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ETIM U. AKA v. WASHINGTON HOSPITAL CENTER </h1> <p class="docCourt"> </p> <p> June 20, 1997 </p> <p class="case-parties"> <b>ETIM U. AKA, APPELLANT<br><br>v.<br><br>WASHINGTON HOSPITAL CENTER, APPELLEE</b><br><br> </p> <div class="caseCopy"> <div class="facLeaderBoard"> <script type="text/javascript"><!-- google_ad_client = "ca-pub-1233285632737842"; /* FACLeaderBoard */ google_ad_slot = "8524463142"; google_ad_width = 728; google_ad_height = 90; //--> </script> <script type="text/javascript" src="http://pagead2.googlesyndication.com/pagead/show_ads.js"> </script> </div class="facLeaderBoard"> <div class="numbered-paragraph"><p><br> Appeal from the United States District Court for the District of Columbia (No. 94cv01281)</p></div> <div class="numbered-paragraph"><p> Before: Wald, Henderson and Tatel, Circuit Judges.</p></div> <div class="numbered-paragraph"><p> Wald, Circuit Judge</p></div> <div class="numbered-paragraph"><p> FOR PUBLICATION</p></div> <div class="numbered-paragraph"><p> FOR THE DISTRICT OF COLUMBIA CIRCUIT</p></div> <div class="numbered-paragraph"><p> Argued March 31, 1997</p></div> <div class="numbered-paragraph"><p> Opinion for the Court filed by Circuit Judge Wald.</p></div> <div class="numbered-paragraph"><p> Opinion concurring in part and dissenting in part filed by Circuit Judge Henderson.</p></div> <div class="numbered-paragraph"><p> On March 29, 1996, the district court granted summary judgment to Washington Hospital Center ("Washington Hospital") in this action alleging employment discrimination in hiring and transfer decisions based on disability, age, and national origin. See Aka v. Washington Hosp. Ctr., Civ. No. 94-1281, 1996 WL 435026 (D.D.C. March 29, 1996). The appellant, Etim U. Aka, now challenges that grant of summary judgment to Washington Hospital, as well as the denial of his own motion for summary judgment on one of his claims. We hold that the district court erred in granting summary judgment to Washington Hospital with regard to one of the challenged hiring decisions, and with regard to Aka's claim that Washington Hospital has failed to satisfy its obligation under the Americans with Disabilities Act of 1990, 42 U.S.C. Section(s) 12101 et seq. ("the ADA") to offer Aka a "reasonable accommodation" to his disability, and we remand the case for trial of these claims; we affirm the district court's grant of summary judgment to Washington Hospital with regard to Aka's remaining claims.</p></div> <div class="facAdFloatLeft"> <script type="text/javascript"><!-- google_ad_client = "ca-pub-1233285632737842"; /* FACContentLeftSkyscraperWide */ google_ad_slot = "1266897617"; google_ad_width = 160; google_ad_height = 600; //--> </script> <script type="text/javascript" src="http://pagead2.googlesyndication.com/pagead/show_ads.js"></script> </div class="facLeaderBoard"> <div class="numbered-paragraph"><p> I. Background</p></div> <div class="numbered-paragraph"><p> Etim U. Aka, a 55-year-old man born and raised in Nigeria, began working for Washington Hospital as an Operation Room Orderly in 1972, two years after he emigrated from Nigeria to the United States. His orderly job, which involved transporting patients and other materials to and from Washington Hospital's operating room, required substantial amounts of heavy lifting and pushing. Aka worked as an orderly for Washington Hospital for twenty years, maintaining a good employment record and earning a Bachelor's Degree and a Master's Degree in Health Service Management to boot. As an orderly, Aka was a member of the bargaining unit represented by the Service Employees International Union Local 722.</p></div> <div class="numbered-paragraph"><p> Aka took a medical leave of absence beginning on August 22, 1991, giving diabetes as the reason. He returned to work on October 1, 1991, but then was hospitalized four days later, for a heart condition. Aka underwent bypass surgery in November, and was in rehabilitation for several months afterward. In late November, a Personnel Relations Representative from Washington Hospital visited Aka and advised him to apply for another medical leave of absence, which he did. Washington Hospital granted his request, retroactive to October 5, 1991. In April of 1992, Aka's doctor released him from the hospital and instructed him to avoid activity requiring more than a "light or moderate level of exertion." Aka sought a new job at the hospital which would be consistent with this limitation, but Washington Hospital informed him that none were available, and placed him on an eighteen-month "job-search leave" retroactive to April 7, 1992; this status permitted Aka to retain his seniority and to receive the preference accorded to Washington Hospital employees when competing for positions with non-employee applicants. (Had Aka instead continued on regular medical leave past October 5, 1992, Washington Hospital would at that point have been entitled under the collective bargaining agreement to treat Aka's leave of absence as a resignation.) The Personnel Relations Representative informed Aka that it was his responsibility to review Washington Hospital's job postings and to apply for any vacant jobs that interested him.