TJOFLAT, Circuit Judge:
This appeal presents a question that has baffled courts and commentators for some time: What constitutes "direct evidence" of employment discrimination? After carefully examining our cases on the question, as well as the legal framework into which those cases fit, we conclude that direct evidence of employment discrimination is evidence from which a trier of fact could conclude, based on a preponderance of the evidence, that an adverse employment action was taken against the plaintiff on the basis of a protected personal characteristic. In this case, the district court relied upon an incorrect definition of direct evidence in granting summary judgment for the defendant; we therefore vacate the grant of summary judgment and remand the case for further proceedings based on the analysis presented herein.
James D. Wright was the manager of a 7-11 convenience store in Kissimmee, Florida. He held that position from 1978 until 1995, at which time he was discharged.
Wright, however, asserts different explanations for his discharge. Wright claims that Southland fired him because of his age (55 at the time of discharge), in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34 (1994). In the alternative, Wright argues that he was discharged in retaliation for his filing of a claim of age discrimination with the Equal Employment Opportunity Commission ("EEOC") shortly before his termination, in violation of section 704 of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-3(a) (1994).
Wright filed suit in the United States District Court for the Middle District of Florida seeking damages and an injunction ordering Southland to reinstate him. The district court granted summary judgment for Southland. Wright appeals.
Employment discrimination law has become an area of great—and often needless—complexity in the federal courts. We therefore begin this part of our opinion by summarizing the basic principles of that law. We then (in section B) address the particular issue raised by this case: the meaning of the "direct evidence" standard in employment discrimination cases.
Every employment decision involves discrimination. An employer, when deciding who to hire, who to promote, and who to fire, must discriminate among persons. Permissible bases for discrimination include education, experience, and references. Impermissible bases for discrimination, under federal law, include race, sex, and age. See 29 U.S.C. § 623; 42 U.S.C. § 2000e-2(a) (1994). Thus, in an employment discrimination suit, the key question usually is: On what basis did the employer discriminate? Put another way, the question is one of causation: What caused the adverse employment action of which the plaintiff complains?
The means by which a plaintiff can prove impermissible discrimination have been modified somewhat since the passage of the first anti-discrimination laws.
The nature of discrimination suits, however, rendered the traditional framework
To make matters somewhat easier for plaintiffs in employment discrimination suits, the Supreme Court, in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), developed a presumption that supplemented— but did not replace—the traditional framework.
Once the plaintiff has established these elements (in other words, persuaded the trier of fact by a preponderance of the evidence of these facts: adverse employment action, qualifications, and differential treatment), unlawful discrimination is presumed. See Walker v. Mortham, 158 F.3d 1177, 1183 (11th Cir.1998). The defendant-employer can rebut this presumption only by articulating a legitimate, nondiscriminatory reason (or reasons) for the adverse employment action. See id. at 1184. If the employer fails to do so, the plaintiff is entitled to judgment as a matter of law. See id. If, however, the employer carries its burden (a burden of production, not persuasion), then the McDonnell Douglas presumption "drops from the case." Id. At this point, the case is placed back into the traditional framework—in other words, the plaintiff still bears the burden of proving, more probably than not, that the employer took an adverse employment action against him on the basis of a protected personal characteristic. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-08, 113 S.Ct. 2742, 2747-48, 125 L.Ed.2d 407 (1993). The McDonnell Douglas presumption, however, has made the plaintiff's task somewhat easier: The plaintiff now has evidence of the employer's profferred reasons for the adverse employment action, and can attempt to show that these profferred reasons are a pretext for discrimination.
Note that the facts required to establish the McDonnell Douglas presumption are neither necessary nor sufficient to establish discrimination under the traditional framework. They are not necessary because a plaintiff may be able to prove discrimination despite the fact that he was unqualified for the position, or that he did not differ from the person selected in regard to a protected personal characteristic. For instance, imagine a situation in which a racist personnel manager for a corporation fires an employee because he is African American. Shortly thereafter, the racist personnel manager is replaced, and the previously terminated employee is replaced by another African American. Under these circumstances, the first individual would have been a victim of illegal discrimination, despite the fact that his replacement was of the same race.
Also, the elements needed to establish the McDonnell Douglas presumption, standing alone, are not sufficient to prove that the plaintiff, more probably than not, was a victim of illegal discrimination. As we have previously stated (in a sex discrimination case):
Walker v. Mortham, 158 F.3d 1177, 1183 n. 10 (11th Cir.1998). This point has been the source of some confusion, because the quantum of evidence needed to create a jury question under the traditional framework and the establishment of the facts required to establish the McDonnell Douglas presumption are both known as the "prima facie case." The phrase "prima facie case," however, has a meaning under the traditional framework very different from its meaning under McDonnell Douglas —in the former case it means a case strong enough to go to a jury, in the latter case it means the establishment of a rebuttable presumption. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 n. 7, 101 S.Ct. 1089, 1094 n. 7, 67 L.Ed.2d 207 (1981).
