St. Mary's Honor Center v Hicks Brief for Respondent

    Suprem e Court of ti)e ^Bmtcb S ta tes
October T erm , 1992

Melvin H icks,
Respondent.

On Writ of Certiorari to the 
United States Court of Appeals 

for the Eighth Circuit

BRIEF FOR RESPONDENT  
MELVIN HICKS

* Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C, (202) 347-8203

*Charles R. Oldham 
Louis Gilden

E laine R. Jones 
Charles Stephen Ralston 
E ric Schnapper 
Marina Hsieh 
99 Hudson Street 
Suite 1600
New York, NY 10013 
(212) 219-1900

317 N. 11th Street 
Suite 1220
St. Louis, MO 63101 
(314) 231-0464

Counsel fo r Respondent



TABLE OF CONTENTS

STATEMENT OF THE CASE .....................................  1

SUMMARY OF A R G U M EN T.....................................  8

ARGUMENT ...................................................................  9

I. A TITLE VII PLAINTIFF IS ENTITLED 
TO JUDGMENT AS A MATTER OF LAW 
IF HE PROVES THAT EVERY NON- 
D I S C R I M I N A T O R Y  R E A S O N
PROFFERED BY THE DEFENDANT
WAS NOT CREDIBLE......................................  13
A. By Process of Elimination, McDonnell 

Douglas Narrows the Factual Issues to 
Determine Whether There was 
Discrimination..........................................  13

B. Allowing a Plaintiff Who Proves Only
a Prima Facie Case Against a Silent 
Defendant to be in Better Position 
than a Plaintiff Who Proves a Prima 
Facie Case And Rebuts all Proffered 
Reasons of a Dishonest Defendant is 
Illogical......................................................  19

C. It is Well-Established that Rebuttal of
the Articulated Reasons Serves to 
Discharge the Plaintiffs Ultimate 
Burden of Proof of Discrimination. . . .  21

D. The Court of Appeals Correctly 
Followed McDonnell Douglas in 
Holding that Respondent’s Rebuttal of 
the Petitioner’s Reasons Entitled Him
to Judgment..............................................  24



u

II. C R E D I T I N G  U N A R T I C U L A T E D  
REASONS DEPRIVES A PLAINTIFF OF 
HIS FULL AND FAIR OPPORTUNITY TO 
PROVE HIS CASE.............................................. 25
A. McDonnell Douglas Requires the

Employer to Frame Clearly the 
Factual Issues so the Plaintiff Has a 
Full and Fair Opportunity for 
Rebuttal.....................................................  25

B. Allowing the Defendant to Benefit
from Unarticulated Reasons by 
Escaping Scrutiny for Pretext is 
Detrimental to Truth-Seeking and 
Efficiency....................    28

C. The Confusion of the Present Record
Demons t ra t es  Why Credi t ing 
Unarticulated Reasons Undermines 
the Truth-Seeking Function of the 
Adversarial Process..................................  32

III. ADOPTION OF THE "PRETEXT PLUS"
RULE WOULD REQUIRE DIRECT 
P R O O F  OF D I S C R I M I N A T O R Y  
MOTIVE...............................................................  36

IV. THE DISTRICT COURT ERRED AS A
MATTER OF LAW IN HOLDING THAT 
THE EVIDENCE DEMONSTRATED AN 
ABSENCE OF DISCRIMINATION................. 38

CONCLUSION 39



Ill

TABLE OF AUTHORITIES

Cases: Pages:

Bazemore v. Friday,
478 U.S. 385 (1986) .......................................... 19

Benzies v. Illinois Dept, of Mental Health and 
Developmental Disabilities, 810 F.2d 
146 (7th Cir.), cert, denied, 483 U.S.
1006 (1987) ...................................................  29, 30

Castaneda v. Partida,
430 U.S. 482 (1977)   38

Equal Employment Opportunity Comm’n v. West Bros.
Dept. Store, 805 F.2d 1171 (5th Cir. 1986) . . .  28

Fumco Construction Corp. v. Waters,
438 U.S. 567 (1978)   passim

Galbraith v. Northern Telecom,
944 F.2d 275 (6th Cir. 1991) ............................ 24

Jackson v. RKO Bottlers of Toledo, Inc.,
743 F.2d 370 (6th Cir. 1984) ............................ 28

Joint Anti-Fascist Refugee Comm. v. McGrath,
341 U.S. 123 (1951)   29

La Montagne v. American Convenience Products, Inc.,
750 F.2d 1405 (7th Cir. 1984).............................  10

Lankford v. Idaho,
500 U .S.__ , 114 L. Ed. 2d 173 (1991)............ 26

Lanphear v. Prokop,
703 F.2d 1311 (D.C. Cir. 1983) 27, 28



McDonnell Douglas,
411 U.S. 792 (1973) ...................................  passim

Mesnick v. General Electric,
950 F.2d 816 (1st Cir. 1991)..............................  24

Michigan v. Lucas,
500 U .S .___, 114 L. Ed. 2d 205 (1991)............ 31

Miles v. M.N.C. Corp.,
750 F.2d 867 (5th Cir. 1985) ............................  35

Nation-wide Check v. Forest Hills Distribs.,
692 F.2d 214 (1st Cir. 1982)..............................  30

Oxman v. WLS-TV,
846 F.2d 448 (7th Cir. 1988) ............................  10

Patterson v. McLean Credit Union,
491 U.S. 164 (1989) .....................................  22, 26

Patton v. Mississippi,
332 U.S. 463 (1947) .......................................... 19

Price Waterhouse v. Hopkins,
490 U.S. 490 (1989) .......................................... 22

Teamsters v. United States,
431 U.S. 324 (1977) ..................................... passim

Texas Dept, of Community Affairs v. Burdine,
450 U.S. 248 (1981) ................................... passim

iv
Pages:

Trans World Airlines v. Thurston, 
469 U.S. I l l  (1985) ___ 25



United Postal Service Bd. of Governors v. Aikens,
460 U.S. 711 (1983) ................................... passim

University of Pennsylvania v. EEOC,
493 U.S. 182 (1990)   30

Uviedo v. Steves Sash & Door Co.,
738 F.2d 1425 (5th Cir. 1984) .....................  27, 28

Statutes: Pages:

Fed. R. Civ. P. 26(c).......................................................  30

Fed. R. Evid. 3 0 1 ............................................................ 20

Civil Rights Act of 1991, Pub. L. 102-166,
105 Stat. 1073 ................................................  24, 31

42 U.S.C. § 1621 ............................................................  30

42 U.S.C. § 1983 .......................................................  2, 7, 8

Civil Rights Act of 1964, Title VII,
42 U.S.C. 2000e et seq...................................  passim

Miscellaneous: Pages:

Catherine J. Lanctot, The Defendant Lies and the Plaintiff 
Loses: The Fallacy of the ‘Pretext-Plus’ Rule in 
Employment Discrimination Cases,
43 Hastings L.J. 57 (1991) ................................  36

V

Pages:



vi
Pages:

Marina C. Szteinbok, Indirect Proof of Discriminatory 
Motive in Title VII Disparate Treatment 
Claims after Aikens,
88 Colum. L. Rev. 1114 (1988).......................... 29

Recent Developments in Disparate Treatment Theory, 
EEOC Advance Policy Guidance N 915.002, Lab.
L. Rep. (CCH) 449 Issue No. 493 .....................  23



No. 92-602

In The

Suprem e Court of tfje Untteb S ta te s
October Term, 1992

St . Mary’s Honor Center and Steven Long,
Petitioners,

v.

Melvin Hicks,
Respondent.

On Writ of Certiorari to the 
United States Court of Appeals 

for the Eighth Circuit

BRIEF FOR RESPONDENT 
MELVIN HICKS

STATEMENT OF THE CASE

Respondent Melvin Hicks, an African-American, 
began working as a correctional officer at St. Mary’s Honor 
Center, a facility of the Missouri Division of Corrections, in 
1978. In 1980, he was promoted to shift commander. In 
1984, Hicks was demoted and then discharged from this 
position. He filed suit against Petitioners St. Mary’s Honor 
Center and Steven Long, Superintendent of St. Mary’s, 
alleging that Petitioners had demoted and discharged him on 
the basis of his race and in retaliation for his filing a 
complaint with the Equal Employment Opportunity



2

Commission, in violation of Title VII of the Civil Rights Act 
of 1964, 42 U.S.C. 2000e et seq. The complaint also alleged 
that Petitioner Long had violated Hicks’ rights under 42 
U.S.C. §1983. Order and Memorandum of the District 
Court, Appendix to Petition for Writ of Certiorari ("Pet."), 
at pages A-14 to A-15, A-18.