</p></div> <div class="numbered-paragraph"><p> In early 1993, Aka applied for a Financial Manager position that paid a higher salary than his orderly position, but Washington Hospital did not give him an interview. The Personnel Relations Representative advised Aka to apply for lower-paying positions, specifically suggesting the positions of File Clerk and Unit Clerk. Aka applied for the position of Central Pharmacy Technician in May of 1993; this position involved a variety of clerical tasks related to the filling of prescriptions, such as patient census checks, charge processing, and stock replacement. Washington Hospital's Assistant Director of Pharmacy Clinical Services interviewed Aka for this position, but gave the job to employee Jaime Valenzuela instead.</p></div> <div class="numbered-paragraph"><p> In July of 1993, four vacancies opened up in the position of File Clerk. The File Clerk position entailed an array of clerical duties, such as updating insurance, preparing bills and reports, and classifying, indexing, and purging documents. Aka applied for these File Clerk positions in early July. Washington Hospital's Supervisor of Credit and Collections interviewed Aka for these positions, but did not select him for any of them; she instead selected two other employees and two non-employee applicants. Aka filed a grievance and complained to the union about the selection of non-employee applicants over employee applicants, which he believed violated the collective bargaining agreement, and the union filed a class grievance on this ground on behalf of Aka and another employee who had applied for these jobs. Before the Arbitrator ruled on these grievances, Washington Hospital agreed to remove the two non-employee hires from these jobs and replace them with employee applicants; but still did not give any of these positions to Aka. The union continued to press the grievances, however, and on November 17, 1994, the Arbitrator issued an opinion holding that Washington Hospital had not violated the collective bargaining agreement by choosing other employee applicants over Aka. The Arbitrator noted that the Union had "correctly" required Washington Hospital to remove the two outside hires because hiring them had violated the collective bargaining agreement, Joint Appendix ("J.A.") at 288, but held that Washington Hospital had sufficient reason to find that Aka had less relevant experience than the other employee applicants eventually selected for these jobs, and thus was not obliged by the collective bargaining agreement to give the job to Aka, despite his greater seniority. The Arbitrator acknowledged that Aka had "the necessary minimal qualifications to be considered for the job," had a "solid" evaluation and "good marks" for his ability to work with peers, and was "a highly intelligent and motivated man" who "could be expected to grasp the technical aspects of the job quite readily," but found that he had less experience in billing services and office clerical environments than the employee applicants who were selected. Id. at 289. Aka continued to apply for other posted positions, including File Clerk and Unit Clerk positions, but he was not invited to interview for any of these positions.</p></div> <div class="numbered-paragraph"><p> On June 9, 1994, Aka filed a complaint in the United States District Court for the District of Columbia, alleging that Washington Hospital's failure to place him in the Central Pharmacy Technician or File Clerk positions constituted discrimination on the basis of his disability and national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section(s) 2000e et seq. ("Title VII") and the ADA <a href="#D*fn1" name="S*fn1">*fn1</a>; discrimination on the basis of his age in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. Section(s) 621 et seq. ("the ADEA"), and a failure to reinstate him after his medical leave in violation of the District of Columbia Family and Medical Leave Act, D.C. Code Ann. Section(s) 36-1301 et seq. <a href="#D*fn2" name="S*fn2">*fn2</a> The district court granted Washington Hospital's motion for summary judgment with regard to all of Aka's claims on March 29, 1996.