Amicus Curiae Brief — St. Mary's Honor Center v. Hicks

No. 92-602 4

———————$&HDLNaAuLLL———————

In the Supreme Court of the Cited States

OCTOBER TERM, 1992

Str. MARY’S HONOR CENTER, ET AL., PETITIONERS

?.

MELVIN HICKS

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES AND THE

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION AS AMICI CURIAE

WILLIAM C. BRYSON

Acting Solicitor General

JAMES P. TURNER

DONALD R. LIVINGSTON Acting Assistant Attorney

General Counsel General

GWENDOLYN YOUNG REAMS EDWIN S. KNEEDLER

Associate General Counsel Assistant to the Solicitor

General

VINCENT J. BLACKWOOD ees , ee

Assistant General Counsel EDWARD C. DUMONT

wapen BM Moran Assistant to the Solicitor

/ Wt , Al “ae

Attorney = —_

Equal Employment Oppor- DAVID K. FLYNN

tunity Commission tERECCA K. TROTH

Washington, D.C. 20507 Attorneys

Washington, D.C. 20530

(202) 514-2217

——— EEE ae

QUESTION PRESENTED

Whether the plaintiff in an employment discrimination

case under Title VII of the Civil Rights Act of 1964 or

42 U.S.C. 1983 is entitled to judgment as a matter of law

once he has (i) established a prima facie case and (ii)

proved that all permissible grounds advanced by the

defendant in support of its actions are unworthy of

credence.

(I)

TABLE OF CONTENTS

Interest of the United States and the Equal Employment

IT TI i ccc cnecenpnnencnnnantnonsenonssonorees

LSD TTT TTD

a csenernitnuonaionsaveces

Argument:

Respondent was entitled to judgment as a matter of law

on the basis of his prima facie case and proof that all

nondiseriminatory reasons proffered by petitioners to

justify their actions were unworthy of credence ..........

A. Requiring respondent to do more than discredit all

nondiscriminatory explanations proffered by peti.

tioners would be inconsistent with the order of proof

established by McDonnell Douglas and subsequent

Tatil eeepecreeiecesepenconeseocséesoscoseoconeees

B. The McDonnell Douglas order of proof properly re-

quires the employer to frame the factual issues for

decision by identifying the nondiscriminatory ex.

planations that the plaintiff must refute .................

C. There is no evidence on the record in this case of a

nondiscriminatory motive that was not articulated

al seeesunnanecoooocs

os cca sarssnnnnnnnonorocooooes

TABLE OF AUTHORITIES

Cases:

Benzies v. Illinois Dep't of Mental Health & Develop-

mental Inhsabilities, 810 F.2d 146 (7th Cir.), cert.

rr i 1D GUD... cccscscsoncncoocssscoones

Bienkowski v. American Airlines, Inc., 851 F.2d 150%

sas ccssnsnsnennnecaccnsecs

Brooks v. Monroe Systems for Business, Inc, 874 F 2d

202 (8th Cir.), cert. denied, 493 U.S. 453 (1989) ...........

Burger v. McGilley Memorial Chapels, Inc, #56 F.2d

i. cscnnsennnnnsonsnes

12

25

IV

Cases—Continued: Page

Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir.),

cert. dismissed, 483 U.S. 1052 (1987) ..................0....000 19

Clark v. Huntsville City Bd. of Educ., 717 F.2d 525

CORT SE, Ge cenensintitinstinciteicciiantsicaniitabinnastinitititeiain 19

EEOC vy. Flasher Co., No. 91-6279 (10th Cir. Dec. 29,

TIED vcccsonteviniecnenacinesnnnsnnapncntinianiiiiiniipdéiiiiansiitintiiiinmmaiiaiiae 19, 21

Furnco Construction Corp. v. Waters, 438 U.S. 567

FEITTEIED cccceccecsciccscciiiliieancetihicepiiasaaiadtnaiadailauaanaiadihamibaaidiaiiasils 17, 20, 25

Galbraith v. Northern Telecom, Inc.,944 F.2d 275 (6th

Cir. 1991), cert. denied, 112 S. Ct. 1497 (1992) ............ 26

Goldman v. First National Bank, No. 92-1773 (ist Cir.

PR Ti SD ccartserecntententeeienintiintinnibaciiaiainintanmigntpsrimccesn 19

Halsell vy. Kimberly-Clark Corp., 683 F.2d 285 (8th Cir.

1982), cert. denied, 459 U.S. 1205 (1983) ................... 2

Holder v. City of Raleigh, 867 F.2d 823 (4th Cir. 1989) . 19

Ibrahim v. New York State Dep't of Health, 904 F.2d

BS Gy GR I tetcccntcctitcicccenttinnnsinasninsetibbimnsnnaseninn 19

International Bhd. of Teamsters v. United States, 431

WEE, GBS CRB GED ccccscccccsssscscccsseccsscevenssesccsusssceneaseonensenesees 13, 21

King v. Palmer, 778 F.2d 878 (D.C. Cir. 1985) .............. 19

MacDissi v. Valmont Industries, Inc., 856 F.2d 1054

Ge Ge PRED cccrcnaccncncnemnenesisniansacenseuiausiiininiacedueegameien 17

Maguire v. Marquette University, 814 F.2d 1213 (7th Cir.

FIFO -cxcerierccnsunctniecnidsnnenanisnnnistnpsaninmembennineinienimemaimesiataes 26

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) .. 2, 6, 9,

12-13

Miller v. WFLI Radio Inc., 687 F.2d 136 (6th Cir. 1982).. 19

Niz v. WLCY Radio/Rahall Communications, 738 F.2d

BED GER Gat ee decrrernceraccicinntntenrenteriectininnens 24

Nix v. Whiteside, 475 U.S. 157 (1986) .............ccccccceeeeees 24

Patterson v. McLean Credit Union, 491 U.S. 164 (1989) . 4

Pollard v. Rea Magnet Wire Co., 824 F.2d 557 (7th Cir.),

cert. denied, 484 U.S. 977 (1987) ..........ccccccccceeeereeeeees 23-24

Pullman-Standard v. Swint, 456 U.S. 273 (1982) ............ 16

V

Cases—Continued: Page

Shager v. Upjohn Co., 913 F.2d 398 (7th Cir. 1990) ...... 23

Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554

CR Ge Be ceeneerenneinme 19

Texas Dep't of Community Affairs v. Burdine, 450 U.S.