In 1981, the Deputy Director of the Missouri Division 
of Corrections, in Jefferson City, Missouri, requested a 
statewide study of the correctional facilities that, inter alia, 
addressed the "organizational stability" of St. Mary’s. Joint 
Appendix ("J.A.") at 68-70; 81-85. The study measured 
"shares of power" held by black and white supervisors [levels 
2-6] and correctional officers (CO-ls) at St. Mary’s, noting 
that at level 2, the custody sergeants, there were no whites:

6. W
5. B
4. W W B W W
3. B B B B B B B
2. B B B
I. B B B B B B B B B W B B B B B W B B B B B

J. A. 82-83. The study concluded that although the
"executive positions are racially balanced (one White and 
one Black), because "the majority of the program staff 
(63.64%) is black ... the potential for subversion of the 
Superintendent’s power — should the staff become racially 
polarized — is very real." J.A. 85. The Director and 
Deputy Director of the Division of Corrections discussed the 
report with management and circulated copies to
Superintendents of the Centers. J.A. 70, 71, 73.

In late 1983, there were numerous complaints to the 
Division about the conditions and operations at St. Mary’s. 
Pet. A-15. Among the complainants were two white 
correctional officers from St. Mary’s who called and visited 
Jefferson City because "they wanted to make promotion, but



3

they said blacks were in the way, so they couldn’t be 
promoted." Record ("R.") at page 1-21. After
investigations, in January 1984 the Superintendent at St. 
Mary’s was transferred and replaced by Petitioner Steven 
Long. Pet. A-15. John Powell, a white male, became the 
Chief of Custody, over the three Shift Commanders. Pet. A- 
15.

Supervisory personnel in the custody section of St. 
Mary’s changed dramatically after Petitioner Long’s 
appointment. During the four months between Long’s 
arrival and Hicks’ departure, the custody supervisors 
underwent the following transformation:

6. Superintendent 
5. Asst. Superintendent 
3. Chief of Custody 
2. Shift Supervisor

Jan. 1984 April 1984 
W - Schulte W — Long 
B - Banks B - Banks 
B - Greenlee W — Powell 
B - Woodward W — Hefele 
B - MacAvoy W — Wilson 
B - Hicks W

Pet. A-15, A-27; J.A. 56-57, 82.

The trial court found that when Long arrived in 
January 1984 there were 30 blacks employed, and when he 
left the facility in May, 1985 there were 29 blacks employed. 
R. 2-111. In the first year after Long and Powell took 
charge, twelve blacks were fired and one demoted, but only 
one white was terminated. R. 3-10 to 3-11.

The testimony revealed that while Long could 
effectively terminate employees, he did not control the hiring 
for level 1 CO-ls, the bulk of the positions. That was done 
pursuant to merit system lists by the central personnel office 
in Jefferson City:

QUESTION: You’re the one that recommends the 
CO-ls?



4

THE WITNESS: Not CO-ls. They come directly 
from Jefferson City. They have a 
central pool.

J.A. 67 (testimony of Vincent Banks).

The district court found that Hicks established a 
prima facie case, under McDonnell Douglas, 411 U.S. 792 
(1973), by showing that he is a member of a protected class; 
that he met the job qualifications of a shift commander, as 
proven by his experience, satisfactory record, and ratings; 
that he suffered adverse actions in his demotion and 
termination; and that after his demotion, the position 
remained open and was then filled by a white male. Pet. A- 
22 to A-23.

The court found that the burden then shifted to the 
Petitioners to set forth a legitimate, non-discriminatory 
reason for the adverse employment decisions. Pet. A-23. 
Petitioners set forth two reasons for the adverse action: "the 
severity and the accumulation of violations committed by 
plaintiff." Pet. A-23. Long testified that the reasons for 
termination were:

Mainly, an accumulation of the infractions by 
Mr. Hicks, of the problems that had been 
accounted (sic) to that point, without any 
appearance of any improvement in his 
conduct, and the seriousness of that individual 
incident.

R. 2-104.

In the six years before the arrival of Long and 
Powell, Hicks had not been suspended or disciplined, Pet. A- 
16, but was disciplined three times in March 1984: (i) for 
being the shift commander on duty when a front door officer 
was away from his post, for which he received a five day- 
suspension, Pet. A-15, A-16; (ii) for failing to correct the log 
of a subordinate’s use of St. Mary’s vehicle, for which he was



5

demoted to CO-1, Pet. A-17; and (iii) for allegedly failing to 
investigate a fight between inmates, for which he received a 
reprimand letter, Pet. A-18. Around April 11, 1984 Hicks 
filed an EEOC complaint complaining of racial 
discrimination in employment conditions. Amended
Complaint, H 10.

The district court compared the plaintiffs disciplinary 
violations with actions taken against others for similar or 
more serous violations. The court noted that the plaintiff 
was the only supervisor disciplined for violations committed 
by his subordinates, Pet. A-24, that far more serious 
infractions by other supervisors and CO-ls (many of whom 
where white) were punished far less severely, Pet. A-25. 
These included allowing guests with guns into the institution, 
allowing inmates to escape and allowing inmates access to 
personal files and the Center’s power room, and were 
punished less severely, if at all. Pet. A-25 to A-26.

On April 19,1984 Steven Long and John Powell met, 
in Assistant Superintendent Vincent Banks’ office, with 
Hicks to inform him of his demotion to CO-1 status and 
reduction in his salary. Pet. A-18. Powell and Long 
assigned Hicks be a front door officer and informed him he 
would have to perform custodial duties. J.A. 43. Powell 
testified that custodial duties had never been assigned to a 
front door officer before. J.A. 43. After the meeting, 
Powell followed Hicks and heated words were exchanged. 
Hicks left without further incident. Pet. A-18.

At trial, Powell denied any personal difficulty with 
Melvin Hicks: "I can’t say that there was difficulties between 
he and I. At no time was there any kind of personal —" 
J.A. 46. Although Powell also denied any instigating role in 
the confrontation with Hicks, J.A. 46, the district court 
stated that the evidence suggested that Powell had 
"manufactured the confrontation between plaintiff and 
himself in order to terminate plaintiff." Pet. A-26. Powell



6

wanted to take disciplinary action against Hicks for the 
incident. Pet. A-18. Hicks filed a second EEOC complaint 
on May 7, 1984, alleging demotion of the basis of race and 
amended it to add the discharge claim. Am. Comp. If 15.

On May 9, 1984 a four person disciplinary review 
board, composed of two blacks, recommended a three day 
suspension of Hicks for the confrontation.- Pet. A-18 to A- 
19. Petitioner Long testified that he looked at Sgt. Hicks’ 
entire record and no questions were raised in his mind about 
the propriety of Mr. Hick’s dismissal under those 
circumstances, [R. 2-155], although the disciplinary board, 
had recommended a far lesser sanction, R. 2-156. He 
"disregarded their vote and recommended termination." Pet. 
A-18 to A-19. Donald Wyrick, Director of the Division of 
Adult Institutions, approved the final discharge decision. R. 
2-109.

The trial court concluded, based on its extensive 
comparison of the application and degree disciplinary 
practices at St. Mary’s, that the reasons proffered by 
Petitioners were pretextual. Pet. A-23. However, after 
finding pretext by Petitioners, the court held that plaintiff 
nonetheless had to prove that race was the reason for the 
action against him. Pet. A-26. The court stated:

It is clear that John Powell had placed 
plaintiff on the express track to termination, 
but that it is also clear that Powell received 
the aid of Ed Ratliff [white] and Steve Long 
in this endeavor. The question remains, 
however, whether plaintiffs race played a role 
in their campaign.

Pet. A-26. The court further noted 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 motivated." Pet. A-27.



7

In reaching its final conclusion that Hicks had failed 
to prove by "direct evidence or inference that his unfair 
treatment was motivated by his race," Pet. A-29, the district 
court discounted the disproportionate firing of blacks at St. 
Mary’s because it thought that Defendant Long had hired 
blacks also; the court noted that CO-1 blacks were not 
disciplined for violations occurring on plaintiffs shift, that 
blacks sat on the disciplinary review boards, that a large 
number of black supervisors were fired because nearly all 
the supervisors were black at the beginning of 1984, and that 
both Long and Powell testified that they did not know of the 
study regarding racial balance. Pet. A-27 to A-28.

The court entered judgment for St. Mary’s Honor 
Center on Respondent’s claim of race discrimination in 
violation of Title VII, Pet. A-29, and also entered judgment 
for Steve Long on the claim of racial discrimination under 
42 U.S.C. §1983 for the same reasons, Pet. A-30. No 
mention was made in the findings about the judgment of 
plaintiffs claim of retaliation under Title VII.

