McKissick v. Carmichael Jr. Brief for Appellants

This item is featured in:

Floyd McKissick Jr. Oral History

    No. 87-271

3)n tfje Supreme Court of ttje Mniteb states?
O c to ber  T e r m , 1987

H a r b iso n -W a lk er  R e f r a c t o r ie s , a D ivision  o f
D resser  I n d u st r ie s , In c ., pe t it io n e r  .— .

HPJZOILflKJT|V.

E u g en e  F . B r ie c k ; m j y | |  5 ,

ON WRIT OF CERTIORARIi 
THE UNITED STA TES COURT OF APREA-IN-HAR - - 

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES AND THE EQUAL 
EMPLOYMENT OPPORTUNITY COMMISSION AS 

AMICI CURIAE SUPPORTING RESPONDENT

Charles Fried 
Solicitor General

Wm. Bradford Reynolds 
Assistant Attorney General

Thomas W. Merrill 
Deputy Solicitor General

Charles A. Rothfeld 
Assistant to the Solicitor General 
Department o f  Justice 
Washington, D.C. 20530 
(202) 633-2217

Charles A. Shanor 
General Counsel
Equal Employment Opportunity Commission 
Washington, D. C. 20507



QUESTION PRESENTED

Whether a plaintiff who is contesting the termination of 
his employment in an action under the Age Discrimination 
in Employment Act of 1967, 29 U.S.C. (& Supp. Ill) 621 
et seq., may withstand the employer’s motion for summary 
judgment by using the employer’s post-termination actions 
to establish that the employer’s preferred reason for the ter­
mination was a pretext for unlawful discrimination.

(I)





TABLE OF CONTENTS

Page
Interest of the United States and Equal Employment Opportu­

nity Commission .................................    1
Statement ....................................................................................... 2
Summary of argument ................................................................  5
Argument ......................................................................................  7
Conclusion ....................................................................................  20

TABLE OF AUTHORITIES

Cases:
Anderson v. Liberty Lobby, Inc., 477 U.S. 242

(1986) ......................................................................7, 12, 18, 19
Board o f  Trustees v. Sweeney, 439 U.S. 24 (1978) . . . .  9
Celotex Corp. v. Catrett, 477 U.S. 317 (1986).............. 11, 18
Dale v. Chicago Tribune Co., 797 F.2d 458 (7th Cir.

1986), cert, denied, 479 U.S. 1066 (1987) .................. 19
Dea v. Look, 810 F.2d 12 (1st Cir. 1987)......................  14, 15
Federal Trade Comm’n v. Cement Institute, 333 U.S. 683

(1948) ................................................................................ 16-17
First N at’l Bank v. Cities Service Co., 391 U.S. 253 (1968) 19
Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978) . 14
Gray v. New England Tel. & Tel. Co., 792 F.2d 251 (1st

Cir. 1986) ...............    16
Jorgensen v. Modern Woodmen o f  America, 761 F.2d 502

(8th Cir. 1985) .................................................................. 16
Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979) .. 16, 17
Lorillard v. Pons, 434 U.S. 575 (1978) ............................  7
Matsushita Electric Industrial Co. v. Zenith Radio Corp.,

475 U.S. 574 (1986) ........................................................ 19
McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973) ...........................  5 , 8 , 9 , 13
Parcinski v. Outlet Co., 673 F.2d 34 (2d Cir. 1982), cert.

denied, 459 U.S. 1103 (1983) ........................................ 16
Teamsters v. United States, 431 U.S. 324 (1977)............  12
Texas Dep’t o f  Community Affairs v. Burdine, 450 U.S.

248 (1981) ........................................................................5, 8, 9,
13, 14, 15, 16

(H I)



Cases— Continued: Page
Trans World Airlines v. Thurston, 469 U.S. I l l

(1985) ................................   7,14
United Mine Workers v. Pennington, 381 U.S. 657

(1965) ................................................   16
United States Postal Service Board o f  Governors v. Aikens,

460 U.S. 711 (1983) ...................................... .9, 10, 12, 13, 14
White v. Vathally, 732 F.2d 1037 (1st Cir.) cert, denied,

469 U.S. 933 (1984) ......................................................... 15

Statutes and rules:

Age Discrimination in Employment Act of 1967, 29 U.S.C.
(& Supp. Ill) 621 et seq...................................................  1

29 U.S.C. 633a ......................    1
Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e et seq. 1

42 U.S.C. 2000e-16 ......................................    1
7, 17, 19Fed. R. Civ. P. 56



3n  tfje Supreme Court of tfjc Hmteb &tate£
O c to b er  T e r m , 1987

No. 87-271

H a rb iso n -W a lk er  R e f r a c t o r ie s , a D iv isio n  o f  
D resser  In d u st r ie s , I n c ., pe t it io n e r

v.
E u g en e  F . B rieck

ON WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS FOR 

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES AND THE EQUAL 
EMPLOYMENT OPPORTUNITY COMMISSION AS 

AMICI CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES AND THE 
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

