OAKES, Circuit Judge:
Althea Davis, a black nurse, filed a complaint in the United States District Court for the Eastern District of New York in January 1982, charging her employer, Downstate Medical Center of the State University of New York ("DMC"), and certain individuals with racial discrimination in failing to promote her in late 1978. Following her discharge from DMC in April 1982, she amended her complaint to charge that she was isolated at work and eventually discharged in retaliation for bringing the discrimination charges.
We summarize the facts as found by the magistrate. Davis began her employment for DMC in June 1977. At that time Davis had master's degrees in nursing and nursing education. In 1978 appellee Anna Boyle became the director of nursing services and, as such, Davis's supervisor. In the summer of 1978 the position of associate director of in-service education became vacant. A search committee screened the applicants, but its role was only advisory, the final decision resting with Boyle. The committee consisted of two white women, including defendant Pohutsky, defendant Dela Vega, who is of Philippine origin, and a black woman. After interviewing all the candidates,
Following the appointment of Sherman, appellant filed a complaint with DMC's affirmative action officers, who found no "conclusive evidence" of discrimination after an investigation.
As a result of conflict between Davis and Sherman, her new supervisor, Boyle reassigned Davis in April 1979 to be an instructor in the Department of Medicine, which included a promotion in rank and salary. Conflicts soon developed between appellant and the head nurses concerning line authority and appellant's role. In an attempt to resolve this problem, Boyle assigned Davis to study the relationship between supervisory staff and those outside of line management, such as clinical specialists. After concluding her research in February 1980, Davis told Boyle that the real problem in the Department of Medicine was racial discrimination. Boyle concluded that the problems Davis had experienced were solely due to her personality. At this time, about one month after SDHR's probable cause finding, Boyle began to document conflicts between Davis and hospital staff in appellant's personnel file. She also delayed Davis's return to her former position in the Department of Medicine. In March 1980, Davis filed another complaint with the SDHR charging retaliation for her prior complaint. Appellant continued to supervise two nursing students and devoted substantial time to completing the work of a committee of which she was the chairperson. In October 1980, Davis returned to the Department of Medicine, but in a new role that did not include orienting nurses and that did not require her to interact with supervisory staff. In March 1981, Boyle prepared a performance evaluation of appellant that recommended nonrenewal of her contract because of lack of ability to work with others and low productivity, as well as poor organizational knowledge, adaptability, and judgment. In March 1982, Boyle again recommended nonrenewal of Davis's contract because of poor response to her in-service program and the absence of certification of any nurse attending her collaborative practice programs. Davis was terminated on April 22, 1982.
It is not disputed that Davis made out a prima facie case of race discrimination in the hospital's failure to promote her. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). The hospital, however, met its burden of producing a "legitimate, nondiscriminatory reason for the employee's rejection." Id. First, no member of the selection committee recommended appellant for the job; indeed, she was "not considered viable for this position" by the committee. Second, Boyle explained the basis for concluding at the time of her decision that Sherman was the best-qualified candidate. She also adequately explained why she considered Sherman's master's degree in education to be equivalent to a master's in nursing. Finally, the committee, as to which there was no proof of discrimination in its deliberations, recommended Sherman as its first choice. The employer need not prove that the person promoted had superior objective qualifications, or that it made the wisest choice, but only that the reasons for the decision were nondiscriminatory. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 258-59, 101 S.Ct. 1089, 1096-97, 67 L.Ed.2d 207 (1981); Lieberman v. Gant, 630 F.2d 60, 65 (2d Cir.1980); Powell v. Syracuse University, 580 F.2d 1150, 1156-57 (2d Cir.), cert. denied, 439 U.S. 984, 99 S.Ct. 576, 58 L.Ed.2d 656 (1978).
After the employer has shown a "legitimate, nondiscriminatory reason" for its action, the employee must demonstrate that the articulated reason is a pretext. See McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825. The ultimate burden of persuasion remains at all times with the employee. See Burdine, 450 U.S. at 253,
Appellant's allegation that appellees discharged her in retaliation for filing the race discrimination charges with the SDHR in violation of section 704(a) of the Civil Rights Act, 42 U.S.C. § 2000e-3(a) (1982), rests on a different footing. A finding of unlawful retaliation is not dependent on the merits of the underlying discrimination complaint. See Sims v. Mme. Paulette Dry Cleaners, 580 F.Supp. 593, 594 (S.D.N.Y.1984) (citing EEOC v. Kallir, Phillips, Ross, Inc., 401 F.Supp. 66, 70 & n. 6 (S.D.N.Y.1975), aff'd without published opinion, 559 F.2d 1203 (2d Cir.), cert. denied, 434 U.S. 920, 98 S.Ct. 395, 54 L.Ed.2d 277 (1977)). The order of proof in a retaliation case follows the McDonnell Douglas standard. See Grant v. Bethlehem Steel Corp., 622 F.2d 43, 46 (2d Cir.1980). Title VII is violated if "a retaliatory motive play[ed] a part in the adverse employment actions," id., even if it was not the sole cause. See, e.g., Abel v. Bonfanti, 625 F.Supp. 263, 268 (S.D.N.Y.1985); Sims, 580 F.Supp. at 596 & n. 9. The magistrate properly found that Davis made out a prima facie case of retaliation: Appellant engaged in protected activity, i.e., the filing of the state discrimination charges; appellees were aware of that activity; she suffered adverse employment decisions; and the protected activity was closely followed by adverse actions, such as denial of a merit pay increase and documentation of conflict in appellant's file. See Grant, 622 F.2d at 46; Sims, 580 F.Supp. at 598 & n. 23.