Ey tttcntentacnenicntnnnienineiiaion 13, 14, 15, 16, 17, 22, 23, 25, 29

Thornbrough v. Columbus & G. R.R., 760 F.2d 633 (5th

SS ccnentesrrccatinicnnendentinnneuniesennnmenindmnmnincammnnintenss 19

Tye v. Board of Education, 811 F.2d 315 (6th Cir.),

cert. denied, 484 U.S. 924 (1987) .0.............cccccccceeeeeeee 19

United States v. Rylander, 460 U.S. 752 (1983) ............ 24

United States Postal Service Bd. of Governors v. Aikens,

GD GR Te Ge ccteertentnenenensnensenasen 2, 15, 16, 25

Visser v. Packer Engineering Assocs., 924 F.2d 655

ee Ge GD eemcencemeencsscenpentenenenncemmpenteemnnemnieinn 26

Williams v. Florida, 399 U.S. 78 (1970) .......cccccceeeees 24

Statutes:

Age Discrimination in Employment Act, 29 U.S.C. 621

GB GOED, cxcecneccncnncensseuscennssscssseseneccessssnsscesssevesesseuaneseusenenens l

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e et

GIT, ccciidctanitanenesandanenmmmmncgnsiananenimeienannensnnnstnetans 1,4

Civil Rights Act of 1991, Pub. L. No. 102-166, § 102, 105

IEE. | TTI etetiensostnnninntonsientnentnniennenmusasmmeneimmnnensemmantinaets 18

i a PIII 0 ns ccnreiacinctintnsnedsnieabienmienenndiiansbiatitie 18

eS Py CE cererttnninnisenanscnnenceneennenquinninansnaioneienssennnnsdeinn 4

Gy Gs SI deccnccbiteenicncnnistncnsencensntsiniinencessennuniediamnsien 1,4

Miscellaneous:

Lanctot, The Defendant Lies and the Plaintiff Loses:

The Fallacy of the “Pretert-Plus ” Rule in Employment

Discrimination Cases, 43 Hast. LJ. 57 (1991) ........... 19-20, 24

In the Supreme Court of the Gnited States

OCTOBER TERM, 1992

No. 92-602

St. MARY’S HONOR CENTER, ET AL., PETITIONERS

v.

MELVIN HICKS

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES AND THE

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION AS AMICI CURIAE

INTEREST OF THE UNITED STATES AND THE

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

This case concerns the method by which a plaintiff

may prove intentional employment discrimination

under Title VII of the Civil Rights Act of 1964, 42

U.S.C. 2000e et seqg., and 42 U.S.C. 1983. The

Attorney General and the Equal Employment

Opportunity Commission (EEOC) share substantial

responsibility for the enforcement of Title VII. The

EEOC also has primary responsibility for interpreta-

tion and enforcement of the Age Discrimination in

Employment Act (ADEA), 29 U.S.C. 621 et seq., and

(1)

= 2

the courts have applied the same order and standards

of proof to claims of age discrimination under the

ADEA. See, e.g., Halsell v. Kimberly-Clark Corp.,

683 F.2d 285, 289 (8th Cir. 1982), cert. denied, 459 U.S.

1205 (1983). The resolution of this case will directly

affect the government’s discharge of these responsi-

bilities. The EEOC participated as amicus curiae in

support of respondent in the court of appeals, and the

United States has previously participated in cases in

this Court involving similar issues, including

McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), and United States Postal Service Bd. of

Governors v. Aikens, 460 U.S. 711 (1983), as well as in

numerous other cases under Title VII and the ADEA.

STATEMENT

1. Respondent Melvin Hicks began work in August

1978 as a correctional officer at petitioner St. Mary's

Honor Center, a minimum security state prison in St.

Louis, Missouri. Pet. App. A2, A28. In February 1980

he was promoted to shift commander, a supervisory

position. /d. at A2. Prior to the events at issue in

this case, respondent had never been suspended,

“written up,” or otherwise subjected to any disci-

plinary action. /d. at A3.

In January 1984 the superintendent of St. Mary’s,

Arthur Schulte, was demoted and transferred to

another institution in response to complaints about

management of the prison. Pet. App. Al5. He was

replaced by petitioner Steven Long. /bid. Both

Schulte and Long are white. /d. at A2, Al5n.1. At

the same time, the chief of custody and two shift

commanders, all of whom were black, were removed

3

and replaced by white employees.' /d. at Alb & nn.1, 3.

John Powell became chief of custody and respondent's

immediate supervisor. /d. at A2. Re-spondent and

another black shift commander were initially retained

as part of the new administration.

In March 1984, respondent was suspended for five

days after an incident in which other officers arriving

at St. Mary’s during respondent's late-night shift

discovered that the front-door officer and another

guard were away from their posts, the “control

center” officer was required to leave his post momen-

tarily to open the door, and the first floor lights were

turned off. None of the officers directly involved was

disciplined. Powell testified at trial that it was his

policy to discipline only the shift commander for

violations occurring during his shift. Pet. App. Al6-

Al7.

Two weeks later, respondent properly authorized

use of a St. Mary’s vehicle by two officers. Those two

officers and the control center officer all failed to

enter the use of the vehicle in an official log, as

required by prison rules. The disciplinary review

board recommended that respondent be demoted from

shift commander to correctional officer for that

failure. Powell, who was a member of the review

board, voted to terminate respondent. Again, none of

' The position of chief of custody was first offered to a black

employee, who declined the offer. Pet. App. A115 n.2.

2 Powell was responsible for initiating disciplinary proceed-

ings. A four-person disciplinary review board would then

make a recommendation to the superintendent of St. Mary’s,

who would in turn make a recommendation to the director of

the state prison administration. See Pet. App. Al7 n.6.

4

the other individuals involved was disciplined.

Shortly after this incident, but before his demotion,

respondent was reprimanded for failing to investigate

an inmate fight, although he had given Powell a

memorandum about the incident and ordered a

subordinate to submit a report. Pet. App. A17-A18 &

n.7.

When respondent was informed of his demotion, he

asked for and was given the rest of the day off. As

respondent was leaving the meeting, Powell followed

and ordered him to open his locker so that Powell

could retrieve respondent’s copy of the shift com-

mander’s manual. Respondent refused, and indicated

in the ensuing confrontation that he would “step

outside” with Powell. Powell sought disciplinary

action against respondent based on the “threats”

made during this confrontation, and a disciplinary

board recommended that respondent be suspended for

three days. Superintendent Long instead recom-

mended that respondent be fired, based on the

“severity and accumulation” of his violations. Re-

spondent was fired on June 7, 1984. Pet. App. A18-A19.