This case concerns the nature and extent of the plaintiffs 
evidence required to withstand a defendant’s motion for 
summary judgment under the Age Discrimination in 
Employment Act of 1967 (ADEA), 29 U.S.C. (& Supp. Ill) 
621 et seq. The Equal Employment Opportunity Commis­
sion (EEOC) has responsibility for the administration, in­
terpretation, and enforcement of the ADEA. In addition, 
the Attorney General and the EEOC have substantial 
responsibility for the enforcement of Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. 2000e et seq., upon which 
the ADEA is modeled. The federal government also is an 
employer subject both to the ADEA (29 U.S.C. 633a) and 
to Title VII (42 U.S.C. 2000e-16). Resolution of the issue 
here accordingly will affect the government’s enforcement

(1)



2

efforts under the ADEA and Title VII, as well as the govern­
ment’s role in litigation under those statutes as a defendant.

STATEMENT

Petitioner is a producer of ceramic brick products. Until 
1982, it employed respondent as a brick installation 
specialist. In July of that year petitioner laid off respond­
ent, then aged 55, and another installation specialist, then 
aged 59. Approximately one month later, petitioner fired 
a third installation specialist, then aged 59. In November 
1982 petitioner laid off its final installation specialist, Hugh 
Faust, then aged 39. Faust was recalled in July 1983. 
Respondent, pointing to his own discharge and to the subse­
quent recall of the younger Faust, then brought suit under 
the ADEA, alleging that petitioner had discriminated against 
him on the basis of age. Pet. App. 12a, 13a.

The district court granted petitioner summary judgment 
(Pet. App. 12a-21a).1 The court found that respondent had 
made out a prima facie case of discrimination by demon­
strating that “[h]e was 55 years old when he was laid off” 
and that “[h]e certainly was qualified to work as an installa­
tion specialist, the job now held by Faust, a younger em­
ployee” (id. at 15a). The court was persuaded, however, by 
petitioner’s “explanation of its bona fide business reasons 
behind its action” (ibid.). As the court explained, “the chief 
reason for retaining Faust, according to [petitioner], was 
his experience as a sales correspondent. He thus was prac­
ticed in working with records and written reports, in cus­
tomer relations, and in preparing bids and quotations.” In 
contrast, respondent lacked experience in these areas. Id. 
at 15a, 16a.

1 The court also rejected respondent’s claims of breach of contract 
and tortious infliction of emotional distress (Pet. App. 17a-20a). Those 
rulings were affirmed by the court of appeals (id. at 6a-7a) and are not 
at issue here.



3

The court rejected respondent’s “attempt to expose these 
alleged justifications as [a] pretext by coloring Faust’s prior 
experience as unimportant” (Pet. App. 16a). The court noted 
that respondent did “not refute Faust’s prior experience with 
office matters such as price quotations, customer contact, 
and setting priorities for orders from the manufacturing 
plant” (ibid.). And the court was unpersuaded by respond­
ent’s argument that Faust’s experience as a sales corre­
spondent was irrelevant because “Faust spends about three- 
fourths of his time on installation work” (id. at 16a-17a). 
In the court’s view, “[a]ny question about the appropriate­
ness of how Faust now spends his time edges into the area 
of judicial scrutiny of business decisions, which is not part 
of our function. We nonetheless consider it plausible that 
the importance of an employee’s related experience, whether 
or not frequently applied, increases under the scaled-down 
business operations which in fact existed.” Id. at 17a. The 
court therefore concluded that it could not “find that age 
was a determinative factor in the decision to lay off [re­
spondent]” (ibid.). For that reason, the district court granted 
petitioner summary judgment.2

The court of appeals reversed, holding that the award of 
summary judgment to petitioner was improper (Pet. App. 
la-1 la). The court found it undisputed that respondent had 
made out a prima facie case of discrimination (id. at 2a-3a). 
Conversely, the court noted that respondent “introduced

2 The district court reaffirmed its decision on respondent’s motion 
for reconsideration (Pet. App. 22a-25a), reiterating its view that, while 
respondent had made out a prima facie case, he had failed to demon­
strate that petitioner’s explanation of its action was a pretext for 
discrimination. The court opined that, “[i]n attempting to carry this 
burden, [respondent] failed to forge the critical link between [peti­
tioner’s] actions and [respondent’s] age with relevant proof” (id. at 23a 
(emphasis in original)).



4

no evidence to counter the assertion that Faust’s prior ex­
perience with office matters such as price quotations, 
customer contact, and setting priorities for orders from the 
manufacturing plan[t], distinguishes his qualifications from 
those of [respondent]” (id. at 4a). But the court found a 
disputed issue of fact concerning the question whether 
Faust’s acknowledged office experience was the actual 
reason for his retention.

