.C.Cir.1995) (Williams, J., concurring in denial of rehearing). Given the Hicks majority’s repeated emphasis on the need to prove that an employer’s proffered reason for an employment action is a pretext for discrimination, I can only conclude, as did Judge Williams, that the Court intended “may” to bear the second meaning. As the Fourth Circuit explained:

Undoubtedly, the quoted passage suggests that some plaintiffs may reach the jury solely on the basis of “[t]he factfin-der’s disbelief of the reasons put forward by the defendant ... together with the elements of the prima facie case.” This is unremarkable, as a prima facie case of age discrimination often requires “some other evidence that the employer did not treat age neutrally,” such as discriminatory comments or marked favoritism towards younger, less qualified workers. Depending on the character of the evidence in each case, a discrimination claim may survive summary judgment solely on the strength of the prima facie case and the evidence that contradicts the employer’s proffered justification — if that evidence provides a factual basis for the ultimate finding of discrimination.

Vaughan v. Metrahealth Cos., 145 F.3d at 201 (quoting Equal Employment Opportunity Comm’n v. Western Electric Co., 713 F.2d 1011 , 1015 (4th Cir.1983)); see also Isenbergh v. Knight-Ridder Newspaper Sales, Inc., 97 F.3d 436, 441 (11th Cir.1996) (per curiam) (“The first sentence of [the quoted Hicks] passage shows that disbelief of the employer’s proffered reason may (and by implication, may not) be enough for a plaintiff to overcome an employer’s motion for judgment as a matter of law. The second sentence is potentially more confusing in saying that rejection of the proffered reason ‘will permit’ the inference of discrimination. But keeping in mind that the word ‘will’ sometimes means ‘can’ (for example, ‘can permit’) or ‘capable of,’ (for example, ‘capable of permitting’), both sentences, when read together, at least strongly suggest that rejecting the employer’s proffered reason is not always sufficient to allow a finding of discrimination, although sometimes ‘(particularly if disbelief is accompanied by a suspicion of mendacity)’ it might be.”), cert. denied, — U.S. -, 117 S.Ct. 2511 , 138 L.Ed.2d 1014 (1997); Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir.1996) (en banc) (“The evidence necessary to support an inference of discrimination will vary from case to case. A jury may be able to infer discriminatory intent in an appropriate ease from substantial evidence that the employer’s proffered reasons are false. The evidence may, for example, strongly indicate that the employer has introduced fabricated justifications for an employee’s discharge, and not otherwise suggest a credible nondis *1309 criminatory explanation.”); Kelley v. Airborne Freight Corp., 140 F.3d 335, 348 (1st Cir.1998) (“Thus, under the ADEA, if the plaintiff establishes that the defendant’s proffered reasons for the adverse employment action are not the true reasons, the trier of fact may, depending on the overall evidence, but is not required, to infer that intentional age-based discrimination was a determinative factor in the adverse employment action.”) (emphasis added).

In a welcome concession to common sense, the majority seems to agree that the plaintiff, to survive summary judgment, must do something more than simply show that the proffered reason could be false. See, e.g., Maj. Op. at 1289-90. The problem is that in its very next breath the majority rejects “any reading of Hicks under which employment discrimination plaintiffs would be routinely required to submit evidence over and above rebutting the employer’s stated explanation in order to avoid summary judgment.” Id. In other words, once the defendant has offered a nondiscriminatory rationale and the plaintiff has raised a jury question as to its veracity, the majority would place some sort of additional burden on the defendant — to show, perhaps that the plaintiffs own evidence points to a permissible (although perhaps embarrassing) “third” motive, see Maj. Op. at 1290 or that the defendant has a sterling record on equal employment opportunity matters in general, see id. at 1291. If the defendant does not carry this burden, then the jury will be allowed to infer the ultimate fact of discrimination from the existence of some rebuttal evidence — evidence which, by its very he-said-she-said nature, tends to be easy to come by. To make matters worse, the majority refuses “to say in any concise or generic way when such an inference will be appropriate.” Id. at 1293-94. The result is a framework (if one can call it that) that is both devoid of intelligible standards and incompatible with the principle that the plaintiff bears the burden of proof on the ultimate fact, See Hicks, 509 U.S. at 511 , 113 S.Ct. 2742 (“[T]he Court of Appeals’ holding that rejection of the defendant’s proffered reasons compels judgment for the plaintiff disregards the fundamental principle of Rule 301 that a presumption does not shift the burden of proof, and ignores our repeated admonition that the Title VII plaintiff at all times bears the ‘ultimate burden of persuasion.’ ”).