2. Respondent then commenced this action,

alleging that petitioners had demoted and fired him

because of his race, in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and

42 U.S.C. 1983.* Pet. App. Al4. Petitioners defended

% Respondent sued St. Mary’s under Title VII and Long

under 42 U.S.C. 1983. Because the issues and standards are not

materially different, we will refer only to Title VII. See Pet.

App. A6-A7 (and cases cited); cf. Patterson v. McLean Credit

Union, 491 U.S. 164, 186 (1989) (framework of proof developed

under Title VII applies to cases under 42 U.S.C. 1981).

5

on the ground that “the severity and the accumula-

tion of violations committed” by respondent supplied

legitimate, nondiscriminatory reasons for demoting

and firing him. Jd. at A23; see Pet. Br. 8.

a. Respondent introduced evidence intended to

show that the reasons petitioners offered for their

actions were unworthy of credence. With respect to

the five-day suspension in March, respondent showed

that on two occasions that same month he had

reported that no front-door officer was present when

he arrived at St. Mary’s during the shift commanded

by officer Sharon Hefele, who is white. The control

center officer stated that Officer Hefele had ordered

him to open and close the front door, which required

him to leave his assigned post. Despite the close

similarity between those incidents and the one for

which respondent was suspended, no one was ever

disciplined for those incidents. Pet. App. A19-A20,

A24-A25.

Similarly, respondent had reported on another

occasion that during Officer Hefele’s shift the doors

to the main power room and the annex building were

unlocked, in violation of regulations, yet the prison

administration took no action. A white officer who

took a set of prison keys home with him was never

disciplined. And a white officer who admitted that, as

an acting shift commander, he had actually allowed an

inmate to escape received only a letter of reprimand.‘

Pet. App. A20, A25-A26.

* The district court noted that so far as appeared from the

record, that reprimand was the only discipline meted out to

any officer other than respondent during the period at issue in

this case. Pet. App. A27. Apparently, the only dispute among

6

The incident that resulted in respondent’s March

suspension was reported by a white officer, Ed Ratliff.

Pet. App. Al6, Al9 n.8. On the day of that incident,

Ratliff permitted an unescorted inmate to climb into

the prison superintendent’s office to retrieve some

work passes locked inside. When respondent brought

this incident, which the district court termed a

“striking and obvious breach of security,” to Powell’s

attention, Powell took no disciplinary action, but

commended Ratliff for “defusing a volatile situation.”

Id. at Al9 & nn.9-10, A25. On another occasion,

Ratliff brought his brother, a deputy marshal, to St.

Mary’s, and directly countermanded respondent’s

instruction that the brother check his gun while

inside the prison. Although respondent reported the

incident, Powell refused to recommend discipline

against Ratliff. Jd. at A19.

Finally, ten days before respondent’s confrontation

with Powell, respondent had reported to Powell that a

white subordinate had become indignant at receiving

a low service rating and had cursed respondent with

“highly profane language.” Pet. App. A20. Powell

concluded that the subordinate was “merely venting

justifiable frustration,” and took no action. /d. at

A20-A21 & n.14, A26 n.17.

b. After reviewing the evidence, the district court

first found that respondent had proved a prima facie

case of race discrimination under McDonnell Doug-

las Corp. v. Green, 411 U.S. 792 (1973), by showing

prison administrators with respect to the escape incident was

whether the letter of reprimand should remain in the

responsible officer’s file permanently, or be removed after six

months. /d. at A25 n.16.

7

that he was a member of a protected class, that he had

the necessary job qualifications for the position of

shift commander, that he had a satisfactory record in

that position until the change of administration at St.

Mary’s, and that after he was demoted the position of

shift commander remained open and was then filled by

a white employee. Pet. App. A22-A23. The district

court further found that petitioners had carried their

burden of production at the second stage of the

McDonnell Douglas framework by articulating non-

discriminatory reasons for their actions—namely,

the severity and accumulation of violations committed

by petitioner. /d. at A23.

Finally, the district court found, at the third stage

of the McDonnell Douglas framework, that respon-

dent had “carried his burden in proving that the

reasons given for his demotion and termination were

pretextual.” Pet. App. A26; see id. at A23-A26. The

court observed that respondent was “mysteriously

the only person disciplined for violations actually

committed by his subordinates,” id. at A23-A24,

noting that a white shift commander was never

disciplined for similar or more serious infractions

occurring on her shift. /d. at A24-A25. Although

Superintendent Long had testified, “rather sheep-

ishly,” that he considered the vehicle log incident “a

serious violation for which harsh discipline was

justified,” the zourt found that contention uncon-

vincing in light of the fact that “much more serious

violations, when committed by [respondent’s] co-

workers, were either disregarded or treated much

more leniently.” Jd. at A25. Finally, the court found

that respondent had been “provoked” into the final

confrontation with Powell, and that “the evidence

8

suggests that Powell manufactured the confrontation

* * * in order to terminate plaintiff.” Jd. at A26.

Although respondent had proved that the only

reasons advanced by petitioners were pretextual, the

district court nevertheless entered judgment for

petitioner. Pet. App. A27-A30. The court was of the

view that even after demonstrating that petitioners’

reasons were not worthy of credence, respondent

“still [bore] the ultimate burden to prove that race

was the determining factor in [petitioners’] decision,”

id. at A26, and it concluded that respondent had not

proved that the actions taken against him were

“racially rather than personally motivated,” id. at

A27.

The court pointed to no specific evidence in the

record that Powell, Long or other prison administra-

tors harbored any personal animosity against re-

spondent, independent of his race. It did note that no

action was taken against black subordinates who had

actually committed two of the violations for which

respondent was disciplined, and that there were black

members of the disciplinary review boards convened

to consider respondent’s violations. /d. at A27-A28.

The court also concluded that neither the general

pattern of personnel changes at St. Mary’s nor the

reduction in the number of blacks in supervisory

positions raised an inference of racial discrimination,

and that neither Long nor Powell had been aware,

prior to the 1984 personnel changes, of a 1981 study

that had concluded that “blacks possessed too much

power at St. Mary’s.” /d. at A27-A28.

5 The district court described the study as “a comprehen-

sive comparison of [the honor centers in St. Louis and Kansas

9

3. The court of appeals reversed and ordered entry

of judgment for respondent. Pet. App. Al-A12. It

reasoned that the district court’s “unequivocal

factual finding” that petitioners’ asserted reasons for

their actions were pretextual, id. at All, left peti-

tioners “in a position of having offered no legitimate

reason for their actions,” and “in no better position

than if they had remained silent” in the face of

respondent’s prima facie case, id. at Al0. “Once

[respondent] proved all of [petitioners’| proffered

reasons for the adverse employment actions to be

pretextual,” the court held, “[respondent] was enti-

tled to judgment as a matter of law,” without any need

for further evidence of discrimination. /d. at A10-A11.