</p></div> <div class="numbered-paragraph"><p> II. Discussion</p></div> <div class="numbered-paragraph"><p> A party's motion for summary judgment on a claim should not be granted unless the moving party demonstrates that the other party has failed to present a genuine issue of material fact with regard to that claim, and that the movant is entitled to prevail as a matter of law. See Fed. R. Civ. P. 56(c); Wright et al., Federal Practice and Procedure Section(s) 2711, at 555 (2d ed. 1983). When the party against whom summary judgment is granted appeals to this court, we review the trial court's grant of summary judgment de novo; we uphold the grant of summary judgment only if the record, viewed in the light most favorable to the party against whom summary judgment was granted, indicates that the non-moving party presented no genuine issue as to any material fact, and that on the basis of the record evidence no reasonable factfinder could have returned a verdict for the non-moving party. See, e.g., Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). If we find that, viewed in this light, the record indicates that the non-moving party has presented genuine issues of material fact relevant to the claim, we must reverse the grant of summary judgment and remand the matter so that the fact-finder can resolve those issues.</p></div> <div class="numbered-paragraph"><p> Our review of grants of summary judgment on claims of employment discrimination involves two further considerations. First, because employment discrimination claims center on the issue of an employer's intent, and "writings directly supporting a claim of intentional discrimination are rarely, if ever, found among an employer's corporate papers," Gallo v. Prudential Residential Services, <a>22 F.3d 1219</a>, 1224 (2d Cir. 1994), an added measure of "rigor," McCoy v. WGN Continental Broadcasting Company, <a>957 F.2d 368</a>, 371 (7th Cir. 1992), or "cautio[n]," Gallo, 22 F.3d at 1224, is appropriate in applying this standard to motions for summary judgment in employment discrimination cases. Courts reviewing such motions must bear in mind that a factfinder could infer intentional discrimination even in the absence of crystal-clear documentary evidence filed at the summary judgment stage. See, e.g., Devera v. Adams, 874 F. Supp. 17, 21 (D.D.C. 1995); Ross v. Runyon, 859 F. Supp. 15, 21-22 (D.D.C. 1994), aff'd, No. 95-5080, 1995 WL 791567 (D.C. Cir. Dec. 7, 1995). The district court correctly adopted this heightened standard in its memorandum opinion, noting that "[i]n discrimination cases summary judgment must be approached with special caution...." Aka, 1996 WL 435026 at *4.</p></div> <div class="numbered-paragraph"><p> Second, when deciding whether a plaintiff alleging unlawful employment discrimination has presented sufficient evidence to survive a summary judgment motion, we must consider the evidence in light of the three-part procedure set out for such claims by the Supreme Court's decision in McDonnell Douglas Corporation v. Green, <a>411 U.S. 792</a> (1973), as well as the Court's elaborations on that procedure in Texas Department of Community Affairs v. Burdine, <a>450 U.S. 248</a> (1981) and Saint Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).</p></div> <div class="numbered-paragraph"><p> In McDonnell Douglas, the Court established a three-part protocol governing the order and burdens of proof in cases alleging discrimination in violation of Title VII. First, the complainant must establish a prima facie case of prohibited discrimination. See McDonnell Douglas, 411 U.S. at 802. If he succeeds, the burden then shifts to the employer to articulate legitimate, nondiscriminatory reasons for the challenged action. See id. Should the employer succeed in presenting such reasons, the burden then returns to the complainant, who must prove that the employer's proffered reasons for the challenged actions were merely a pretext for unlawful discrimination. See id. at 804-05. In Burdine, the Court held that in producing nondiscriminatory reasons for its challenged action, the employer is not obligated to support these reasons with objective evidence sufficient to satisfy the "preponderance of the evidence" standard, see Burdine, 450 U.S. at 259-60, and that the plaintiff at all times retains the ultimate burden of persuasion. See id. at 253.</p></div> <div class="caseAdCopy"> <script type="text/javascript"><!