St. Mary's Honor Center v Hicks Brief Amici Curiae

    No. 92-602

IN THE

S u p re m e  C o u rt of tfje H m te b  S ta te s
OCTOBER TERM, 1992

ST. MARY’S HONOR CENTER AND STEVE LONG,
Petitioners,

v.

MELVIN HICKS,
Respondent.

ON W RIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF OF THE LAWYERS’ COMMITTEE FOR CIVIL 
RIGHTS UNDER LAW AND OTHERS* AS AM ICI 

CURIAE IN SUPPORT OF RESPONDENT

C o l l e e n  M c M a h o n **  
M el issa  T . R o sse

P a u l , W e is s , R if k in d , 
W h a r t o n  &  G a r r iso n  

1285 Avenue of the Americas 
New York, New York 10019 
(212)373-3000

H e r b e r t  M . W a c h t e l l , C o - C h a ir  
W il l ia m  H. B r o w n , III, C o - C h a ir  
N o r m a n  R e d l ic h , Tr u s t e e  
B a r b a r a  R. A r n w in e  
T h o m a s  J. H e n d e r so n  
Ric h a r d  T . Se y m o u r  
M ic h a e l  Selm i 
S h a r o n  R . V inic k .

L a w y e r s ’ Co m m itt ee  F o r  
C iv il  R igh ts U n d e r  L a w  

1400 Eye Street, N.W.
Washington, D.C. 20005 
(202) 371-1212

Attorneys for Amici Curiae 
Lawyers’ Committee for Civil 
Rights Under Law and Others*

* Other amici listed on inside front cover
** Counsel o f Record



Is a b e l l e  K a t z  P in z l e r  
St e v e n  R . S h a pir o

A m e r ic a n  C iv il  L ibe r tie s  U n io n  Fo u n d a t io n

132 West 43rd Street
New York, New York 10036
(212) 944-9800

D o n n a  R . L e n h o f f  
H e l e n  L . N o r t o n

W o m e n ’s L e g a l  D e f e n s e  F u n d

1875 Connecticut Avenue, N.W.
Washington, D.C. 20009 
(202) 986-2600

C a t h y  V e n t r e l l - M o n se e s

A m e r ic a n  A sso c ia t io n  o f  R et ir e d  P e r so n s

601 E Street, N.W.
Washington, D.C. 20049 
(202) 434-2060

E l l e n  J . V a r g y a s  
D e b o r a h  L . B r a k e

N a t io n a l  W o m e n ’s L a w  C e n t e r

1616 P Street, N.W.
Washington, D.C. 20036 
(202) 328-5160

A n t o n ia  H e r n a n d e z  
E . R ic h a r d  L a r so n  
Ke v in  G. B a k e r

M e x ic a n  A m e r ic a n  L e g a l  D efen se  
a n d  E d u c a t io n a l  F u n d  

634 South Spring Street 
Los Angeles, California 90014
(213) 629-2512



TABLE OF CONTENTS

Page(s)

TABLE OF AUTHORITIES............................................ iii

INTEREST OF THE AMICI CURIAE...........................  2

STATEMENT OF THE CASE ......................................  4

A. Background..............................................  4

B. The “Crusade to Terminate”
H icks.........................................................  5

C. The Findings of the District
C ourt.........................................................  7

D. The Eighth Circuit’s Decision ..............  8

SUMMARY OF ARGUMENT ......................................  9

ARGUMENT .................................................................  10

I. THE EIGHTH CIRCUIT’S DECISION 
IS CONSONANT WITH THE
PRIOR HOLDINGS OF THIS COURT . . . .  10

Introductory Statem ent......................................  10

A. This Court Has Always
Contemplated That Proof Of
Pretext Is Tantamount To Proof
of Discrimination Entitling The
Plaintiff To P re v a il ..............................  12

i



Page(s)

B. The Inevitable Result Of The 
“Pretext-Plus” Argument Is To 
Put Title VII Plaintiffs On A 
Slippery Slope Toward A Direct 
Evidence Requirement, Thereby 
Vitiating The McDonnell
Douglas-Burdine Standard...................  17

H. ADOPTION OF THE “PRETEXT-
PLUS” STANDARD WOULD EITHER
DENY PLAINTIFFS A FULL AND
FAIR OPPORTUNITY TO PROVE
PRETEXT FOR DISCRIMINATION OR
WOULD UNDULY COMPLICATE THE
TRIAL OF TITLE VII CASES ......................  21

A. The Plaintiffs Right To A Full 
And Fair Opportunity To Prove 
Pretext Requires The Defendant To 
Advance The Actual Reason For 
Its Actions Or Risk An Adverse
Verdict...................................................  21

B. T h e  A p p r o a c h  O f  T h e
“Pretext-Plus” Courts Would Lead 
To An Administrative Quagmire In 
Discrimination Cases, And Runs 
Counter To The Principals 
Underlying Fed. R. Civ. P. 1 6 .............. 28

CONCLUSION 30



TABLE OF AUTHORITIES

CASES: Page(s)

Benzies v. Illinois Dep’t o f  Mental Health &.
Developmental Disabilities, 810 F.2d 146
(7th Cir.), cert, denied, 483 U.S. 1006 (1987) . . 18, 19, 23

Billups v. Methodist Hosp. o f Chicago,
922 F.2d 1300 (7th Cir. 1 991 )...........................................  24

Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 
(3d Cir.) {en banc), cert, dismissed,
483 U.S. 1052 (1987) ......................................................... 26

Connecticut v. Teal, 457 U.S. 440 (1982)...............................  2

Daniels v. Board o f Education,
805 F.2d 203 (6th Cir. 1986).............................................. 29

E.E.O.C. v. Flasher Co., 60 Fair Empl. Prac. Cas.
(BNA) 814 (10th Cir. 1992) ..............................................  18

Fumco Constr. Corp. v. Waters,
438 U.S. 567 (1 9 7 8 ).............................................. 11, 13, 21

Galbraith v. Northern Telecom, Inc., 944 F.2d 
215 (6th Cir. 1991), cert, denied, 112 S. Ct.
1497 (1992) ...................................................................  18, 19

Grohs v. Gold Bond Bldg. Products, 859 F.2d 1283
(7th Cir. 1988), cert, denied, 490 U.S. 1036 (1989) . . .  24

Hazelwood School District v. United States,
433 U.S. 299 (1 9 7 7 )..............................................................  2

Hicks v. St. M ary’s Honor Center,
756 F. Supp. 1244 (E.D. Mo. 1991)

iii

4



Page(s)

Hicks v. St. Mary’s Honor Center,
970 F.2d 487 (8th Cir. 1992)........ .. ................................  1 ,9

Holder v. City o f Raleigh,
867 F.2d 823 (4th Cir. 1989).........................................  18, 19

IMPACT v. Firestone, 893 F.2d 1189 (11th
Cir.), cert, denied, 498 U.S. 847 (1990)............................ 28

In t’l Bhd. o f Teamsters v. United States,
431 U.S. 324 (1 9 7 7 )....................................................... 11, 17

Interstate Circuit, Inc. v. United States,
306 U.S. 208 (1 9 3 9 )............................................................  25

Lanphear v. Prokop, 703 F.2d 1311
(D.C. Cir. 1983) ............................................................ 26, 27

Lewis v. Bloomsburg Mills, Inc.,
773 F.2d 561 (4th Cir. 1985).................................................  2

McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1 9 7 3 )....................................................... passim

Medina-Munoz v. R.J. Reynolds Tobacco Co.,
896 F.2d 5 (1st Cir. 1990) ...........................................  18, 19

Mister v. Illinois Central GulfR.R. Co.,
832 F.2d 1427 (7th Cir. 1987), cert.
denied, 485 U.S. 1035 (1988) ...........................................  20

Payne v. Travenol Laboratories, Inc.,
673 F.2d 798 (5th Cir.), cert, denied,
459 U.S. 1038 (1982) ...........................................................  2

Pollard v. Rea Magnet Wire Co., Inc.,
824 F.2d 557 (7th Cir.), cert, denied,
484 U.S. 977 (1 9 8 7 ).............................................  22 , 23 , 24

IV



Page(s)

Price Waterhouse v. Hoplans,
490 U.S. 228 (1 9 8 9 )......................................................  18, 22