In sum, the plaintiff in an employment discrimination lawsuit always has the burden of demonstrating that, more probably than not, the employer took an adverse employment action against him on the basis of a protected personal characteristic. To assist him in this endeavor, the plaintiff may, if he chooses, attempt to establish the McDonnell Douglas presumption and thereby force the defendant to articulate a lawful reason for the adverse employment action. Once this happens, the plaintiff returns to the traditional framework, but with an additional piece of evidence—the employer's profferred reason for the action (which in turn may lead to more evidence, such as evidence that this profferred reason is merely pretextual). Alternatively, the plaintiff may forego McDonnell Douglas
The proper legal analysis in employment discrimination cases—which, as outlined above, is fairly complex—has been further complicated by the indiscriminate use of the term "direct evidence." The result has been substantial confusion in the district courts in our circuit.
The importance of properly defining "direct evidence" arises from our repeated statements that when a plaintiff has direct evidence of illegal discrimination, he need not make use of the McDonnell Douglas presumption, and conversely, when he does not have such direct evidence, he is required to rely on the McDonnell Douglas presumption. See, e.g., Bogle v. Orange County Bd. of County Comm'rs, 162 F.3d 653, 656 (11th Cir.1998); Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1331 (11th Cir.1998); see also Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621-22, 83 L.Ed.2d 523 (1985). In other words, a plaintiff in an employment discrimination suit may proceed by one of two means: (1) McDonnell Douglas, or (2) direct evidence.
The problem, however, is that "direct evidence" has a well-established meaning in the law of evidence as "evidence, which if believed, proves existence of fact in issue without inference or presumption." Black's Law Dictionary 460 (6th ed.1990). For instance, in a murder prosecution, the prosecutor must establish the fact that the defendant killed the victim. A witness who testifies that she saw the defendant kill the victim has provided direct evidence of this fact; if the jury believes the witness' testimony, then the fact that the defendant killed the victim has been proven. Direct evidence is the opposite of "circumstantial" (or "indirect") evidence,
We are therefore presented with two possible definitions of "direct evidence" in the law of employment discrimination. The first is the one that follows logically from the structure of employment discrimination law—namely, evidence from which a reasonable factfinder could find, by a preponderance of the evidence, a causal link between an adverse employment action and a protected personal characteristic. We will refer to this definition as the "preponderance" definition. The second is the traditional definition from the law of evidence—namely, evidence that, if believed, proves the existence of a fact in issue without inference or presumption. We will refer to this definition as the "dictionary" definition. As discussed in this section, all indicators point toward adopting the preponderance definition.
We begin by looking at precedent. Our cases have defined "direct evidence" in a variety of ways. Some cases quote the dictionary definition of direct evidence. See, e.g., Burrell v. Board of Trustees of Ga. Military College, 125 F.3d 1390, 1393 (11th Cir.1997); Rollins v. TechSouth, Inc., 833 F.2d 1525, 1528 n. 6 (11th Cir. 1987). Other cases say that direct evidence consists of "only the most blatant remarks, whose intent could be nothing other than to discriminate" on an improper basis. Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir.1999) (citation omitted); accord Carter v. City of Miami, 870 F.2d 578, 582 (11th Cir.1989). This definition is essentially a restatement of the dictionary definition; if a remark can be interpreted only as an admission of improper discrimination in the relevant employment decision, then no inference or presumption is required to reach a finding of improper discrimination. Still other cases define direct evidence as evidence that "relates to actions or statements of an employer reflecting a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee." Carter v. Three Springs Residential Treatment, 132 F.3d 635, 641 (11th Cir.1998) (citation omitted); accord Caban-Wheeler v. Elsea, 904 F.2d 1549, 1555 (11th Cir.1990). This definition is essentially the same as the preponderance definition; a statement that (1) is by the employer (i.e., by the decisionmaker), (2) reflects a discriminatory attitude, and (3) ties the discriminatory attitude to the relevant employment decision, will generally be sufficient evidence for a trier of fact to conclude more probably than not that the employment decision was based on improper discrimination.
Regardless of the stated definitions of direct evidence in these cases, however, a look at the actual holdings of these cases reveals that they all rely on the preponderance definition. This section examines those holdings.