On appeal, the Court of Appeals for the Eighth 
Circuit reversed, finding that once plaintiff proved a prima 
facie case and that the employer’s articulated reasons were 
pretextual, plaintiff was entitled to judgment as a matter of 
law. Pet. A-12. The Court of Appeals did not address the 
question whether the district court’s "assumption" of the 
unarticulated personal reason of animosity was proper, 
because it found that the that reason was never claimed by 
defendants. Pet. A-10. The appellate court did not review 
the findings of the trial court for clear error and did not rule 
on the issue of retaliation because it reversed the district 
court on the basis of plaintiffs disparate treatment theory. 
Pet. A-12, n.9:

In this circuit, if the plaintiff has met his or 
her burden of proof at the pretext stage — 
that is, if the plaintiff has proven by a



8

preponderance of the evidence that all of the 
defendant’s proffered nondiscriminatory 
reasons are not true reasons for the adverse 
employment action — then the plaintiff has 
satisfied his or her ultimate burden of 
persuasion. No additional proof of 
discrimination is required.

Pet. A -ll. The court of appeals reversed the judgement of 
the district court on the merits of plaintiffs Title VII claim 
against St. Mary’s, and the §1983 claim against Long. Pet. 
A-12.

The defendants, St. Mary’s Honor Center and Steven 
Long, filed a petition for certiorari with the Supreme Court 
of the United States, this petition was granted and the case 
set for argument.

SUMMARY OF ARGUMENT

I.

The McDonnell Douglas/Burdine line of cases requires 
that judgment be entered for a Title VII plaintiff if the 
reasons articulated by the defendant as the "legitimate, 
nondiscriminatory" reasons for the disputed employment 
decision are proven to be false. This follows because upon 
the establishment of a prima facie case, prohibited 
discrimination is established as one of the possible reasons 
for the decision. All other possible reasons except the ones 
articulated and relied upon by the employer necessarily drop 
out of the case. Therefore, if the articulated reasons are 
demonstrated to be false and therefore pretextual, the only 
reason remaining in the case is prohibited discrimination.

II.

It is inconsistent with the purpose of the McDonnell



9

Douglas/Burdine line of cases to permit a defendant to rely 
on a reason not articulated as being the one for making the 
employment decision. A central purpose of the McDonnell 
Douglas!Burdine order of proof is to eliminate all reasons 
not relied on and to permit full exploration of the reasons 
articulated by the employer. A plaintiff is unable to do so 
if the trial court relies on a reason not advanced by the 
employer. Thus, the truth-seeking function of the inquiry is 
undermined.

III.

It is clear that a plaintiff may prove pretext either 
through direct evidence of discrimination or by 
demonstrating that the articulated reasons are in fact not the 
real reasons. The adoption of the "pretext-plus" rule 
advanced by Petitioners would, in effect, require that 
plaintiffs adduce direct evidence of racist motivation in order 
to prevail. Such a result is directly contrary to the 
unanimous decisions of this Court in the McDonnell 
Douglas/Burdine line of decisions.

IV.

The district court erred as a matter of law in holding 
that additional evidence proved that racial discrimination 
was not a motivating factor in the discharge of Respondent. 
These errors required the reversal of the decision of the 
district court.

ARGUMENT

Our nation’s commitment to enforcing fully Title VII, 
42 U.S.C. § 2000e et seq., and other anti-discrimination laws 
has required the courts and Congress to address the 
difficulties of proving subtle, as well as blatant, cases of



10

discrimination.1 In McDonnell Douglas Corp. v. Green, 411 
U.S. 792 (1973), Justice Powell, wrote for a unanimous 
Court, setting forth rules that would govern the order of 
proof and the allocation of the evidentiary burdens in cases 
alleging intentional discrimination. This Court further 
explained the McDonnell Douglas inquiry, again in a 
unanimous opinion, in Texas Dept, o f Community Affairs v. 
Burdine, 450 U.S. 248 (1981).

Under the McDonnell Douglas inquiry, the plaintiff 
carries the initial burden of proving, by a preponderance of 
the evidence, a prima facie case of the forbidden 
discrimination. The prima facie requirements vary 
depending on the factual situation and the adverse action at 
issue, for example, in a failure to hire case a plaintiff would

‘Some cases of intentional discrimination can be proved by direct 
evidence of discrimination, e.g., Teamsters v. United States, 431 U.S. 
324 (1977), but, in most cases only indirect evidence will be available. 
Because Title VII prohibits all forbidden discrimination, not only in 
cases where there is a "smoking gun,” standards that guide the courts’ 
evaluation of indirect proof of discrimination are crucial. For 
example,

Age discrimination may be subtle and even 
unconscious. Even an employer who knowingly 
discriminates on the basis of age may leave no 
written records revealing the forbidden motive and 
may communicate it orally to no one. When 
evidence is in existence, it is likely to be under the 
control of the employer, and the plaintiff may not 
succeed in turning it up. The indirect method [of 
proof] compensates for these evidentiary difficulties 
by permitting the plaintiff to prove his case by 
eliminating all lawful motivations, instead of proving 
directly an unlawful motivation.

Oxman v. WLS-TV, 846 F.2d 448 (7th Cir. 1988), quoting La 
Montagne v. American Convenience Products, Inc., 750 F.2d 1405,1410 
(7th Cir. 1984).



11

show

(i) that he belongs to a racial minority; (ii) 
that he applied and was qualified for a job for 
which the employer was seeking applicants,
(iii) that, despite his qualifications, he was 
rejected; and (iv) that, after his rejection, the 
position remained open and the employer 
continued to seek applicants from persons of 
complainant’s qualifications.

McDonnell Douglas, 411 U.S., at 802.2 Proof of a prima 
facie case establishes a legally mandatory, rebuttable 
presumption, which, if the defendant remains silent, requires 
judgment for the plaintiff. Burdine, 450 U.S., at 254 n.7.

Next, if the plaintiff succeeds in proving the prima 
facie case, the burden must shift to the defendant "to 
articulate some legitimate, nondiscriminatory reason for the 
employee’s rejection." McDonnell Douglas, 411 U.S., at 802. 
This is a burden of production, under which "the defendant 
must clearly set forth, through the introduction of admissible 
evidence, the reasons for the plaintiffs rejection." Burdine, 
450 U.S., at 254-55. Although the reasons need not be 
proved by a preponderance of evidence at this stage, they 
must be legally sufficient to justify a judgment for the 
defendant. Id. 450 U.S., at 255. Meeting this burden

serves simultaneously to meet the plaintiffs 
prima facie case by presenting a legitimate

2The facts required to make out a prima facie case will necessarily 
vary in Title VII cases. Burdine, 450 U.S., at 253 n.6. Thus, in this 
discharge case, the district court found that Respondent had proven 
that (i) he was a member of a protected class, (ii) met the 
qualifications for his job, (iii) was nonetheless demoted and 
discharged, and (iv) the position remained open after his demotion 
and was then filled by a white male. Pet. App. A-22 to -23.



12

reason for the action and to frame the factual 
issue with sufficient clarity so that the plaintiff 
will have a full and fair opportunity to 
demonstrate pretext.

Id., at 255-56 (emphasis added). The defendant’s evidence 
must serve these two functions in order to be sufficient to 
discharge its burden and to rebut the presumption of 
discrimination. Id., at 256.

Finally, if the defendant meets its burden of 
production, the burden shifts back to the plaintiff. In 
Burdine, this Court explained the plaintiffs ultimate burden. 
of persuasion in a single paragraph that concluded its 
discussion of the three-part test:

The plaintiff retains the burden of 
persuasion. She now must have the 
opportunity to demonstrate that the proffered 
reason was not the true reason for the 
employment decision. This burden now 
merges with the ultimate burden of persuading 
the court that she has been the victim of 
intentional discrimination. She may succeed 
in this 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. See 
McDonnell Douglas, 411 U.S., at 804-05.

Burdine, 450 U.S. at 256 (emphasis added). The 
interpretation of this paragraph lies at the heart of the 
controversy of this case.



13

I. A TITLE VII PLAINTIFF IS ENTITLED TO 
JUDGMENT AS A MATTER OF LAW IF HE 
PROVES THAT EVERY NON-DISCRIMINATORY 
REASON PROFFERED BY THE DEFENDANT 
WAS NOT CREDIBLE.

After a plaintiff has proven a prima facie case and a 
defendant proffers its reason for the allegedly discriminatory 
action, a plaintiff under McDonnell Douglas "may succeed ... 
by showing that the employer’s proffered explanation is 
unworthy of credence." Burdine, 450 U.S., at 256. The court 
of appeals held, correctly in Respondent’s view, that a 
plaintiff is entitled to judgment if he or she convinces the 
court — as concededly occurred here -  that all of the 
employer’s proffered explanations were unworthy of 
credence. Pet. App. A-26. Petitioners contend, on the other 
hand, that a plaintiff must do far more. A Title VII plaintiff 
is not entitled to judgment, Petitioners urge, unless the 
plaintiff "eliminate[s] all lawful reasons for the employment 
decision." Brief for the Petitioners ("Pet. Br.") at 16 
(emphasis added).