Thus, the court concluded, it was improper for the

district court to have rejected respondent’s claim by

“assum[ing|—without evidence to support the

assumption—that [petitioners’] actions were some-

how ‘personally motivated.’” Jd. at A10.

SUMMARY OF ARGUMENT

Respondent alleged that he was demoted and

discharged by petitioners because of his race, and the

case proceeded under the familiar burden-shifting

framework prescribed by this Court in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), and

City,] which discussed the shortfalls and suggested means of

improvement. In a section toward the end of the study [the

author] pointed out that too many blacks were in positions of

power at St. Mary’s, and that the potential for subversion of

the superintendent’s power, if the staff became racially

polarized, was very real. No witness for the defendants

admitted he was aware of [this] study at the time of the 1984

personnel changes.” Pet. App. A21. See PX 1.

10

subsequent decisions. First, the plaintiff must

establish a prima facie case. That initial showing

creates a rebuttable but otherwise legally mandatory

presumption: if the employer remains silent in the

face of the prima facie case, the court must enter

judgment for the plaintiff. In order to avoid that

result, the employer is required to articulate some

clear and reasonably specific nondiscriminatory

reason for the challenged employment action. Fin-

ally, the plaintiff bears the burden of proving that the

reason advanced by the employer was not. its true

reason, but was merely a pretext for discrimination.

This Court has said that that burden “merges” with

the plaintiff’s ultimate burden of proving illegal

discrimination, which may be carried either directly

through proof of a discriminatory motive, or

indirectly by showing that the employer’s proffered

explanation is unworthy of credence.

In this case, there is no dispute that respondent

made out a prima facie case. Petitioners responded by

articulating a facially legitimate reason for demoting

and firing respondent: the “severity and accumula-

tion” of his violations of prison rules. The district

court found that respondent then carried his final

burden of showing that petitioners’ proffered reason

for their actions was unworthy of belief. The court

nevertheless went on to hold that respondent was not

entitled to judgment because he had not adduced some

further evidence that petitioners’ actions were mot-

ivated by his race.

As the court of appeals held, that conclusion is

inconsistent with this Court’s prior decisions. The

question is not whether a plaintiff must prove

intentional discrimination, which is undisputed, but

1]

how he may prove it. This Court has consistently

explained that a plaintiff may carry his ultimate

burden indirectly, by discrediting the employer’s

proffered explanation for its actions. Moreover, a

contrary holding would be inconsistent with the

premise that an employer that is unable or unwilling

to articulate a credible nondiscriminatory reason for

a challenged action is more likely than not concealing

a discriminatory reason. An employer that remained

silent in the face of the plaintiffs prima facie case

would be held liable for discrimination; there is no

logical justification for putting an employer that

fabricates a nondiscriminatory explanation in any

better position.

Petitioners argue that even if a plaintiff discredits

all nondiscriminatory reasons actually advanced by

the employer, the employer should be entitled to

consideration by the trier of fact of the possibility

that there was some other, unarticulated motivation

for the employer’s action. But the McDonnell Doug-

las framework of proof is designed to be a sensible and

efficient means of bringing litigants and the courts to

the ultimate question of discrimination. Because any

number of nondiscriminatory reasons might have

accounted for a typical employment decision, it would

not be sensible or efficient to force the plaintiff to

attempt to negate every possible such reason.

Instead, it is reasonable to require the employer,

which is of course in the best position to know its

true reasons for acting, to frame specific issues for

response by the plaintiff and decision by the court.

Finally, petitioners argue that judgment for the

plaintiff should not be compelled where legitimate

reasons for the employer’s actions, while not articu-

12

lated by the employer itself, “emerge” from the plain-

tiffs case or are “suggested” by the employer’s other

evidence. That argument has little to do with the

facts of this case. A fair reading of the district

court’s opinion reveals at most a wholly unsup-

ported—and therefore clearly erroneous—“assump-

tion” that respondent was actually fired because of

personal animosity (unrelated to race) on the part of

John Powell, his immediate supervisor. Even per-

suasive evidence of Powell’s “personal” animosity

would hardly be conclusive, because final decisions af-

fecting respondent’s employment were made not by

Powell, but by others in the prison administration. In

any event, however, petitioners can point to nothing

in the record to indicate that Powell’s obvious

hostility toward respondent was based on anything

other than respondent’s race.

ARGUMENT

RESPONDENT WAS ENTITLED TO JUDGMENT

AS A MATTER OF LAW ON THE BASIS OF HIS

PRIMA FACIE CASE AND PROOF THAT ALL

NONDISCRIMINATORY REASONS PROFFERED

BY PETITIONERS TO JUSTIFY THEIR ACTIONS

WERE UNWORTHY OF CREDENCE

A. Requiring Respondent To Do More Than

Discredit All Nondiscriminatory Explanations

Proffered By Petitioners Would Be Inconsistent

With The Order Of Proof Established By

McDonnell Douglas And Subsequent Cases

Respondent alleged that he was demoted and

discharged by petitioners because of his race. In a

series of cases beginning with McDonnell Douglas

13

Corp. v. Green, 411 U.S. 792 (1973), this Court has set

forth the “allocation of burdens and order of

presentation of proof in a Title VII case alleging

discriminatory treatment.” Texas Dep't of Commu-

nity Affairs v. Burdine, 450 U.S. 248, 252 (1981). The

applicable three-step procedural framework has

become familiar:

First, the plaintiff has the burden of proving by

the preponderance of the evidence a prima facie

case of discrimination. Second, if the plaintiff

succeeds in proving the prima facie case, the

burden shifts to the defendant “to articulate some

legitimate, nondiscriminatory reason for the

employee’s rejection.” Third, should the defen-

dant carry this burden, the plaintiff must then

have an opportunity to prove by a preponderance of

the evidence that the legitimate reasons offered

by the defendant were not its true reasons, but

were a pretext for discrimination.

Id. at 252-253 (quoting McDonnell Douglas, 411 U.S.

at 802).

There is no dispute that respondent proved a prima

facie case. See Pet. App. A8 & n.7. That threshhold

showing “eliminates the most common nondiscrimi-

natory reasons” for the challenged employment

action: the plaintiff’s lack of qualifications, or the

employer’s lack of an available position. See Burdine,

450 U.S. at 253-254 & n.6; International Bhd. of

Teamsters v. United States, 431 U.S. 324, 358 n.44

(1977). It therefore creates a “legally mandatory,”

although rebuttable, presumption: if the employer

remains silent in the face of the plaintiff’s initial

14

showing, then “the court must enter judgment for the

plaintiff.” Burdine, 450 U.S. at 254 & n.7.