In light of the plain meaning of Hicks, I conclude that an employment discrimination plaintiff must offer evidence not only that the employer proffered an untrue reason for the challenged employment action but also— whether as part of the prima facie case or independently — that the employer did so in order to cover up the true reason — which reason was discriminatory. Aka has failed to point to any such showing in the record, which contains no evidence raising a triable issue of fact as to whether Washington Hospital’s proffered reasons for rejecting his application for the pharmacy technician opening were false, much less whether they were pretexts for discrimination.

In the district court Washington Hospital offered two nondiscriminatory reasons for hiring Jaime Valenzuela over Aka: (1) Valenzuela had more relevant experience for the pharmacy technician position and (2) Valenzuela displayed more enthusiasm during his interview than Aka did in his. Aka has failed to identify evidence discrediting either reason.

To counter Washington Hospital’s assertion that Valenzuela was more qualified, Aka argues that both his education (Bachelor’s and Master’s degrees in Public Health Service Management) and his experience (twenty years as an orderly at Washington Hospital) made him more qualified that Valenzuela who had “extremely little relevant experience, and no relevant education.” Appellant’s Brief at 27. That Aka had more education and more hospital experience is undisputed. But neither was particularly “relevant.”

The published “qualifications” for a pharmacy technician list no educational requirement — not even a high school diploma. 5 Nor is there any evidence that its duties re *1310 quire — or would benefit from — either a Bachelor’s or a Master’s degree. Ann Breaken-ridge, who interviewed both applicants for the pharmacy technician opening, recognized that Aka’s education degrees would be wasted in the pharmacy technician job, noting in her “interview summary report” that “Mr. Aka’s MBPA degree could be best utilized in other areas of the Hospital.” JÁ 230. Put simply, Aka’s academic credentials did nothing to enhance his qualifications for the position for which he applied. 6

Nor did Aka’s experience — at least insofar as it was known to Dr. Breakenridge at the time she chose Valenzuela over him — make him a better candidate for the technician opening. Aka asserted in an affidavit below (and we must accept as true here) that as an orderly he “was regularly assigned to pick up medications from Pharmacy, stock medications in the nurses work area, and even sometimes prepare orders for medications that were not in sufficient stock in the nurses work area,” that he “had extensive knowledge and background with the forms used by the pharmacy for filling medications” and that he “knew how most of the medications were used by nurses in their care of patients.” JA 391. Yet there is no record evidence that Aka ever brought this “relevant experience” to the attention of Breaken-ridge or that Breakenridge was aware of it 7 —as she was of Valenzuela’s two months of actual pharmacy employment and his experience in “pricing, stocking, [and] filling up cassettes,” noted on his application. JA 226.

Aka also disputes Breakenridge’s assessment that he was a less enthusiastic applicant than Valenzuela, maintaining that he too displayed enthusiasm for the position during his interview. But Breakenridge’s judgment about the two applicants’ enthusiasm was an inherently comparative one. See JA 222-23. Assuming that Aka was enthusiastic, he offers no evidence to show that Valenzuela was not more so (or at least that Valenzuela did not appear that way during his interview). More to the point, Aka cited no evidence that Washington Hospital offered either lawful justification as a pretext to conceal an unlawful motive. If Aka’s claim, devoid as it is of any discriminatory showing, can survive summary judgment, I cannot envision a claim that would not.

II.