A. By Process of Elimination, McDonnell Douglas 
Narrows the Factual Issues to Determine 
Whether There was Discrimination.

Petitioners’ argument that a plaintiff must eliminate 
all conceivable legitimate explanations is inconsistent with 
the fundamental methodology of McDonnell Douglas and its 
progeny. McDonnell Douglas does not contemplate that the 
evidence or findings of fact and conclusions of law in a Title 
VII case must canvas all, or even most, conceivable 
explanations for a disputed employment practice. Rather, 
the serial ordering and allocation of burdens in McDonnell 
Douglas "is intended progressively to sharpen the inquiry 
into the elusive factual question of intentional 
discrimination." Burdine, 450 U.S., at 354 n.8.



14

The three-part McDonnell Douglas inquiry is 
structured as a process of elimination. As then-Justice 
Rehnquist explained in Fumco Construction Corp. v. Waters, 
438 US. 567 (1978), the primary principle guiding the inquiry 
is to evaluate evidence "in light of common experience as it 
bears on the critical question of discrimination." Fumco, 438 
U.S., at 577. The Fumco Court explained the fundamental 
methodology of the McDonnell model of indirect proof:

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.

Fumco, 438 U.S., at 577. Against this understanding, each 
step of the inquiry is designed to present the litigants and 
fact finder with questions that progressively narrow all 
possible reasons for the employer’s action until the "real" 
reason is revealed. These presumptions, burdens, and 
inferences "reflect judicial evaluations of probabilities and ... 
conform with a party’s superior access to the proof." 
Teamsters v. United States, 431 U.S. 324, 359 n.45 (1977) 
(citations omitted). If, at the end of the three-step inquiry, 
no nondiscriminatory reason remains, the necessary 
inference is that invidious discrimination was in reality the 
motive for the disputed action.

The first step of McDonnell Douglas requires the 
plaintiff, in order to proceed further, to prove a prima facie 
case. This "serves a important function in the litigation: it 
eliminates the most common nondiscriminatory reasons for 
the plaintiffs rejection." Burdine, 450 U.S., at 253-54.



15

Those reasons are (i) that there was no job vacancy, and (ii) 
that the plaintiff was absolutely or relatively unqualified. 
Teamsters, 431 U.S., at 358 n.44. Those facts, coupled with 
the additional prima facie evidence that the plaintiff was a 
member of a protected class and was bypassed or replaced 
by a person not from that class, creates a presumption of 
discrimination. Discrimination is presumed because "we 
presume these acts, if otherwise unexplained, are more likely 
than not based on the consideration of impermissible 
factors." Fumco, 438 U.S., at 577.

Once a plaintiff has established a prima facie case, 
the focus of the judicial inquiry, and the proof required of 
each party, narrows. The inquiry now focuses on the 
particular explanations that the employer itself chose to 
proffer through admissible evidence. Placing the burden on 
the employer reflects the ability and motivation of the 
employer to identify any legitimate, nondiscriminatory 
explanations for which there may be substantial evidentiary 
support:

[Tjhe employer [i]s in the best position to show why 
any individual employee was denied an employment 
opportunity.... [In some instances] the company’s 
records [are] the most relevant items of proof. If the 
[disputed action] was based on other factors, the 
employer and its agents kn[o]w best what those 
factors were and the extent to which they influenced 
the decisionmaking process.

Teamsters, 431 U.S., at 359 n.45. The litigation decision of 
the employer to place in controversy only those particular 
explanations eliminates from further consideration the 
alternative explanations that the employer chose not to 
advance. These discarded reasons must now be presumed 
not to be possible reasons in fact for the challenged action.



16

McDonnell Douglas is deliberately framed to assure 
that the list of possible explanations to be addressed at trial 
is winnowed down; the defendant cannot put a possible 
explanation into issue merely by mentioning it in a pleading 
or a brief, but must specifically frame the proffered reason 
and support it with admissible evidence. Burdine, 450 U.S., 
at 255. These requirements would be meaningless if 
plaintiffs and courts were obligated to consider "all" possible 
reasons or any of a myriad of explanations that a defendant 
itself chooses not to proffer. The potentially infinite inquiry 
suggested by Petitioners would be impossible for any 
plaintiff to complete, and unwieldy for any court to assess. 
The discovery necessary merely to attempt to disprove "all" 
possible reasons would be boundless.

"The factual inquiry proceeds to a new level of 
specificity" once the employer discharges its burden of 
articulating a particular reason or reasons for its actions. 
Burdine, 450 U.S., at 255. The litigation then focuses 
exclusively on the specific reasons proffered by the employer.

At this point, the issue before the court is narrow, 
albeit at times difficult: "In short, the district court must 
decide which party’s explanation of the employer’s 
motivation it believes." United Postal Service Bd. o f 
Governors v. Aikens, 460 U.S. 711, 716 (1983) (emphasis 
added).

At the final step of the McDonnell Douglas inquiry 
the plaintiff must address the employer’s articulated reasons 
for the challenged action. Burdine quite clearly explains how 
this task "merges with" the plaintiffs ultimate burden of 
persuasion to allow two courses of action, which it states in 
the disjunctive. Burdine, 450 U.S., at 255. The plaintiff may 
either prove that • discrimination was more likely than the 
articulated reasons to have been the employer’s real 
motivation, or prove simply that those stated reasons were 
not in fact the employer’s motivations. The latter option,



17

proof that the stated reasons are not credible, proves by 
inference that discrimination was the reason, since all 
possible nondiscriminatory reasons have been eliminated 
from the case either because they were not articulated by 
defendant or because they were proved to be false. No 
reasons remain but the discrimination that we infer from our 
common experience. See Fumco, 438 U.S., at 577. That 
factual finding discharges the ultimate burden of persuasion 
and compels a judgment for the plaintiff.3 Additional proof 
of discrimination, direct or indirect, would be redundant.

In this case, Petitioners concede, the district court 
proceeded to reject as not truthful the explanations they 
proffered at trial. Pet. Br. 11, 17, 26; Pet. App. A-26. 
Having eliminated the only lawful reasons properly before 
the court under McDonnell Douglas, Respondent was under 
no obligation to go further and address "all," or any, other 
conceivable explanations that Petitioners had chosen not to 
assert. Having eliminated the only non-discriminatory 
explanation in issue, respondent was entitled to a judgment 
that the only remaining motive at issue -- racial 
discrimination -- had been established.

The following diagram illustrates the narrowing of 
issues in a case, like this one, in which a plaintiff proves a 
prima facie case which is met by articulated reasons by the 
employer, which are then proved to be unworthy of 
credence.

Petitioner’s semantic argument that proof of "pretext" must 
instead mean proof of "pretext for discrimination" confuses separate 
analytical steps: The plaintiffs evidentiary burden is to prove only 
that the articulated reasons were not the employer’s true reasons; the 
consequence of so doing creates the inference that discrimination was 
the reason.



18

MODEL OF PROOF FOR CASE WHERE 
ARTICULATED REASONS ARE PROVEN FALSE

UNIVERSE OF POSSIBLE REASONS

Discrimination Articulated, P o s s i b l e
Legitimate, Reasons
Nondiscrimin- 1 no vacancy
atory Reasons 2 not quali-

fied
No. 3.... 
No. n.

In Because 
of Prima 
Facie Case

In Upon 
Articulation

Nos. 1 & 2 Out 
Because of 

Prima Facie Case; 
Remainder Out 

Because Not 
Articulated

Discrimination Articulated, 
Legitimate, 
Nondiscrimin- 
atory Reasons

Remains in 
Evidence

Out because Shown to 
Be Pretextuai

Discrimination

Sole Remaining Reason 
Plaintiff Must Win



19

B. Allowing a Plaintiff Who Proves Only a 
Prima Facie Case Against a Silent Defendant 
to be in Better Position than a Plaintiff Who 
Proves a Prima Facie Case And Rebuts all 
Proffered Reasons of a Dishonest Defendant 
is Illogical.

Petitioners’ assertion that an employee is not entitled 
to judgment unless he or she eliminates all possible 
legitimate explanations is inconsistent with McDonnell 
Douglas' holding that an unrebutted prima facie case 
requires the entry of judgment for the plaintiff.

Establishment of the prima facie case in 
effect creates a presumption that the 
employer unlawfully discriminated against the 
employee. If the trier of fact believes the 
plaintiffs evidence, and if the employer is 
silent in the face of that presumption, the 
court must enter judgment for the plaintiff 
because no issue of fact remains in the case.

Burdine, 450 U.S. at 254.