Appellees then sought to demonstrate legitimate, nondiscriminatory reasons for the discharge. Evidence credited by the magistrate was to the effect that Davis had serious conflict with other nurses in positions of authority. These conflicts resulted in appellant's move to the Department of Medicine in April 1979, her removal from that department in October 1979, and the postponement of her scheduled return in February 1980 until October 1980. The record also supports findings that Davis's work productivity was low, that she did not accept supervision, that she responded to conflict with angry correspondence, often over relatively trivial matters, and that staff nurses responded poorly to appellant's in-service programs.
Once the employer establishes a legitimate, nondiscriminatory motive, the presumption of retaliation drops from the case and the employee must demonstrate that the stated reasons were pretextual. See Burdine, 450 U.S. at 255 & n. 10, 256, 101 S.Ct. at 1094 & n. 10, 1095. Again, the trier of fact must ultimately decide which party's explanation of the employer's motivation it believes. Aikens, 460 U.S. at 716, 103 S.Ct. at 1482. The magistrate explicitly stated that he believed the reasons given by the appellees for the discharge were the true reasons, and rejected appellant's claim that the stated reasons were pretextual.
It is true that the magistrate's opinion does not discuss what at first blush seems
This testimony may be read to suggest that Boyle had retaliatory motives — personal and institutional — in her dealings with appellant. The question, of course, is whether these retaliatory motives "play[ed] a part in the adverse employment actions." Grant, 622 F.2d at 46. The magistrate stated that he believed appellees' explanation for the discharge, and he rejected appellant's version of events, though he did not refer to this piece of testimony as to Boyle's state of mind. The evidence otherwise supports a finding of no retaliation. While we could remand to the magistrate for further findings on this issue, a reading of the testimony immediately following that noted above clarifies what Boyle was really saying sufficiently to permit affirmance. She went on to say:
Read in context and as a whole, this testimony, if credited as the magistrate did credit it in his findings, demonstrates that it was the atmosphere of acrimony threatening the integrity of the institution that was the problem for Ms. Boyle, not the filing of official charges which, as she said, "was no problem, because I had the capacity to go out there and speak and be heard or be right or be wrong."
JON O. NEWMAN, Circuit Judge, concurring:
I concur in Judge Oakes' thorough opinion but write separately to clarify what I believe courts mean in saying that a claim of discrimination will be upheld if discriminatory or retaliatory motive "played a part" in an employer's decision to discharge an employee or take other adverse employment action. The problem concerns dual motivation and the standards for dealing with that problem set forth by the Supreme Court in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977).
In most cases involving claims of discrimination, the issue of dual motivation does not arise. After the plaintiff presents a prima facie case of discrimination, the burden shifts to the employer to come forward with a "legitimate, nondiscriminatory reason" for the adverse action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). At that point the burden is upon the employee to prove that the articulated reason is a pretext. Id. at 804, 93 S.Ct. at 1825. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 258-59, 101 S.Ct. 1089, 1096-97, 67 L.Ed.2d 207 (1981). Typically, the issue confronting the fact-finder at this last stage of the sequence is to determine which reason motivated the adverse action — the nondiscriminatory reason articulated by the employer or the discriminatory reason alleged by the employee. On occasion, however, the fact-finder might conclude that the employer was not motivated solely by either reason and that in truth both reasons "played a part" in the employer's decision.
In Mt. Healthy the Supreme Court faced the dual motivation issue in the context of adverse employment action taken because of both a legitimate reason concerning deficient work performance and an illegitimate reason concerning exercise of free speech rights. The Supreme Court instructed that once the employee proves that the illegitimate reason played a part in the employer's motivation, the employer loses unless the employer can persuade the fact-finder that the adverse action would have been taken even in the absence of the illegitimate reason. Or, to put it another way, the employer can prevail by proving that the adverse action would have been taken
Even before Hunter and Mt. Healthy the Court had indicated that a plaintiff does not win a Title VII suit simply by showing that race or other improper consideration was in the mind of the employer. Though the employee need not show that he would have been discharged solely on the basis of race, without regard to legitimate reasons, he must show "that race was a `but for' cause." McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 282 n. 10, 96 S.Ct. 2574, 2580 n. 10, 49 L.Ed.2d 493 (1976).
It is in light of these pronouncements that we must understand the language Judge Oakes' opinion quotes from Grant v. Bethlehem Steel Corp., 622 F.2d 43, 46 (2d Cir.1980), to the effect that a retaliation claim is established if "a retaliatory motive play[ed] a part in the adverse employment actions." As is clear from the full sentence from which the quoted language is taken, the words "play[ed] a part" are used to explain the required causal connection between the employer's adverse action and the employee's prior invocation of Title VII protections.
In a case of dual motivation in the Title VII context, a question remains whether the burden is on the employer to prove that it would have taken the adverse action if only the legitimate reason had existed, as Mt. Healthy suggests in the First Amendment context, or on the employee to prove that the employer would not have taken the adverse action if only the legitimate reason had existed, as the McDonald footnote states concerning Title VII. However this issue is eventually resolved, it should be clear that a retaliatory motive or other impermissible discriminatory reason does not establish a Title VII violation unless it was causally related to the adverse action, not merely in the mind of the employer. Showing that the impermissible factor was in the mind of the employer along with some legitimate reason only raises the dual motivation issue but does not resolve it. Of course, in many, perhaps most, cases, the existence of a retaliatory or other illegitimate motive will cast grave doubt on the plausibility of whatever legitimate motive the employer alleges motivated the adverse employment action.
Grant v. Bethlehem Steel Corp., supra, 622 F.2d at 46.