Establishment of a prima facie case requires the

employer to “clearly set forth, through the intro-

duction of admissible evidence, the reasons” for its

challenged actions. Burdine, 450 U.S. at 255. The

employer does not bear the burden of proving that it

was motivated by the legitimate reasons it identifies,

and therefore did not discriminate. The employer

need only articulate a nondiscriminatory explanation

for its actions, supported by sufficient evidence to

permit acceptance of that explanation by a rational

trier of fact. /d. at 255, 257. In this case, petitioners

articulated a facially legitimate reason for demoting

and firing respondent: the “severity and accu-

mulation” of his violations of prison administration

rules. Pet. App. A&; Pet. Br. 8.

Once the employer has articulated a nondiscrimina-

tory explanation for its actions, the plaintiff is

accorded “the opportunity to demonstrate that the

proffered reason was not the true reason for the

employment decision.” Burdine, 450 U.S. at 256. The

burden of proof on that issue rests with the plaintiff,

and “merges with the ultimate burden of persuading

the court that she has been the victim of intentional

discrimination.” J/bid. This Court made clear in

Burdine that the plaintiff may carry that ultimate

burden “either directly by persuading the court that a

discriminatory reason more likely motivated the

employer or indirectly by showing that the em-

ployer’s proffered explanation is unworthy of cre-

dence.” Ibid.

The district court in this case found that respon-

dent had carried his burden at the third stage of the

15

McDonnell Douglas framework “indirectly,” by dis-

crediting the only nondiscriminatory explanation

proffered by petitioners for their actions. Pet. App.

A23-A26. The district court nevertheless went on to

hold that respondent was not entitled to judgment,

because he had not adduced some further evidence

that petitioners’ actions were motivated by his race.

Id. at A27-A29. As the court of appeals correctly

concluded, id. at All-A12, that holding is inconsistent

with this Court’s statement in Burdine that a Title

VII plaintiff may carry his ultimate burden “by

showing that the employer’s proffered explanation is

unworthy of credence.” 450 U.S. at 256.

Relying in part on this Court’s later decision in

United States Postal Service Bd. of Governors v.

Aikens, 460 U.S. 711 (1983), petitioners argue that

the courts should focus on “the ultimate question of

discrimination,” rather than the details of the

McDonnell Douglas evidentiary framework.’ Pet. Br.

® Petitioners rely (Pet. Br. 14, 25-26) on language in Burdine

stating that the presumption of discriminatory motive raised

by the plaintiffs prima facie case “drops from the case” once

the employer articulates a nondiscriminatory reason for its

actions. 450 U.S. at 255 & n.10. The Court made that passing

comment, however, in the course of explaining that although

the employer’s showing “destroys the legally mandatory

inference of discrimination arising from the plaintiff's initial

evidence,” that initial evidence “and inferences properly

drawn therefrom” remain very much part of the case. /d. at

255 n.10. The Court noted, for example, that “there may be

some cases where the plaintiff's initial evidence, combined with

effective cross-examination of the defendant, will suffice to

discredit the defendant’s explanation.” /bid. To be sure, once

the employer has carried its burden of production, the plain-

tiff’s mere introduction of evidence to rebut the employer's

16

15; see also id. at 13-16, 25-26. We agree with

petitioners that “intentional discrimination is the

key factual issue in an employment discrimination

case.” Jd. at 26. But that statement of the issue begs

the crucial question of how the plaintiff may prove

“intentional discrimination.” As explained above, the

Court answered that question squarely in Burdine:

the plaintiff may make the required showing either

through direct evidence of a discriminatory motive, or

by showing that the employer’s proffered explana-

tions are pretextual. Far from altering or undercut-

ting that disjunctive standard of proof, Aikens

reiterated it in haec verba.’ Aikens, 460 U.S. at 716;

see also id. at 717-718 (Blackmun, J., concurring)

(“the McDonnell Deuglas framework requires that a

plaintiff prevail when * * * he demonstrates that the

explanation does not, in itself, resuscitate a “legally mandatory

inference” of discrimination. But where, as in this case, the

plaintiff has succeeded in proving “that the employer's

proffered explanation is unworthy of credence,” he has carried

a burden which, as the Court specifically observed, “merges

with the ultimate burden of persuading the court that [he] has

been the victim of intentional discrimination.” /d. at 256.

7 In light of this Court’s specific and repeated articulation of

this standard of proof in cases directly addressing the issue, we

find inexplicable petitioners’ attempted reliance on Pullman-

Standard vy. Swint, 456 U.S. 273, 289-290 (1982). Pullman-

Standard held that a factual finding that a particular seniority

system was not adopted with discriminatory intent was

reviewable only for clear error, and rejected the notion that in

that context discriminatory intent could be inferred from

evidence of disparate impact. Nothing in the decision suggests

that it implicates, let alone undercuts, anything that the Court

said a year earlier in Burdine—and repeated a year later in

Aikens.

17

legitimate, nondiscriminatory reason given by the

employer is in fact not the true reason for the

employment decision”).

Moreover, a rule that the employer is—or even may

be—entitled to judgment in its favor after the plaintiff

has convinced the trier of fact that all non-

discriminatory reasons put forward by the employer

are unworthy of belief would be inconsistent with the

premise that an employer that is unwilling or unable

to articulate a credible nondiscriminatory reason for

a challenged action is more likely than not concealing

a discriminatory reason. See Furnco Construction

Corp. v. Waters, 438 U.S. 567, 577 (1978). Tuat logical

inference, which the Court has explicitly stated

compels a judgment for the plaintiff if the employer

remains silent in the face of a prima facie case

(Burdine, 450 U.S. at 254 & n.7), is no less compelling

where the employer, rather than remaining silent,

offers a false explanation for its actions. If anything,

the inference of discrimination is stronger if the

employer offers a false explanation.” Accordingly, as

the court below held, Pet. App. A10, there is no logical

justification for placing an employer that fabricates a

nondiscriminatory explanation in a better position

* See, e.g., MacDissi v. Valmont Industries, Inc., 856 F.2d

1054, 1059 (8th Cir. 1988) (“As a matter of both common sense

and federal law, an employer’s submission of a discredited

explanation for firing a member of a protected class is itself

evidence which may persuade the finder of fact that such

unlawful discrimination actually occurred.”); Brooks v.