The court noted respondent’s evidence that Faust spent 
some 75% of his time on installation work, and that “[t]he 
remaining time was spent preparing reports of installations, 
an activity performed by all installation specialists including 
[respondent], doing some filing and working on margins” 
(Pet. App. 5a). This evidence, the court found, “is incon­
sistent with [petitioner’s] expressed need for diverse skills 
gained from Faust’s marketing and sales experience. This 
evidence raises a question of fact as to whether the employer 
really believed that Faust’s ‘varied’ experience made him 
more qualified than [respondent] to perform the job func­
tions remaining in the reduced business environment.” Ibid. 
The court added (id. at 5a-6a):

if the jury finds that the asserted ‘more varied’ skills 
were neither employed nor required in the position for 
which Faust was preferred, the jury might find the 
employer’s asserted reason for preferring Faust to be 
pretextual * * *. The district court erred in resolving 
this factual dispute. The question is not whether the 
employer’s asserted reason is plausible, but whether 
there is also evidence of record which, if credited, could 
render the reason implausible.

The court of appeals also rejected the district court’s sug­
gestion that respondent’s argument amounted to an attack 
on petitioner’s business judgment. The court of appeals ex­
plained that “[t]he question on summary judgment is



5

whether evidence of the duties actually performed by Faust 
upon his recall could cast doubt on the [petitioner’s] asser­
tion that Faust was retained because of his more diverse 
skills. We find the answer to be in the affirmative.” Pet. 
App. 6a. The court of appeals therefore reversed the grant 
of summary judgment and remanded the case for trial.3

SUMMARY OF ARGUMENT

The three-step framework for resolving ADEA actions, 
first set out in the Title VII setting in McDonnell Douglas 
Corp. v. Green, 411 U.S. 792 (1973), is familiar. The plain­
tiff begins by establishing a prima facie case; the burden 
then shifts to the defendant to proffer a legitimate, non- 
discriminatory reason for its action. At the third stage of 
the McDonnell Douglas framework —the one at issue in this 
case —the plaintiff then is given an opportunity to show that 
the proffered reason is a pretext for discrimination. As the 
Court has expressly explained, a plaintiff may make this 
showing in one of two ways: “either directly by persuading 
the court that a discriminatory reason more likely motivated 
the employer or indirectly by showing that the employer’s 
proffered explanation is unworthy of credence.” Texas Dep’t 
o f Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). 
The court of appeals here faithfully followed this approach. 
Reviewing the record, the court pointed to evidence that 
Faust spent only a small percentage of his time doing things 
that respondent was not trained to do. This evidence, the

3 Judge Weis dissented (Pet. App. 8a-l la). Noting Faust’s superior 
skills as a sales representative, Judge Weis reasoned that “[o]ne must 
question * * * whether [respondent] has demonstrated the implausibility 
of the [petitioner’s] asserted reasons for preferring Faust when [re­
spondent] admits his skills do not match his rival’s diverse abilities” 
(id. at 10a). Judge Weis therefore concluded that “a jury could not prop­
erly decide in the [respondent’s] favor” (id. at 11a).



6

court explained, tended to show pretext because it “is in­
consistent with [petitioner’s] expressed need for diverse 
skills.” The court therefore concluded that the evidence of 
Faust’s actual duties could lead a jury to “find [petitioner’s] 
asserted reason for preferring Faust to be pretextual.” Pet. 
App. 5a.

Petitioner challenges the court of appeals’ analysis by 
asserting that a plaintiff who has established a prima facie 
case in an ADEA action may rebut an employer’s proffered, 
nondiscriminatory explanation of its actions only by offer­
ing evidence that itself directly tends to establish discrimina­
tion; petitioner contends that it is not enough for the plain­
tiff to show that the employer’s stated explanation is unbe­
lievable. This argument, however, is flatly inconsistent with 
Burdine's conclusion that pretext may be established by 
showing that the “employer’s proffered explanation is un­
worthy of credence.” More fundamentally, petitioner’s 
analysis cannot be squared with the logic of the McDon­
nell Douglas framework. Evidence establishing a prima facie 
case, if unrebutted by the defendant, entitles the plaintiff 
to summary judgment; if the plaintiff can show that the 
defendant’s proffered explanation is unbelievable, he should 
be left, at the very least, in the same position that he would 
have been in had his prima facie case not been rebutted in 
the first place. Indeed, a showing of pretext should, if 
anything, strengthen the plaintiff’s case, since a defendant 
who offers an unbelievable response to an accusation of 
discrimination is likely to have something to hide.

Petitioner also argues that evidence of the duties actual­
ly assigned to Faust after his recall should not have been 
considered by the court of appeals because that evidence 
goes only to the soundness of petitioner’s business judgment. 
This argument is grounded on a misstatement of the use 
to which the disputed evidence was put. Respondent is not 
arguing that petitioner was unwise in thinking that it



7

would need an employee with training as a sales corre­
spondent; respondent instead wants to use Faust’s post-recall 
duties as evidence that petitioner never had any intention 
of using Faust as a sales correspondent. Since an employer’s 
actual conduct surely sheds at least some light on its past 
intentions, there is no reason to deny a factfinder use of 
the sort of evidence offered by respondent here.