Roland M. v. Concord School Comm.,
910 F.2d 983 (1st Cir. 1990),
cert, denied, 111 S. Ct. 1122 (1 9 9 1 ) ................................. 29

Samuels v. Raytheon Corp.,
934 F.2d 388 (1st Cir. 1991)..............................................  24

Shager v. Upjohn Co.,
913 F.2d 398 (7th Cir. 1990)..............................................  20

Sims v. Cleland, 813 F.2d 790
(6th Cir. 1987)......................................................................  19

Sledge v. J.P. Stevens & Co.,
585 F.2d 625 (4th Cir. 1978),
cert, denied, 440 U.S. 981 (1979)........................................ 2

Texas Dep’t o f  Community Affairs v. Burdine,
450 U.S. 248 (1 9 8 1 ).......................................................passim

Trans World Airlines, Inc. v. Thurston,
469 U.S. I l l  (1 9 8 5 )..........................................................  17

United States Postal Serv. Bd. of Govs. v.
Aikens, 460 U.S. 711 (1 9 8 3 )...........................................passim

Valdez v. Church’s Fried Chicken, Inc.,
683 F. Supp. 596 (W .D . Tex. 1 9 8 8 ) ................................. 26

Veatch v. Northwestern Memorial Hosp.,
730 F. Supp. 809 (N .D . E l. 1990) .....................................  20, 23

Village o f Arlington Heights v.
Metropolitan Housing Dev. Corp.,
429 U.S. 252 (1 9 7 7 )........................................................... 24

v



Page(s)

Villanueva v. Wellesley College,
930 F.2d 124 (1st Cir.),
cert, denied, 112 S. Ct. 181 (1 9 9 1 )..............................19, 23

Wards Cove Packing Co., Inc. v. Atonio,
490 U.S. 642 (1 9 8 9 )...............................................................  2

Watson v. Fort Worth Bank dc Trust,
487 U.S. 977 (1 9 8 8 )...............................................................  2

STATUTES AND RULES:

29 U.S.C. §§ 621 et seq. (1967).................................................  3

42 U.S.C. § 1981 (1988) ............................................................  4

42 U.S.C. § 1983 (1988) ............................................................  4
♦

42 U.S.C. §§ 2000e et seq. (1988) ......................................  3, 4

Civil Rights Act of 1991, Pub. L. 102-166,
105 Stat. 1071 (1991) .........................................................  28

Federal Rules of Civil Procedure, Rule 1 6 (e ) ........................  29

Federal Rules of Evidence, Rule 3 0 1 ......................................  15

MISCELLANEOUS:

3 Edward J. Devitt, Charles B. Blackmar &
Michael A. Wolff, Federal Jury Practice and
Instructions (4th ed. 1987) .................................................  25

vi



Page(s)

Catherine J. Lanctot, The Defendant Lies and 
the Plaintiff Loses: The Fallacy o f the 
“Pretext- Plus" Rule in Employment Discrimina­
tion Cases, 43 Hastings L.J. 57 (1991)................  14, 15, 25

Webster’s New Collegiate Dictionary (1977) ........................  21

1 Jack B. Weinstein & Margaret A. Berger,
Weinstein’s Evidence (1990) ..............................................  15

2 John H. Wigmore, Evidence in Trials at
Common Law (1 9 7 9 )...........................................................  25

vii



No. 92-602

IN THE

S u p re m e  C o u rt o f tfje U n ite d  Js>tate3
OCTOBER TERM, 1992

ST. MARY’S HONOR CENTER AND STEVE LONG,

Petitioners,
v.

MELVIN HICKS,

Respondent.

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

BRIEF OF THE LAWYERS’ COMMITTEE FOR CIVIL 
RIGHTS UNDER LAW AND OTHERS AS AMICI 

CURIAE IN SUPPORT OF RESPONDENT

The Lawyers’ Committee for Civil Rights Under Law 
(“Lawyers’ Committee”), the American Civil Liberties Union 
(“ACLU”), the Women’s Legal Defense Fund (“WLDF”), the 
American Association of Retired Persons (“AARP”), the National 
Women’s Law Center (“Center”) and the Mexican American Legal 
Defense and Educational Fund (“MALDEF”) respectfully submit 
this brief as amici curiae. The written consents of the parties are 
being filed with the Clerk of this Court simultaneously with this 
brief. This brief urges affirmance of the Eighth Circuit’s decision 
in Hicks v. St. Mary’s Honor Center and Stew Long, 970 F.2d 487 
(8th Cir. 1992), and thus supports the position of respondent.

l



INTEREST OF THE AMICI CURIAE

The Lawyers’ Committee is a nonprofit organization that 
was established at the request of the President of the United States 
in 1963, to involve leading members of the bar throughout the 
country in the national effort to insure civil rights to all Americans. 
It has represented and assisted other lawyers in representing 
numerous plaintiffs in administrative proceedings and lawsuits 
under Title VII. See, e.g., Lewis v. Bloomsburg Mills, Inc., 773
F.2d 561 (4th Cir. 1985); Payne v. Travenol Laboratories, Inc., 
673 F.2d 798 (5th Cir.), cert, denied, 459 U.S. 1038 (1982); 
Sledge v. J.P. Stevens <£ Co., 585 F.2d 625 (4th Cir. 1978), cert, 
denied, 440 U.S. 981 (1979). The Lawyers’ Committee has also 
represented parties and participated as an amicus in Title VII cases 
before this Court. See, e.g., Wards Cove Packing Co., Inc. v. 
Atonio, 490 U.S. 642 (1989); Watson v. Fort Worth Bank & Trust, 
487 U.S. 977 (1988); Connecticut v . Teal, 457 U.S. 440 (1982); 
Hazelwood School District v. United States, 433 U.S. 299 (1977).

The ACLU is a nationwide, nonprofit, nonpartisan 
organization with nearly 300,000 members dedicated to preserving 
and enhancing the fundamental civil rights and civil liberties 
embodied in the Constitution and civil rights laws of this country. 
In particular, the ACLU has long been involved in the effort to 
eliminate racial discrimination in our society. The Women’s Rights 
Project of the ACLU Foundation was established to work toward 
the elimination of gender-based discrimination in our society. In 
pursuit of that goal, the ACLU has participated in numerous 
discrimination cases before this Court.

The WLDF is a national advocacy organization that was 
founded in 1971 to advance the rights of women in the areas of 
work and family. The WLDF works to challenge gender 
discrimination in the workplace through litigation of significant sex 
discrimination cases, public education, and advocacy for 
improvements in the equal employment opportunity laws and their 
interpretation before Congress and the federal agencies charged 
with their enforcement. Throughout this work, the WLDF has 
placed special emphasis on equal employment opportunity for

2



women of color, who often face job discrimination based on both 
race and gender.

The AARP is a nonprofit membership organization of 
persons age 50 and older that is dedicated to addressing the needs 
and interests of older Americans. More than one-third of the 
AARP’s thirty-four million members are employed, most of whom 
are protected by Title VII of the Civil Rights Act, 42 U.S.C. 
§§ 2000(e) et seq. (1988) and the Age Discrimination in Employ­
ment Act, 29 U.S.C. §§ 621 et seq. (1967) (“ADEA”). One o f the 
AARP’s primary objectives is to strive to achieve dignity and 
equality in the workplace through positive attitudes, practices and 
policies regarding work and retirement. In pursuit of this objective, 
the AARP has participated as amicus curiae in numerous discrimi­
nation cases before this Court and the federal courts of appeals.

The Center is a nonprofit legal advocacy organization dedi­
cated to the advancement and protection of women’s rights and the 
corresponding elimination of sex discrimination from all facets of 
American life. Full enforcement of Title VII is essential in order to 
provide women equal opportunity in the workplace. Consequently, 
the Center has a deep and abiding interest in ensuring that Title VII 
continues to protect women from workplace discrimination.

The MALDEF is a national nonprofit civil rights organiza­
tion established in 1967. Its principal objective is to secure the civil 
rights of Latinos in the United States through litigation and educa­
tion. It has frequently represented plaintiffs in all phases of litiga­
tion under Title VII and appeared as an amicus in federal courts, 
including cases before this Court.