Monroe Systems for Business, Inc., 873 F.2d 202, 204 (8th

Cir.), cert. denied, 493 U.S. 853 (1989).

18

than an employer that remains silent in the face of a

prima facie case of discrimination.®

B. The McDonnell Douglas Order Of Proof

Properly Requires The Employer To Frame The

Factual Issues For Decision By Identifying The

Nondiscriminatory Explanations That The Plain-

tiff Must Refute

For the reasons stated above, the court of appeals

correctly held that once respondent discredited all of

the nondiscriminatory reasons advanced by petition-

ers, he had satisfied his ultimate burden of persuasion

under this Court’s decisions and was entitled to

judgment as a matter of law. Pet. App. A10-A11.

Petitioners argue (Pet. Br. 21), however, that even if

a plaintiff discredits all nondiscriminatory reasons

actually advanced by the employer, he “{has] not nec-

essarily eliminate[d] all lawful motives for the

employment decision.” They contend that such a

showing entitles the plaintiff to no more than

consideration by the trier of fact; and, on petitioners’

* A rule that the articulation of any facially legitimate

reason for a challenged action, no matter how incredible given

the facts of the case, ensures a defendant at least the possibility

of a favorable decision from the trier of fact would also create

perverse incentives for abuse of the judicial process by culpable

defendants. Although perhaps muted in the context of bench

trials, these incentives would become markedly more pro-

nounced (and more costly) in the context of jury trials, such as

those now available under recent statutory changes. See 42

U.S.C. 198la(c), enacted by the Civil Rights Act of 1991, Pub.

L. No. 102-166, §102, 105 Stat. 1073 (1991). Put bluntly, it

makes no sense, as a matter of law or of judicial administration,

to create incentives for defendants to lie rather than settle

meritorious cases.

19

view, the factfinder may depart entirely from the

position of either party and find that the employer

acted for some nondiscriminatory reason that is

“contained in the record,” although not identified by

the employer as the true reason for its actions."° Jd.

'© The courts of appeals are divided on the question of what

a plaintiff must prove to prevail in a Title VII case where there

is evidence of pretext. Petitioners’ position finds support in

decisions of the First, Fourth, Seventh, Tenth and Eleventh

Circuits which state, at least in dicta, that proof that the

employer’s own explanations for its actions are incredible is

insufficient by itself to compel (or in some cases even to

permit) judgment for the plaintiff. See, e.g., Goldman v. First

National Bank, No. 92-1773 (1st Cir. Feb. 18, 1993), slip op. 8

(dictum) (reviewing prior cases); Holder v. City of Raleigh, 867

F.2d 823, 827-828 (4th Cir. 1989); Benzies v. Illinois Dep't of

Mental Health & Developmental Disabilities, 810 F.2d 146, 148

(7th Cir.) (dictum), cert. denied, 483 U.S. 1006 (1987); EEOC v.

Flasher Co., No. 91-6279 (10th Cir. Dec. 29, 1992), slip op. 17-18

(dictum); Clark v. Huntsville City Bd. of Educ., 717 F.2d 525,

529 (11th Cir. 1983). Respondent’s contrary position (and that

of the Eighth Circuit in this case) finds support in decisions of

the Second, Third, Fifth, Sixth and District of Columbia

Circuits. See, e.g., brahim v. New York State Dep't of Health,

904 F.2d 161, 168 (2d Cir. 1990); Chipollini v. Spencer Gifts,

Inc., 814 F.2d 893, 898-900 (3d Cir.) (en banc), cert. dismissed,

483 U.S. 1052 (1987); Thornbrough v. Columbus & G. R.R., 760

F.2d 633, 639-640, 646-647 (5th Cir. 1985); Tye v. Board of

Education, 811 F.2d 315, 320 (6th Cir.), cert. denied, 484 U.S.

924 (1987); King v. Palmer, 778 F.2d 878, 881 (D.C. Cir. 1985).

There are, moreover, apparent inconsistencies among decisions

within several circuits. Compare, e.g., Thornbrough, supra,

with Bienkowski v. American Airlines, Inc., 851 F.2d 1503,

1508 & n.6 (5th Cir. 1988); Tye, supra, with Miller v. WF LI

Radio Inc., 687 F.2d 136, 138-139 (6th Cir. 1982); Clark, supra,

with Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554,

1564 (11th Cir. 1987). See generally Lanetot, The Defendant

20

at 17. The district court in this case adopted that

approach, faulting respondent for not disproving a

possible explanation for petitioners’ actions—per-

sonal animosity unrelated to race—that petitioners

themselves had never advanced during the course of

the trial. See Pet. App. A27. Any such rule would,

however, seriously undermine the fair and efficient

operation of the McDonnell Douglas framework of

proof.

As this Court has explained, that framework should

be viewed and applied as “a sensible, orderly way to

evaluate the evidence” in an employment discrimina-

tion case. Furnco, 438 U.S. at 577. In that light, the

probative value of proof that the reasons the employer

advances are unworthy of credence arises largely

because

we know from our experience that more often than

not people do not act in a totally arbitrary manner,

without any underlying reasons, especially in a

business setting. Thus, when all legitimate

reasons for rejecting an applicant have been

eliminated as possible reasons for the employer’s

actions, it is more likely than not the employer,

who we generally assume acts only with some

reason, based his decision on an impermissible

consideration such as race.

Ibid. As a theoretical matter, however, a given

employment decision might conceivably have been

justified by any number of reasons that would be

Lies and the Plaintiff Loses: The Fallacy of the “Pretext-Plus”

Rule in Employment Discrimination Cases, 43 Hast. L.J. 57, 71-

91 (1991) (collecting cases).

21

“legitimate” in the sense that they are not prohibited

by Title VII. But it would not be sensible or orderly,

or an efficient use of a trial court’s or the parties’

resources, to force the plaintiff to attempt to negate

all possible nondiscriminatory reasons for the

employer’s actions—including reasons that were

never even proffered by the employer itself.'' After

all, the employer is in the best position to know on

what basis it acted. See International Bhd. of

Teamsters v. United States, 431 U.S. at 359 n.45. If

the employer does not articulate a given reason, it is

at least more likely than not that that reason did not

in fact motivate the employer’s action.

The Court has made clear that in a Title VIL case,

“the allocation of burdens * ** is intended pro-

1! As the Tenth Circuit said in EEOC v. Flasher Co., No. 91-

6279 (Dec. 29, 1992), slip op. 11, “(t]he articulation of a facially,

nondiscriminatory reason * * * defines the parameters of the

trial, as the plaintiff then knows the precise reason that he or

she may try to show is only a pretext for an illegal

discriminatory motive. By articulating the reasons for the

plaintiffs termination, the defendant eliminates a myriad of

possible reasons that would otherwise have to be addressed.