-- google_ad_client = "ca-pub-1233285632737842"; /* Fac2Copy2 */ google_ad_slot = "0998899327"; google_ad_width = 300; google_ad_height = 250; //--> </script> <script type="text/javascript" src="http://pagead2.googlesyndication.com/pagead/show_ads.js"> </script> </div> <div class="numbered-paragraph"><p> In the litigation underlying Saint Mary's Honor Center v. Hicks, Melvin Hicks sued his former employer, Saint Mary's Honor Center, alleging that Saint Mary's had discharged him because of his race, thereby violating Title VII. See Hicks, 509 U.S. at 505. After a full bench trial, the district court found that the reasons the employer had proffered as nondiscriminatory motivations for its decision to terminate the plaintiff were not the real reasons behind that decision. See id. at 508. But the district court went on to hold that the plaintiff had not proven that his race was the actual factor motivating that decision. See id. Thus, the district court found in favor of the employer based upon its factual findings and upon its understanding of the legal significance of those findings. The Eighth Circuit set aside the district court's determination, explaining that the district court had misunderstood the legal consequences of its factual findings. Specifically, the Eighth Circuit held that once the district court had found that the employer's proffered nondiscriminatory reasons for the challenged decision were not the real reasons motivating that decision, the district court should have gone no further, because once the factfinder has rejected the employer's proffered nondiscriminatory reasons for its challenged action, the plaintiff is entitled to judgment as a matter of law. See id.</p></div> <div class="numbered-paragraph"><p> The Supreme Court in Hicks rejected the Eighth Circuit's interpretation of the McDonnell Douglas framework. The Court held that, under the proper understanding of that framework, "[t]he factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination." Id. at 511. Thus, the Supreme Court established that, when presented with sufficient evidence to find both that the plaintiff has made a prima facie case and that the employer's proffered nondiscriminatory reasons for the challenged actions were not credible, the factfinder can properly find that the defendant employer has intentionally discriminated against the plaintiff. The Court repeated this principle twice more in the sentence following the one quoted above, saying: "[R]ejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination," and: "[U]pon such rejection, [n]o additional proof of discrimination is required," id. (footnote, citation, and internal quotation marks omitted), and then once more in a footnote: "[R]ejection of the defendant's proffered reasons is enough at law to sustain a finding of discrimination...." Id. at 511 n.4. See also Deborah C. Malamud, The Last Minuet: Disparate Treatment after Hicks, 93 Mich. L. Rev. 2229, 2307 n.253 (1995) ("[T]he Hicks majority goes out of its way to say that the factfinder is permitted to find for the plaintiff on no more than proof of the prima facie case and disbelief of the plaintiff's reasons."). <a href="#D*fn3" name="S*fn3">*fn3</a></p></div> <div class="numbered-paragraph"><p> With the Hicks principle firmly in one hand, and the fundamentals of summary judgment in the other, our role in reviewing a grant of summary judgment to the employer in an employment discrimination case is clear: We must set aside the grant of summary judgment to the employer if the record indicates that the plaintiff presented sufficient evidence to cause a reasonable factfinder to find that the plaintiff had a prima facie case, and that the employer's proffered nondiscriminatory reasons for its actions were not credible; when presented with such evidence, the factfinder may properly find for the plaintiff, and we have no power to snatch away from the factfinder crucial factual determinations that it is expressly permitted to make. See United States v. General Motors Corp., 518 F.2d 420, 441 (D.C. Cir. 1975) ("[L]itigants may not be cut off from their right to trial 'if they really have issues to try.' ") (quoting Sartor v. Arkansas Natural Gas Corp., <a>321 U.S. 620</a>, 627 (1944)); see also Anderson v. Liberty Lobby, Inc., <a>477 U.S. 242</a>, 249 (1986) ("[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial."); Wright et al., supra, Section(s) 2716, at 654-55.</p></div> <div class="numbered-paragraph"><p> Two of this court's recent decisions have interpreted Hicks in precisely this fashion. In Barbour v. Merrill, 48 F.3d 1270 (D.C. Cir.), cert. granted in part, 116 S. Ct. 805 (1996), cert. dismissed, 116 S. Ct. 1037 (1996), and Kolstad v. American Dental Association, 108 F.3d 1431 (D.C. Cir. 1997), rehearing in part granted on other grounds, (May 28, 1997) (Nos. 96-7030, 96-7047), we observed that the Hicks Court established that a factfinder may infer discrimination based upon the combination of the plaintiff's prima facie case and the plaintiff's presentation of evidence sufficient to "discredit" the employer's proffered nondiscriminatory reasons for its challenged action, and concluded that, under Hicks, a defendant's motion for judgment as a matter of