for a legitimate, nondiscriminatory reason. Burdine, 450 U.S. at 254. If the employer does so, the burden then shifts back to the plaintiff to come forward with evidence "that the proffered reason was not the true reason for the employment decision" but rather was a pretext for discrimination. Burdine, 450 U.S. at 256.
The Court's descriptions of the purpose behind these shifting allocations have varied. In Furnco Construction Corp. v. Waters, 438 U.S. 567, 57 L. Ed. 2d 957, 98 S. Ct. 2943 (1978), the Court described the "presumption" created by a plaintiff's coming forward with her prima facie case in language somewhat akin to a legislative presumption: "because we presume these acts, if otherwise unexplained, are more likely than not based on impermissible factors." Id. at 577. On other occasions, however, the Court has spoken of the allocations as having the narrower, procedural purpose of "progressively . . . sharpening the inquiry into the elusive factual question of intentional discrimination" by placing the burden of going forward with the party best suited to produce such evidence. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (quoting Burdine, 450 U.S. at 255 n.8). The latter, process-based formulation would appear more consistent with the Court's holding in Hicks, supra, that once an employer comes forward with evidence of a nondiscriminatory reason for its action, "the presumption [of the prima facie case], having fulfilled its role of forcing the defendant to come forward with some response, simply drops out of the picture," Hicks, 509 U.S. at 510. It is also more consistent with the Court's repeated reaffirmations that it is plaintiff who retains the "ultimate burden of persuading the [trier of fact] that [she] has been the victim of intentional discrimination." Hicks, 509 U.S. at 508, quoting Burdine, 450 U.S. at 256.
In any event, the implementation and expansion of this aspect of the McDonnell Douglas doctrine in the lower federal courts has substantially been predicated on its role in forcing employers to reveal their rationales for challenged employment actions relating to members of protected classes -- the notion being that it would be almost impossible for plaintiffs to prove discrimination without access to such information and the opportunity to challenge it. See, e.g., Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 36 (2d Cir. 1994). Thus, the doctrine has been applied well beyond its origin in a racial discrimination case to cases involving virtually all forms of actionable discrimination, see, e.g., Gallo v. Prudential Residential Services Ltd. Partnership, 22 F.3d 1219, 1224-25 (2d Cir. 1994) (Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.); Lyons v. Legal Aid Society, 68 F.3d 1512, 1515 (2d Cir. 1995) (Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.), -- even though it is far from obvious that replacement of, e.g., a qualified 40-year-old employee by a qualified 39-year-old employee should raise the same "prima facie" inference of unlawful discrimination as replacement of a qualified black employee by a qualified white employee. So, too, the doctrine applies in cases, like this one, alleging multiple forms of discrimination, see, e.g., Fisher, 70 F.3d at 1432 (age and sex discrimination); Montana v. First Federal Savings and Loan Assoc. of Rochester, 869 F.2d 100, 103 (2d Cir. 1989) (same) -- even though it is problematic whether an employer's replacement of a qualified foreign-born black female over 40 years of age by a qualified native-born white male under 40 years of age reasonably raises an inference that "more likely than not" the employer was intentionally discriminating on the grounds of national origin, race, sex, and age, all at once.
Perhaps most tellingly, the nature and extent of the showing required of a plaintiff to make out the "prima facie" case sufficient to invoke the initial burden-shifting "presumption" under McDonnell Douglas has been steadily diluted to the point where the Second Circuit has repeatedly described it as "de minimus." Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994); Meiri v. Dacon, 759 F.2d 989, 996 n.10 (2d Cir. 1985). Thus, as in the case here at bar, it is unnecessary for a terminated employee to show that she was actually replaced by a person not of the protected class (or classes); she need only show, for example that the employer sought new applicants from the unprotected groups, or accorded more favorable treatment to employees not in the protected group, or made invidious comments about others in the employee's protected group -- or simply that the "sequence of events" or "timing of the discharge" raised some inference of discriminatory intent. Chambers, 43 F.3d at 37.
