Cynthia J. Fisher, Plaintiff-Appellee-Cross-Appellant v. Vassar College, Defendant-Appellant-Cross-Appellee

114 F.3d 1332, 1997 U.S. App. LEXIS 13776, 74 Fair Empl. Prac. Cas. (BNA) 109

Opinions

JACOBS and LEVAL, Circuit Judges,

with whom Judges MINER, WALKER, MeLAUGHLIN, and PARKER join

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At the close of a three-week bench trial, the United States District Court for the Southern District of New York (Motley, J.), found that defendant Vassar College (“Vassar”) discriminated against plaintiff Cynthia Fisher in denying her tenure as a professor in its biology department. Fisher v. Vassar College, 852 F.Supp. 1193 (S.D.N.Y.1994). Specifically, the district court found that Vassar discriminated against the plaintiff (i) on the basis of her status as a married woman, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2; and (ii) on the basis of her age, in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. (“ADEA”). The district court also found that Vassar had violated the Equal Pay Act, 29 U.S.C. § 206(d)(1), by paying its junior female faculty members less than its junior male faculty members. Vassar was ordered to pay Fisher an aggregate money judgment of $626,872.12, plus attorneys’ fees, and to reinstate Fisher to the rank of Associate Professor in Vassar’s biology department.

A panel of this Court found the district court’s ruling clearly erroneous and reversed the judgment. Fisher v. Vassar College, 70 F.3d 1420 (2d Cir.1996). During consideration of the Petition for Rehearing in Banc, a question was raised whether our review for clear error violated a rule established in Binder v. Long Island Lighting Co., 57 F.3d 193 (2d Cir.1995). A majority of the Court has decided to limit in banc review to resolution of the question whether a finding of liability under Title VII, supported by a prima facie case and a sustainable finding of pretext, is subject to review for clear error.¹

No rule of law forbids appellate review for clear error in these circumstances. We hold that once an employer has proffered a nondiscriminatory reason for an adverse employment action, a plaintiff in a discrimination case must show by a preponderance of the evidence that the reason for the adverse employment action was illegal discrimination. In so doing, a plaintiff may rely on the evidence constituting the prima facie case, together with supportable inferences to be drawn from the false or erroneous character of the employer’s proffered reason for the adverse action. Because of the special meaning given by the Supreme Court to prima facie proof in this area of law, evidence constituting a prima facie case prior to the employer’s proffer of a reason, coupled with the error or falsity of the employer’s proffered reason may — or may not — be sufficient to show illegal discrimination by a preponderance of the evidence. But in any event, a finding of discrimination, like any other determination of fact, is reviewable on appeal for clear error. The panel scrutinized the district court’s findings of discrimination, found them insupportable, concluded that Fisher had failed to show by a preponderance of the evidence that Vassar had discriminated against her for an illegal reason, and therefore reversed the finding of discrimination as clearly erroneous. We conclude that the panel was within its powers in reviewing the district court’s finding of discrimination for clear error in these circumstances, and we therefore direct the district court to dismiss the plaintiffs suit.

I

The facts of this case are fully described in the panel opinion, 70 F.3d 1420, and in the opinion of the district court, 852 F.Supp. 1193. The following brief outline of facts assumes familiarity with those opinions. Plaintiff Cynthia Fisher is a married woman who received a Ph.D. in Zoology from Rutgers University in 1963 and engaged in postdoctoral research from 1963 to 1965. From 1966 to 1974, the plaintiff devoted most of her time to raising her two children, and performed no work outside the home. From 1974 to 1976, the plaintiff took a part-time position as a lecturer in biology at Marist College.

Fisher was hired by Vassar as a visiting assistant professor .in biology in 1977, and was placed in a tenure-track position in 1980. In 1982, Fisher was reappointed for a three-year term, at the end of which she was to be reviewed for tenure. During the 1984-85 academic year, Vassar undertook a comprehensive review of Fisher’s candidacy for tenure. A five-member committee of tenured professors in the Biology Department, three men and two women, were charged with reviewing Fisher’s credentials in accordance with four criteria: scholarship, teaching ability, leadership, and service to Vassar. In a confidential report, the committee found Fisher deficient in all four categories, and unanimously recommended that she be denied tenure. The committee’s report and recommendation was forwarded to Leathern Mehaffey, chairman of the Biology Department, who informed Fisher of the committee’s recommendation on March 29, 1985.

In accordance with Vassar’s procedures, the departmental report and recommendation was also received by the dean of the college, the college president, and the Faculty Appointments and Salary Committee (“FASC”). (At Vassar, the dean, the president, and the FASC each make a recommendation to the Board of Trustees, the entity with the authority to grant or deny tenure.) Between April 19 and May 16, 1985, the FASC, the dean, and the Biology Department committee corresponded about Fisher’s candidacy. On May 16, 1985, all five members of the FASC voted against tenure; the dean and the president concurred. Acting on these recommendations, the Vassar Board of Trustees denied Fisher tenure. In the same round of evaluations, one professor (Pinina Norrod) was granted tenure in the Biology Department, and one professor (Edward Tucker) was denied tenure. Fisher’s appeal to Vassar’s Faculty Appeals Committee was rejected, and she left Vassar in May 1986.

On July 7,1987, Fisher filed her complaint in the Southern District of New York, alleging that Vassar discriminated against her on the basis of her sex. She subsequently amended her complaint prior to trial to allege discrimination on the basis of her sex conjoined with her marital status. At the close of Fisher’s case, she again amended her complaint to include a claim for discrimination on the basis of age, and to add a claim under the Equal Pay Act.

After trial, the district court found that the non-discriminatory reasons proffered by Vassar for denying Fisher tenure were pretextual, a ruling that the panel opinion concluded was not clearly erroneous. The district court went on to find that the real reasons for denying Fisher tenure were discrimination based on age and on sex plus marital status. The panel opinion held that that finding was clearly erroneous, reversed and directed that the complaint be dismissed.

II

We have limited our in banc consideration to resolution of whether a finding of discrimination that is based on a prima facie case and a supportable finding of pretext may be reversed on appeal as clearly erroneous, or whether such a finding of discrimination must be upheld absent some quantum of evidence that the employer took the adverse action for some other non-discriminatory reason. Several well-established principles of law lead us to conclude that a finding of discrimination is reviewed for clear error like any other factual determination, and thus may be reversed — even if there is a sustainable finding of pretext — if the evidence, considered in the aggregate, will not support a finding by the district court that the reason for the adverse employment action was intentional discrimination.

We begin with the statutes. Title VII makes it unlawful “for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual ... because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). The ADEA has an analogous provision that prohibits an employer from taking an adverse employment action “because of [an] individual’s age.” See 29 U.S.C. § 623. The Supreme Court has held that a claim under Title VII may arise if an employer discriminates against an individual because of sex plus another characteristic, such as marital or parental status. See Phillips v. Martin Marietta Corp., 400 U.S. 542, 544, 91 S.Ct. 496, 497-98, 27 L.Ed.2d 613 (1971) (employer discriminated against women with pre-school age children).