law <a href="#D*fn4" name="S*fn4">*fn4</a> must not be granted when the plaintiff has presented such evidence. Kolstad, 108 F.3d at 1436-37 (quoting Barbour, 48 F.3d at 1277). <a href="#D*fn5" name="S*fn5">*fn5</a> In so construing Hicks, Barbour and Kolstad mirror the straight-forward interpretation of that decision's clear language that has been adopted by all but two of the federal circuit courts, as well as by the government agency charged with enforcement of the employment discrimination laws. See Combs v. Plantation Patterns, <a>106 F.3d 1519</a>, 1529 (11th Cir. 1997) ("Based on the Supreme Court's clear statement in the majority opinion in Hicks, read together with the rationale of the dissenting justices, we understand the Hicks Court to have been unanimous that disbelief of the defendant's proffered reasons, together with the prima facie case, is sufficient circumstantial evidence to support a finding of discrimination.</p></div> <div class="numbered-paragraph"><p> Therefore, it follows from Hicks that a plaintiff is entitled to survive summary judgment, and judgment as a matter of law, if there is sufficient evidence to demonstrate the existence of a genuine issue of fact as to the truth of each of the employer's proffered reasons for its challenged action."); Sheridan v. E.I. DuPont de Nemours and Co., <a>100 F.3d 1061</a>, 1067 (3d Cir. 1996) (en banc), petition for cert. filed, 65 U.S.L.W. 3571 (U.S. Feb. 3, 1997) (No. 96-1231) ("[A] plaintiff may survive summary judgment ... if the plaintiff produced sufficient evidence to raise a genuine issue of fact as to whether the employer's proffered reasons were not its true reasons for the challenged employment action."); Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995) ("If the plaintiff succeeds in showing a prima facie case and presents evidence that the defendant's proffered reason for the employment decision was pretextual-i.e., unworthy of belief, the plaintiff ... is entitled to go to trial."); Perdomo v. Browner, 67 F.3d 140, 145 (7th Cir. 1995) ("Because a fact-finder may infer intentional discrimination from an employer's untruthfulness, evidence that calls truthfulness into question precludes a summary judgment."); EEOC v. Ethan Allen, Inc., <a>44 F.3d 116</a>, 120 (2d Cir. 1994) (vacating a grant of judgment as a matter of law to the defendant, on the ground that the plaintiff had presented sufficient evidence to permit a reasonable factfinder to "reject [the] defendant's proffered reasons for [the] challenged employment action and thus [to make] the ultimate inference of discrimination."); Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078, 1083 (6th Cir. 1994) (quoting Gaworski v. ITT Commercial Fin. Corp., <a>17 F.3d 1104</a>, 1109 (8th Cir.), cert. denied, 513 U.S. 946 (1994)); Gaworski, 17 F.3d at 1110 ("The elements of the plaintiff's prima facie case are ... present and the evidence is sufficient to allow a reasonable jury to reject the defendant's non-discriminatory explanations. The 'ultimate question' of discrimination must therefore be left to the trier of fact to decide."); Mitchell v. Data Gen. Corp., <a>12 F.3d 1310</a>, 1316 (4th Cir. 1993) (noting that a defendant in an employment discrimination case can obtain summary judgment "in one of two ways. He can demonstrate that the plaintiff's proffered evidence fails to establish a prima facie case, or, if it does, the defendant can present evidence that provides a legitimate nondiscriminatory explanation about which the plaintiff does not create a factual dispute.") (emphasis added); Washington v. Garrett, <a>10 F.3d 1421</a>, 1433 (9th Cir. 1993) ("If a plaintiff succeeds in raising a genuine factual issue regarding the authenticity of the employer's stated motive, summary judgment is inappropriate, because it is for the trier of fact to decide which story is to be believed."); Sheridan, 100 F.3d at 1068 (stating that the position taken by the Equal Employment Opportunity Commission ("EEOC") as amicus curiae comported with its holding).</p></div> <div class="numbered-paragraph"><p> We acknowledge that our colleague's proposed contrary reading of Hicks, see opinion concurring in part and dissenting in part ("partial dissent") at 1-10, is not entirely novel, inasmuch as it reflects the approach taken by two of our sister circuits and advocated in a 1995 law review article, but we do not find in these contrary sources any compelling reason to abandon Barbour and Kolstad and depart from the plain language of the Hicks opinion. Cf. partial dissent at 4-5 (citing Rhodes v. Guiberson Oil Tools, <a>75 F.3d 989</a>, 994 (5th Cir. 1996) (en banc), LeBlanc v. Great American Ins. Co., <a>6 F.3d 836</a>, 843 (1st Cir.), cert. denied, <a>511 U.S. 1018</a> (1994), and Malamud, supra, at 2307-11).