This minimization of the proof required to make out a prima facie case under the federal employment discrimination laws may make sense if the purpose is to enable a plaintiff to readily obtain discovery of an employer's internal decision-making processes, rather than being "stonewalled" and non-suited on the pleadings: for, without such access, few if any victims of discrimination could ever prove their case.
But in easing initial burdens in order to facilitate such access, the courts likewise make it easier for plaintiffs to make out what is referred to as a "prima facie" case without in reality coming forward with evidence that constitutes meaningful proof of discrimination.
Put another way, it is important to remember that the "presumption" created by making out a "prima facie" case under McDonnell Douglas carries no lasting evidentiary weight but, rather, becomes a nullity as soon as a defendant meets its own burden of going forward. See Hicks, 509 U.S. at 516-17. That is why, as one moves beyond discovery to summary judgment, an employer's unrebutted proof of a non-discriminatory rationale for the challenged action is sufficient to require judgment in the employer's favor. See Chertkova v. Connecticut General Life Ins. Co., 92 F.3d 81, 92 (2d Cir. 1996).
Put still a different way, while the proof a plaintiff offers to meet her "prima facie" case may sometimes supply independent evidence of discriminatory intent, quite often it will not. But supposing, in the latter situation, a plaintiff, in addition to offering the bare de minimus evidence needed to make out a "prima facie" case, now adds, in response to the employer's stated nondiscriminatory reason for the challenged action, some genuine though modest proof that the employer's proffered rationale is not credible. This may be enough to defeat summary judgment; but must it be?
Plaintiff here argues in effect that it must -- on the theory that from the fact that an employer lied about its proffered reason for a challenged action a juror could draw the adverse inference that its real reason was discrimination. But, as the facts of the instant case indicate, where there are apparent other reasons why the employer would lie and little or no other evidence of discrimination, it may be entirely unreasonable for a juror to infer discrimination from the mere act of lying. Moreover, an adverse inference from a witness's perjury has not ordinarily been deemed sufficient to carry a proponent's burden of proof. As the Supreme Court held in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986):
"Discredited testimony is not [normally] considered a sufficient basis for drawing a contrary conclusion." Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 512, 80 L. Ed. 2d 502, 104 S. Ct. 1949 (1984). Instead, the plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment. This is true even where the evidence is likely to be within the possession of the defendant, as long as the plaintiff has had a full opportunity to conduct discovery.
Also cf. Dyer v. MacDougall, 201 F.2d 265, 268-69 (2d Cir. 1952) (Hand, J.). Indeed, if the rule were otherwise, no party whose deposition or trial testimony were controverted could ever prevail under either Fed. R. Civ. P. 56 or Fed. R. Civ. P. 50, since his adversary could always claim that the jury would find for the adversary on the basis of adverse inference.
When a jury gets an employment discrimination case, it is not (under the preferred view) instructed as to the various shifts and counter-shifts of the McDonnell Douglas scheme, but simply is asked to determine whether, on all the evidence, plaintiff has carried its ultimate burden of proving intentional discrimination. See Cabrera v. Jakabovitz, 24 F.3d 372, 380 (2d Cir. 1994) (burden-shifting language described as "at best irrelevant, and at worst misleading to a jury."); but see Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194, 200 (1st Cir. 1987) (advocating use of burden-shifting language in jury charges). One would have thought that a court reviewing the same case on a motion under Rule 56 or Rule 50 would simply need to determine whether there was a sufficient quantum of evidence under established principles of law, see Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Anderson, 477 U.S. at 250, to permit the case to go to a jury -- rather than applying some specialized rule that proof that an employer lied about the reason for his challenged action automatically requires sending the case to the jury.
Yet plaintiff's argument in favor of such a specialized rule is not without substantial precedent. First and foremost, the Supreme Court in Hicks stated that "rejection of the defendant's proffered reasons [for its challenged actions] will permit the trier of fact to infer the ultimate fact of intentional discrimination, and the Court of Appeals was correct when it noted that, upon such rejection, 'no additional proof of discrimination is required.'" Hicks, 509 U.S. at 511 (quoting 970 F.2d 487, 493). This was dictum, as the holding of Hicks was simply that a trier of fact's rejection of an employer's asserted reason for its challenged action does not compel judgment for the plaintiff. See Hicks, 509 U.S. at 515. But it could not have been unconsidered dictum, as a footnote to the foregoing quoted sentence sought to anticipate objections to it by stating that "there is nothing whatever inconsistent between this statement and our later statements that (1) the plaintiff must show both that the reason was false, and that discrimination was the real reason,. . . and (2) it is not enough . . . to disbelieve the employer." Hicks, 509 U.S. at 511 n.4.