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), the Supreme Court established an “allocation of the burden of production and an order for the presentation of proof in Title VII” cases. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 2746-47, 125 L.Ed.2d 407 (1993). We also apply the McDonnell Douglas framework in cases arising under the ADEA. See Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d Cir.1994). Under the Supreme Court’s ruling, a plaintiff alleging violation of the discrimination statutes makes out a prima facie case by showing membership in a protected class, qualification for the position, an adverse employment action, and the ultimate filling of the position by a person not of the protected class. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981). “The burden of establishing a prima facie case ... is not onerous.” Burdine, 450 U.S. at 253, 101 S.Ct. at 1094. In fact, the plaintiffs burden of establishing a prima facie case has been frequently described as “minimal.” St. Mary’s, 509 U.S. at 506, 113 S.Ct. at 2746-47; Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir.1994) (quoting Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir.1988)).²

“Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee.” Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. The presumption means that, unless the defendant comes forward with a nondiseriminatory reason for the action complained of, the plaintiffs ease may go to the jury, even though the prima facie case might be insufficient — apart from the presumption — to meet the plaintiffs ultimate burden of showing discrimination; indeed, in such a circumstance the jury must rule for the plaintiff unless the employer submits evidence that places in doubt the facts underlying plaintiffs prima facie case (such as plaintiffs qualification for the job), or furnishes a satisfactory explanation for its inability to tell the reason why plaintiff was disfavored. See St. Mary’s, 509 U.S. at 509, 113 S.Ct. at 2748. “Thus, the McDonnell Douglas presumption places upon the defendant the burden of producing an explanation to rebut the prima facie case — i.e., the burden of ‘producing evidence’ that the adverse employment actions were taken ‘for a legitimate, nondiscriminatory reason.’ ” Id. at 506-07,113 S.Ct. at 2747 (quoting Burdine, 450 U.S. at 254, 101 S.Ct. at 1094). The purpose of the McDonnell Douglas framework is to force the defendant to give an explanation for its conduct, in order to prevent employers from simply remaining silent while the plaintiff founders on the difficulty of proving discriminatory intent. See Burdine, 450 U.S. at 254-56 & n. 8, 101 S.Ct. at 1094-95 & n. 8.

“It is important to note, however, that although the McDonnell Douglas presumption shifts the burden of production to the defendant, ‘[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.’ ” St. Mary’s, 509 U.S. at 507, 113 S.Ct. at 2747 (quoting Burdine, 450 U.S. at 253, 101 S.Ct. at 1093) (alteration in St. Mary’s). Any legitimate, non-discriminatory reason will rebut the presumption triggered by the prima facie ease. Thus, “[t]he defendant need not persuade the court that it was actually motivated by the proffered reasons” in order to nullify the presumption and obligate the plaintiff to satisfy the burden of proof. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094; see also Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25 n. 2, 99 S.Ct. 295, 296 n. 2, 58 L.Ed.2d 216 (1978) (employer need only “explain[ ] what he has done” (internal quotation marks and citation omitted)). If the defendant articulates a non-discriminatory reason, “the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity.” Burdine, 450 U.S. at 255, 101 S.Ct. at 1095 (footnote omitted).

At that point, “the McDonnell Douglas framework — with its presumptions and burdens — is no longer relevant.” St. Mary’s, 509 U.S. at 510, 113 S.Ct. at 2749. The Supreme Court warns us not “[t]o resurrect it later”:

The presumption, having fulfilled its role of forcing the defendant to come forward with some response, simply drops out of the picture. The defendant’s “production” (whatever its persuasive effect) having been made, the trier of fact proceeds to decide the ultimate question: whether plaintiff has proven “that the defendant intentionally discriminated against [him].”

Id. at 510-11, 113 S.Ct. at 2749 (quoting Burdine, 450 U.S. at 253, 101 S.Ct. at 1093-94) (alteration in St. Mary’s; emphasis added); see also Cabrera v. Jakabovitz, 24 F.3d 372, 382 (2d Cir.1994) (“[T]he burden of persuasion as to discrimination is on the plaintiff; the presumption that triggered the defendant’s burden of production has ‘drop[ped] out of the picture.’ ” (quoting St. Mary’s, 509 U.S. at 511, 113 S.Ct. at 2749-50)); Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 142 (2d Cir.1993) (“[I]f a defendant carries its burden by producing a non-discriminatory motive, ‘the McDonnell Douglas framework — with its presumptions and burdens — is no longer relevant.’ ” (quoting St. Mary’s)). In particular, the presumption of discrimination that was raised upon a showing of the prima facie case no longer operates. See St. Mary’s, 509 U.S. at 507, 113 S.Ct. at 2747; Burdine, 450 U.S. at 255-56 & n. 10, 101 S.Ct. at 1095 & n. 10 . The plaintiff then has the opportunity to demonstrate “ ‘that the proffered reason was not the true reason for the employment decision,’ and that race was.” St. Mary’s, 509 U.S. at 507-08, 113 S.Ct. at 2747 (quoting Burdine, 450 U.S. at 256, 101 S.Ct. at 1095) (emphasis added). Of course, the plaintiff “retains that ‘ultimate burden of persuading the [trier of fact] that [he] has been the victim of intentional discrimination.’ ” Id. at 508, 113 S.Ct. at 2747 (quoting Burdine, 450 U.S. at 256, 101 S.Ct. at 1095) (alteration in St. Mary’s). The question becomes the same question asked in any other civil case: Has the plaintiff shown, by a preponderance of the evidence, that the defendant is liable for the alleged conduct?

(a) The effect of a prima facie case under Title VII or ADEA. As the foregoing discussion demonstrates, the term prima facie ease, as used in Title VII and ADEA actions, has a meaning that is quite different from and more limited than that ascribed to the term in many other actions. Such a limited prima facie case does not necessarily have much force in showing discrimination.

“Prima facie case” denotes what evidence a plaintiff must offer to avoid dismissal after presentation of the plaintiffs direct case. Except as to causes of actions for which special rules have been adopted, to satisfy the requirements of the prima facie case the plaintiff must present, evidence from which a factfinder could reasonably find every element that the plaintiff must ultimately prove to prevail in the action. Thus, in the absence of a special policy-based rule similar to that promulgated by McDonnell Douglas, a plaintiff avoids a directed verdict only by establishing a prima facie ease that assures that at the end of the trial there will be enough evidence to support a verdict in his favor (unless the defendant’s evidence conclusively undermines some element of plaintiffs prima facie case).