In the circumstances described by Burdine, the 
plaintiff clearly has not -  as petitioners argue a plaintiff 
must -- eliminated all possible legitimate reasons for the 
disputed action. On the contraiy, the prima facie case only 
"eliminates the two most common nondiscriminatory reasons 
for the action." Burdine, 450 U.S. at 254. The theoretical 
possibility that some nondiscriminatoiy reason underlies the 
conduct at issue is not sufficient to create an issue of fact, or 
prevent entry of judgment for plaintiff, since mere 
speculation as to the existence of some legitimate 
explanation is not sufficient to overcome the weight of the 
evidence creating the prima facie case. See Bazemore v. 
Friday, 478 U.S. 385, 403 n.14 (1986); Patton v. Mississippi, 
332 U.S. 463, 466-468 (1947). A "possible" legitimate



20

explanation is sufficient to create an issue of fact only if and 
when it is set forth by the defendant through the 
introduction of admissible evidence.

When an employer does articulate, through evidence, 
a particular non-discriminatory reason, it creates an issue of 
fact with regard to that proffered reason. But the 
articulation and substantiation of one such reason does not 
create an issue of fact with regard to all, or any, of the other 
conceivable reasons. If the petitioners in this case had 
offered no defense whatever, the district court could not 
have ruled for petitioners on the theory, for example, that 
respondent had failed to prove he was not dismissed for 
chronic absenteeism.

In the instant case, petitioners, as contemplated by 
McDonnell Douglas, articulated through admissible evidence 
two specific alleged legitimate motives -- the severity and 
accumulation of disciplinary infractions. As to each but only 
as to these there was undeniably an issue of fact. These 
proffered reasons were the primary focus of the trial, and 
the district judge decided in favor of respondent with regard 
to both of those factual issues, holding that neither of the 
articulated reasons was the actual basis for respondent’s 
dismissal. But, once the district court had rejected the two 
proffered reasons the case returned to a similar evidentiary 
posture to where it was before the petitioners offered any 
explanation of their conduct.4 Indeed, the position of

4 Of course the original presumption legally mandated by the 
creation of the prima facie case under McDonnell Douglas was 
discharged when the petitioners met the burden of production. See 
Fed. R. Evid. 301. However, the evidence which gave rise to the 
original prima facie case remained in the record unrebutted. The 
inference that evidence generated continued to be that employers are 
likely to act for some reason, and absent any legitimate reason, it is 
more likely than not that the basis of the decision was impermissible 
discrimination. Fumco, 438 U.S. at 577.



21

respondent following the trial was even better than would 
have been the case had the petitioners merely remained 
silent, because the district judge had affirmatively rejected 
two possible explanations. As Petitioners candidly concede, 
the unsuccessful proffer of "a phony reason" provides 
support for an inference "that the employer is trying to 
conceal a discriminatory reason for his action." Pet.Br. 15 
n.3.

A defendant which unsuccessfully offers a "phony 
reason" logically cannot be in a better legal position that a 
defendant who remains silent, and offers no reasons at all 
for its conduct. In both situations there is no articulated 
non-discriminatory reason to explain away the evidence and 
inference offered by plaintiffs. The theoretical possibility, 
present in both situations, that there is some unarticulated 
legitimate reason is not by itself sufficient to create an issue 
of fact.

C. It is Well-Established that Rebuttal of the 
Articulated Reasons Serves to Discharge the 
Plaintiff’s Ultimate Burden of Proof of 
Discrimination.

Petitioners’ argument that a plaintiff must eliminate 
all legitimate reasons for a disputed employment action 
squarely contradicts the entire line of McDonnell Douglas 
cases, which require a plaintiff only to discredit the 
employer’s proffered explanation. In Aikens, a more recent 
application of McDonnell Douglas, all members of the Court 
agreed that it was error to require that the plaintiff submit 
direct evidence of discriminatory intent. Aikens, 460 U.S., at 
714 n.3, 717. The Aikens Court reaffirmed that plaintiff 
discharges of his ultimate burden of persuasion by either of 
two choices: proving directly that a discriminatory reason 
more likely motivated the employer "‘or indirectly by 
showing that the employer’s proffered explanation is



22

unworthy of credence.’" Id., at 716, quoting Burdine, 450 
U.S., at 256. See also Aikens, 460 U.S., at 717, 718 
(Blackmun, J., concurring) ("the McDonnell Douglas 
framework requires that a plaintiff prevail when at the third 
stage of a Title VII trial he demonstrates that the legitimate, 
nondiscriminatory reason given by the employer is in fact 
not the true reason for the employment decision.")

Recently, in Patterson v. McLean Credit Union, 491 
U.S. 164, 187 (1989), the Court again affirmed the plaintiffs 
right to demonstrate that the employer’s proffered reasons 
for its decision "were not its true reasons." The Patterson 
Court found too narrow the district court’s instruction that 
plaintiff could carry her burden of persuasion only by 
showing that she was better qualified than the while 
applicant who got the job; the majority held that the plaintiff 
"may not be forced to pursue any particular means of 
demonstrating that respondent’s stated reasons are 
pretextual." Id., 491 U.S., at 188. See also Price Waterhouse 
v. Hopkins, 490 U.S. 490, 247 n.12 (1989) (plurality opinion 
by Brennan, J.) (noting that a plaintiff may prevail under 
Burdine if she proves "that the employer’s stated reason for 
its decision is pretextual); Id., 490 U.S., at 261 (1989) 
(O’Connor, J., concurring) (distinguishing mixed-motive 
cases as "a supplement to the careful framework established 
by our unanimous decisions" in McDonnell Douglas and 
Burdine)- Id., 490 U.S., at 287 (Kennedy, J., dissenting) 
(emphasis in original) (restating the Burdine test that "a 
plaintiff may succeed in meeting her ultimate burden of 
persuasion ‘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.’"). And -  
notwithstanding the recent decisions of the few circuits 
relied on by Petitioner -  the overwhelming majority of the 
courts of appeals agree with the court below that McDonnell 
Douglas dictates entry of judgment for the plaintiff upon 
proof that all of the employer’s articulated reasons are a



23

unworthy of credence.5 &

The Equal Employment Opportunity Commission, 
the agency responsible for enforcement of Title VII, last 
year also explicitly reaffirmed the McDonnell Douglas model 
of indirect proof. See Recent Developments in Disparate 
Treatment Theory, EEOC Advance Policy Guidance 
N 915.002 (approved by 4-0 vote July 7, 1992), Lab. L. Rep. 
(CCH) 449 Issue No. 493, Part 2 (July 20, 1992). The

5See, e.g., King v. Palmer, 778 F.2d 878, 881 (D.C. Cir. 1985) 
("Burdine makes it absolutely clear that a plaintiff who establishes a 
prima facie case of intentional discrimination and who discredits the 
defendant’s rebuttal should prevail."); Lopez v. Metropolitan Life Ins.
Co., 930 F.2d 157, 161 (2d Cir.), cert, denied, ___ U.S. ___, 116
L.Ed.2d 185 (1991) (explaining that to show "pretext, a plaintiff need 
not directly prove discriminatory intent. It is enough for the plaintiff 
to show that the articulated reasons were not the true reasons for the 
defendant’s actions”); Ibrahim v. New York State Dep’t o f Health, 904 
F.2d 161, 168 (2d Cir. 1990) (demonstrating that defendant’s 
proffered explanation was not the true reason for its decision meets 
plaintiffs ultimate burden of persuasion); Carden v. Westinghouse 
Electric Corp., 850 F.2d 996, 1000 (3rd Cir. 1988) ("A showing that a 
proffered justification is pretextual is itself equivalent to finding that 
the employer intentionally discriminated."); Thombrough v. Columbus
& Greenville R. Co., 760 F.2d 633, 639-40 (5th Cir. 1985) (disproving 
the proffered reasons "recreates the situation that obtained when the 
prima facie case was initially established: in the absence of any known 
reasons for the employer’s decision, we presume that the employer 
was motivated by discriminatory reasons"; "Thus, in our view, unlike 
Humpty Dumpty, the employee’s prima facie case can be put back 
together, through proof that the employer’s proffered reasons are 
pretextual"); MacDissi v. Balmont Industries, 856 F.2d 1054, 1059 (8th 
Cir. 1988) (once fact finder is persuaded that proffered reason is not 
true reason, proof of intentional discrimination "unjustifiably 
multiplies the plaintiffs burden"); Caban-Wheeler v. Elsea, 904 F.2d 
1549, 1554 (11th Cir. 1990) (proving the proffered reason is not 
worthy of belief "satisfies the required ultimate burden of 
demonstrating by a preponderance of the evidence that he or she has 
been the victim of intentional racial discrimination").