I would also affirm the district court’s summary judgment on Aka’s ADA reasonable accommodation claim. Aka alleges, as far as I can tell, that Washington Hospital breached its duty under the ADA to transfer Aka, as a reasonable accommodation, to a job that he could perform notwithstanding his disability. I do not question that under certain circumstances an employer has a duty to reasonably accommodate an employee’s disability by reassigning him to an open position for which he is qualified. See 42 U.S.C. § 12112 (a) (“No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”); 42 U.S.C. § 12112 (b)(5)(A) (“[T]he term ‘discriminate’ includes — ... (5)(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hard *1311 ship on the operation of the business of such covered entity.”); 42 U.S.C. § 12111 (9)(B) (“The term ‘reasonable accommodation’ may include — ... reassignment to a vacant posi-tion_ ”). But the only adverse decision Aka has cited — -the failure to reassign him to the pharmacy technician position — was not a refusal to reasonably accommodate Aka’s disability. Washington Hospital accommodated Aka’s disability by affording him the opportunity to apply for reassignment to the vacant position. It accepted his application and interviewed him for the opening. There is no reason to doubt that Washington Hospital also would have hired Aka had he proved the more qualified candidate for the job. As explained earlier, he did not. Washington Hospital was under no duty to afford Aka a hiring preference — because of his disability — over a more qualified, non-disabled applicant. The Congress made clear when the ADA was enacted that employers were not expected or required to extend such preferences. See H.R.Rep. No. 101-485, pt. 2, at 56, 1990 U.S.C.C.A.N. at p. 338 (1990) (“[T]he employer would be permitted to reject the applicant with a disability and choose the other applicant for reasons not related to the disability or to the accommodation or otherwise not prohibited by this legislation. In other words, the employer’s obligation is to consider applicants and make decisions without regard to an individual’s disability, or the individuals need for a reasonable accommodation. But, the employer has no obligation under this legislation to prefer applicants with disabilities over other applicants on the basis of disability.”); see also Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 384 (2d Cir.1996) (“Congress intended simply that disabled persons have the same opportunities available to them as are available to nondisabled persons.”); Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir.1995) (“[W]e do not read the ADA as requiring affirmative action in favor of individuals with disabilities, in the sense of requiring that disabled persons be given priority in hiring or reassignment over those who are not disabled. It prohibits employment discrimination against qualified individuals with disabilities, no more and no less.”), cert. denied, 516 U.S. 1172 , 116 S.Ct. 1263 , 134 L.Ed.2d 211 (1996); cf. Duckett v. Dunlop Tire Corp., 120 F.3d 1222, 1225 (11th Cir.1997) (no duty to transfer “where the employer (independent of concerns about disability) has a business policy against the pertinent kind of transfer.”); Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 679 (7th Cir.1998) (“[W]e have been unable to find a single ADA or Rehabilitation Act case in which an employer has been required to reassign a disabled employee to a position when such a transfer would violate a legitimate, nondiscriminatory policy of the employer,”). Ac-i cordingly, Washington Hospital’s refusal to hire Aka over the more qualified Valenzuela is not actionable. 8

Finally, the majority would remand for the district court to determine the contours of Washington Hospital’s right under the collective bargaining agreement to reassign Aka as a reasonable accommodation and of Aka’s right to such an accommodation under the ADA. Maj. Op. at 1302-03. I have no idea how the majority expects the district court to fulfill its mandate. Having claimed no adverse personnel action other than denial of the pharmacy job, and specifically having made no claim of wrongful termination, Aka is not in a position to argue that failure to accommodate him in some other positipn breached any duty under the ADA, See Marshall v. Federal Express Corp., 130 F.3d 1095 -98 (D.C.Cir.1997) (“[F]or discrimination (including denial of reasonable accommodation to be actionable, it must occur in regard to some adverse personnel decision or other term or condition of employment.”) (emphasis original)). And the majority has failed to fill in the gap. Further, given that the Congress did not intend to establish a preference regime under the ADA, I cannot accept the majority’s suggestion that reasonable accom *1312 modation requires that a disabled person be transferred to any open position for which he is. qualified (such as the pharmacy technician position here),- regardless of other applicants’ qualifications, so long as the reassignment does not impose “undue hardship” on the employer. See Maj. Op. at 1302-03. 9

For the preceding reasons I would affirm the ■ district ■ court’s summary judgment in toto. I therefore dissent.