Because of the Supreme Court’s adoption of a particular framework in McDonnell Douglas and Burdine, the same is not true of a discrimination case: a plaintiff alleging discrimination can satisfy the prima facie case and avoid dismissal at the conclusion of the plaintiffs direct case without submitting evidence sufficient to support a finding in his favor on each element that the plaintiff must ultimately prove to win. The burden-shifting presumption excuses the plaintiff at that stage from showing that discrimination was present and caused the adverse employment action plaintiff suffered. If the plaintiff submits evidence of the minimal elements of the special discrimination prima facie case— membership in the protected class, qualification, adverse employment action, and preference for someone outside the protected class — the remaining elements (discrimination and causation) are presumed at this stage of the litigation, and defendant must take up the burden of going forward.

But as Burdine and St. Mary’s make clear, the presumption disappears once the employer has proffered a reason. When the presumption drops away, plaintiffs burden is enlarged to include every element of the claim. Discrimination and cause are no longer presumed. To sustain the burden of putting forth a case that can support a verdict in his favor, plaintiff must then (unlike the prima facie stage) point to sufficient evidence to reasonably support a finding that he was harmed by the employer’s illegal discrimination.

Accordingly, discrimination eases differ from many areas of law in that under the McDonnell Douglas burden-shifting framework a plaintiffs satisfaction of the minimal requirements of the prima facie ease does not necessarily mean, even if the elements of the prima facie case go unchallenged, that plaintiff will ultimately have sufficient evidence to support a verdict on each element that plaintiff ultimately must prove to win the case.

It can be readily seen, furthermore, that the essential elements of this diminished, minimal prima facie case do not necessarily support a reasonable inference of illegal discrimination. In our diverse workplace, virtually any decision in which one employment applicant is chosen from a pool of qualified candidates will support a slew of prima facie eases of discrimination. The rejected candidates are likely to be older, or to differ in race, religion, sex, and national origin from the chosen candidate. Each of these differences will support a prima facie case of discrimination, even though a review of the full circumstances may conclusively show that illegal discrimination played no part whatever in the selection.

By this passage we do not mean to suggest that illegal employment discrimination is rare. We recognize, furthermore, that in the direct case, the evidence adduced to satisfy the prima facie standard may also amount to a powerful showing of discrimination; plaintiffs evidence of discrimination may also be powerfully strengthened by what the defendant puts forth in its case. The point we make here is that evidence sufficient to satisfy the scaled-down requirements of the prima facie case under McDonnell Douglas does not necessarily tell much about whether discrimination played a role in the employment decision. The fact that a plaintiff is judged to have satisfied these minimal requirements is no indication that, at the end of the case, plaintiff will have enough evidence of discrimination to support a verdict in his favor.

(b) The effect of a showing that the employer’s reason was pretextual. A showing that the defendant’s proffered reason for the adverse employment action is not the real reason may serve as evidence that the defendant intentionally discriminated. We attach the label “pretext” to a proffered reason that is not credited by the finder of fact. But the label “pretext” does not answer the question: pretext for what? In some cases, an employer’s proffered reason is a mask for unlawful discrimination. But discrimination does not lurk behind every inaccurate statement. Individual decision-makers may intentionally dissemble in order to hide a reason that is non-discriminatory but unbecoming or small-minded, such as back-scratching, log-rolling, horse-trading, institutional politics, envy, nepotism, spite, or personal hostility. For example, a member of a tenure selection committee may support a protégé who will be eligible for tenure the following year. If only one tenure line is available, that committee member might be inclined to vote against tenure for a junior faculty member who is currently eligible for tenure, thereby ensuring that the tenure line remains open. Any reason given by the committee member, other than the preference for his protégé, will be false. Furthermore, recommenders and decision-makers who are governed by such considerations will not advise the president and regents of the institution that their recommendation or vote was disingenuous. In short, the fact that the proffered reason was false does not necessarily mean that the true motive was the illegal one argued by the plaintiff. See Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1399 (7th Cir.1997) (Posner, C.J.) (listing various non-discriminatory reasons for an employer’s pretextual explanation).³

Where (as at Vassar) there are multiple recommenders or decision-makers, and where the employment decision is the result of deliberation or politicking among those recommenders or decision-makers, the problem is all the more complex. Because there are numerous participants in the decision-making process, each potentially having individual reasons for rejecting a plaintiff, there is a greater likelihood that some of those reasons will differ from the reason officially given by the institution.⁴

The sufficiency of the finding of pretext to support a finding of discrimination depends on the circumstances of the case. This is an unremarkable principle: the sufficiency of any evidentiary finding depends on the other findings and evidence that accompany it. What is at issue is the drawing of inferences from human behavior. Once the trial has moved to the stage at which the plaintiff must prove discrimination by a preponderance of the evidence, a defendant’s false statements are nothing more than pieces of circumstantial evidence, which may be employed, as in many other types of cases, to reveal the speaker’s state of mind. To the extent that an actor in defendant’s position is unlikely to have proffered a false explanation except to conceal a discriminatory motive, then the false explanation will be powerful evidence of discrimination. On the other hand, if the circumstances show that the defendant gave the false explanation to conceal something other than discrimination, the inference of discrimination will be weak or nonexistent. And if, on examination of the circumstances, there are many possible reasons for the false explanation, stated or unstated, and illegal discrimination is no more likely a reason than others, then the pretext gives minimal support to plaintiffs claim of discrimination.

(c) The combined effect of a prima facie case and a finding of pretext. We have seen that, while a prima facie ease and a finding of pretext may in some cases powerfully show discrimination, neither one necessarily gives plaintiff much support in discharging his obligation to prove that he was the victim of discrimination. Indeed, the combined effect of both may have little capacity to prove what the plaintiff has the ultimate burden of proving. Thus, a finding of pretext, together with the evidence comprising a prima facie ease, is not always sufficient to sustain an ultimate finding of intentional discrimination. See Hargett v. National Westminster Bank, USA, 78 F.3d 836, 838 (2d Cir.) (quoting Burdine, 450 U.S. at 253, 101 S.Ct. at 1093-94), cert. denied, — U.S.-, 117 S.Ct. 84, 136 L.Ed.2d 41 (1996); Sutera v. Sobering Corp., 73 F.3d 13, 16 (2d Cir.1995) (“plaintiff must show that the defendant’s articulated reason for its decision is in fact a pretext for discrimination”); Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir.1995) (“An employer’s reason for termination cannot be proven to be a pretext for discrimination unless it is shown to be false and that discrimination was the real reason.”).