Petitioner’s final argument —that the court of appeals 
departed from the summary judgment standards set out in 
Fed. R. Civ. P. 56 —amounts to a quibble with the court 
of appeals’ assessment of the facts of record. The court ex­
pressly found that respondent’s evidence “raises a question 
of fact as to whether [petitioner] really believed that Faust’s 
‘varied’ experience made him more qualified than [respond­
ent]” (Pet. App. 5a), and that this evidence might lead a 
jury to find that petitioner’s proffered justification was a 
pretext for discrimination. The court below thus followed 
this Court’s admonition that “summary judgment will not 
lie if a dispute about a material fact is ‘genuine,’ that is, 
if the evidence is such that a reasonable jury could return 
a verdict for the nonmoving party.” Anderson v. Liberty 
Lobby, Inc., A ll U.S. 242, 248 (1986). Whatever the merits 
of the court of appeals’ assessment of the record, its legal 
analysis was entirely sound.

ARGUMENT

This is an unexceptional case. In finding an award of sum­
mary judgment inappropriate, the court of appeals properly 
judged the record here under the standard for resolving Ti­
tle VII (and thus ADEA)4 cases that has repeatedly been

4 “[T]he substantive provisions of the ADEA ‘were derived in haec 
verba from Title VII’ ‘and apply with equal force.’ ” Trans World Air­
lines v. Thurston, 469 U.S. I l l ,  121 (1985) (quoting Lorillard v. Pons, 
434 U.S. 575, 584 (1978)). As petitioner notes (Br. 12-13 n.5), the courts



8

applied by this Court. Petitioner’s challenge to the holding 
below therefore amounts, at bottom, to a double-barreled 
attack on established Title VII doctrine and on the court 
of appeals’ assessment of the facts of record in light of that 
doctrine. Both aspects of that challenge should be rejected.

1. This Court, in a series of cases beginning with 
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), 
has set forth the “allocation of burdens and order of presen­
tation of proof in a Title VII case alleging discriminatory 
treatment.” Texas Dep’t o f  Community Affairs v. Burdine, 
450 U.S. 248, 252 (1981). This 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, nondis- 
criminatory reason for the employee’s rejection.” Third, 
should the defendant carry this burden, the plaintiff 
must then have an opportunity to prove by a pre­
ponderance 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).

This Court also has fleshed out the nature of the inquiry 
at each step of McDonnell Douglas framework. As both 
courts below recognized, a plaintiff in an ADEA action may 
make out a prima facie case of discrimination by showing 
that he is in the protected class (that is, that he is between 
40 and 65 years of age), that he was qualified for a given 
position, that he was denied the position (or subjected to

accordingly have, with rare exceptions, applied the McDonnell Douglas 
framework in ADEA cases.



9

some other adverse personnel action), and that a younger 
person received favorable treatment vis-a-vis the same or 
an equivalent position. See Burdine, 450 U.S. at 253 & n.6; 
McDonnell Douglas, 411 U.S. at 802. Establishment of a 
prima facie case raises a presumption that the plaintiff was 
a victim of discrimination. See Burdine, 450 U.S. at 254. 
The burden then passes to the defendant to “produc[e] 
evidence that the plaintiff was rejected, or someone else was 
preferred, for a legitimate, nondiscriminatory reason” 
{ibid.)- At this second stage of the process, “[t]he defend­
ant need not persuade the court that it was actually 
motivated by the proferred reasons” (ibid.); the employer 
“need only produce admissible evidence which would allow 
the trier of fact rationally to conclude that the employment 
decision had not been motivated by discriminatory animus” 
{id. at 257). See Board o f  Trustees v. Sweeney, 439 U.S. 
24, 25 n.2 (1978). If the defendant satisfies this burden, “the 
presumption raised by the prima facie case is rebutted” {Bur­
dine, 450 U.S. at 255).

The case then moves to the third stage of the McDonnell 
Douglas formulation —the one directly at issue in this 
case —where the plaintiff is given “the opportunity to 
demonstrate that the proffered reason was not the true 
reason for the employment decision” {Burdine, 450 U.S. at 
256). The plaintiff “may succeed in this either directly by 
persuading the court that a discriminatory reason more like­
ly motivated the employer or indirectly by showing that the 
employer’s proffered explanation is unworthy of credence” 
{ibid.). See United States Postal Service Board o f  Gover­
nors v. Aikens, 460 U.S. 711, 716 (1983). A plaintiff thus 
may establish pretext within the meaning of McDonnell 
Douglas and Burdine simply by showing that the employer’s 
proffered explanation is unbelievable: “the McDonnell 
Douglas framework requires that a plaintiff prevail when 
at the third stage of a Title VII trial he demonstrates that



10

the legitimate, nondiscriminatory reason given by the 
employer is in fact not the true reason for the employment 
decision” (Aikens, 460 U.S. at 718 (Blackmun, J., 
concurring)).