The question presented by this case raises important and 
recurring issues. The vast majority of the employment discrimina­
tion cases filed each year under Title VII and ADEA involve dispa­
rate treatment claims. In most of those cases, there is no direct 
evidence of discrimination. In evaluating what is largely circum­
stantial evidence, courts are bound by the three-part standard 
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 
(1973) and in Texas Dep’t o f Community Affairs v. Burdine, 450 
U.S. 248 (1981). That framework permits triers of fact to infer

3



intentional discrimination by determining whether the employer’s 
stated reasons for the challenged employment action are a pretext 
for discrimination. Burdine, 450 U.S. at 253, 256.

The Lawyers’ Committee, the ACLU, the WLDF, the 
AARP, the Center and the MALDEF have an interest in ensuring 
that this Court adopts principles that will result in the sound 
administration of the discrimination laws, so that persons with 
legitimate claims and limited resources will be able to prevail. This 
Court’s decision will have far reaching and important implications 
for present and future employment discrimination cases in which 
the Lawyers’ Committee, the ACLU, the WLDF, the AARP, the 
Center and the MALDEF participate.

STATEMENT OF THE CASE

Melvin Hicks filed suit against his former employer, St. 
Mary’s Honor Center, under Title VII of the Civil Rights Act of 
1964, 42 U.S.C. §§ 2000e et seq. (1988), and against the superin­
tendent of that facility, Steve Long, under 42 U.S.C. § 1983 
(1988).- After he was demoted and then terminated from his posi­
tion as shift commander, Hicks alleged that St. Mary’s and 
Superintendent Long had discriminated against him on the basis of 
his race (he is an African-American). Hicks v. St. Mary’s Honor 
Center, 756 F. Supp. 1244, 1245-46 (E.D. Mo. 1991) (Petition 
Appendix A-14-A-15).

A. Background

Hicks was hired as a correctional officer by St. Mary’s, a 
minimum security correctional facility, in 1978. In 1980, he was 
promoted to shift commander, a supervisory position. Between 
1978 and February 1984, Hicks’ job performance was satisfactory.

- Hicks also alleged that St. Mary’s and Superintendent Long had violated 42 
U.S.C. § 1981 (1988). Petitioners were granted summary judgment on this 
claim. Hicks v. St Mary's Honor Center, 756 F. Supp. 1244, 1245 (E.D. Mo. 
1991) (Petition Appendix A-14).

4



He was never suspended, disciplined or demoted.2' (Pet. App. 
A -15-A -16).

The administration at St. Mary’s changed dramatically in 
January 1984. The Chief of Custody and two shift commanders, all 
of whom were African-Americans, were replaced with whites. 
(Pet. App. A-15). Hicks was the only remaining African-American 
shift commander, and one of only two African-Americans left in 
a supervisory position. Hicks’ new immediate supervisor, 
Captain John Powell, and the new superintendent of the facility, 
Steve Long, were both white. (Pet. App. A-15, A-2). These 
changes in the administration were made in the wake of a 
1980-1981 study of St. Mary’s and another honor center, which 
had concluded that “too many blacks were in positions of power at 
St. Mary’s[.]” (Pet. App. A-21).

B. The “Crusade to Terminate” Hicks

After the change in administration, Hicks was disciplined 
in connection with three separate incidents.

On March 3, 1984, a white transportation officer at 
St. Mary’s observed, and reported to Captain Powell, a number of 
minor violations of institutional rules committed by Hicks’ 
subordinates during Hicks’ shift. Although Hicks, who was per­
forming a perimeter check of St. Mary’s, was not present to 
observe or correct these alleged violations, a disciplinary review 
board recommended that he receive five days’ suspension.- The 
officers who were present and were responsible for the violations 
were not disciplined in any way. Although Captain Powell testified 
that it was his policy to discipline only the shift commander for 
violations occurring during his shift, white shift commanders were

- In 1980, while he was on vacation, Hicks had mistakenly been cited for 
absence without notice. (Pet. App. A-16 n.4).

- The disciplinary review board makes recommendations to the Superintendent 
who recommends action to the Director of the Missouri Department of 
Corrections and Human Resources, who then makes the ultimate disciplinary 
decision. (Pet. App. A-17 n.6).

5



not disciplined for rule violations committed by employees under 
their supervision. (Pet. App. A-16—A-17, A-24—A-26).

On March 19, 1984, Hicks permitted two correctional 
officers to use a St. Mary’s vehicle. Neither of the correctional 
officers, nor the control center officer, logged the use of the vehicle 
as per institutional rules. Captain Powell brought charges against 
Hicks for failure to log the use of the vehicle. Neither the correc­
tional officers who borrowed the vehicle nor the control center 
officer were disciplined. (Pet. App. A-17—A-18).

On March 24, 1984, Captain Powell charged Hicks with 
failing to investigate an inmate assault, even though Hicks had 
notified Captain Powell in writing of the incident and had instructed 
another correctional officer to submit a full report. On March 29, 
1984, Captain Powell issued Hicks a letter of reprimand, citing his 
failure to investigate the assault. (Pet. App. A-18).

On April 19, 1984, Hicks was notified that he had been 
demoted from shift commander to correctional officer I as a result 
of the incident involving the borrowed vehicle. (Pet. App. A-17, 
A-18). According to the district court, Captain Powell and Hicks 
“exchanged heated words” shortly thereafter, when Captain Powell 
demanded that Hicks turn over his shift commander’s manual. (Pet. 
App. A-18). The district court so found even though Captain 
Powell testified that he was not angry, and did not raise his voice 
or attempt to provoke Hicks. (Joint Appendix 38, 44, 46). 
Captain Powell sought disciplinary action against Hicks, claiming 
that Hicks had threatened him. (Pet. App. A-18).

On May 9, 1984, a disciplinary review board voted to 
suspend Hicks for three days. (Pet. App. A-18 -  A-19). However, 
Superintendent Long disregarded the board’s recommendation and 
recommended that Hicks be terminated based on the “severity and 
accumulation of [his] violations.” (Pet. App. A-19). On June 7, 
1984, Hicks was terminated. He was replaced by a white male. 
(Pet. App. A-19, A-23).

6



C. The Findings of the District Court

In reviewing the facts of the case, the district court found
that:

(1) “plaintiff was mysteriously the only person 
disciplined for violations actually committed by his 
subordinates!;]”

(2) “plaintiff demonstrated . . . [that Captain 
Powell’s] policy [of disciplining only shift commanders] 
only applied to violations which occurred on plaintiffs 
shift[;]”

(3) “much more serious violations, when 
committed by plaintiffs [white] co-workers, were either 
disregarded or treated much more leniently[;]”

(4) “plaintiff was treated much more harshly than 
his [white] co-workers who committed equally severe or 
more severe violations^] ” and

(5) “plaintiff has proven the existence of a crusade 
to terminate him[.]”

(Pet. App. A-23 -  A-27).

The district court determined that, under the McDonnell 
Douglas-Burdine standard, Hicks had established aprimafacie case 
of racial discrimination, and also that he had proven petitioners 
proffered reasons for his demotion and termination — his purported 
infractions of institutional policies — were not the actual reasons 
for his discharge. (Pet. App. A-22 -  A-23, A-26, A-29).

Nonetheless, the court entered a verdict in favor of the 
defendants. The court decided that Hicks had not proven that his 
demotion and termination were the result of racial discrimination. 
The court determined, sua sponte, that “although plaintiff has 
proven the existence of a crusade to terminate him, he has not 
proven that the crusade was racially rather than personally

7



motivated.” (Pet. App. A-27). Personal animosity was not 
proffered by petitioners as a possible explanation for their behavior, 
and Hicks had no opportunity to rebut this explanation at trial. 
Indeed, at trial, Captain Powell denied any suggestion that he had 
prompted a confrontation with Hicks and testified that there were 
no difficulties between the two men. (J.A. 38, 44, 46).

The district court made its finding despite the other 
evidence of racial discrimination at St. Mary’s introduced by Hicks, 
particularly discrimination against African-Americans in 
supervisory positions. For example, Hicks demonstrated that:

(1) approximately twelve African-Americans had 
been terminated by the new white administration at St. 
Mary’s between January 1984 and December 1984, while 
only one white had been terminated;

(2) prior to 1984, only the superintendent of 
St. Mary’s was white, while the assistant superintendent, 
chief of custody and three shift commanders were 
African-American — after Superintendent Long was hired, 
the assistant superintendent and plaintiff were the only 
remaining African-Americans in supervisory positions;

(3) five of the ten white employees on the custody 
roster at St. Mary’s as of April 1984 had been promoted; 
and

(4) a 1981 study of St. Mary’s and another honor 
center concluded that “too many blacks were in positions 
of power at St. Mary’s[.]”