That is, we require the defendant to identify and enunciate the

reasons for the termination at the outset, because there is no

limit to the potential number of reasons that could be raised at

trial. Otherwise litigation of discrimination claims would be

needlessly confused and delayed.” We find it difficult to

reconcile this sensible statement of the reasons for requiring

the employer to “defin{e] the parameters of the trial” with the

court’s later observation that proof that the reason given by the

employer is pretextual does not compel judgment for the

plaintiff. Slip op. 17-18. In any event, the court in Flasher

held that the legitimate reason advanced by the employer in

that case was not pretextual. /d. at 18.

22

gressively to sharpen the inquiry into the elusive

factual question of intentional discrimination,”

Burdine, 450 U.S. at 255 n.8, and “to bring the

litigants and the court expeditiously and fairly to this

ultimate question,” id. at 253. In particular, the

employer’s articulation of alleged nondiscriminatory

reasons for its actions is meant to move the inquiry

to “a new level of specificity,” and to “frame the

factual issue with sufficient clarity” so that the

parties—and the court—can move efficiently to the

final stage of the litigation. At that stage, the

_ plaintiff must carry his ultimate burden of proving

discrimination, but he can do so either by direct proof

of a discriminatory motivation, or by satisfying the

trier of fact that the explanations proffered by the

employer are pre-textual.'* Jd. at 255-256. Once the

employer’s stated reasons have been shown to be

false, allowing the fact finder to determine (or

speculate) that the employer acted with some other,

unarticulated motivation would vitiate this sensible

method for narrowing the issues to be addressed by

the parties and decided by the court or jury.

It is true that by proving that an employer’s stated

reasons are not its actual reasons, a plaintiff does not

necessarily rule out the possibility that the employer

might have acted for some unarticulated, nondis-

2 This Court’s emphasis in Burdine on the fact that “the

defendant's explanation of its legitimate reasons must be clear

and reasonably specific,” 450 U.S. at 258, at least in part to

satisfy “the requirement that the plaintiff be afforded ‘a full

and fair opportunity’ to demonstrate pretext,” ibid., clearly

implies that the demonstration required from the plaintiff

relates only to the reasons_actually placed in issue by the

defendant.

23

criminatory reason. But that is not the plaintiffs

burden. The plaintiff need only show that it was more

likely than not that the employer acted for a

discriminatory reason. Once the plaintiff has es-

tablished a prima facie case, he has, under McDonnell

Douglas, produced sufficient evidence to give rise to a

mandatory presumption to that effect. At that point,

it is both fair and sensible to require the defendant

employer, which is in the best position to ascertain

and demonstrate the true reasons for its own

personnel actions, to advance the decision-making

process by stating the “clear and reasonably specific”

explanation on which it intends to rely to justify its

challenged action. See Burdine, 450 U.S. at 258. An

employer that has not discriminated should always

have a plausible explanation for its actions—i.e., the

true one, which a plaintiff will be unable to discredit.

Irrational, mistaken, unattractive or even despicable

—but nondiscriminatory—reasons will shield an

employer from liability under Title VII, so long as the

employer articulates them and the trier of fact finds

them credible.'’* See, e.g., Pollard v. Rea Magnet

18 Some courts have suggested that an employer might

dissemble about its motivations in a Title VII action because its

real reasons for acting, while not prohibited by Title VII, would

cause it embarrassment—or predicate legal liability—in some

other context. See, e.g., Shager v. Upjohn Co., 913 F.2d 398,

401 (7th Cir. 1990); Pollard v. Rea Magnet Wire Co., 824 F.2d

557, 559 (7th Cir.), cert. denied, 484 U.S. 977 (1987). That is an

unremarkable consequence of being involved in legal

proceedings. The employer may of course choose to remain

silent in the Title VII action, preferring to run the risk of

unwarranted liability in that context rather than exposing

itself to some other and presumably greater cost; but there is

nothing unreasonable about forcing that choice, once the

24

Wire Co., 824 F.2d 557, 559 (7th Cir.) (employer’s

belief that plaintiff had lied about being injured was

mistaken, but not pretextual), cert. denied, 484 U.S.

977 (1987); Nix v. WLCY Radio/Rahall Commun-

ications, 738 F.2d 1181, 1187 (11th Cir. 1984) (mis-

taken belief that employee had broken a rule not

pretextual).

By contrast, the approach taken by the district

court in this case places an unreasonable burden on

Title VII plaintiffs. By ruling against respondent

despite finding that he had proved that all of his

former employer’s stated reasons for demoting and

discharging him were pretextual, the district court

effectively required him either to produce direct

evidence of discriminatory motive, or to rebut all

plaintiff has proved what he is required to prove in order to

raise a legally mandatory inference of discrimination. See

Lanctot, supra, 43 Hastings L.J. at 136-140. If, on the other

hand, the employer produces truthful evidence of its

motivations and thereby avoids liability in a Title VII action, it

can hardly complain about the possible collateral consequences

of having told the truth—particularly if the evidence reveals,

for example, some separate illegality, or violation of a

contractual obligation. See id. at 138. Such a predicament is

little different from, for example, that of a litigant who must

choose between bearing his burden of proof in a civil

proceeding and invoking his Fifth Amendment privilege to

remain silent because of possible collateral criminal conse-

quences. See, e.g., United States v. Rylander, 460 U.S. 752, 759

(1983) (“a dilemma demanding a choice between complete

silence and presenting a defense [in a civil case) has never been

thought an invasion of the privilege against compelled self

incrimination” (emphasis omitted)) (quoting Williams v.

Florida, 399 U.S. 78, 84 (1970)). Cf. Nix v. Whiteside, 475 U.S.

157, 173 (1986) (defendant has no “right” to use false evidence).