In this case, the court of appeals faithfully followed the 
approach set out in McDonnell Douglas and Burdine. It is 
conceded that respondent made out a prima facie case of 
age discrimination, and it is plain that petitioner offered 
evidence supporting a legitimate reason for its decision to 
retain (and then recall) Faust rather than respondent. Turn­
ing to the third step in the McDonnell Douglas framework, 
the court of appeals held that summary judgment for peti­
tioner was inappropriate because “the record * * * contains 
‘evidence of inconsistencies and implausibilities in the 
employer’s proferred reasons for discharge (which) 
reasonably could support an inference that the employer 
did not act for (those) nondiscriminatory reasons’ ” (Pet. 
App. 2a (citation omitted; emphasis in original)). In par­
ticular, the court pointed to evidence that Faust spent only 
a relatively small percentage of his time doing the things 
that respondent was not trained to do.5 This evidence, the

5 Petitioner’s statement that “Faust worked less than 25 percent of 
his time on projects for which Respondent was not trained” (Br. 20) 
is somewhat misleading. Faust’s deposition testimony indicated that he 
spent approximately 75% of his time doing installation work (C.A. App. 
325a). Much of the remainder of his time was spent writing reports of 
installations —a type of work that had been done by all installation 
specialists, including respondent (id. at 326a). In addition, Faust did 
“some gofer work like getting drawings out to the works, to salesmen” 
{ibid.). Faust indicated that he spent only a small percentage of his time 
on his remaining duties, which included filing and “working on margins” 
{id. at 325a, 326a). The record therefore suggests that Faust devoted 
a fairly small amount of time to duties for which his special skills were 
relevant. Exactly how much of his time was spent on those duties is 
unclear; the record shows only that it was considerably less than 25% 
but greater than zero. A more accurate assessment of how much time



11

court found, “is inconsistent with [petitioner’s] expressed 
need for diverse skills” and therefore “raises a question of 
fact as to whether [petitioner] really believed that Faust’s 
‘varied’ experience made him more qualified than [respond­
ent]” (id. at 5a). The court accordingly concluded that 
evidence of the duties actually performed by Faust could 
lead a jury to “find [petitioner’s] asserted reason for pre­
ferring Faust to be pretextual” (ibid.).

The court of appeals thus reasoned, sensibly enough, that 
an examination of the duties an employer actually assigns 
to its employee may shed light on the employer’s motiva­
tion in recalling that employee. Because petitioner did not 
(for the most part) assign Faust duties that called for use 
of his experience as a sales correspondent, the court con­
cluded that a jury might find petitioner to be dissembling 
when it stated that Faust’s training in that area was the 
reason for his recall. In the language of Burdine, then, the 
court of appeals held only that the question whether “[peti­
tioner’s] proffered explanation is unworthy of credence” (450 
U.S. at 256) should be put to the jury. Of course, it is pos­
sible to challenge the court of appeals’ assessment of the 
facts of record; it is arguable that respondent’s evidence — 
which did not refute the contention that petitioner used 
Faust’s office skills at least some of the time —was not suf­
ficiently probative to raise real doubts about petitioner’s 
veracity. But that sort of assessment of the record is one 
that this Court typically leaves for the lower courts. See 
generally Celotex Corp. v. Catrett, 411 U.S. 317, 327 
(1986).6 There is no special reason to depart from that prac­
tice here, and that should be the end of this case.

Faust actually spent working on margins or other tasks that respondent 
was not trained to do is a key unresolved issue of material fact that 
could be addressed at trial.

6 This is not a case where the court of appeals set aside the district 
court’s factual findings. The district court did not determine that an



12

2. Petitioner nevertheless makes two arguments relating 
to the ADEA in challenging the decision below. Petitioner 
asserts, first, that the evidence used by a plaintiff at the third 
McDonnell Douglas stage to disprove an employer’s prof­
fered nondiscriminatory explanation for its action must itself 
tend to establish discrimination; it is not enough, petitioner 
asserts, for the plaintiff to show only that the employer’s 
stated explanation was not believable. Second, petitioner 
asserts that respondent’s evidence of pretext in this case — 
evidence of the duties petitioner assigned to Faust after he 
was recalled —may not be taken into account because that 
evidence somehow involves a consideration of petitioner’s 
business judgment. Neither of these arguments has merit.

a. The precise contours of petitioner’s first argument 
(Pet. Br. 12-18)) are hazy. Petitioner recognizes that, even 
at the third McDonnell Douglas stage, an ADEA plaintiff 
“need not produce direct evidence of discriminatory intent” 
(Br. 14), and this observation plainly is correct. See Aikens, 
460 U.S. at 714 n.3; Teamsters v. United States, 431 U.S. 
324, 358 n.44 (1977). At the same time, however, petitioner 
nevertheless seems to assert (Br. 15-16) that the evidence 
used to establish pretext must itself tend to prove dis­

inference of pretext on the part of petitioner could not reasonably be 
drawn from respondent’s evidence about Faust’s actual post-recall 
duties. Instead, the district court awarded petitioner summary judg­
ment because, even in light of respondent’s evidence, petitioner’s prof­
fered explanation remained “plausible” (Pet. App. 17a). As the court 
of appeals explained, however, at the summary judgment stage “[t]he 
question is not whether the employer’s asserted reason is plausible, but 
whether there is also evidence of record which, if credited, could render 
the reason implausible” (id. at 5a-6a). See Anderson v. Liberty Lobby, 
Inc., A ll U.S. 242, 249 (1986); pages 17-20, infra. The court of ap­
peals found such evidence here (Pet. App. 5a, 6a).