A finding of pretext, therefore, does not insulate from appellate review the ultimate finding of discrimination. To permit a plaintiff to win a judgment upon a finding of pretext, without subjecting that judgment to clear error review, would impermissibly shift the burden of proof to the defendant to disprove discrimination or to offer evidence of a “third” reason. The Supreme Court has admonished, however, that “nothing in law would permit us to substitute for the required finding that the employer’s action was the product of unlawful discrimination, the much different (and much lesser) finding that the employer’s explanation of its action was not believable.” St. Mary’s, 509 U.S. at 514-15, 113 S.Ct. at 2751. Once again: “McDonnell Douglas does not say ... that all the plaintiff need do is disprove the employer’s asserted reason. In fact, it says just the opposite: ‘[0]n the retrial respondent [plaintiff] must be given a full and fair opportunity to demonstrate by competent evidence that the presumptively valid reasons for his rejection were in fact a coverup for a racially discriminatory decision.’” Id. at 517, 113 S.Ct. at 2753 (quoting McDonnell Douglas, 411 U.S. at 805, 93 S.Ct. at 1825) (emphasis in St. Mary’s).

Accordingly, a Title VII plaintiff may prevail only if an employer’s proffered reasons are shown to be a pretext for discrimination, either because the pretext finding itself points to discrimination or because other evidence in the record points in that direction— or both. And the Supreme Court tells us that “a reason cannot be proved to be a ‘pretext for discrimination’ unless it is shown both that the reason was false, and that discrimination was the real reason.” Id. at 515, 113 S.Ct. at 2752 (emphasis added). We have recognized again and again that a plaintiff does not necessarily satisfy the ultimate burden of showing intentional discrimination by showing pretext alone.⁵ A finding of pretext may advance the plaintiffs case, but a plaintiff cannot prevail without establishing intentional discrimination by a preponderance of the evidence.

The role of the appellate court is no different in reviewing a finding of discrimination than it is in reviewing any other finding of fact:

That the employer’s proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff’s proffered reason of race is correct. That remains a question for the factfinder to answer, subject, of course, to appellate review — which should be conducted on remand in this ease under the “clearly erroneous” standard of Federal Rule of Civil Procedure 52(a).

Id. at 524, 113 S.Ct. at 2755-56 (citation omitted) (emphasis added). This passage is underscored by the Court’s parenthetical phrase “of course,” which denotes that the principle of clear error review is “certain” and “unquestionable,” “as might be expected,” “natural,” and “obvious,” and thereby furnishes a background assumption for reading other passages in the opinion. Specifically, that background assumption illuminates certain passages that (like the block-quoted passage) deal with the factfinder’s ability to find discrimination once pretext is shown, but do not reiterate the caveat that such a finding is subject to the ordinary rules of appellate review as a matter “of course.” Thus, elsewhere in St. Mary’s, the Court states “[e]ven though (as we say here) rejection of the defendant’s proffered reasons is enough at law to sustain a finding of discrimination, there must be a finding of discrimination.” Id. at 511 n. 4, 113 S.Ct. at 2749-50 n. 4. Such passages do not restrict our power and responsibility to review á finding of discrimination for clear error in the usual course: even if we find that the plaintiff has made out a prima facie case and has shown pretext, we still must review a trial court’s determination that the defendant intentionally discriminated for clear error.

In sum, a supportable finding of pretext and a prima facie case do not alter our ordinary standard of review for clear error, or constrain us to conclude that the defendant has intentionally discriminated:

The prohibitions against discrimination contained in the Civil Rights Act of 1964 reflect an important national policy. There will seldom be “eyewitness” testimony as to the employer’s mental processes. But none of this means that trial courts or reviewing courts should treat discrimination differently from other ultimate questions of fact.

Id. at 524, 113 S.Ct. at 2755-56 (quoting United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983)). If Binder v. Long Island Lighting Co., 57 F.3d 193 (2d Cir.1995), is read as inconsistent with this holding, we expressly reject it. Accordingly, we may reverse a district court’s finding of discrimination — even if accompanied by a supportable finding of pretext — if we are firmly convinced, as the panel was here, that a mistake has been made and that the plaintiff has failed to establish intentional discrimination by a preponderance of the evidence.

Two of the three other circuits that have considered this issue have arrived at the same conclusion.⁶ Furthermore, of the various opinions filed herewith, none except Judge Winter’s disagrees with the central proposition of this Point II — which is that a prima facie case meeting the minimal standard of McDonnell Douglas (even where elements are acknowledged by the defendant), together with a finding of pretext, do not necessarily add up to a sustainable case of discrimination.

(d) Some comments on the dissenting opinions, (i) Chief Judge Newman’s dissent is based largely on his surprising view, shared by Judge Winter, that the prima facie case of discrimination specified in McDonnell Douglas is as strong as any conventional prima facie case. This position is squarely contrary to the broadly accepted view that, in discrimination cases under the law propounded by the Supreme Court, plaintiffs burden to produce a prima facie ease is substantially less onerous than the conventional obligation to produce evidence that reasonably supports a finding on all the elements of the claim. If the requirements of a prima facie case under the discrimination statutes were no less onerous than is normally the case, the Supreme Court, and our Court, along with other circuits would not have said over and over again that the requirements of the prima facie case of discrimination under McDonnell Douglas are “minimal.”⁷

Judge Newman’s view comes from his highly selective misreading of the Supreme Court’s opinion in Burdine. He tells us that “Burdine defined a Title VII prima facie ease [as specified in McDonnell Douglas ] to mean adverse employment action taken ‘under circumstances which give rise to an inference of unlawful discrimination.’ ” 114 F.3d at 1363 (Newman). He goes on to say, “Since those facts are sufficient to give rise to an inference of discrimination, they cannot cease to have such an effect simply because the employer has proffered an explanation.” 114 F.3d at 1363 (Newman).

Judge Newman’s interpretation of this clause in Burdine is rebutted by the next few sentences of that opinion. Two sentences later, Justice Powell explains that “the prima facie case raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Burdine, 450 U.S. at 254, 101 S.Ct. at 1094 (quoting Furnco Constr. Co. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949-50, 57 L.Ed.2d 957 (1978) (emphasis added, internal quotation marks omitted)). In other words, the inference wholly depends on the presumption, which disappears once the employer has proffered an explanation. The phrase “prima facie case” — as footnote 7 of Burdine says — is used in McDonnell Douglas not “to describe the plaintiffs burden of producing enough evidence to permit the trier of fact to infer the fact at issue,” but rather to “denote the establishment of a legally mandatory, rebuttable presumption.”⁸

The dissenting opinions oddly interpret this footnote to mean that the minimal prima facie ease identified by McDonnell Douglas is more probative of the ultimate fact in issue than a conventional prima facie case (which, on its own, has persuasive force sufficient to support the inference that the ultimate fact in issue is more probable than not). Footnote 7, when read in combination with the text, says just the opposite.