(Pet. App. A -27-A -28 , A-21, A-6 n.6).

D. The Eighth Circuit’s Decision

The Eighth Circuit reversed the district court’s decision. 
The panel correctly determined that “it was improper for the 
district court to assume—without evidence to support the 
assumption—that defendants’ actions were somehow ’personally

8



motivated.’” Hicks v. St. Mary’s Honor Center, 970 F.2d 487, 
492 (8th Cir. 1992) (Pet. App. A-10). The court further held that 
once the plaintiff “has met his or her burden of proof at the pretext 
stage . . . then the plaintiff has satisfied his or her ultimate burden 
of persuasion. No additional proof of discrimination is required.” 
(Pet. App. A -11).

SUMMARY OF ARGUMENT

In McDonnell Douglas and Burdine, this Court created a 
sensible, orderly and just framework for proving intentional 
discrimination based on circumstantial evidence. That framework 
provides that once a plaintiff establishes a prima facie case, the 
burden shifts to the employer to articulate a legitimate, nondiscrim- 
inatory reason for the action in question. This burden is not heavy 
— it merely requires the employer to articulate its actual reason or 
reasons for its decision. If the employer satisfies this burden, then 
the employee is provided with a “full and fair opportunity” to 
demonstrate that die employer’s rationale is pretextual, i.e. , that it 
was not the actual motivating reason(s). If the employee proves 
pretext, then a finding of liability is compelled because the 
employer’s theory has been defeated or disproved, leaving discrimi­
nation as the proper inference for the underlying motivation.

If this Court were to hold that an employee must do more 
than prove pretext in order to prevail, then it would effectively be 
requiring the employee to proffer direct evidence of discrimination. 
As will be demonstrated below, a Tide VII plaintiff has no viable 
alternative. Yet over the last twenty years, this Court has 
consistendy and repeatedly rejected the notion that a plaintiff must 
introduce direct evidence of discrimination. Thus, affirming the 
Eighth Circuit’s decision will preserve the plaintiff’s opportunity to 
prove his or her case through circumstantial evidence.

9



ARGUMENT

I.

THE EIGHTH CIRCUIT’S DECISION 
IS CONSONANT WITH THE 

PRIOR HOLDINGS OF THIS COURT

Introductory Statement

In enacting Title VII, Congress sought to protect workers 
both in situations where discrimination is blatant and where it is 
subtle. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), 
Texas Dep’t o f  Community Affairs v. Burdine, 450 U.S. 248 
(1981), and subsequent decisions have acknowledged that, while 
discrimination in the workplace is widespread, direct evidence of 
discrimination rarely exists. Consequently, this Court provided a 
mechanism by which plaintiffs could prove their discrimination 
claims through indirect evidence where direct evidence was lacking.

The proof structure in individual disparate treatment cases 
was first set forth in Justice Powell’s unanimous decision in 
McDonnell Douglas. Under McDonnell Douglas:

(1) the plaintiff must establish a prima facie case 
of discrimination—this creates a rebuttable presumption that 
the defendant has discriminated against the plaintiff;

(2) in order to rebut the presumption of discrim­
ination, the defendant must proffer “some legitimate, 
nondiscriminatory reason” for the employment decision; 
and

(3) the plaintiff must then “be afforded a fair 
opportunity to show that [the defendant’s] stated reason for 
[the plaintiffs] rejection was in fact pretext.”

Id. at 802-804. Under this Court’s decision in Burdine, the plaintiff 
can demonstrate pretext “either directly by persuading the court that 
a discriminatory reason more likely motivated the employer or

to



indirectly by showing that the employer’s proffered explanation is 
unworthy of credence.” Id. at 256. It is critical to the McDonnell 
Douglas-Burdine formulation that a plaintiff is not required to 
introduce direct evidence of discrimination in order to prevail. See, 
e.g., In t’l Bhd. o f  Teamsters v. United States, 431 U.S. 324, 358 
n.44 (1977); Burdine, 450 U.S. at 256; United States Postal Serv. 
Bd. o f Govs. v. Athens, 460 U.S. 711, 714 n.3, 717 (1983).

Two competing views of the McDonnell Douglas-Burdine 
framework have developed in recent years concerning the proof a 
Title VII plaintiff must offer at the third, or pretext, stage.

Those courts that follow the literal language of McDonnell 
Douglas-Burdine hold that a discrimination plaintiff need only 
prove that the defendant’s proffered reason for the adverse 
employment decision is pretextual in order to prevail. These 
“pretext only” courts adopt the reasoning of Burdine, in which this 
Court stated that at the third, or pretext, stage of the McDonnell 
Douglas order of proof, the plaintiff’s burden of proving pretext 
“merges” with his or her ultimate burden of persuasion on the 
question of intentional discrimination. Burdine, 450 U.S. at 256. 
They reason that, once the plaintiff has shown the defendant’s 
proffered explanation is untrue, the only remaining inference is that 
the defendant has discriminated. See, e.g., Fumco Constr. Corp. 
v. Waters, 438 U.S. 567, 577 (1978). This “literal” approach to 
the McDonnell Douglas-Burdine analysis prevailed for 
approximately the first fifteen years after this Court announced the 
standard.

Another viewpoint, of relatively recent vintage, is advanced 
by the so-called “pretext-plus” courts. These courts contend that 
the plaintiff must prove that the defendant’s proffered reasons are 
untrue, and also must demonstrate affirmatively that there can be 
no explanation for the defendant’s conduct other than intentional 
discrimination. These courts assert that proving pretext at the third 
stage of the McDonnell Douglas-Burdine formulation is not 
synonymous with proving pretext for discrimination. In effect, the 
“pretext-plus” courts argue that, notwithstanding the literal 
language of McDonnell Douglas, Burdine, Fumco and subsequent 
decisions of this Court, the burdens of proving pretext and

li



intentional discrimination do not merge, so that a plaintiff can 
establish pretext without having proved discrimination.

As discussed below, it is the analysis of the “pretext only” 
courts that faithfully follows the language and underlying reasoning 
of the McDonnell Douglas-Burdine framework and this Court’s 
subsequent decisions.

A. This Court Has Always Contemplated That Proof Of 
Pretext Is Tantamount To Proof Of Discrimination 
Entitling The Plaintiff To Prevail

The Eighth Circuit’s ruling that Hicks was entitled to 
prevail once he proved that the reasons proffered by defendants 
were not the true reasons for his demotion and termination broke 
no new ground. On the contrary, it is consistent with this Court’s 
many pronouncements on the subject. Specifically, this Court has 
held that (1) proof of pretext is proof of pretext for discrimination; 
and (2) once the plaintiff proves that the defendant’s proffered 
explanation is pretextual, the only justifiable result is that the 
plaintiff must prevail on its discrimination claim because the 
defendant has offered no legitimate explanation for its conduct.

From the first, this Court made it clear that the pretext with 
which it was concerned was “a coverup for a . . . discriminatory 
decision.” McDonnell Douglas, 411 U.S. at 805. In McDonnell 
Douglas, this Court stated:

While Title VII does not, without more, compel 
rehiring of [plaintiff], neither does it permit 
[defendant] to use [plaintiff’s] conduct as a pretext 

fo r  the sort o f discrimination prohibited by 
§ 703(a)(1).

Id. at 804 (emphasis supplied). Proving pretext would be irrelevant 
unless the fair inference to be drawn from doing so was that 
discrimination was the unstated reason for the employer’s action. 
For that reason, the McDonnell Douglas Court also held that the 
plaintiff “must be given a full and fair opportunity to demonstrate 
by competent evidence that the presumptively valid reasons fo r  his

12



rejection were in fac t a coverup [i.e., a pretext] for a racially 
discriminatory decision.” Id. at 805 (emphasis supplied). The 
Court went on to state that, if the plaintiff proved that the 
employer’s articulated rationale was “a pretext or discriminatory in 
its application^]” the district court “must order a prompt and 
appropriate remedy.” Id. at 807. In other words, if a plaintiff 
proves pretext, he or she prevails.