What is missing, however, from the Court's discussion -- because it was never remotely presented by the facts in Hicks -- is whether cases exist in which rejection of the employer's proffered reasons for its challenged actions not only does not compel a finding of discrimination but even does not permit, on the facts of a particular case, a finding of discrimination. Perhaps the Court imagined that this could never be the case because the same proof that made out the plaintiff's "prima facie" showing under McDonnell Douglas would necessarily create a context in which rejection of an employer's explanation would always permit a finding of discrimination. But with the progressive dilution of the quantum and nature of the proof needed to make out the "prima facie" case under Title VII, cases of this unimagined kind have in fact become common: the instant case being arguably one example.
As previously noted, courts require next-to-nothing to satisfy the "prima facie" requirement sufficient to invoke the McDonnell Douglas shift of burden to the employer, because they see the need to force employers to state the reasons for, and permit discovery of, their challenged actions, rather than permitting them to stonewall. But this function has largely been served at the Rule 56 stage, and entirely at the Rule 50 stage. At these points, as previously stated, the McDonnell Douglas presumptions, having served their functions, are deemed nullities. See Hicks, 509 U.S. at 518-19; Fed. R. Evid. 301. Bereft of any presumptive effect, the smidgen of evidence needed to make out the "prima facie" showing and the snippet more needed to raise a credibility issue as to the employer's response may not rise, even with the benefit of every inference (including adverse inferences), to the level of proof from which any reasonable juror could infer intentional discrimination.
Accordingly, while some circuits such as the Third have accepted the Hicks dictum as binding, others such as the Fifth have declined to follow it. Compare Sheridan v. E.I. DuPont deNemours & Co., 100 F.3d 1061 (3d Cir. 1996) (en banc), Barbour v. Merrill, 310 U.S. App. D.C. 419, 48 F.3d 1270, 1277 (D.C. Cir. 1995), and Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1124 (7th Cir. 1994) with Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (5th Cir. 1996), Isenbergh v. Knight-Ridder Newspaper Sales Inc., 97 F.3d 436, 442-43 (11th Cir. 1996), and LeBlanc v. Great American Ins. Co., 6 F.3d 836, 842-43 (1st Cir. 1993).
Deciding where the Second Circuit stands on this contentious issue has its own difficulties. On the one hand, there is a line of cases most recently exemplified by Chertkova v. Connecticut General Life Insurance, 92 F.3d 81 (2d Cir. 1996), in which the Court of Appeals has held that "'To defeat a defendant's properly supported motion for summary judgment, a plaintiff must show that there is a material issue of 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 [unlawful basis] was the real reason for the discharge.'" Id., at 92 (quoting Woroski v. Nashua Corp., 31 F.3d 105, 108-09 (2d Cir. 1994)). See also, e.g., Gallo, 22 F.3d at 1225, and Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 142 (2d Cir. 1993). If the dictum from Hicks means what plaintiff here says it means, then the second component of the above-quoted formulation would be surplusage. It would seem to follow that these cases, all of which expressly indicate their reliance on Hicks, either reject its dictum or choose to interpret it in a manner different from plaintiff.
Side by side with these cases, however, is another line of Second Circuit decisions, most recently exemplified by Binder v. Long Island Lighting Co., 57 F.3d 193 (2d Cir. 1995), in which the Court of Appeals appears to accept the Hicks dictum literally and without qualification. Thus, in Binder -- an unusual case involving both general and special verdicts -- the Court, quoting the Hicks dictum, specifically held that the jury's finding of employer pretext was sufficient in itself to support the jury's finding of discrimination. See also EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994); Cabrera v. Jakabovitz, 24 F.3d 372, 385 (2d Cir. 1994); DeMarco v. Holy Cross High School, 4 F.3d 166, 171 (2d Cir. 1993).