The Burdine opinion goes on to explain, in terms reiterated in St. Mary’s and closely followed in this opinion, that “[e]stablishment of the prima facie ease in effect creates a presumption that the employer discriminated____ The burden that shifts to the defendant ... is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected ... for a ... nondiscriminatory reason____ If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted____ Plaintiff retains the burden of ... persuading the court that she has been the victim of intentional discrimination.” Burdine, 450 U.S. at 254r-56. Thus, Burdine makes clear that the presumption which bolsters the prima facie case is a transitory thing. Once the presumption has served its purpose of forcing out the employer’s explanation, the prima facie case loses its capacity to support the (previously presumed) inference of illegal discrimination, other than by whatever intrinsic force the constituent evidence may have.

Finally, Burdine explains that the inference of illegal motive flows not simply from the set of facts specified in McDonnell Douglas but from those facts coupled with the absence of an explanation. Id. at 254, 101 S.Ct. at 1094 (“[T]he prima facie case raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of illegal factors.”). As both Burdine and St. Mary’s reiterate, once the employer does what the McDonnell Douglas rule was designed to force it to do— i.e., give an explanation — the presumption disappears. Having lost the transitory benefit of the presumption, plaintiff must then satisfy the ultimate burden by showing facts from which one can reasonably find that forbidden discrimination was more probable than not. Judge Newman therefore misreads these eases when he argues that the initial, minimal McDonnell Douglas showing, on its own, supports the ultimate, sufficient finding of discrimination.⁹

(ii) Judge Newman argues further that the Supreme Court cannot have meant in McDonnell Douglas, Burdine and St. Mary’s what we understand it to have meant because that would be unconstitutional under Mobile, Jackson & Kansas City R.R. Co. v. Turnipseed, 219 U.S. 35, 31 S.Ct. 136, 55 L.Ed. 78 (1910). In making this argument, the dissent seems once again to have misread the Supreme Court’s precedent. Tumipseed, in fact, upheld the constitutionality of a statute which performed exactly the function the majority attributes to the McDonnell Douglas formula — forcing the defendant to explain. The Court stated,

The statutory effect of the rule is to provide that evidence of an injury arising from the actual operation of trains shall create an inference of negligence, which is the main fact in issue. The only legal effect of this inference is to cast upon the railroad company the duty of producing some evidence to the contrary. When that is done, the inference is at an end, and the question of negligence is one for the jury, upon all of the evidence---- The statute, does not, therefore, ... fail in due process of law, because it creates a presumption of liability, since its operation is only to supply an inference of liability in the absence of other evidence contradicting such inference.

Turnipseed, 219 U.S. at 43, 31 S.Ct. at 138 (emphasis added). Those words could serve equally well to describe the effect of the temporary inference raised by the McDonnell Douglas framework. We simply do not understand Judge Newman’s argument.

All of this is admirably treated in Judge Calabresi’s opinion, and we join in Part I of that opinion.

(iii) In Judge Newman’s discussion of the force of a finding of pretext, he observes that our view “seems at odds” with a statement in the St. Mary’s opinion that “rejection of the defendant’s proffered reasons will permit the trier of fact to infer the ultimate fact of discrimination, and ... no additional proof of discrimination is required.” St. Mary’s, 509 U.S. at 511, 113 S.Ct. at 2749 (internal quotation marks, footnote and brackets omitted). The issues presented in St. Mary’s did not require the Court to specify whether this statement (“no additional proof is required”) refers to the substance of the evidence or to procedure, and the Court did not say.

We acknowledge that the sentence might be read to say that a prima facie case plus a finding of pretext is always sufficient to support a verdict in plaintiffs favor, so that such a finding precludes ordinary review for clear error. But that is not our understanding of what Justice Scalia meant.

First, if that were his meaning, he would necessarily be mistaken, as Judge Newman’s dissenting opinion acknowledges. The majority and the dissent are on common ground that a finding of pretext, coupled with a prima facie case, “is not always sufficient to sustain an ultimate finding of discrimination.” 114 F.3d at 1375 (Newman).

Second, that interpretation would be difficult to reconcile with Justice Scalia’s pointed statement at the conclusion of the opinion that the verdict is subject to review under the “clearly erroneous” standard. Finally, such a view would be incompatible with Justice Scalia’s clear assertion that once the employer produces an explanation, the McDonnell Douglas framework with its presumptions and burdens no longer operates. The St. Mary’s opinion emphasizes that “[t]o resurrect [the presumption] later, after the trier of fact has determined that what was produced to meet the burden of production is not credible, flies in the face of our holding in Burdina that to rebut the presumption ‘[t]he defendant need not persuade the court that it was actually motivated by the proffered reasons____ The presumption having fulfilled its role of forcing the defendant to come forward with some response, simply drops out of the picture.’ ” Id. at 510-11, 113 S.Ct. at 2748 (quoting Burdine, 450 U.S. at 254, 101 S.Ct. at 1094). See also id. at 507, 113 S.Ct. at 2747 (“If the defendant carries this burden of production [of showing a nondiseriminatory reason for the challenged action], the presumption raised by the prima facie case is rebutted ... and drops from the ease.”)

The main thrust of the St. Mary’s majority opinion, as we read it, is that once the minimal prima facie case has served its purpose of forcing the employer to proffer a reason, all presumptions drop out and the case proceeds like any other — i.e., with the burden on plaintiff to prove the case by evidence of discrimination sufficiently persuasive to allow a favorable verdict to survive clear error review. This central meaning of St. Mary’s would be contradicted if we construe the “no additional proof ... required” phrase to mean that a prima facie case plus a finding of pretext is necessarily sufficient to sustain a plaintiff’s burden.

A more plausible reading of the statement that “no additional proof of discrimination is required” is that it concerns procedure. The opinion was discussing the minuet set in motion by McDonnell Douglas. For the first step, plaintiff must produce evidence to meet the minimal demands of a Title VII prima facie case. Plaintiffs doing so shifts the burden of production to the defendant to proffer a nondiscriminatory explanation. The statement that, once the defendant has made such a proffer, plaintiff is not required to produce “additional proof’ of discrimination does not necessarily mean anything more than that, procedurally, the plaintiff need not proffer additional evidence but may rely on the evidence already received to rebut defendant’s explanation and prove discrimination. Such a procedural observation does not diminish the plaintiffs obligation in the end to adduce sufficient evidence of discrimination to support a finding that discrimination was more probable than not.

Thus we do not think that our view of the significance of a finding of pretext is at odds with Justice Scalia’s statement, properly understood.

(iv) We think Judge Winter’s opinion exhibits two additional flaws of reasoning. First, Judge Winter is moved by what he sees as an anomaly — that an employer who lies can be better off than one who gives no explanation. 114 F.3d at 1390 (Winter). Any apparent illogic disappears when one recognizes that the McDonnell Douglas framework is a burden-shifting rule, designed to force the employer to give an explanation. This burden shift therefore gives the plaintiff merely a transitory advantage. The employer who gives an explanation is better off than the one who declines to do so. That is no anomaly.