Any doubt that this Court equated “pretext” with a 
“coverup for a . . . discriminatory decision” was laid to rest in 
Fumco. In an opinion by Justice Rehnquist, this Court expanded on 
what was implicit in McDonnell Douglas:

A prima facie case under McDonnell Douglas 
raises an inference of discrimination only because 
we presume these acts, i f  otherwise unexplained, 
are more likely than not based on the consideration 
of impermissible factors . . . .  And we are willing 
to presume this 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.

Id. at 577 (emphasis in original and supplied). Thus, the Court 
recognized that if an employer who was charged with discrimina­
tion failed to explain his conduct on some other basis, it was more 
likely than not that the employer was guilty of discrimination. In 
Fumco, this Court explicitly equated “pretext” with “coverup for 
discrimination” when it stated: “The plaintiff must be given the 
opportunity to introduce evidence that the proffered justification is 
merely a pretext for discrimination.” Id. at 578.

The Court reiterated that equation in Burdine, the next 
major case discussing the Title VII burden of proof. In discussing

13



the third stage of the McDonnell Douglas standard, the Burdine 
Court stated: “[T]he 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 fo r  discrimination” Id. at 253 (emphasis supplied). The 
Court in Burdine was equally clear about how the Title VII plaintiff 
could meet his or her burden of proving pretext for discrimination:

[The plaintiff] may succeed in . . . [proving that 
the reasons offered by the defendant were a pretext 
for discrimination] 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 o f credence.

Id. at 256 (emphasis supplied).

Throughout the development of the McDonnell 
Douglas-Burdine framework, proving pretext by demonstrating that 
the nondiscriminatory reasons offered by the defendant were not the 
true motivation for its conduct has been deemed sufficient to carry 
the plaintiff’s burden. As the Court held in McDonnell Douglas, 
sustaining that burden warrants judgment for the plaintiff. Id. at 
807. Put otherwise, the plaintiffs burden to prove pretext 
merges with the ultimate burden of persuading the court that [the 
plaintiff] has been the victim of intentional discrimination.” 
Burdine, 450 U.S. at 256. As one commentator has noted:

the Court [did not] intend [] this language [in 
Burdine] to impose two separate burdens on plain­
tiffs. The phrase “merges with” in Burdine cannot 
reasonably be understood to mean “is separate 
from.” Rather, the term “merge” should be given 
its ordinary meaning: “To cause to be absorbed as 
to lose identity. ” When read in this common sense 
way, Burdine furnishes even more support for 
reading “pretext” as synonymous with “pretext for 
discrimination.”

14



Catherine J. Lanctot, The Defendant Lies and the Plaintiff Loses: 
The Fallacy o f  the “Pretext-Plus" Rule in Employment Discrimina­
tion Cases, 43 Hastings L.J. 57, 120 (1991) (emphasis supplied).

Petitioners argue that this Court’s opinion in Aikens 
imposes on Title VII plaintiffs an obligation to do more than prove 
that the employer’s explanations are pretextual. In that case, the 
Court stated:

[W]hen the defendant fails to persuade the district 
court to dismiss the action for lack of a prima facie 
case, and responds to the plaintiffs proof by 
offering evidence of the reason for the plaintiffs 
rejection, the factfinder must then decide whether 
the rejection was discriminatory within the meaning 
of Title VII. At this stage, the McDonnell-Burdine 
presumption “drops from the case,” . . .  and “the 
factual inquiry proceeds to a new level of 
specificity.”

Id. at 714-15 (quoting Burdine). From this, petitioners urge that 
this Court has imposed on Title VII plaintiffs a burden in addition 
to the old “merged” burden of proving discrimination by proving 
pretext and thereby eliminating defendants’ proffered reasons as 
possible explanations.

That is simply not so. All this Court did in Aikens was 
recognize what is true in every civil case — namely, that once a 
defendant produces evidence that runs contrary to a legal 
presumption, the plaintiffs prima facie case is no longer 
presumptively conclusive. See Fed. R. Evid. 301; 1 Jack B. 
Weinstein & Margaret A. Berger, Weinstein’s Evidence 5 300[01] 
at 300-4 (1990). But, the fact that a presumption is rebutted does 
not mean that it is discredited or that the inference that was once 
presumed cannot still be drawn. Again, Burdine is instructive:

In saying that the presumption drops from the case, 
we do not imply that the trier of fact no longer 
may consider evidence previously introduced by 
the plaintiff to establish a prima facie case . . . .

15



this evidence and inferences properly drawn there­
from may be considered by the trier of fact on the 
issue o f whether the defendant’s explanation is 
pretextual.

Id. at 255 n.10.

In Aikens, this Court meant no more than that the trier of 
fact in a Title VII case, like the trier of fact in any civil case, must 
weigh each side’s explanation and decide which version is more 
likely than not the correct version. On this point, the Court was 
quite explicit:

As we stated in Burdine:

“The plaintiff retains the burden of 
persuasion . . . .  [HJe may succeed in this 
[burden] 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 o f credence.”
450 U. S., at 256.

In short, the district court must decide which 
party’s explanation o f the employer’s motivation it 
believes.

Id. at 716 (emphasis supplied). Thus, once plaintiff proves that 
defendant’s stated reason is pretextual the only remaining 
explanation for defendant’s conduct is intentional discrimination.

16



B. The Inevitable Result Of The “Pretext-Plus”
Argument Is To Put Title VII Plaintiffs 
On A Slippery Slope Toward A Direct Evidence 
Requirement, Thereby Vitiating The McDonnell 
Douglas-Burdine Standard

If there has been a consistent thread in the development of 
Title VII law, it has been that a plaintiff need not introduce direct 
evidence of discrimination in order to prevail. Under the 
McDonnell Douglas-Burdine analysis, plaintiff may prevail “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.” 
Burdine, 450 U.S. at 256. The Court reaffirmed this rule in Aikens: 
“ [Tjhe McDonnell Douglas formula does not require direct proof 
of discrimination.” Id. at 714 n.3 citing Teamsters, 431 U.S. at 
358 n.44. Indeed, this Court has previously held: “ [T]he 
McDonnell Douglas test is inapplicable where the plaintiff presents 
direct evidence of discrimination.” Trans World Airlines, Inc. v. 
Thurston, 469 U.S. I l l ,  121 (1985).

The “pretext-plus” courts are careful to pay lip service to 
this requirement and to insist that they do it no violence. But the 
practical effect of their decisions is to impose on Title VH 
plaintiffs, either overtly or sub silentio, the requirement of produc­
ing the direct evidence of discrimination that this Court has 
recognized is elusive and seldom available. Two different lines of 
argument demonstrate that this will be the inevitable outcome of 
endorsing the “pretext-plus” standard.

First, the “pretext-plus” approach requires the plaintiff to 
read the mind of a non-party, to comb the record and try to fathom 
what conceivable explanations the trier of fact might find lurking 
there. Under this approach, the plaintiff cannot fulfill his or her 
ultimate burden of persuasion simply by rebutting the explanations 
proffered by the defendant -  explanations that he or she has had a 
full and fair opportunity to examine and attack. The plaintiff must 
also identify and rebut all possible hidden motives that might appeal 
to the trier of fact. In some instances, the plaintiff might be placed 
in the untenable position of attempting to rebut a possible

17



explanation for the defendant’s conduct that the defendant has 
expressly denied.

This very case proves the point. The district court ruled 
that Hicks had not proved that “personal motivation” was not the 
catalyst in the decision to terminate him. But Hicks had no reason 
to assume that he needed to rebut any inference that personal 
animosity toward him was the reason for his termination. Captain 
Powell denied that he had prompted a confrontation with Hicks or 
that he had any difficulties with him. (J.A. 38, 44, 46). Nor did 
petitioners introduce any evidence of personal animosity toward 
Hicks on the part of Superintendent Long, who actually made the 
recommendation to terminate Hicks. (Pet. App. A-19).