13

crimination. Petitioner therefore appears to believe (see id. 
at 17) that evidence showing only that the employer’s stated 
rationale is not its real rationale —rather than affirmative­
ly showing that the real rationale is discrimination —cannot 
be used to establish pretext. Evidence that is itself probative 
of discrimination, petitioner concludes, must be offered at 
the third McDonnell Douglas stage “to forge [a] link be­
tween the challenged decision and age discrimination” (Br. 
18).

This argument, in our view, amounts to little more than 
an oblique attack on established Title VII doctrine. Peti­
tioner’s assertion that direct evidence of discrimination must 
come into the case at the third McDonnell Douglas stage 
is simply inconsistent with the Court’s observation in Bur- 
dine that a plaintiff may establish pretext “indirectly by 
showing that the employer’s proffered explanation is un­
worthy of credence” (450 U.S. at 256). See Aikens, 460 U.S. 
at 718 (Blackmun, J., concurring).7 Moreover, the Court’s 
observation in Burdine follows logically from the McDon­
nell Douglas framework. Evidence establishing a prima facie 
case under the ADEA, if unrebutted by the defendant, en­
titles the plaintiff to judgment on the merits. Burdine, 450 
U.S. at 254. And if the plaintiff shows that the defendant’s 
proffered explanation is a pretext, he should be left, at the 
very least, in the same position he would be in if he had 
established an unrebutted prima facie case. Cf. Fed. R. 
Evid. 301. Indeed, such a showing by the plaintiff should, 
if anything, strengthen his case, since a defendant who offers 
an unbelievable response to an accusation of discrimina­
tion is likely to have something to hide —something that,

7 Of course, a plaintiff also may establish pretext by adducing direct 
evidence of discrimination. See McDonnell Douglas, 411 U.S. at 
804-805.



14

in the context of an ADEA action, is likely to be improper 
animus.8

The nature of a prima facie case under the ADEA also 
points up a fundamental flaw in petitioner’s reasoning: direct 
evidence of improper animus is not necessary to “forge [a] 
link between the challenged decision and age discrimina­
tion” (Pet. Br. 18) because such a link is already forged by 
the establishment of a prima facie case. The Court has 
recognized that “[t]here will seldom be ‘eyewitness’ testimony 
as to the employer’s mental processes” (Aikens, 460 U.S. 
at 716). It therefore developed a framework that requires 
a plaintiff to “eliminate[ ] the most common non- 
discriminatory reasons for the plaintiff’s rejection” (Bur- 
dine, 450 U.S. at 254) by establishing the prima facie case. 
When the plaintiff makes out such a prima facie case, the 
Court reasoned, it is “more likely than not” that the defend­
ant’s action was the result of discrimination. Furnco Constr. 
Corp. v. Waters, 438 U.S. 567, 576, 577 (1978). See Trans 
World Airlines v. Thurston, 469 U.S. I l l ,  121 (1985). That 
is why establishment of the prima facie case “creates a 
presumption that the employer unlawfully discriminated 
against the employee” {Burdine, 450 U.S. at 254).9

8 It is possible that an employer might lie about its reasons for 
discharging an employee even when its real reason is not discriminatory 
animus. See, e.g., Dea v. Look, 810 F.2d 12, 14-15 (1st Cir. 1987) 
(employee asserted that he was dismissed in an attempt to shift the blame 
for pilferage from superiors). If that real reason is established in the 
course of the plaintiff’s attempt to show pretext, however, it will “merely 
provide another reason, totally unrelated to age, for [the employee’s] 
discharge” (id. at 15), and it accordingly will defeat the plaintiffs case. 
If, on the other hand, the proffered reason for the employer’s action 
is disproved while the real reason is not apparent from the record, the 
prima facie case that remains ought to go forward.

9 So far as we are aware, the First Circuit is the only court that has 
expressed the view that a plaintiff must do more than demonstrate that 
the employer’s proffered rationale is invalid, and it has done so only



15

Of course, “[a] satisfactory explanation by the defendant 
destroys the legally mandatory inference of discrimination 
arising from the plaintiffs initial evidence” (Burdine, 450 
U.S. at 255 n.10). But that does not mean, as petitioner 
seems to assert (Br. 18), that the mere proffer of a legitimate 
reason for the defendant’s action eliminates all evidence 
from the case on which the jury could base a finding of 
discrimination. Once the defendant proffers its explanation, 
the jury may look to the entire record, including the evidence 
that made up the prima facie case and “inferences properly 
drawn therefrom” (Burdine, 450 U.S. at 255 n. 10), in order 
to determine whether the defendant’s explanation is pretex- 
tual. “Indeed, there may be some cases where the plaintiffs 
initial evidence, combined with effective cross-examination 
of the defendant, will suffice to discredit the defendant’s 
explanation.” Ibid.'0 The evidence that established respond­
ent’s prima facie case here thus provides the link between 
discriminatory animus and petitioner’s actions. If petitioner’s 
proffered explanation is discredited, that link remains intact.