Second, ambiguity in the meaning of the term “prima facie ease” has caught Judge Winter in a semantic trap. That term is commonly used to describe two different functions in the course of a trial. Its original meaning refers to the quantum of evidence a plaintiff must adduce to escape dismissal at the conclusion of the plaintiff’s case; it is also frequently used, however, to describe the quantum of evidence which must ultimately be found in the record to justify submission of the case to the jury (or to justify upholding a jury’s verdict in plaintiffs favor). The reason the same term has come to be used to describe two functionally different tests is that ordinarily the quantum of evidence needed for both purposes is the same. In the usual case, to satisfy either test there must be sufficient evidence to support a finding in plaintiffs favor on every element of the claim by a preponderance.

Judge Winter thus assumes that if the four McDonnell Douglas factors are what is needed to prevent dismissal at the close of the plaintiffs evidence, that same evidence (unless the defendant has conclusively rebutted discrimination, proved a third motive, or disproved one of the four factors) must also assure that the plaintiff has sufficient evidence ultimately to justify a plaintiffs verdict.¹⁰ But the Supreme Court has made clear that the test of sufficiency at the close of plaintiffs direct ease is not the same as the ultimate test. In McDonnell Douglas, the Court referred expressly to the “initial burden ... of establishing a prima facie case.” 411 U.S. at 802, 93 S.Ct. at 1824 (emphasis added). It went on to explain in language quoted above from Burdine and St. Mary’s that the minimal four McDonnell Douglas factors are held to support the inference of discrimination only because of a presumption created to smoke out the employer’s proffer of explanation; and that once the employer explains, the presumption drops away, and the plaintiff then must prove discrimination by evidence reasonably capable of supporting that inference. If the Supreme Court had meant what Judge Winter suggests, employers would be subjected to liability for discrimination where none was present and none was shown. We respectfully believe Judge Winter has misunderstood the Supreme Court’s precedents.

Judge Newman’s opinion proclaims that the majority opinion undermines the law of discrimination. We do no such thing. We have faithfully applied the law as repeatedly explained by the Supreme Court. Under that law, notwithstanding the minimal requirements of the specially defined prima facie case, once the employer has proffered an explanation, a plaintiff may not prevail without evidence that, on its own, unaided by any artificially prescribed presumption, reasonably supports the inference of discrimination.

Ill

We now turn to Fisher’s claim. Fisher presented a prima facie case of discrimination by reason of her marital status by showing (i) that she was a married woman, (ii) that she was qualified for tenure, (in) that she was denied tenure and (iv) that tenure was granted to a woman who was not married (Pinina Norrod). Fisher established a prima facie case of age discrimination by introducing the additional evidence that she was over the age of 40 at the time she was reviewed for tenure, and that eight of nine other tenured professors in the Biology Department were younger than Fisher when they were reviewed for tenure.

The burden of production then shifted to Vassar to proffer a legitimate, non-discriminatory reason for its employment decision. Vassar satisfied that burden by asserting that Fisher was denied tenure because she did not meet the posted standards for tenure, and that she was less qualified than other candidates who filled specific needs of the Biology Department. Vassar undertook to support these more general points by numerous more particularized assertions about Fisher’s record. At that juncture, Fisher attempted to show that Vassar actually discriminated against her by introducing evidence that the reasons that Vassar proffered for denying her tenure were false, and by introducing other evidence intended to show that Vassar actually discriminated. This other evidence consisted of anecdotes, purported admissions made by Vassar, statistics, and expert testimony.

After an exhaustive analysis of Fisher’s credentials and the credentials of other candidates for tenure in the Biology Department, the district court found that Vassar’s asserted reasons were pretextual — ie., that the reasons stated by the employer were not the real reasons for the adverse employment action. After reviewing the evidence that Fisher introduced, the district court concluded that the real reason for denying Fisher tenure was intentional discrimination. The district court found that Vassar denied Fisher tenure because of her age and her status as a married woman, and found that Vassar had violated the Equal Pay Act by paying its male junior professors more than its female junior professors. The court found against Fisher on her simple sex discrimination claim.

A panel of this Court sustained the district court’s findings that Fisher had established a prima facie case of age and sex-plus discrimination. The panel also ruled that it could not find clear error in the district court’s determination that certain of Vassar’s assertions about Fisher’s candidacy were inaccurate. But in reviewing the totality of the evidence, the panel found it insufficient to support a finding that Vassar actually discriminated against Fisher on the basis of her age or her status as a married woman. Because the panel was left with a definite and firm conviction that a mistake had been committed, it reversed the district court’s decision. In light of the principles set forth in Part II above, the panel was within its power to do so.

The panel opinion employed the phrase that the finding of pretext in this case “points nowhere.” The dissent makes much of this figure of speech, arguing in essence first that a finding of pretext must point somewhere and second that it points “in the same direction that all pretext findings point — toward [a] finding of discrimination.” As to the first issue, the dissent is simply reading a rhetorical device with excessive literalness. What the panel opinion meant by “points nowhere” was that the inaccuracies in Vassar’s statements are explicable by so many equally possible motivations that none emerged with any persuasive force; more particularly, the panel concluded that under the circumstances Vassar’s inaccuracies gave little if any support to the inference that Vassar had engaged in discrimination.

We simply disagree with the dissent’s suggestion that a finding of pretext in all but a few specified categories of eases reasonably supports a finding of discrimination, as the true motivation. True, a finding of pretext will in many circumstances powerfully support a finding of discrimination. In others, as explained above, it will not. Even where the proffered reason is an outright falsehood, the power of that fact as support for a finding of discrimination is not, and should not be, a rule of law but a function of logic. A finding of pretext in circumstances that suggest numerous other possible unstated explanations no less likely than discrimination gives little inferential support to a finding of discrimination.

The argument of the dissent appears to be predicated on the assumption that the laws of evidence, in the manner of the U.S. Sentencing Guidelines, assign some fixed or special value to false statements in discrimination cases. That is a misguided view. The fact that an employer has given a false explanation is a piece of evidence. Like a false exculpatory statement, its strength as an indicator of guilt will vary with the circumstances. An employer may believe that a supervisor is hiring on merit, and proffer that explanation, but a jury may find pretext nevertheless without having a basis for belief as to whether the supervisor is hiring on the basis of friendship, bribery, a hatred for 42 year-olds, or animus against Romanians — so that, even if the pretext is attributed to the employer in these circumstances, there is no evidentiary support for a finding that the employer’s pretext is a pretext for discrimination. To pick up one of the dissent’s analogies, flight from the scene of a crime ordinarily has evidentiary weight, but flight from a scene of arson shows nothing if the defendant fled the scene of a department store inferno during business hours. Even if the defendant does not testify to being a shopper, the bare fact of such flight does not support an inference that the defendant is the arsonist.