Because few, if any, Title VII plaintiffs could expect to 
prevail under such a system, the only realistic option is for a 
plaintiff to introduce direct evidence of discrimination. But, as this 
Court has repeatedly recognized, such a requirement would be all 
but impossible to meet. See, e.g., Aikens, 460 U.S. at 716 (“There 
will seldom be ‘eyewitness’ testimony as to the employer’s mental 
processes.”); Price Waterhouse v. Hopkins, 490 U.S. 228, 271 
(1989) (O’Connor, J., concurring in judgment) (“As should be 
apparent, the entire purpose of the McDonnell Douglas prima facie 
case is to compensate for the fact that direct evidence of intentional 
discrimination is hard to come by.”)

Second, imposition of a direct evidence requirement, either 
overtly or sub silentio, would effectively eviscerate the plaintiff s 
ability to prevail, even in a meritorious case. The evidence of this 
proposition already exists. In the overwhelming majority of 
“pretext-plus” decisions cited to this Court by petitioners and their 
supporting amici, the defendant employer won. See, e.g., E.E. 0. C. 
v. Flasher Co., 60 Fair Empl. Prac. Cas. (BNA) 814 (10th Cir. 
1992); Galbraith v. Northern Telecom, Inc., 944 F.2d 275 (6th 
Cir. 1991), cert, denied, 112 S. Ct. 1497 (1992); Medina-Munoz 
v. R.J. Reynolds Tobacco Co., 896 F.2d 5 (1st Cir. 1990); Holder 
v. City o f Raleigh, 867 F.2d 823 (4th Cir. 1989); Benzies v. 
Illinois D ep’t o f Mental Health & Developmental Disabilities, 
810 F.2d 146 (7th Cir.), cert, denied, 483 U.S. 1006 (1987). This 
occurred whether or not the plaintiffs relied solely on an attempt to

18



prove pretext, see, e.g., Medina-Munoz; Benzies, or introduced 
other credible evidence from which the trier of fact could infer 
discrimination. See, e.g., Villanueva v. Wellesley College, 930 
F.2d 124 (1st Cir.), cert, denied, 112 S. Ct. 181 (1991); Galbraith; 
Holder, Sims v. Qeland, 813 F.2d 790 (6th Cir. 1987) (defendant 
prevailed although plaintiff proved that one of the proffered reasons 
was pretextual and introduced evidence of direct discrimination).

Again, this case is a prime example of the phenomenon. 
Hicks introduced a significant amount of evidence that tended to 
demonstrate discrimination against African-American supervisors 
at St. Mary’s beginning in January 1984:

(1) he was the only shift commander who was 
disciplined for violations actually committed by his 
subordinates -  white shift commanders were not similarly 
disciplined;

(2) white co-workers who committed much more 
serious violations than Hicks were either not disciplined or 
were treated more leniendy;

(3) twelve African-Americans had been terminated 
at St. Mary’s in 1984 while only one white had been 
terminated;

(4) prior to 1984 there were one white and five 
African-Americans in supervisory positions — after the 
1984 personnel changes at St. Mary’s there were four 
whites and two African-Americans in supervisory 
positions;

(5) five of the ten whites on the St. Mary’s 
custody roster as of April 1984 had been promoted; and

(6) a 1980-1981 study of St. Mary’s concluded 
that “too many blacks were in positions of power at 
St. Mary’s[.]”

19



(Pet. App. A-21, A-23-A-28, A-6 n.6). Despite all this evidence, 
Hicks was unable to prevail.

In only one of the “pretext-plus” cases cited by petitioners 
did the plaintiff prevail after trial. In Mister v. Illinois Central Gulf 
R.R. Co., 832 F.2d 1427 (7th Cir. 1987), cert, denied, 485 U.S. 
1035 (1988), the Seventh Circuit reversed a judgment for defendant 
against a class of African-American job applicants who had alleged 
racially discriminatory hiring practices because of unusually strong 
evidence of discrimination, which prompted the court to state: “It 
is hard to imagine a stronger case, short of an announcement of 
discrimination.” Id. at 1430. The only other two cases cited by 
petitioners in which plaintiffs obtained a favorable decision were 
cases in which the defendant was unable to obtain summary 
judgment, either on motion or on appeal. See Shager v. Upjohn 
Co., 913 F.2d 398 (7th Cir. 1990); Veatch v. Northwestern 
Memorial Hosp., 730 F. Supp. 809 (N.D. 111. 1990). Interestingly, 
in both cases the plaintiffs survived summary judgment by 
introducing direct evidence of discrimination. See Shager, 913 F.2d 
at 402, and Veatch, 730 F. Supp. at 820.

Thus, the conclusion that must be drawn is the only 
conclusion that can be drawn: overturning the Eighth Circuit’s 
decision and imposing a “pretext-plus” rule will mean that 
plaintiffs will be unable to prevail unless they can introduce direct 
evidence of discrimination, thereby reversing the underlying 
premise of McDonnell Douglas, Burdine and Aikens and undoing 
20 years of consistent decisions under Title VII.

20



n.
ADOPTION OF THE “PRETEXT-PLUS” STANDARD 
WOULD EITHER DENY PLAINTIFFS A FULL AND 

FAIR OPPORTUNITY TO PROVE PRETEXT FOR 
DISCRIMINATION OR WOULD UNDULY 

COMPLICATE THE TRIAL OF TITLE VII CASES

A. The Plaintiff’s Right To A Full And Fair
Opportunity To Prove Pretext Requires The 
Defendant To Advance The Actual Reason For 
Its Actions Or Risk An Adverse Verdict

Under McDonnell Douglas and its progeny, the employer 
must proffer a reason that is both nondiscriminatory and legitimate 
in order to rebut the presumption raised by the plaintiff s prima 
facie case. This is not a heavy burden for a defendant to meet. 
However, it is a two-fold burden: the words “legitimate” and 
“nondiscriminatory” are not synonymous. “Nondiscriminatory” 
means not “applying or favoring discrimination in treatment,” 
while “legitimate” means “being exactly as proposed: neither 
spurious nor false.” See Webster’s New Collegiate Dictionary 
(1977) at 327, 657. Thus, the Title VII defendant cannot accom­
plish the objective of producing evidence sufficient to rebut the 
presumption without offering the court the actual motivating reason.

That the employer was required to provide the actual 
justification for the adverse employment action taken against the 
plaintiff can fairly be inferred from the language of McDonnell 
Douglas and Burdine. Thus, in McDonnell Douglas, this Court 
stated that a Title VII plaintiff must “be afforded a fair opportunity 
to show that [defendant’s] stated reason for [plaintiff’s] rejection 
was in fact pretext.” Id. at 804 (emphasis supplied); Fumco, 
438 U.S. at 578 (same); Burdine, 450 U.S. at 253, 256 (same); 
Aikens, 460 U.S. at 716 n.5 (same). In Burdine, this Court made 
it clear that the defendant’s burden of production did not encompass 
the proffer of a sham reason, but that the employer must come 
forward with its actual motivation:

21



[T]he defendant’s explanation of its legitimate 
reasons must be clear and reasonably specific.
. . . This obligation arises both from the necessity 
of rebutting the inference of discrimination arising 
from the prima facie case and from the requirement 
that the plaintiff be afforded “a full and fa ir  
opportunity ” to demonstrate pretext.

the defendant’s evidence [must] raisef] a genuine 
issue of fact as to whether it discriminated against 
the plaintiff. To accomplish this, the defendant 
must clearly set forth, through the introduction of 
admissible evidence, the reasons for the plaintiffs 
rejection. The explanation provided must be legally 
sufficient to justify a judgment for the defendant.

Id. at 258, 254-55 (emphasis supplied). And as this Court held in 
discussing another aspect of Title VII, a defendant may not prevail 
“by offering a legitimate and sufficient reason for its decision i f  
that reason did not motivate it at the time o f  the decision.” Price 
Waterhouse, 490 U.S. at 252 (emphasis supplied).

Yet the “pretext-plus” courts hold -- openly and unabash­
edly -  that Title VII defendants can meet their burden of pro­
duction at step two of the McDonnell Douglas formulation by 
producing some evidence of a nondiscriminatory reason for taking 
adverse action against the plaintiff, even if that reason is spurious 
and false — i. e ., even if it is not the defendant’s actual motivating 
reason. The “pretext-plus” courts actually reward defendants who 
proffer sham motivations for their actions by permitting them to 
prevail unless the plaintiff demonstrates that every plausible but 
unarticulated reason for the employer’s action is false.