</p></div> <div class="numbered-paragraph"><p> In Rhodes, the Fifth Circuit announced an interpretation of Hicks that was not necessary to the resolution of that case, but that it has since followed in reviewing the sufficiency of the evidence in discrimination cases, see, e.g., Grimes v. Texas Department of Mental Health, <a>102 F.3d 137</a>, 143 (5th Cir. 1996); under this interpretation, a court may grant summary judgment to a defendant even if the plaintiff has presented sufficient evidence to establish a prima facie case and to enable a reasonable factfinder to conclude that the employer's proffered reasons were not the real reasons motivating the challenged action, if the court finds that the evidence is nevertheless insufficient to support a reasonable inference that the action was motivated by discriminatory animus. See Rhodes, 75 F.3d at 994. While the Supreme Court stated that "rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination," Hicks, 509 U.S. at 511 (first emphasis added), the Rhodes court declared that "the evidence allowing rejection of the employer's proffered reasons will often, perhaps usually, permit a finding of discrimination without additional evidence." Rhodes, 75 F.3d at 994 (emphasis added). The Rhodes court offered two reasons for its departure from the plain language of Hicks-the first adopted from Professor Malamud's law review article, see Malamud, supra, and the second from the First Circuit's dictum in footnote three of Woods v. Friction Materials, Incorporated, <a>30 F.3d 255</a> (1st Cir. 1994) (discussed infra). See Rhodes, 75 F.3d at 994. We think it telling that Professor Malamud proffers her theory about the meaning of Hicks only after banishing to a footnote the Hicks majority's three clearest statements regarding the quantum of evidence sufficient to permit a finding of intentional discrimination-although not without acknowledging (in the footnote) that by these statements the Court "goes out of its way to say that the factfinder is permitted to find for the plaintiff on no more than proof of the prima facie case and disbelief of the plaintiff's reasons." Malamud, supra, at 2307 n.253.</p></div> <div class="numbered-paragraph"><p> Like the Fifth Circuit, the First Circuit developed its approach to interpreting Hicks by first announcing it in dicta, and then following this dicta in subsequent decisions. In Woods, <a href="#D*fn6" name="S*fn6">*fn6</a> the First Circuit reviewed a district court's grant of summary judgment to the defendant on claims of illegal discrimination on the basis of race, age, and handicap. See Woods, 30 F.3d at 257. The court concluded that the plaintiff had failed to present evidence sufficient to discredit the defendant's proffered nondiscriminatory reasons in the mind of a reasonable factfinder. See id. at 262. Although it was therefore unnecessary to do so, the court declared (in a footnote) that Hicks did not preclude summary judgment for the defendant in cases in which the plaintiff's evidence is sufficient to discredit the defendant's proffered nondiscriminatory reasons in the mind of a reasonable factfinder. See id. at 260-61 n.3. The First Circuit has since relied upon the Woods footnote to affirm summary judgment for defendants based on the conclusion that the plaintiff failed to provide sufficient evidence to enable a reasonable factfinder to find discriminatory animus, without inquiring into whether the plaintiff had provided sufficient evidence to discredit the defendant's proffered nondiscriminatory reasons. See, e.g., Barbour v. Dynamics Research Corp., 63 F.3d 32, 38-42 (1st Cir.), cert. denied, 116 S. Ct. 914 (1996). The rationale offered in the First Circuit's Woods footnote for departing from the plain language of Hicks is that, hypothetically, the evidence before the factfinder in a particular case could not only permit the factfinder to conclude that the defendant's proffered reasons for its action were not the real reasons, but could also compel the factfinder to conclude that the action was motivated by another, nondiscriminatory reason that the defendant preferred not to disclose. Thus, for example, if the employer's true motivation was a desire to shield its own acts of embezzlement, the employer might choose to proffer alternative explanations which the plaintiff could succeed in debunking, and yet such overwhelming evidence of the defendant's embezzlement-shielding motivation could spill into the record that no reasonable factfinder could infer that the defendant was motivated by discriminatory animus. See Woods, 30 F.3d at 260-61 n.3.