. In his all-inclusive complaint, Aka also alleged other claims of discrimination. The panel affirmed (and rehearing was not granted) on Aka's ADA and ADEA claims based on his failure to secure file clerk positions with Washington Hospital and Aka himself eventually dropped his claims of violation of the District of Columbia Family and Medical Leave Act, see Aka v. Washington Hospital, 116 F.3d 876 , 879 n. 2 (D.C.Cir.1997), and discrimination on the basis of race and national origin, see Brief of Appellant Etim U. Aka on Rehearing in Banc at 5 n.2; see also Aka v. Washington Hospital 116 F.3d at 902 n. 6 (Henderson, J., dissenting in part) (“The record manifests Aka's successful twenty-year employment relationship with Washington Hospital. To note the obvious, his race and national origin did not change during that time. To infer that Washington Hospital would begin discriminating on the basis of his race and national origin after twenty years of non-discrimination strains credulity.”). ■

. In O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311 , 116 S.Ct. 1307 , 134 L.Ed.2d 433 (1996), the Supreme Court '“assumed,” without actually deciding, that the McDonnell-Douglas framework applied in ADEA *1307 cases. The Court has yet to address whether the framework applies to ADA cases.

. There are many explanations for an employer’s reluctance to disclose a true, norediscriminatory reason for an adverse employment decision. For example, the real motive might be embarrassing, albeit lawful, or the employer might simply wish to spare the feelings of an employee he considered unsatisfactory in performance, personality or some other regard.

. See, e.g., Combs v. Plantation Patterns, 106 F.3d 1519, 1529 (11th Cir.1997), cert. denied,-U.S. -, 118 S.Ct. 685 , 139 L.Ed.2d 632 (1998); Kline v. Tennessee Valley Auth., 128 F.3d 337 , 343-44 (6th Cir.1997) (en banc), Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1066-67 (3d Cir.1996) (en banc), cert. denied,-U.S. *1308 -, 117 S.Ct. 2532 , 138 L.Ed.2d 1031 (1997); Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1123-24 (7th Cir.1994); Washington v. Garrett, 10 F.3d 1421, 1433 (9th Cir.1993) (as amended).

. The qualifications for the position of orderly — • which Aka formerly occupied — required a "[h]igh school diploma or equivalent." JA 324.

. In fact, in contrast to the majority's observation, see Maj. Op. at 1297 n.15, some courts have concluded that claimed reliance on criteria not mentioned in a job description supports an inference of discrimination. Courtney v. Biosound, Inc., 42 F.3d 414, 421 (7th Cir.1994); Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1225 (2d Cir.1994); Gaworski v. ITT Commercial Fin. Corp., 17 F.3d 1104 , 1109 (8th Cir.1994), cert. denied, 513 U.S. 946 , 115 S.Ct. 355 , 130 L.Ed.2d 310 (1994).

. In her interview summary report Breakenridge noted only that Aka's orderly position had a "drug delivery aspect,” JA 229, which is consistent with both the published description of the orderly position (orderly "[c]ollects and/or delivers a variety or items to and from the unit,” including "Medical Materials,” JA 323) and Aka's own deposition testimony (that his "experience in pharmacy services consists of transporting narcotics and drugs to and from the pharmacy” and that he had "[n]o other experience,” JA 129).

. I find it unnecessary to consider how the collective bargaining agreement might affect Washington Hospital's reasonable accommodation duty under the ADA both because Aka has not shown Washington Hospital was under any such duty and because the majority opinion expressly declines to resolve "whether reassigning Aka would have been permissible under [the collective bargaining agreement]”, Maj. Op. at 1303.

. The majority, while eschewing express endorsement of preferences, nonetheless appears to adopt the position, urged by Amicus Curiae Equal Employment Opportunity Commission in its brief, see Brief of Amicus Curiae at 22-23, that such a preference is what the ADA envisions. Otherwise, the majority's discussion of reasonable accommodation is irrelevant.