The clearest statement of this unorthodox approach to 
justice was set forth by the Seventh Circuit in dictum in Pollard v. 
Rea Magnet Wire Co., Inc., 824 F.2d 557, 559 (7th Cir.), cert, 
denied, 484 U.S. 977 (1987):

22



Showing that the employer dissembled is not 
necessarily the same as showing “pretext for  
discrimination,” however, as we stressed in 
Benzies, it may mean that the employer is trying to 
hide some other offense, such as a violation of a 
civil service system or collective bargaining 
agreement.

(Emphasis in original). See also Benzies, 810 F.2d at 148 (“A 
demonstration that the employer has offered a spurious explanation 
is strong evidence of discriminatory intent, but it does not compel 
such an inference as a matter of law . . . .  The trier of fact may 
find, however, that some less seemly reason—personal or political 
favoritism, a grudge, random conduct, an error in the administra­
tion of neutral rules—actually accounts for the decision. ); 
Villanueva, 930 F.2d at 128 (“ . . . the mere showing that the 
employer’s articulated reason may shield another (possibly 
nondiscriminatory) reason does not create a dispute of material 
fact.”); Veatch, 730 F. Supp at 819 (although plaintiff survived 
defendant’s summary judgment motion, the court noted that “[ejven 
if the employer lies about the real reasons for the firing, other 
reasons, not impermissible under federal law, might be suggested 
by the evidence.”)

The fear expressed by the “pretext-plus” courts is that a 
plaintiff will prevail in a Title VII case whenever the trier of fact 
disapproves of the defendant’s employment decision, even if it was 
motivated by something other than the sort of discrimination 
forbidden by Title VII. In other words, the fear is that Title VII 
will become a “just cause” statute for all who fall under its 
protective scope. Pollard, 824 F.2d at 560-61.

But this fear is unfounded. If, for example, the defendant 
employer took an adverse employment action against a Title VII 
plaintiff because of a good faith mistake about the plaintiff s job 
performance, or out of an error in administering neutral employ­
ment rules, all that is required is that the employer come forward 
with its true motivation. The trier of fact should then find that the 
plaintiff loses because he or she failed to prove pretext.

23



That is precisely what occurred in Pollard, 824 F.2d at 
559-60. There, the defendant employer argued that it had dismissed 
an employee because the employee had taken an unauthorized 
absence from work to attend a body-building event. The plaintiff 
proved that he had in fact been absent from work because he was 
injured—i.e., he proved that the employer acted on the basis of a 
mistaken belief. However, as the Seventh Circuit found, the 
employer terminated the plaintiff because it believed in good faith 
(albeit mistakenly), that the plaintiff had missed work to attend the 
body-building event. Therefore, the Seventh Circuit reversed the 
district court, holding that the plaintiff had failed to prove pretext 
because the employer had terminated him based on its own good 
faith mistake. Id. at 559. See also Billups v. Methodist Hosp. o f  
Chicago, 922 F.2d 1300, 1304 (7th Cir. 1991) (“[0]ur inquiry is 
limited to whether the employer’s belief was honestly held.”); 
Grohsv. Gold Bond Bldg. Products, 859 F.2d 1283, 1288-89 (7th 
Cir. 1988), cert, denied, 490 U.S. 1036(1989) (same); Samuels v. 
Raytheon Corp., 934 F.2d 388, 392-93 (1st Cir. 1991) (same). 
That is decidedly different from the situation in which the plaintiff 
demonstrates that the defendant was not in fact motivated by the 
stated reason (i.e., the employer did not really believe the plaintiff 
was taking an unauthorized absence, but stated it so believed to 
cover up some other motive.)

If, however, the employer proffers a pretextual justification 
in order to avoid disclosing that its real reason involved a violation 
of some other statute or regulation, or of its own procedures, there 
is no policy reason why the courts should protect the employer 
from having to disclose this violation in order to prevail against the 
discrimination charge. A defendant in a discrimination suit enjoys 
no privilege from disclosing the truth just because it happens to be 
unpalatable, or even illegal. In fact, offering an employer defendant 
such extraordinary protection could violate the plaintiff’s rights to 
a full and fair hearing in another respect, because, as this Court has 
previously held, departures from regulations or ordinary procedures 
can be evidence of intentional discrimination. See Village o f  
Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 
252, 267 (1977).

It may be true that some triers of fact have found 
discrimination in cases where there was none, simply because they

24



were outraged at the defendant employer’s conduct. That clear 
error, however, cannot justify a rule that permits, even encourages, 
employers to proffer false and spurious explanations for their 
conduct in order to justify a finding in their favor:

[Tjhere is no rational reason for giving a defendant 
who has lied about the reasons for its actions a 
presumption that its lie does not conceal illegal 
conduct. In no other area of the law would a lying 
defendant be accorded such solicitude. Ordinarily 
lack of credibility may be considered as adverse 
evidence. There is no principled reason why the 
same result should not obtain here. To presume 
that a defendant who offered a false reason for its 
actions in court did so for benign reasons is 
illogical.

Lanctot, supra, at 133. Protecting an employer who lies about its 
true motives is at odds with traditional evidentiary principles. For 
example, it is well-settled that a trier of fact may draw an 
unfavorable inference against a party who lies in court. See, e.g., 
3 Edward J. Devitt, Charles B. Blackmar & Michael A. Wolff, 
Federal Jury Practice and Instructions § 73.04, at 55 (4th ed. 
1987) (“If a witness is shown knowingly to have testified falsely 
concerning any material matter, you have a right to distrust such 
witness’s testimony in other particulars and you may reject all the 
testimony of that witness or give it such credibility as you may 
think it deserves.”)

A similar rule provides that unfavorable inferences may be 
drawn against a party who destroys evidence in its control or fails 
to produce a witness in its control. See, e.g., 2 John H. Wigmore, 
Evidence in Trials at Common Law § 291, at 228 (1979) (“The 
failure or refusal to produce a relevant document, or the destruction 
of it, is evidence from which alone its contents may be inferred to 
be unfavorable to the possessor . . . .”); 3 Devitt, Blackmar & 
Wolff, supra § 72.15, at 45 (“If a party fails to call a person who 
possesses knowledge about the facts in issue, and who is reasonably 
available to him, and who is not equally available to the other 
party, then you may infer that the testimony of that witness is 
unfavorable to the party who could have called him and did not.”); 
Interstate Circuit, Inc. v. United States, 306 U.S. 208, 226 (1939)

25



(failure of defendants to call witnesses within their control to 
contradict allegations of their unlawful conduct “is itself persuasive 
that their testimony, if given, would have been unfavorable

Thus, common evidentiary practice does not justify the 
result urged by the “pretext-plus” courts -  that a defendant may 
lie and nonetheless prevail. If a defendant lies in a Title VII case, 
an inference of discrimination should be drawn against it. See, e.g., 
Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 899 (3d Cir.) (en 
banc), cert, dismissed, 483 U.S. 1052 (1987) (“A defendant which 
is less than honest in proffering its reasons for discharge risks an 
unnecessary . . . discrimination verdict.”); Valdez v. Church’s 
Fried Chicken, Inc., 683 F. Supp. 596, 634-35 (W.D. Tex. 1988) 
(“An employer cannot come forward with any reason justifying the 
job discharge, but must instead come forward with only legitimate 
reasons . . . .  Once [pjlaintiff has shown that [djefendant’s 
proffered reason is unworthy of belief, the case is over.”)

It is equally clear that the defendant -  not the trier of 
fact — must proffer the reason explaining the defendant’s conduct. 
As the Burdine Court noted: “An articulation not admitted into 
evidence will not suffice.” Id. at 255 n.9.

Lanphearv. Prokop, 703 F.2d 1311 (D.C. Cir. 1983) is 
directly on point. In Lanphear, plaintiff, a white male, filed a 
reverse discrimination suit after his employer rejected him for a 
position that was subsequently filled by an African-American male. 
After plaintiff established his prima facie case, the employer argued 
that plaintiffs “poor performance” was the reason for his rejection. 
Id. at 1316. The district court disregarded defendant’s proffered 
reason and granted judgment for defendant on a completely 
different ground—that defendant “simply wanted ‘to inject new 
blood . . .’ by means of a ‘change in personnel’ . . . .” Id.