b. Petitioner’s second argument under the ADEA —that 
the court of appeals somehow second-guessed petitioner’s 10

in dicta. See Dea, 810 F.2d at 14-15 (plaintiff himself supplied non- 
discriminatory rationale for employer’s action); White v. Vathally, 732 
F.2d 1037, 1042-1043 (1st Cir.), cert, denied, 469 U.S. 933 (1984) (the 
defendant’s “proffered explanation was not clearly ‘unworthy of 
credence’ ”). Indeed, the First Circuit also has recognized that “ ‘[a] 
weak correlation between the articulated criteria [for filling a job] and 
job performance may support an inference that the employer’s prof­
fered explanation was a pretext for illegal discrimination,’ ” although 
“ ‘it does not compel such an inference’ ” (732 F.2d at 1040 (citation 
omitted)).

10 This is not to say that every action in which a prima facie case 
is established should go to the jury: as we explain below (pages 19-20, 
infra), a district judge may grant summary judgment to the defendant 
if he concludes, after reviewing all of the evidence in the record, that 
a rational jury could not find the employer’s proffered justification to 
be pretextual.



16

business judgment when it considered evidence of Faust’s 
actual post-recall duties (Br. 19-20) —is grounded on a 
misstatement of the use to which that evidence was put. It 
is true, of course, that a plaintiff, to establish pretext at 
the third McDonnell Douglas stage, must do more than 
“show that the employer made an unwise business decision, 
or an unnecessary personnel move” (Gray v. New England 
Tel. & Tel. Co., 792 F.2d 251, 255 (1st Cir. 1986)); “[t]he 
employer’s stated legitimate reason must be reasonably ar­
ticulated and nondiscriminatory, but does not have to be 
a reason that the judge or jurors would act on or approve.” 
Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 
1979). See Jorgensen v. Modern Woodmen o f America, 761 
F,2d 502, 505 (8th Cir. 1985); Parcinski v. Outlet Co., 673 
F.2d 34, 37 (2d Cir. 1982), cert, denied, 459 U.S. 1103 
(1983). Cf. Burdine, 450 U.S. at 259. Flere, however, 
respondent is not arguing that petitioner was unwise in 
thinking that it would need an employee with training as 
a sales correspondent; respondent instead wants to use 
Faust’s post-recall duties as indirect evidence that petitioner 
never had any intention of using Faust as a sales 
correspondent.

Petitioner nevertheless seems to argue that evidence of 
actions taken by the employer after it made the challenged 
employment decision never may be used to establish pretext; 
if such evidence may be considered, petitioner argues, “an 
employer can never prevail on summary judgment * * * if 
it makes a less than perfect assessment of its future person­
nel needs” (Br. 20). This contention, however, ignores the 
“ ‘established judicial rule of evidence that testimony of 
prior or subsequent transactions, which for some reason are 
barred from forming the basis for a suit, may nevertheless 
be introduced if it tends reasonably to show the purpose 
and character of the particular transactions under 
scrutiny.’ ” United Mine Workers v. Pennington, 381 U.S. 
657, 670 n.3 (1965) (quoting Federal Trade Comm’n v.



17

Cement Institute, 333 U.S. 683, 705 (1948)). Moreover, peti­
tioner’s fears are overstated, since the strength of the in­
ference of pretext that may be drawn from the employer’s 
conduct will vary from case to case.11 At the same time, 
petitioner’s approach would have a perverse effect of its 
own: it would entitle an employer to summary judgment 
whenever the employer is able to articulate any reason for 
the challenged decision that hinges on the employer’s future 
plans or expectations.

An extreme hypothetical case makes this clear. An 
employer might contend, for example, that it retained a 
younger employee rather than an older one because the 
younger employee had training as a scuba diver; the 
employer might justify this action with the explanation that 
at the time it made this decision it intended to begin 
operating an underwater salvage service. Under petitioner’s 
approach, the judge and jury would not be allowed to con­
sider evidence that the employer never began operating such 
a service —and that the younger employee never used his 
scuba skills —in determining whether the employer’s ra­
tionale was a pretext (see Br. 23). But an employer’s actual 
conduct surely sheds at least some light on its past inten­
tions. So long as the judge and jurors are aware that their 
“focus is to be on the employer’s motivation * * * and not 
on its business judgment” (Loeb, 600 F.2d at 1012 n.6), there 
is no reason to deny them use of this sort of highly pro­
bative evidence.