24

EEOC found the command of Aikens and Burdine "clear": 
"a plaintiff can prevail either by proving that discrimination 
more likely motivated the decision or that the employer’s 
articulated reason is unworthy of belief." Id., at 4 n.5 
(emphasis in original). It concluded:

Thus the Commission disagrees with those 
courts that have held that this is not enough 
to prevail for a plaintiff to disprove the 
employer’s articulated reason. See, e.g., 
Galbraith v. Northern Telecom, 944 F.2d 275,
282-83 (6th Cir. 1991); ... Mesnick v. General 
Electric, 950 F.2d 816, 824 (1st Cir. 1991) ....

Ibid.

Congress has not altered the McDonnell Douglas- 
Burdine test and its widespread use in the court of appeals. 
This silence, in light of its recent and extensive amendments 
of the burdens of proof and persuasion in other types of 
Title VII claims, suggests its approval of this method of 
indirect proof of Title VII claims. See, e.g., The Civil Rights 
Act of 1991, Pub. L. No. 102-166, § 105, 105 Stat. 1074, 
1074-75 (overruling Wards Cove Packing Co. v. Atonio, 490 
U.S. 642 (1989), with respect to the burden of proof in 
disparate impact cases); Id. § 107, 105 Stat., at 1075-76 
(overruling Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), 
regarding proof and remedies in mixed motive cases).

D. The Court of Appeals Correctly Followed 
McDonnell Douglas in Holding that 
Respondent’s Rebuttal of the Petitioner’s 
Reasons Entitled Him to Judgment.

The Court of Appeals for the Eighth Circuit correctly 
applied the McDonnell Douglas analysis to this case. Pet. 
App. A-l to -12. The court accepted the district court’s 
findings, which are undisputed here, that Respondent had



25

proved a prima facie case of discrimination in his demotion 
and termination, that the Petitioners had articulated only 
two reasons for their actions, and that Respondent had 
proved by a preponderance of the evidence that both of 
those reasons were not credible. Pet. App. A-8.

However, rather than concluding its inquiry, the 
district court added speculations of its own, suggesting that 
although Respondent had proven the existence of a crusade 
to terminate him "he has not proven that the crusade was 
racially rather than personally motivated." Pet. App. A-27. 
The court of appeals found that the district court’s 
"assumption" of a motivation was never claimed by 
defendants. Pet. App. A-10. Following McDonnell Douglas, 
the court below correctly held that the defendant must 
introduce evidence to clearly frame its reasons for the 
plaintiffs rejection. Ibid. Following Fumco and Burdine, 
the court then properly held that since the Respondent met 
his burden of rebutting all of the defendants’ proffered 
reasons, as a matter of law he "satisfied his ... ultimate 
burden of persuasion. No additional proof of discrimination 
is required." Pet. App. A -ll.

II. CREDITING UNARTICULATED REASONS 
DEPRIVES A PLAINTIFF OF HIS FULL AND FAIR 
OPPORTUNITY TO PROVE HIS CASE.

A. McDonnell Douglas Requires the Employer to 
Frame Clearly the Factual Issues so the 
Plaintiff Has a Full and Fair Opportunity for 
Rebuttal.

A plaintiff would not in any meaningful sense be 
accorded "his day in court" if he does not know what 
explanations by his employer he must disprove at trial. 
Trans World Airlines v. Thurston, 469 U.S. I l l ,  121 (1985). 
Fundamental fairness demands that the plaintiff have



26

sufficient notice to develop and present evidence, and 
effectively examine witnesses at trial.6

The McDonnell Douglas inquiry safeguards both 
parties opportunity to respond to relevant issues by requiring 
each party to frame the facts. In order to discharge 
satisfactorily its burden of production under McDonnell 
Douglas, the employer must "frame the factual issue with 
sufficient clarity so that the plaintiff will have a full and fair 
opportunity to demonstrate pretext." Burdine, 450 U.S., at 
255-56. See also Aikens, 460 U.S. at 716 n.5 {quoting 
Burdine, 450 U.S. at 256) (cautioning that "[o]f course, the 
plaintiff must have an adequate ‘opportunity to demonstrate 
that the proffered reason was not the true reason...’"); 
Patterson, 491 U.S., at 187 ("Although petitioner retains the 
ultimate burden of persuasion, our cases make clear that she 
must also have the opportunity to demonstrate that 
respondent’s proffered reasons for its decision were not its 
true reasons.")

The clarity of the proffered reasons is sharpened by 
the additional requirement that, to be legally sufficient, the 
employer’s explanations must be admitted into evidence; "the 
defendant cannot meet its burden merely through an answer 
to the complaint or by argument of counsel." Burdine, 450 
U.S., at 255 n.9. Insofar as the relevant question is what 
motivated the employer at the time of the action, there is no 
reason to allow employers, after trial, to have a second bite 
at the apple.

6Cf. Lankford v. Idaho, 500 U.S. ___, 114 L.Ed.2d 173 (1991)
(holding that capital defendant, in preparing for sentencing hearing, 
did not have the notice required by due process that the judge might 
sentence him to death based on facts in the trial record, when the 
state had responded in the negative to the court’s earlier order 
requiring it to reveal whether it would seek death).



27

The denial of an opportunity to rebut an explanation 
is even more egregious when the explanation is first 
"proffered" in the decision of the district court. In Lanphear 
v. Prokop, 703 F.2d 1311 (D.C. Cir. 1983), the court of 
appeals reviewed a decision in which the district court had 
granted judgement for the defendant on a ground 
completely different from that which the employer claimed. 
Finding that the defendant’s omission of this reason failed 
to meet the notice requirement of Burdine, Judge Wilkey, 
writing for an unanimous court, held: "It should not be 
necessary to add that the defendant cannot meet its burden 
by means of a justification articulated for the first time in 
the district court’s opinion." Id., 703 F.2d, at 1317 & n.39.7

Judge Wilkey summed up the fundamental flaw of 
the district court’s sua-sponte defense:

The district court’s substitution of a 
reason of its own devising for that proffered 
by appellees 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

''Lanphear’s reasoning that a non-articulated reason cannot meet 
the defendant’s step two burden is analytically consistent with the 
presumption of discrimination that governs cases in which a 
defendant articulated no reasons at all. In Uviedo v. Steves Sash & 
Door Co., 738 F.2d 1425 (5th Cir. 1984), the defendant had never 
articulated reasons for its failure to promote plaintiff, despite its 
argument on appeal that such reasons could be found in plaintiffs 
witnesses’ testimony. The court of appeals found that even though 
it was possible that these facts could be legitimate reasons, the 
"difficulty" in this case was that "the defendant never articulated to 
the magistrate that these were in fact the reasons for the particular 
challenged action." Id., 738 F.2d, at 1429 (emphasis in original). The 
court affirmed the district court’s finding of discrimination because 
the defendant had failed to rebut plaintiffs prima facie case. Id. at 
1430-31.



28

focus the issues and provide plaintiff with ‘a 
full and fair opportunity’ to attack the 
defendant’s purported justification. That 
purpose is defeated if defendant is allowed to 
present a moving target or, as in this case, 
conceal the target altogether.

Lanphear, 703 F.2d, at 1316.

Other courts of appeals have recognized that 
McDonnell Douglas precludes trial judges from crediting 
speculative explanations never offered by a defendant. See, 
e.g., Equal Employment Opportunity Comm’n v. West Bros. 
Dept. Store, 805 F.2d 1171, 1172 (5th Cir. 1986) ("The trial 
court may not assume this task [of articulating a legitimate 
reason]; ‘[i]t is beyond the province of a trial or a reviewing 
court to determine -- after the fact -- that certain facts in the 
record might have served as the basis for an employer’s 
personnel decision’.... We are concerned with what an 
employer’s actual motive was; hypothetical or post hoc 
theories really have no place in a Title VII suit."){quoting 
Uviedo v. Steves Sash & Door Co., 738 F.2d 1425, 1430 (5th 
Cir. 1984)); Jackson v. RKO Bottlers o f Toledo, Inc., 743 F.2d 
370, 376 (6th Cir. 1984) (Trial court’s "finding" of an 
instance of plaintiffs poor judgment was irrelevant, "since 
defendant never claimed that the incident was a reason for 
failing to promote plaintiff”);

B. Allowing the Defendant to Benefit from 
Unarticulated Reasons by Escaping Scrutiny 
for Pretext is Detrimental to Truth-Seeking 
and Efficiency.

The clear articulation of an employer’s reasons, in 
rebuttal to a plaintiffs prima facie case, helps narrow the 
focus of the litigation. The burden-shifting process will flush 
out, on plaintiffs rebuttal, relevant evidence about the 
proffered reasons and best reveal whether a given answer is



29

true.8 Unarticulated reasons that are allowed to remain 
hidden from the harsh light of this adversarial process 
should not be given evidentiary weight. See Marina 
Szteinbok, Indirect Proof o f Discriminatory Motive in Title VII 
Disparate Treatment Claims after Aikens, 88 C o l u m . L. R e v . 
1114, 1130-32 (1988) (allowing defendants to prevail on 
unarticulated reasons "would distort the truth seeking 
process by failing to test factual premises adversarially.")