The D.C. Circuit reversed, noting that the reasons actually 
advanced by defendant for plaintiff’s rejection had been “decisively 
refuted” by the evidence {id. at 1317), and also that the district 
court’s explanation was unsupported by the evidence and by 
defendant itself:

The entire basis for this “clean sweep” jus­
tification presented by the district court appears to

26



stem from a stray suggestion. . . . There is no 
indication that this suggestion was followed. . . .
More important, . . . the selecting official, never 
offered it as a reason fo r  not selecting [plaintiff].
Nor was it ever put forward as a justification by 
the [defendant], either before this court or below.
In fact, the [defendant] has explicitly disavowed it.

Id. at 1316 (emphasis supplied).

Moreover, the D.C. Circuit found that the district court 
erred in substituting its own explanation because under McDonnell 
Douglas-Burdine the defendant must proffer a reason in order to 
satisfy its burden of production and permit plaintiff a full and fair 
opportunity to rebut:

The district court’s substitution of a reason of its 
own devising for that proffered by [defendants] 
runs directly counter to the shifting allocation of 
burdens worked out by the Supreme Court in 
McDonnell Douglas and Burdine. The purpose of 
that allocation is to focus the issues and provide 
plaintiff with “a full and fair opportunity” to attack 
the defendant’s purported justification. That 
purpose is defeated i f  defendant is allowed to 
present a moving target or, as in this case, conceal 
the target altogether. . . .

It should not be necessary to add that the defendant 
cannot meet its burden by means o f a justification 
articulated fo r  the first time in the district court’s 
opinion.

Id. at 1316-17 (emphasis supplied). The ruling in Lanphear is 
particularly apt in the present case, where the district court also 
substituted its own unsupported reason -  “personal motivation” — 
to explain petitioners’ conduct.

There is nothing in McDonnell Douglas or Burdine to 
countenance an employer’s masking the true reason for its decision

27



— in effect, perpetrating a fraud on the court — and then requiring 
a plaintiff who is not confronted with that reason to try to figure 
out what that reason might be and rebut it. The only fair and 
justifiable solution to the fear expressed by the “pretext-plus” 
courts is to require employer defendants to come forward with the 
actual factors that motivated their decisions, even if those factors 
are bad, embarrassing or unsavory, and to instruct triers of fact 
(who will increasingly be juries in light of the Civil Rights Act of 
1991, Pub. L. 102-166, 105 Stat. 1071 (1991)) that only discrimi­
nation is barred by Title VII.

B. The Approach Of The “Pretext-Plus” Courts
Would Lead To An Administrative Quagmire In
Discrimination Cases, And Runs Counter To
The Principles Underlying Fed. R. Civ. P. 16

If the plaintiffs full and fair opportunity to prove pretext 
is to survive the onslaught of the “pretext-plus” approach, then 
Title VII trials cannot be turned into guessing games. Either 
Title VII plaintiffs must be permitted to prevail once they have 
proved defendants’ proffered reasons are pretextual, or they must 
have an opportunity to establish, after notice, that an explanation 
proffered by the trier of fact is as “unworthy of credence” as the 
employer’s explanation proved to be. See, e.g., IMPACT v. 
Firestone, 893 F.2d 1189, 1194 and n.5 (11th Cir.), cert, denied, 
498 U.S. 847 (1990) (plaintiff must be provided “a fair opportunity 
to cross-examine the defendant’s witnesses as to the actual reason 
which is testified to .”)

The latter alternative would seem to require some sort of 
bifurcated trial. One possible scenario: the trier of fact would need 
to render an interim verdict after the McDonnell Douglas-Burdine 
proof goes in. If it ruled that the defendant’s articulated explana­
tions were pretextual, the trier of fact would need to identify any 
other explanations that, in its opinion, could account for the chal­
lenged employment decision. In jury cases, this would necessitate 
jury interrogatories; in bench trials, the court would have to issue 
some sort of advisory opinion. The plaintiff would then have to be 
given an opportunity -  perhaps even after additional discovery -  
to rebut the explanations identified by the trier of fact. Without 
such a procedure, the plaintiff would never have the full and fair

28



opportunity to prevail that was guaranteed by this Court in 
McDonnell Douglas and its progeny.

Merely setting forth the order of proof necessary under 
such a system demonstrates how alien it is to our rule of juris­
prudence and how cumbersome it would be for the courts to 
administer. The whole purpose of the Federal Rules of Civil 
Procedure and local court rules concerning the conduct of litigation 
is to narrow and focus the issues in a civil case prior to trial. As 
this Court ruled in Burdine, that same goal of narrowing and 
focusing the issues is the reason the defendant is required to 
produce a legitimate, nondiscriminatory explanation for its conduct. 
See Burdine, 450 U.S. at 255 n.8 (“the allocation of burdens . . . 
is intended progressively to sharpen the inquiry into the elusive 
factual question of intentional discrimination.”) It hardly serves 
that goal to construct an evidentiary framework that permits a 
defendant to prevail on the basis of an argument it has never made, 
and perhaps even abjures.

All of the protections of federal trial procedure would be 
undermined by a system that permitted rebuttable issues to be 
advanced after the case was closed. Obviously, a plaintiff has no 
reason to pursue discovery into a non-issue — in this case, where 
Captain Powell denied that he had any difficulties with Hicks and 
defendants did not advance personal animosity as their motive, 
Hicks had no incentive to inquire more deeply into the “issue” that 
would later prove dispositive to the district court. Moreover, parties 
are routinely limited to proving the matters specified in their 
court-approved pre-trial orders, which control the subsequent 
course of a litigation and which a district court has no obligation to 
modify once entered. See Fed. R. Civ. P. 16(e); Daniels v. Board 
o f Education, 805 F.2d 203, 210 (6th Cir. 1986); Roland M. v. 
Concord School Comm., 910 F.2d 983, 999 (1st Cir. 1990), cert, 
denied, 111 S. Ct. 1122 (1991). All of these procedural rules will 
have to be revised if a plaintiff is to retain a full and fair 
opportunity to prevail on the basis of indirect evidence even as the 
McDonnell Douglas-Burdine framework is eviscerated by a 
“pretext-plus” approach.

29



CONCLUSION

For the foregoing reasons, the judgment of the Eighth 
Circuit should be affirmed.

Respectfully submitted,

Colleen McMahon 
Melissa T. Rosse

PAUL, WEISS, RIFKIND,
WHARTON & GARRISON 

1285 Avenue of the Americas 
New York, New York 10019-6064 
(212) 373-3000

Herbert M. Wachtell, Co-Chair 
William H. Brown, HI, Co-Chair 
Norman Redlich, Trustee 
Barbara R. Arnwine 
Thomas J. Henderson 
Richard T. Seymour 
Michael Selmi 
Sharon R. Vinick

LAWYERS’ COMMITTEE FOR CIVIL 
RIGHTS UNDER LAW 

1400 Eye Street, N.W.
Washington, D.C. 20005 
(202) 371-1212

Isabelle Katz Pinzler 
Steven R. Shapiro
AMERICAN CIVIL LIBERTIES 
UNION FOUNDATION 
132 West 43rd Street 
New York, New York 10036 
(212) 944-9800

30



Donna R. Lenhoff 
Helen L. Norton
WOMEN’S LEGAL DEFENSE FUND 
1875 Connecticut Avenue, N.W. 
Washington, D.C. 20009 
(202) 986-2600

Cathy Ventrell-Monsees
AM ERICAN ASSOCIA TION OF 
RETIRED PERSONS 
601 E Street, N.W.
Washington, D.C. 20049 
(202) 434-2060

Ellen J. Vargyas 
Deborah L. Brake
NATIONAL WOMEN’S LAW CENTER 
1616 P Street, N.W.
Washington, D.C. 20036 
(202) 328-5160

Antonia Hernandez
E. Richard Larson 
Kevin G. Baker
MEXICAN AMERICAN LEGAL 

DEFENSE AND EDUCATIONAL FUND 
634 South Spring Street 
Los Angeles, California 90014 
(213) 629-2512

Attorneys for Amici Curiae 
Lawyers’ Committee for Civil 
Rights Under Law, American 
Civil Liberties Union Foundation, 
Women’s Legal Defense Fund,
American Association of Retired 
Persons, National Women’s Law Center, 
and Mexican American Legal Defense 
and Educational Fund

March 24, 1993

31