3. Finally, petitioner contends (Br. 21-26) that the court 
of appeals departed from the summary judgment standards 
set out in Fed. R. Civ. P. 56. This contention again turns 
on a misstatement of the holding below. Rule 56 requires 
the entry of summary judgment “against a party who fails

11 Indeed, as we suggest above, in our view it is a close question 
whether the courts below would have been justified in awarding sum­
mary judgment to petitioner on the facts of this case.



18

to make a showing sufficient to establish the existence of 
an element essential to that party’s case, and on which that 
party will bear the burden of proof at trial” (Celotex Corp., 
A ll U.S. at 322). Here, the court of appeals found that 
respondent made the showing necessary to survive peti­
tioner’s summary judgment motion by making out a prima 
facie case of discrimination and by introducing evidence that 
“raises a question of fact as to whether [petitioner] really 
believed that Faust’s ‘varied’ experience made him more 
qualified than [respondent]” (Pet. App. 5a; see id. at 6a 
(evidence “could cast doubt on [petitioner’s] assertion that 
Faust was retained because of his more diverse skills”)). In 
the court of appeals’ view, petitioner therefore advanced 
facts (those making up its prima facie case) that would (in 
the absence of a legitimate, nondiscriminatory explanation) 
justify a jury in finding discrimination, as well as evidence 
that could lead a rational jury to reject petitioner’s prof­
fered explanation as a pretext —evidence, in other words, 
that could lead a jury to find for respondent on every ele­
ment essential to his case.

The court of appeals thus did no more than follow this 
Court’s admonition that “summary judgment will not lie 
if the dispute about a material fact is ‘genuine,’ that is, if 
the evidence is such that a reasonable jury could return a 
verdict for the nonmoving party.” Anderson v. Liberty Lob­
by, Inc., A ll U.S. 242, 248 (1986). Since “[credibility deter­
minations, the weighing of evidence, and the drawing of 
inferences from the facts are jury functions, not those of 
a judge” (id. at 255) —and since “all justifiable inferences 
are to be drawn in [the nonmovant’s] favor” on a motion 
for summary judgment (ibid.) — the court of appeals’ ap­
proach was entirely proper, given its conclusion that the 
evidence raised doubts about petitioner’s motivation.12

12 Petitioner contends (Br. 22) that the court of appeals required it 
to disprove respondent’s case. That is not correct: an examination of



19

The conclusion that the decision below applied the prop­
er legal standard under Rule 56 should not denigrate the 
value of summary judgment procedures in screening out 
nonmeritorious claims prior to trial. A plaintiff in an ADEA 
action is obligated to oppose the defendant’s motion for 
summary judgment with something more than a self-serving 
assertion that the defendant’s proffered explanation is a 
pretext (see, e.g., Dale v. Chicago Tribune Co., 797 F.2d 
458, 464-465 (7th Cir. 1986), cert, denied, 479 U.S. 1066 
(1987)). He “must do more than simply show that there is 
some metaphysical doubt as to the material facts. * * * 
Where the record taken as a whole could not lead a rational 
trier of fact to find for the non-moving party, there is no 
‘genuine issue for trial.’ ” Matsushita Electric Industrial Co. 
v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986) (cita­
tion omitted). But respondent, in the view of the court of 
appeals, made the necessary showing by establishing that 
petitioner’s actions were (at least in large part) incon-

the court’s opinion (Pet. App. 5a-6a) shows that the court found the 
crucial question to be whether respondent had produced “evidence of 
record which, if credited, could render [petitioner’s explanation] im­
plausible.” Petitioner also contends (Br. 22-24) that there is no genuine 
issue of fact in dispute here because, in its view, “[wjhat Faust did after 
recall is immaterial to [petitioner’s] intent when it decided —a year 
earlier —to retain a multi-skilled employee” (id. at 23). But this is simply 
a disagreement with the court of appeals’ factual conclusions about the 
inferences that might reasonably be drawn from petitioner’s conduct. 
Those inferences need not be compelling for the case to survive a mo­
tion for summary judgment: “ ‘the issue of material fact required by 
Rule 56(c) to be present to entitle a party to proceed to trial is not re­
quired to be resolved conclusively in favor of the party asserting its 
existence; rather, all that is required is that sufficient evidence support­
ing the claimed factual dispute be shown to require a jury or judge to 
resolve the parties’ differing versions of the truth at trial’ ” (Anderson, 
All U.S. at 248-249 (quoting First Nat’l Bank v. Cities Service Co., 
391 U.S. 253, 288-289 (1968)).



20

sistent with its proffered explanation of its decision to recall 
Faust. Whatever the merits of the court’s assessment of the 
record, its legal analysis was entirely sound.

CONCLUSION

The judgment of the court of appeals should be affirmed. 
Respectfully submitted.

Charles A. Shanor

Charles Fried 
Solicitor General 

Wm . Bradford Reynolds 
Assistant Attorney General

Thomas W. Merrill 
Deputy Solicitor General

Charles A. Rothfeld 
Assistant to the Solicitor General

General Counsel
Equal Employment Opportunity Commission 

J une 1988

U.S GOVERNMENT PRINTING OFFICE: 1988-202-037/60480