The dissent goes on to express disapproval of people who he or dissemble in their testimony. But factfinding (and review for clear error) are not moral judgments; they are exercises in logic as applied to the observation of human behavior. The issue is not whether we disapprove of the defendant’s lack of candor; it is whether the plaintiff has proven discrimination. If a party’s conduct fails to give logical support to the finding of a fact in issue, that fact may not be found merely because we disapprove of the conduct. A court should not enter judgments for unproved, nonexistent discrimination to express its disapproval of a party’s giving of inaccurate explanations in court.

IV

To summarize, we consider how district courts should analyze discrimination cases in which the plaintiff has advanced a prima facie ease, the defendant has proffered an explanation capable of being found false, and a jury has found for the plaintiff. When should such a verdict be left in place, when set aside?

The rule is that there is no rule peculiar to discrimination cases. As in all other areas, the answer depends on how forcefully the evidence has shown what plaintiff has the burden of showing — that the adverse employment action suffered by plaintiff was attributable to the alleged discrimination. If the evidence (and the inferences reasonably flowing from it) can demonstrate that the plaintiff was likely injured by the defendant’s illegal discrimination, then the evidence gives rise to a jury issue, and a verdict in plaintiffs favor must be left undisturbed. If they cannot, and the jury is left to mere speculation, then the lack of evidentiary support compels the court to conclude that a mistake has been made. The court in those circumstances must find the plaintiffs verdict to be clearly erroneous and set it aside.

The point is that once the plaintiff has satisfied the minimal requirements for a prima facie case under McDonnell Douglas, and the defendant has responded by proffering a nondiseriminatory explanation, all special rules drop from the case. See St. Mary's, 509 U.S. at 507, 510-11, 113 S.Ct. at 2747, 2748-50. At this point no rule of law gives artificially enhanced weight to any piece of evidence.

Plaintiffs initial showing of discrimination may be strong or weak, depending on the particular evidence. The mere fact that a plaintiff has met the reduced demands of Title VII for a prima facie case gives little assurance that plaintiff has significant proof of discrimination.

As to the employer’s proffer of a nondiseriminatory reason which the factfinder finds to be false, its probative force is also highly variable. As stated above, employers characteristically give false explanations for employment decisions for many different reasons. That an employer has done so means that there is something to hide. Discrimination is without doubt one of the things employers may seek to hide by giving a false explanation. It is by no means the only one. The fact that the employer is hiding something does not necessarily mean that the hidden something is discrimination. Generally speaking, the stronger the evidence that illegal discrimination is present, the greater the likelihood that discrimination is what the employer’s false statement seeks to conceal. And, conversely, the weaker the evidence of discrimination, the less reason there is to believe that the employer’s false statement concealed discrimination, as opposed to the numerous other reasons for which employers so frequently give false reasons for employment decisions.

When a court comes to consider, either upon defendant’s motion for summary judgment, or after a plaintiffs verdict, whether the evidence can support a verdict of discrimination, no special rules affect the weight to be given to the prima facie case, the truthfulness or falsity of the employer’s explanation, or any other piece of evidence. As in any other type of ease, the judge must analyze the evidence, along with the inferences that may be reasonably drawn from it, and decide if it raises a jury question as to whether the plaintiff was the victim of discrimination. If so, summary judgment must be denied and/or a jury verdict for plaintiff must be sustained. If not, the defendant is entitled to summary judgment or to the overturning of a plaintiff’s verdict as clearly erroneous.

V

We are sitting in banc to reconsider the question of law discussed in Part II, and not to involve all the judges of our Court in a review of the district court’s factual findings. Therefore, we hereby modify our order for hearing this appeal in banc, see Fisher v. Vassar College, No. 94-7737 (2d Cir. Feb. 16, 1996) (order for rehearing) to provide that the in bane rehearing is limited to the force and effect of a pretext finding, taken together with a prima facie case, in considering on appeal whether or not an ultimate finding of discrimination is clearly erroneous under Fed.R.Civ.P. 52(a). Because our ruling on that question reaffirms the applicability of the rule employed by the panel — that no special weight is given to the evidence that supports the prima facie ease and pretext in conducting clear error review of an ultimate finder of discrimination — we have no reason to suppose that the panel would now alter its views on the application of that rule to the district court’s findings. Accordingly, there is no need to remand to the panel for renewed consideration in light of the in banc court’s opinion.¹¹ The mandate of the Court shall issue reversing the judgment of the district court, drawing its authority from the opinion of the in banc court as to the appropriateness of appellate review for clear error, and the panel’s rulings as to the disposition of all other issues in the appeal.

Conclusion

The judgment of the district court is reversed. Judgment shall be in favor of the defendant.

Judge Calabresi concurs in Parts 11(a), 11(b), (II)(c), 11(d), and (IV) of this opinion.

1

. The Equal Employment Opportunity Commission was granted permission to appear as amicus curiae in support of the plaintiff. Oral argument was heard on June 5, 1996. Although the panel stayed the mandate of the panel decision pending rehearing, the panel's opinion was not vacated.

2

. See infra note 7 (collecting cases).

3

. See also Woods v. Friction Materials, Inc., 30 F.3d 255, 260-61 n. 3 (1st Cir.1994) (noting possibility of other reasons); Pollard v. Rea Magnet Wire Co., 824 F.2d 557, 559 (7th Cir.1987) ("Showing that the employer dissembled is not necessarily the same as showing 'pretext for discrimination '.... [I]t may mean that the employer is trying to hide some other offense.”); Benzies v. Illinois Dep't of Mental Health, 810 F.2d 146, 148 (7th Cir.1987) ("[S]ome less seemly reason — personal or political favoritism, a grudge, random conduct, an error in the administration of neutral rules — [may] actually account!] for the decision.”).

4

. Chief Judge Newman's dissent asserts that the fact of multiple decision-makers should not insulate decisions permeated by the discrimination of individual participants. This is surely correct, but it misses our point. The involvement of multiple decision-makers increases the likelihood that the institution's stated reason may differ from the true reasons held by some of the decision-makers — without necessarily increasing the likelihood that discrimination played any role in their decision.

5

. See, e.g., Quaratino, 71 F.3d at 64 (plaintiff must show that proffered reason was "false and that discrimination was the real reason”); Woroski, 31 F.3d at 109 (to defeat summary judgment, plaintiff must show material fact as to whether “(1) the employer’s asserted reason for discharge is false or unworthy of belief and (2) more likely than not the employee's age was the real reason for the discharge”); DeMarco v. Holy Cross High School, 4 F.3d 166, 170 (2d Cir.1993) ("[Tlhe mere fact that a defendant [at trial] proffers a false reason for a challenged employment action does not necessarily establish liability."); Saulpaugh, 4 F.3d at 142 (A "Title VII plaintiff does not necessarily meet its burden of persuasion by convincing the factfinder that the employer's non-discriminatory explanation is not credible; rather, the trier of fact must find that the plaintiff has proven its explanation of discriminatory intent by a fair preponderance of the evidence.”).