</p></div> <div class="numbered-paragraph"><p> We note, first, that the Woods footnote's hypothetical seems extraordinarily unlikely: When both parties in the litigation prefer to exclude evidence supporting a certain conclusion, how might the record nevertheless become inundated with such overwhelming evidence of it that no reasonable factfinder could avoid reaching that conclusion? Aside from its improbability, the Woods footnote's hypothetical is irrelevant to the Hicks standard, because that standard defines the quantum of evidence that is sufficient to permit a jury to find intentional discrimination-it establishes that "[n]o additional proof of discrimination is required" after that threshold has been crossed, Hicks, 509 U.S. at 511 (internal quotation marks omitted); the possibility that overwhelming evidence of extraneous propositions that neither party has sought to support might nevertheless come before the factfinder does nothing to alter such a standard.</p></div> <div class="numbered-paragraph"><p> Although our duty to follow a rule of law proclaimed by the Supreme Court does not turn on our agreement with the rule, we are comfortable that our colleague's attacks on what we and the majority of our sister circuits perceive to be the Hicks standard do not reveal any illogic or illegality in our perception of that case's meaning. Our colleague's central assumption appears to be that the Hicks standard permits a finding of discrimination based on no relevant evidence at all, because even a plaintiff who has made a prima facie case and discredited the employer's proffered nondiscriminatory reasons has not necessarily presented any evidence that the employer's true motivation was discriminatory animus. See, e.g., partial dissent at 3 ("One searches the majority opinion in vain ... for any analysis of the connection between Aka's attack on Washington Hospital's proffered reasons and his evidence of 'unlawful discrimination.' "). We disagree.</p></div> <div class="numbered-paragraph"><p> As Chief Judge Posner has observed in decisions rendered both before and after Hicks, the "common sense behind the rule of McDonnell Douglas" is that "[i]f the only reason an employer offers for firing an employee is a lie, the inference that the real reason was a forbidden one ... may rationally be drawn." Shager v. Upjohn Co., <a>913 F.2d 398</a>, 401 (7th Cir. 1990) (Posner, J.). That is, the fact that the employer meets the plaintiff's prima facie case only with nondiscriminatory motivations that are "unworthy of belief" constitutes circumstantial evidence of the fact that discriminatory animus was the employer's true motivation. Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1397 (7th Cir. 1997) (Posner, C.J.). In a case decided long before Hicks, then-Justice (now Chief Justice) Rehnquist made the same observation: "[W]hen 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." Furnco Constr. Corp. v. Waters, <a>438 U.S. 567</a>, 577 (1978); see also Wallace, 103 F.3d at 1400 (citing Furnco); Sheridan, 100 F.3d at 1069 (same); 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, 111-35 (1991).</p></div> <div class="numbered-paragraph"> <p> Not only is this insight perfectly consistent with logic and with "common experience," Furnco, 438 U.S. at 577, it is the linchpin without which the McDonnell Douglas burdenshifting procedure would be virtually pointless-after all, the "entire purpose" of the McDonnell Douglas procedure is "to compensate for the fact that direct evidence of intentional discrimination is hard to come by." Price Waterhouse v. Hopkins, <a>490 U.S. 228</a>, 271 (1989) (O'Connor, J., concurring); see also TWA v. Thurston, <a>469 U.S. 111</a>, 121 (1985) ("The shifting burdens of proof set forth in McDonnell Douglas are designed to assure that the plaintiff has his day in court despite the unavailability of direct evidence.") (internal quotation marks omitted); United States Postal Serv. Bd. of Governors v. Aikens, <a>460 U.S. 711</a>, 716 (1983) ("There will seldom be 'eyewitness' testimony as to the employer's mental processes."). Thus, because evidence sufficient to establish the plaintiff's prima facie case and to discredit the defendant's proffered nondiscriminatory reasons is evidence ...</p> </div> </div> </div> <div id="caseToolTip" class="caseToolTip" style="display: none;"> <div class="toolTipHead"> </div> <div class="toolTipContent"> <p> Our website includes the first part of the main text of the court's opinion. To read the entire case, you must purchase the decision for download. With purchase, you also receive any available docket numbers, case citations or footnotes, dissents and concurrences that accompany the decision. Docket numbers and/or citations allow you to research a case further or to use a case in a legal proceeding. Footnotes (if any) include details of the court's decision. 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