In addition, crediting only those legitimate 
nondiscriminatory reasons timely and clearly articulated -- 
and discrediting all others — acknowledges the superior 
knowledge of the employer. The employer is in full control 
of the knowledge and evidence of its actions. See Teamsters, 
431 U.S., at 359 n.45. A judicial process unrelated to an 
employer’s actual proffered explanations has none of the 
indicia of reliability accorded to normal, adversarial 
proceedings. Given the court’s customary reliance on a 
litigant to select the interpretation of the facts most 
favorable to his own case, to allow a fact finder to ascribe to 
the employer reasons it did not articulate would jeopardize 
the truth-seeking functions.

Respondent agrees that "Title VII does not compel 
every employer to have good reasons for its deeds,"9 but 
surely Title VII compels every employer to articulate what 
those reasons are. "Ferreting out this kind of invidious 
discrimination is a great, if not compelling, governmental

8"No better instrument has been devised for arriving at the truth 
than to give a person in jeopardy of serious loss notice of the case 
against him and opportunity to meet it." Joint Anti-Fascist Refugee 
Comm. v. McGrath, 341 U.S. 123, 171-72 (1951) (Frankfurter, J.)

9Pet. Br. at 21, quoting Benzies v. Illinois Dept, o f Mental Health 
and Developmental Disabilities, 810 F.2d 146, 148 (7th Cir.), cert, 
denied, 483 U.S. 1006 (1987).



30

interest," and it is reasonable and logical to place the burden 
of articulating reasons for hiring decisions on defendant 
employers. University o f Pennsylvania v. EEOC, 493 U.S. 
182, 193 (1990) (unanimously holding that the EEOC may 
subpoena peer review materials from a university in spite of 
its common law, evidentiary, and First Amendment 
objections).10

Petitioners present a litany of reasons that Title VII 
defendants might prefer not to articulate. Pet. Br. at 18. 
What Petitioners fail to provide is any explanation of why an 
employer should be exempted from articulating those 
reasons, however embarrassing or inconvenient, as 
McDonnell Douglas requires. If employers could withhold 
knowingly their real reasons with no fear of consequence, 
even if a plaintiff proved its proffered reasons to be 
pretextual, then the truth-seeking inquiry would cease to 
have any meaning.11 This rule would create incentives that 
are directly counter to the truth-seeking process.

Basic principles of evidence and common law waiver 
support a policy of disallowing belated reasons. The 
defendant is the master of his case and controls the evidence 
relating to the real reasons for its actions. It fairly bears the 
responsibility for its choices and the risk that plaintiff will 
disprove any pretextual reasons and therefore prevail. 
Where an employer deliberately chooses, for whatever 
tactical or other reason, not to advance some additional 
plausible justification for its actions, that waiver is binding 
on the employer and court alike. See, e.g., Nation-wide 
Check v. Forest Hills Distribs., 692 F.2d 214, 217 (1st Cir.

10Tactics less draconian than silence, such as protective orders, 
may ameliorate employers’ concerns. See Fed . R. Civ. P. 26(c).

“Deliberately misleading the court with sham testimony in order 
to meet the burden of production could, of course, risk other 
penalties. E.g., 42 U.S.C. § 1621 (perjury).



31

1982) (iquoting Wigmore on Evidence § 291, at 228 
(Chadbourn rev. 1979) that non-production of a relevant 
document "‘is evidence from which alone its contents may be 
inferred to be unfavorable to the possessor’"). See also
Michigan v. Lucas, 500 U.S. __ , 114 L.Ed.2d 205 (1991)
(statute requiring a rape defendant to file written notice and 
an offer of proof regarding a prior relationship with alleged 
victim within ten days of arraignment or risk possible 
preclusion of that evidence did not per se violate the Sixth 
Amendment, and might serve legislative ends, increase 
evidence, and enhance fairness).

Finally, articulation of reasons by the employer 
reduces the number of issues for the parties and fact finder, 
which conserves resources while focusing the parties on the 
most relevant issues. Petitioner argues that, in addition to 
proof of pretext, it is the plaintiffs burden to "prove the 
absence of any other justification supported by the record." 
Pet. Br. 16. Petitioner would allow -- indeed, oblige -- the 
finder of fact to consider not only the defendant’s articulated 
reasons for its action and the plaintiffs allegation of a 
discrimination, but also to consider and reject all conceivable 
reasons that could have motivated the employer.

Petitioners’ approach would squander judicial 
resources. All factual issues, even if vehemently denied by 
all parties, would remain in play. The plaintiff and fact­
finder would have to assume responsibility for extracting 
from the record and resolving every conceivable reason for 
the action. The courts would be plunged standardless into 
a sea of defenses where every possible motivation and every 
shred of indirect and direct evidence might matter, 
multiplying litigation. This would be particularly ill-advised 
just as Congress has provided a right to jury trials in Title 
VII, see Civil Rights Act of 1991, Pub. L. 102-166 § 102(c),



32

105 Stat. 1073.12

C. The Confusion of the Present Record 
Demonstrates Why Crediting Unarticulated 
Reasons Undermines the Truth-Seeking 
Function of the Adversarial Process.

The central factual question of this litigation is one 
that Petitioners, three years after trial, still have not 
answered: What in fact was the reason that Steve Long and 
St. Mary’s Honor Center demoted and fired Melvin Hicks? 
If Petitioners’ answer is that personal animosity of John 
Powell was the reason, then Mr. Long and other defense 
witnesses gave false testimony at the trial, yet now seek the 
additional reward of escape from the judgment below. If 
Petitioners’ answer is not John Powell’s personal animosity, 
then Petitioners’ factual basis for defeating the inference of 
discrimination dissolves.

The confusion in the factual record on which this 
petition rests — illustrates the danger of bypassing 
McDonnell Douglas' requirement of producing sufficient 
notice of the employer’s reasons for its actions. Had the 
reason found by the district court been timely articulated by 
Petitioners, there is no doubt that the trial below would have 
been completely different.

The district court found that:

It is clear that John Powell had placed
plaintiff on the express track to termination.
It is also clear that Powell received the aid of
Ed Ratliff and Steve Long in this endeavor.
The question remains, however, whether

12One can imagine the chaos if each juror, each on the basis of a 
different speculative reason, found for a defendant.



33

plaintiffs race played a role in their 
campaign.

Pet. App. A-26. Of course, the question that the district 
court posed probably would have been answered during the 
trial had the Petitioners ever expressed that Powell’s 
personal animosity or his endeavors against the plaintiff 
were the reason for their actions.

However, Respondent had no notice that Petitioners, 
much less the trial judge, might suggest that personal, rather 
than racial, animosity motivated them.13 Certainly the 
testimony would not suggest that Petitioners would defend 
the charges on that ground. John Powell flatly denied any 
personal difficulty with Melvin Hicks: "I can’t say that there 
was difficulties between he and I. At no time was there any 
kind of personal —" J.A. 46.

More importantly, Petitioners never claimed that any 
decisionmaker had personal animus or took Powell’s 
purported animosity into account in demoting or discharging 
the Respondent. Vincent Banks, a member of the 
disciplinaiy committee that had recommended suspension 
when Respondent was terminated, did not mention any 
animus of Powell, himself, or the other committee members. 
Tr. 3-2 to 3-51. Similarly, Petitioner Long did not mention 
any animosity by Powell -  or himself -  towards Respondent,

13With proper notice, Respondent could have examined whether 
the "crusade" that the district court found against Hicks was "racially 
rather than personally motivated," Pet. A-27, and could have explored 
the extent to which the personal animosity was related to 
Respondent’s race. With fair notice and opportunity to prove his 
case, Respondent could have investigated the actions of Powell and 
the actions and motivations of other white men who the court found 
assisted him -- Ed Ratliff and Petitioner Long. Respondent could 
have discovered whether other "crusades" were carried on against 
other supervisors and officers at St. Mary’s.



34

and claimed that Respondents’ history of infractions 
motivated him, a reason found incredible by the district 
court.* 13 14

Five months after trial, Respondents’ counsel, Gary 
Gardner, summarized defendants’ position consistent with 
their trial testimony. Defendants’ Proposed Findings of Fact 
and Conclusions of Law (Nov. 30, 1989). Not one of the 41 
proposed findings or conclusions allege that any of the 
defendants harbored personal animus toward Mr. Hicks. Id. , 
1-13.15 Similarly, in the court of appeals, Petitioners
reported that they had "adduced evidence of legitimate, non- 
discriminatory reasons for Hick’s demotion and discharge,

14The Director of the Division of Adult Institutions, Donald 
Wyrick, who would make the final discharge decision, did not testify 
at all.