25

possible unarticulated reasons for petitioners’

actions. Requiring a plaintiff to prove the negative of

each and every possible motivation that the employer

might have had, rather than focusing on the reasons

that the employer has advanced, would deprive the

plaintiff of the “full and fair opportunity to

demonstrate pretext” emphasized by this Court in

Burdine, 450 U.S. at 256-258, and make a mockery of

the “sensible, orderly way to evaluate the evidence”

otherwise established by this Court’s cases. F'urnco,

438 U.S. at 577.

C. There Is No Evidence On The Record In This

Case Of A Nondiscriminatory Motive That Was

Not Articulated By Petitioners

Petitioners argue (Pet. Br. 16-17, 22-24) that

judgment for the plaintiff is not compelled upon a

showing of pretext if other reasons, not articulated by

the employer, are somehow “suggested by the

employer’s evidence” or, alternatively, “emerge dur-

ing the employee’s case.” Pet. Br. 16. As to the first

suggestion, for the reasons discussed in Part B we

find little merit in the notion that an employer should

have some right to ask a court or jury to speculate

about posible permissible motivations that it is

unable or unwilling to articulate. This Court in

Aikens summarized the factfinder’s job as being to

“decide which party’s explanation of the employer's

motivation it believes,” 460 U.S. at 716, not to range

freely over the record in search of hidden justifica-

tions advanced by neither side."

' Any such rule would also be substantially less manageable

in the context of cases tried to a jury, rather than to a court.

Under such a regime, a court would at least be required to

26

As to alternative explanations effectively raised by

the plaintiff himself, petitioners correctly note that

several lower courts, including the Eighth Circuit,

have held that a trial court is not compelled to find

discriminatory intent, even after a showing that an

employer’s stated reasons are false, in cases in which

additional reasons for the adverse employment action

are raised by the plaintiff and remain unrebutted at

the close of trial." We agree that such cases present

articulate for itself what it believed to be the real explanation

for the employer’s conduct, and support its position with

specific evidence from the record. Review of a jury verdict

for the defendant, on the other hand, would presumably

involve the question whether any rational jury could have

found that any unspecified nondiscriminatory explanation for

the employer’s conduct was fairly “suggested” by the record.

Aside from insulating many verdicts for the defendant from

effective review, such a standard would involve trial judges

and appellate courts in yet another round of speculation—this

time, twice removed from the reasons and evidence actually

advanced at trial by the one party in the best position to know

and be able to disclose the truth: the employer.

8 See, e.g., Galbraith v. Northern Telecom, Inc., 944 F.2d

275, 283 (6th Cir. 1991) (articulated reason clearly pretextual,

but no discrimination where complaint alleged plaintiff was

fired because of continued relationship with individual who

shot her on company property), cert. denied, 112 S. Ct. 1497

(1992); Visser v. Packer Engineering Assocs., 924 F.2d 655, 657

(7th Cir. 1991) (en banc) (plaintiff's evidence of pretext proved

action really taken for different but nondiscriminatory reason);

Maguire v. Marquette University, 814 F.2d 1213 (7th Cir. 1987)

(pendent claim alleged action taken for nondiscriminatory

reason); Burger v. McGilley Memorial Chapels, Inc., 856 F.2d

1046, 1047-1048, 1051 & n.9 (8th Cir. 1988) (plaintiff’s evidence

of pretext included letters from firing official demonstrating

different but nondiscriminatory reasons).

27

a significantly different issue from that presented

here, because a plaintiff who asserts or proves a

nondiscriminatory reason, even if unstated by the

defendant, effectively undermines his own case.

Moreover, under those circumstances the plaintiff

cannot convincingly argue that he did not have an

adequate opportunity to rebut evidence that he

himself has offered. Petitioners’ contention to the

contrary notwithstanding, however, this is not such a

case.

Petitioners state that “the district court found that

[respondent] introduced through his own testimony

evidence of personal animosity his immediate super-

visor had toward him,” and that the “court made the

credibility determination that the supervisor’s

personal animosity was the truthful explanation for

the employment decision.” Pet. Br. 11; see also id. at

22-24. That characterization of the record and the

district court’s decision is inaccurate.

First, it is not entirely clear that the district court

found as a fact that respondent’s demotion and

discharge were motivated by personal animosity. The

court stated only (i) that “although [respondent] has

proven the existence of a crusade to terminate him, he

has not proven that the crusade was racially rather

than personally motivated,” and (ii) that while

respondent had demonstrated that he was treated

more harshly than others, “[iJt is not clear * * * that

[respondent’s] race was the motivation for the harsh

discipline.” Pet. App. A27. Although the first

statement does suggest, as the court of appeals

inferred (id. at Al0), that the district court believed

that the prison administration was motivated by

personal animosity toward respondent, the court

28

pointed to no evidence introduced by either party that

would support that proposition. Thus, a fair reading

of the district court’s decision reveals either a wholly

unsupported factual finding, or merely a holding that

there was insufficient evidence of racial motivation

beyond respondent’s prima facie case and his further

showing of pretext. As the court of appeals held, the

first possibility would represent a clearly erroneous

factual “assumption”; the second is legally unsound

under McDonnell Douglas, Burdine, and Aikens.

Pet. App. Al0.

Second, petitioners rely entirely on evidence

indicating that respondent’s immediate supervisor,

John Powell, demonstrated hostility toward respon-

dent at the time of the confrontation that led to his

discharge. See Pet. Br. 22-24. Even persuasive

evidence that Powell was “personally” hostile to

respondent would of course be far from conclusive

with respect to the liability of petitioners in this case,

because the final decisions regarding discipline for

respondent were made by petitioners, and not by

Powell.'® See Pet. App. Al7 n.6. In any event, the

evidence that petitioners now cite as disclosing an

unarticulated nondiscriminatory motive for their

treatment of respondent establishes no such thing.

There is no question that Powell was hostile to

respondent; the question is why. The evidence cited

© We note that, if anything, the record would appear to

refute the suggestion that Powell was “personally” hostile to

respondent. When asked on cross-examination whether there

had been “difficulties” between the two, Powell responded: “I

can’t say that there was difficulties between he and I. At no

time was there any kind of personal—.” The response was cut

off by a further question. J.A. 46; Tr. 2-88.

29

by petitioners does nothing to dispel the proper

inference, based on the circumstances, on respon-

dent’s establishment of his prima facie case, and on

petitioners’ fabricated explanation, that the real

reason was respondent’s race. See, e.g., Burdine, 450

U.S. at 255 n.10.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

WILLIAM C. BRYSON

Acting Solicitor General

DONALD R. LIVINGSTON — . p dena Att

C ; cting Assistan orney

General Counse General

GWENDOLYN YOUNG REAMS

Associate General Counsel EDWIN S. KNEEDLER

Assistant to the Solicitor

VINCENT J. BLACKWOOD

Assistant General Counsel Conevat

EDWARD C. DUMONT

mane 5s. Sovnen Assistant to the Solicitor

Attorney G !

Equal Employment Oppor- . . »

tunity Commission AVID K. FLYNN

REBECCA K. TROTH

Attorneys

MARCH 1993