While the District Court in the case at bar finds it well nigh impossible to fully reconcile these two lines of cases, perhaps the Court of Appeals will undertake to do so in the near future. Or perhaps the division in Second Circuit precedent simply reflects the fact that the dictum in Hicks is finally inconsistent with the rest of the opinion, footnote 4 in Hicks notwithstanding. For the time being, however, this lowly District Court finds itself in the unenviable position of being confronted with a summary judgment motion that it would grant under its reading of the Chertkova line of cases and deny under its reading of the Binder line of cases. In this awkward posture, the Court must fall back on more general statements of the Court of Appeals directing district courts to be particularly "cautious about granting summary judgment to an employer when, as here, its intent is at issue." Gallo, 22 F.3d at 1225. Accordingly, the Court can conclude only that, on all the facts and circumstances here presented, caution dictates the denial of Wallack Ader's pending motion for summary judgment to the extent that it rests on the ground that there is no proof of gender discrimination.
Defendant, however, has another arrow in its quiver, and that is its renewal of its motion to dismiss the Title VII claim for want of jurisdiction, on the ground that Wallack Ader did not employ 15 or more persons at the time of the alleged discriminatory acts. In denying this motion prior to discovery, the Court relied chiefly on Wallack Ader's prior statements, in tax and labor forms filed at the time of the events here complained of, that it had 15 or more "employees," whose names it listed on several of the forms. Guadagno, 932 F. Supp. at 98. These representations, some of which were made under oath, were of sufficient formality that the Court deemed them entitled to very substantial weight, both as a matter of fact and as a matter of law. Id. At the same time, they were not forever dispositive of the issue, as the Court gave leave to defendant to adduce at subsequent stages of these proceedings "additional evidence bearing on whether it had fewer than 15 employees during the relevant period . . . [because] there is no stage in the proceedings at which it would be too late for the Court to reconsider the question of subject matter jurisdiction." Id.
To employ the terminology used elsewhere above, what the Court effectively determined in its earlier opinion was that, even though the tax and labor statements were evidentiary admissions rather than judicial admissions and therefore subject to being controverted by the very party making them, they were of sufficient weight and formality as to create a rebuttable presumption of their truthfulness.
Now, however, defendant has indeed rebutted the presumption, and very convincingly at that. Specifically, it offers the sworn testimony of four independent insurance agents attesting that five of the persons listed as "employees" on the Wallack Ader forms were actually the personal secretaries of these independent agents (one of whom had two such employees). They further attest that these secretarial employees were hired by, worked for, and paid by these independent agents, who exclusively determined all the terms and conditions of their employment. Finally, they attest that the only reason these secretarial employees were erroneously listed as Wallack Ader employees on the tax and labor forms was because the agents used Wallack Ader's checkwriting facilities to generate paychecks and the paycheck list was then transferred to the forms without anyone's eliminating the names of those persons whose paychecks were actually reimbursed by outside agents. See Deposition of James A. Chisholm at 5; Deposition of Howard L. Polansky at 4-5; Deposition of Robert George at 4; Deposition of Richard Bohan at 5.
Aside from plaintiff's own testimony -- which at the prior evidentiary hearing the Court (which acts as fact-finder on this jurisdictional motion) found to be completely unreliable, see Transcript of Evidentiary Hearing of May 23, 1996 at 141 -- the sworn testimony of these four agents was not in any material respect contradicted by plaintiff, either in the depositions themselves or through other evidence, and accordingly must be deemed proven. Eliminating the five independently employed secretaries from the listings on the Wallack Ader forms reduces the total number of Wallack Ader employees to 14 or fewer at all times relevant.
Accordingly, defendant's renewed motion to dismiss plaintiff's only remaining claim for lack of jurisdiction is granted. The Clerk is directed to enter judgment in favor of defendant.
JED S. RAKOFF, U.S.D.J.
DATED: White Plains, New York
January 14, 1997.