13The proposed conclusions regarding defendants’ burden read in
full:

"Defendants produced evidence, however, of legitimate 
and nondiscriminatory reason [sic] for each of their 
employment decisions, the shift change, suspension, 
demotion and dismissal. The shift change was ordered to 
broaden the experience of plaintiff, the suspension was order 
as a result of plaintiffs not performing his duties as shift 
commander on March 3, 1984, to have the front officer at 
this post, to have the roving patrol officer make periodic 
reports, and to keep the visiting areas lights on. The 
demotion was order as a result of plaintiff not ensuring on 
March 17, 1984 that the use of a state vehicle, and the 
purpose of its use, was logged in the vehicle control and shift 
chronological logs. The dismissal was ordered as a result of 
plaintiff offering violence to his commanding officer on April 
27, 1984, by inviting him to step outside. Though plaintiff 
denied such an offer, the encounter between plaintiff and his 
commanding officer was witnessed by a third employee, who 
testified that plaintiff used words to that effect." Defendants’ 
Proposed Findings of Fact and Conclusions of Law, 14-15 
(Nov. 30, 1989).



35

which were the severity and accumulation of violations of 
institutional rules," while they stated that the trial court had 
found John Powell’s personal animosity. Hicks v. St. Mary’s 
Honor Center, 91-1571, Brief of Appellees 3, 15 (Aug. 16, 
1991).

In light of the fact that Long, Banks and Wyrick, 
made the critical decision, and all of their claimed reasons 
for the actions at issue were found to be pretextual, it is 
difficult to understand how petitioner can be exonerated on 
the assumption that Powell had a grudge against 
Respondent. Respondent, of course, had no notice that the 
relationship of Powell to these decisionmakers would be at 
issue.

In any event, Powell’s personal animosity, otherwise 
unexplained, is not mutually exclusive of racial 
discrimination. Indeed, courts recognize that it is often the 
very expression of discriminatory motive. Cf. Miles v. M.N.C. 
Corp., 750 F.2d 867, 871-72 (5th Cir. 1985) ("subjective 
evaluations involving white supervisors provide a ready 
mechanism for racial discriminatiort. This is because the 
supervisor is left free to indulge a preference, if he has one, 
for one race of workers over another").16

This undeveloped record turns the factual inquiry of 
McDonnell Douglas on its head: Petitioners themselves lead 
the rebuttal of the reason ascribed to them by the district 
court. This vague, post-hoc reason cannot, as a matter of 
law, serve to rebut Respondent’s prima facie case evidence

16The court of appeals did question "whether such a hypothetical 
reason based upon personal motivation even could be stated and still 
be ‘legitimate’ and ‘nondiscriminatory.’" Because the court of appeals 
found that defendants did not meet Burdine’s requirement of a clear 
articulation with regard to this reason, it found no reason to resolve 
this question. A-10.



36

of discrimination.17

III. ADOPTION OF THE "PRETEXT PLUS" RULE 
WOULD REQUIRE DIRECT PROOF OF 
DISCRIMINATORY MOTIVE.

At the heart of the McDonnell Douglas/Burdine model 
is the principle that intentional discrimination can be 
established indirectly through circumstantial evidence, and 
does not require direct proof of motive. The "pretext plus" 
rule urged by petitioners and adopted by the First, Sixth, 
and Seventh Circuits undermines this principle.

Petitioners, their amici and, indeed, the courts that 
have adopted pretext plus are notably reticent in explaining 
precisely what kind of evidence a plaintiff must introduce in 
order to establish the "plus." Their position is clearly that 
proving pretext, that is, that the reasons offered are not the 
true reasons, is insufficient. It is necessary to adduce some 
additional quantum of evidence to establish that the pretext 
was advanced for the purpose of discrimination. 
Respondent urges that the reticent is not inadvertent; it is 
clear that the inevitable consequence of adopting the 
"pretext plus" rule is to require direct evidence of 
discriminatory motive.18

17If, contrary to the opinion below, personal animosity in this case 
is held to be legally relevant, then remand for review of this factual 
finding would be necessary. The court of appeals characterized the 
district court’s view of the motivations as an "assumption" without 
evidence to support it. A-10.

lBSee generally, Catherine Lanctot, The Defendant Lies and the 
Plaintiff Loses: The Fallacy of the ‘Pretext-Plus’ Rule in Employment 
Discrimination Cases, 43 Hastings LJ. 57, 99 (1991). Lanctot notes 
that some pretext-plus courts have usurped the role of the fact finder 
in determining the credibility and weight of statements, and have kept



37

As discussed in Part I, supra, Burdine holds that a 
plaintiff may demonstrate pretext "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." 
450 U.S. at 256 (emphasis added). Respondent maintains 
that Burdine’s use of the disjunctive, on its face, means 
simply that a plaintiff may discharge his ultimate burden of 
persuasion by proof of either of the stated options. That is, 
a plaintiff may prove directly that discrimination was the 
motive, or may, to equal effect, demonstrate discrimination 
indirectly by proving that the stated reasons are themselves 
not credible. Thus, for the reasons discussed above at 
length, proof of pretext without more discharges the 
plaintiffs ultimate burden of persuasion, and compels 
judgment for him.

Petitioner and their amici, in contrast, deny that 
rebuttal of the employer’s articulated reasons is necessarily 
sufficient to discharge plaintiffs burden of persuasion. Their 
argument necessarily negates the second part of the Burdine 
rule as an alternative method of proceeding, and submerges 
it into the first method of proving pretext, namely through 
direct evidence of motive. Imposing an utterly new 
requirement of some undefined additional proof of 
discrimination onto the final step of the McDonnell 
Douglas!Burdine test, would effectively overrule the entire 
line of McDonnell Douglas cases. Thus, the reach of Title 
VII would be limited to only the most blatant "smoking gun" 
violations.

cases with direct evidence of discriminatory animus from the jury, 
casting substantial "doubt on the [pretext-plus] rule’s theoretical 
underpinning."



38

IV. THE DISTRICT COURT ERRED AS A MATTER 
OF LAW IN HOLDING THAT THE EVIDENCE 
DEMONSTRATED AN ABSENCE OF 
DISCRIMINATION.

Even if this Court were to decline to apply 
McDonnell Douglas to this case, a remand would be 
necessary. Respondent’s claim of retaliation, which was not 
addressed by the district court, was reserved by the court of 
appeals. Pet. A-12 n.9. In addition, Respondent contended 
below that the District Court’s findings regarding other 
evidence of discrimination were erroneous as a matter of law 
and fact.

Thus, the district court erred as a matter of law in 
relying on the racial composition of the disciplinary review 
boards to discount the evidence of their discriminatory 
actions against Respondent. Although the board’s actions 
were characterized by the court as "harsh," the court 
concluded that they could not have been discriminatory 
because black as well as white persons sat on the boards. 
Pet. App. A-28. This Court has rejected the reasoning "that 
human beings would not discriminate against their own kind 
— in order to find that the presumption of purposeful 
discrimination was rebutted." Castaneda v. Partida, 430 U.S. 
482, 500 (1977). Reliance solely on the board’s composition, 
rather than findings about its operation and reasons for 
acting was therefore error. Further, the district court’s 
conclusion overlooked the fact that the decision to fire 
Respondent by Mr. Long overruled the board’s 
recommendation that he merely be suspended.

Similarly, the district court’s holding that the fact that 
thirteen blacks were hired to work at the St. Mary’s 
somehow was proof that the decision to fire Hicks was not 
discriminatory was wrong as a matter of law. The claim in 
this case is that Hicks was fired in order to get rid of black 
supervisors, a claim buttressed by the facts that 12 out of the



39

13 persons fired were black and that the number of black 
supervisors declined from 5 of 6 to 2 of 6. The hiring of 
lower-level black correctional officers (and, incidentally, Mr. 
Long did not have control over such officers, J.A. 66, 67) in 
no way disproves that claim. Nor did the fact that if  another 
black had taken a supervisory position then there would 
have been an equal number of black and white supervisors 
rebut that claim. See Fumco, 438 U.S. at 579 ("A racially 
balanced work force cannot immunize an employer from 
liability for specific acts of discrimination.") For the same 
reasons, the fact that disciplinary action was not taken 
against Mr. Hick’s subordinates, who were also black, is 
simply irrelevant to his claim.

The judgement of the court of appeals should be 
affirmed.

CONCLUSION

Respectfully submitted,

*Charles R. Oldham Elaine R. Jones 
Charles Stephen RalstonLouis Gilden 

317 N. 11th Street 
Suite 1220 
St. Louis, MO 63101 
(314) 231-0464

Eric Schnapper 
Marina Hsieh 

99 Hudson Street 
Suite 1600
New York, NY 10013 
(212) 219-1900

Counsel for Respondent

* Counsel o f Record