6

. The Fifth Circuit, sitting in banc, recently held by a vote of 16-1 that in order to prevail under the ADEA, a plaintiff must show evidence that the employer was not motivated by the proffered reasons and that age was a determinative factor. See Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir.1996) (in banc). Likewise the First Circuit has held that a prima facie case and evidence of pretext are not necessarily sufficient to withstand summary judgment in favor of the defendant. Smith v. Stratus Computer, Inc., 40 F.3d 11, 16 (1st Cir.1994), cert. denied,-U.S. -, 115 S.Ct. 1958, 131 L.Ed.2d 850 (1995). Cf. Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061 (3d Cir.1996) (in banc).

7

. St. Mary’s, 509 U.S. at 506, 113 S.Ct. at 2746-47 (describing requirements of the McDonnell Douglas prima facie case as "minimal”); Burdine, 450 U.S. at 253, 101 S.Ct. at 1094 (describing burden of establishing a prima facie case as "not onerous”). A quick search in the Westlaw database reveals more than one hundred published opinions in which federal appellate courts have characterized the burden of establishing a McDonnell Douglas prima facie case as "minimal,” "de minimis," or “not onerous.” Furthermore, at least three circuits have expressly stated that less evidence is needed to meet the requirements of the McDonnell Douglas prima facie case than to win a judgment on the ultimate issue of discrimination.

Recent Second Circuit cases characterizing the prima facie case as “minimal,” "de minimis,” or "not onerous” include Luciano v. Olsten Corp., 110 F.3d 210, 215 (2d Cir.1997); Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 87, 90 (2d Cir.1996); de la Cruz v. New York City Resources Admin. Dep’t of Soc. Servs., 82 F.3d 16, 20 (2d Cir.1996); Sutera v. Schering Corp., 73 F.3d 13, 16, 17 (2d Cir.1995); Quaratino, 71 F.3d at 64, 65; Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203-04 (2d Cir.1995); Chambers, 43 F.3d at 40; Viola v. Philips Med. Sys. of North America, 42 F.3d 712, 716 (2d Cir.1994); Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1225 (2d Cir.1994); Owens v. New York City Hous. Auth., 934 F.2d 405, 409 (2d Cir.), cert. denied, 502 U.S. 964, 112 S.Ct. 431, 116 L.Ed.2d 451 (1991); Greenberg v. Hilton Int'l Co., 870 F.2d 926, 934 (2d Cir.1989).

For examples of cases from other courts of appeals that describe the prima facie case in much the same way, see EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir.1997); Kehoe v. Anheuser-Busch, Inc., 96 F.3d 1095, 1105 n. 13 (8th Cir.1996); Marzano v. Computer Science Corp., Inc., 91 F.3d 497, 508 (3d Cir.1996); Nichols v. Loral Vought Sys. Corp., 81 F.3d 33, 41 (5th Cir.1996); Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 960 (4th Cir.1996); Richardson v. Leeds Police Dep’t, 71 F.3d 801, 806 (11th Cir.1995); Byrd v. Ronayne, 61 F.3d 1026, 1031 (1st Cir.1995); Warren v. City of Carlsbad, 58 F.3d 439, 442 (9th Cir.1995); Neuren v. Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507, 1512 (D.C.Cir.1995); Hooks v. Diamond Crystal Specialty Foods, Inc., 997 F.2d 793, 797 (10th Cir.1993); Hong v. Children’s Memorial Hosp., 993 F.2d 1257, 1262 (7th Cir.1993), cert denied, 511 U.S. 1005, 114 S.Ct. 1372, 128 L.Ed.2d 48 (1994).

Courts of appeals in at least three circuits have remarked that, by itself, the evidence required to establish a prima facie case under MicDonnell Douglas is not invariably sufficient to sustain an ultimate finding of illegal discrimination. See Avery Dennison Corp., 104 F.3d at 861 (6th Cir.) ("There must be a lower burden of proof to sustain a prima facie case than to win a judgment on the ultimate issue of discrimination____"); London v. Northwest Airlines, Inc., 72 F.3d 620, 624 (8th Cir.1995); ("The prima facie burden is not so onerous as, nor should it be conflated with, the ultimate issue of racially-motivated action.”); Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994) ("The requisite degree of proof necessary to establish a prima facie case for Title VII and ADEA claims on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence.”).

8

. Footnote 7 in the Burdine opinion reads as follows:

The phrase "prima facie case” not only may denote the establishment of a legally mandatory, rebuttable presumption, but also may be used by courts to describe the plaintiff's burden of producing enough evidence to permit the trier of fact to infer the fact at issue. 9 J. Wigmore, Evidence § 2494 (3d ed.1940). McDonnell Douglas should have made it apparent that in the Title VII context we use “prima facie case” in the former sense.

Burdine, 450 U.S. at 254 n. 7, 101 S.Ct. at 1094 n. 7.

9

. Judges Newman and Winter thus contend that the bare facts presented in Burdine — that a qualified female applicant was rejected in favor of a man who had been her subordinate — are by themselves sufficient to support an ultimate finding of discrimination. See 114 F.3d at 1367 (Newman) In our view, they are not.

10

. Judge Winter states, "I do not believe that a Court of Appeals should, or even can, hold that the four factor test illustrated in McDonnell Douglas is not by itself sufficient to support an inference of discrimination and causation in light of the statements to the contrary in O’Connor, Burdine, and Teamsters." 114 F.3d at 1390 (Winter).

11

. Judge Newman's dissenting opinion argues that the majority has somehow behaved improperly by limiting our in banc review to the issue of law, and declining to review the panel’s assessment of the facts. "[T]he in banc court,” it argues, “normally ought to make its independent assessment of the appeal” (including all issues involved in the appeal). 114 F.3d at 1378 (Newman). No authorities are cited in support of this surprising argument, and we can imagine none. When a majority of the in banc court determines that in banc review is warranted for only certain specified issues, what reason can there be to consume the time of all the court's judges on other issues that do not warrant in banc review?

Judge Newman goes on to argue that in these narrow circumstances control of the scope of in banc review should pass from the majority of the Court to the minority. We can see no justification for this view.

Judge Newman’s references to Supreme Court practice are completely inapposite because in the Supreme Court the principle of majority rule is potentially in conflict with the “unwritten Rule of Four” that permits a minority of four to place a case on the Court's docket. See 16B Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 4004.2(1996). If the other five members of the Court can then dismiss it, the rule allowing four to secure a hearing is nullified.

The Supreme Court's precedents and its discussions of this issue have no application to our practice because in our court a majority is needed to secure in banc review. The majority is equally free to dismiss the in banc proceeding, or to regulate its scope.