In St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993), the Supreme Court explained the role of pretext in the following manner: The 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. Thus, 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. ------------------- "The distinction lies between a poor business decision and a reason manufactured to avoid liability. Thus, facts may exist from which a reasonable jury could conclude that the employer's `business decision' was so lacking in merit as to call into question its genuineness." Dister v. Continental Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988). ------------------------ "To discredit the employer's proffered reason ... the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. Rather, the nonmoving plaintiff must demonstrate such weaknesses, implausibility's, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its actions that a reasonable fact finder could rationally find them "unworthy of credence, and hence infer " that the employer did not act for [the asserted] nondiscrimnatory reasons." Fuentes v. Perskie, 32 F. 3d 759, 764-765 (3rd Cir. 1994). ----------------------- Moreover, the earliest line of employment discrimination cases stemming from the Supreme Court's decision in McDonnell Douglas v. Green required the employer to spell out its "legitimate, non-discriminatory reason" for termination. Logically, an employer could never meet that burden by referring to a reason it had no inkling of when it terminated the employee. Therefore, such after-acquired evidence would not bar total recovery. However, the Supreme Court has now clarified that such evidence can be used to reduce the plaintiff's recovery period. Also, an employer probably can introduce after-acquired evidence related to the originally stated reason for termination in order to support the original "legitimate, non-discriminatory reason" for termination. --------------------- Pretext can be proven in situations in which an employer's nondis- criminatory reason for its adverse employment action has not been applied to persons outside the plaintiff's protected group. See Cole v. Ruidoso Mun. Sch. , 43 F.3d 1373, 1381 n.6 (10th Cir. 1994). ------------------------- While this evidence establishes "[t]hat the employer's proffered reason is unpersuasive, or even obviously contrived," St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 524 (1993), it is not in itself suffi- cient, under this Circuit's precedents, to survive BEC's motion for summary judgment. This court has adopted what is best described as the "pretext-plus" standard for summary judgment in employment dis- crimination cases. See Vaughan v. MetraHealth Companies, Inc. , 1998 WL 271836, at *4 (4th Cir. May 29, 1998).* ------------------------- [T]o survive a motion for summary judgment under the McDonnell Douglas paradigm the plaintiff must do more than merely raise a jury question about the veracity of the employer's proffered justification. The plaintiff must have developed some evidence on which a juror could reasonably base a finding that discrimination motivated the challenged employment action. ------------------------ Vaughan , 1998 WL 271836, at *4. Under Vaughan , Gillins must make a two-pronged showing in order to survive BEC's motion for summary judgment: he must adduce sufficient evidence both that the proffered, nondiscriminatory reason is false and that race discrimination is the "real reason" for his temporary demotion. See id. While Gillins creates a genuine issue of material fact on the first prong, he has not presented any evidence on the second. -------------------------- While Vaughan involved an action under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34 (1994), its analysis of the McDonnell Douglas burden-shifting scheme applies with equal force to claims for employment discrimination under Title VII. --------------------- It is axiomatic that an employer is free to set its own performance standards, provided such standards are not a "mask" for discrimination. Palucki v. Sears, Roe- buck & Co. , 879 F.2d 1568, 1571 (7th Cir. 1989). ------------------- The 4th Circuit affirmed, holding that: 1) the fact that an employer has offered inconsistent post-hoc explanations for its employment decisions is probative of pretext; 2) the superior qualifications of the plaintiff may provide sufficient evidence of pretext; 3) a plaintiff need not make an evidentiary showing that the superiority of her qualifications are so substantial as to "jump off the page and slap you in the face" before a jury may find pretext; 4) in appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose; 5) the 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; 6) as a general rule, back pay is to be awarded to successful Title VII plaintiffs; 7) the 4th Circuit does not apply the "constructive discharge rule" denying such pay to persons who leave an employer who has committed intentional discrimination unless it is under conditions of a constructive discharge; 8) plaintiff's testimony, standing alone, may support a claim of emotional distress; 9) in such a case, the plaintiff must reasonably and sufficiently explain the circumstances of her injury and not resort to mere conclusory statements; 10) the injury must be "demonstrable" and the plaintiff must show a causal connection between the violation and her emotional distress; and 11) the connection must be between the distress and the violation itself, not the benefit denied. Dennis v. Columbia Colleton Medical Center -------------------- Although a plaintiff must prove that discrimination was the real rea- son, "[t]he factfinder's disbelief of the reasons put forward by the defen- dant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suf- fice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). In other words, "rejection of the defendant's proffered reasons is enough at law to sustain a finding of intentional discrimina- tion." Id. at 511 n.4; see also Jiminez v. Mary Washington College, 57 F.3d 369, 378 (4th Cir. 1995) (noting that although"rejection of the defendant's proffered reason - - standing alone- - does not compel the ultimate conclusion that the defendant unlawfully discriminated against the plaintiff, . . . this factor may enter the calculus for determining this conclusion"). -------------------- In a controversial 2004 en banc decision, Hill v. Lockheed Martin Logistics Management Inc., the 4th U.S. Circuit Court of Appeals answered this last question with a resounding "no," focusing exclusively on the intent of the decision- maker. The court said, "An aggrieved employee who rests a discrimination claim upon the discriminatory motivations of a subordinate employee must come forward with sufficient evidence that the subordinate employee possessed such authority as to be viewed as the one principally responsible for the decision, or the actual decision-maker for the employer." The 4th Circuit joins some of its sister circuits, which also require a factual basis for any assertion that the biased manager's prejudice was the motivation for the decision-maker's actions. Consider the implications: dismissal of a discrimination claim even though a workplace is infested with biased subordinates whispering in the ear of the unbiased decision-maker. ----------------------