As an initial matter, it is important to clarify what would constitute direct evidence of illegal discrimination under the dictionary definition. Illegal discrimination means that the adverse employment action of which the plaintiff complains was based (at least in part) on an impermissible criterion, such as race, sex, or age. Thus, relevant evidence for proving illegal discrimination is evidence that demonstrates the state of mind of the employer (or, more concretely, the decisionmaker) at
We now turn to the cases.
We begin with cases in which we have held that the plaintiff presented direct evidence of discrimination. As we will demonstrate, in each case numerous inferences—reasonable inferences, but inferences nonetheless—are required to move from the plaintiff's evidence to the conclusion that the defendant relied upon a protected personal characteristic in deciding to take an adverse employment action against the plaintiff. Consequently, the cases cannot be relying upon a dictionary definition of "direct evidence." Furthermore, in each case the plaintiff has presented evidence from which a trier of fact could conclude, more probably than not, that the defendant improperly discriminated against the plaintiff. These cases therefore strongly support the preponderance definition of "direct evidence."
Earlier this year in Taylor v. Runyon, 175 F.3d 861 (11th Cir.1999), the plaintiff alleged that she was denied a promotion on the basis of her sex. The plaintiff testified that the decisionmaker told her that she was not promoted because the male with whom she was competing (and who ultimately received the position) had a wife and children and therefore needed the money more than the plaintiff. We concluded that this testimony constituted direct evidence of sex discrimination. See id. at 867 & n. 2. Note, however, how far this testimony was removed from direct evidence under the dictionary definition. First, it required the trier of fact to infer that the decisionmaker's beliefs regarding the male's greater need for income were based on a sexual stereotype. Then, having made that inference, the trier of fact would then need to have inferred that this sexual stereotype was the cause of the defendant's refusal to give the plaintiff the desired promotion. These were of course reasonable inferences; consequently, the plaintiff's testimony qualified as direct evidence under the preponderance definition.
In Caban-Wheeler v. Elsea, 904 F.2d 1549 (11th Cir.1990), a Hispanic director of a local government program alleged that she was terminated because of her race. We held that the plaintiff's testimony that the employer said he "needed a black director" constituted direct evidence of employment discrimination. See id. at 1555. This was not direct evidence under the dictionary definition. It involved testimony by someone other than
In Lindsey v. American Cast Iron Pipe Co., 772 F.2d 799 (11th Cir.1985), a case similar to Caban-Wheeler, the plaintiff alleged that he was not promoted to an assistant manager position because of his age. We held that the plaintiff's testimony that the decisionmaker told him, prior to filling the position, that the company was looking for a younger person to fill the assistant manager position constituted direct evidence of age discrimination. Id. at 802. Again, this testimony would not have qualified as direct evidence under the dictionary definition. It involved testimony by someone other than the decisionmaker. Also, it required the inference that the employer's ex ante desire for a younger individual was the cause of the plaintiff's failure to receive the promotion; the trier of fact alternatively could have concluded that the employer wanted a younger individual in the assistant manager position but did not promote the plaintiff for entirely different reasons. The plaintiff's testimony was, however, direct evidence under the preponderance definition—the decisionmaker's statement that he wanted a younger person in the assistant manager position could have led a trier of fact to reasonably conclude that the company more probably than not failed to promote the plaintiff because of his age.
In Buckley v. Hospital Corp. of America, 758 F.2d 1525 (11th Cir.1985), a nurse supervisor in a hospital alleged that she was terminated because of her age. We held that the following testimony, considered as a whole, constituted direct evidence of age discrimination: that the decisionmaker expressed surprise upon discovering the substantial length of time that some of his employees had been working at the hospital, that the decisionmaker once attributed a loss of temper by the plaintiff to her age, that the decisionmaker stated that he intended to recruit younger doctors and nurses, and that the decisionmaker felt that the hospital needed "new blood."
In Thompkins v. Morris Brown College, 752 F.2d 558 (11th Cir.1985), a female professor was working as a high school math teacher in addition to her full-time employment as a professor at the defendant college. She requested a change to part-time status at the college, but was denied. Ultimately, she was fired, purportedly because of her refusal to cease working at the high school. She alleged, however, that both the refusal to move her to part-time status and the ultimate termination were based on her sex. We held that the following testimony from the plaintiff constituted direct evidence of sex discrimination: that one of the decisionmakers
In Bell v. Birmingham Linen Service, 715 F.2d 1552 (11th Cir.1983), the plaintiff alleged that the Birmingham Linen Service denied her a promotion to a position in the washroom on the basis of her sex. We held that the decisionmaker's statement that if the plaintiff were allowed into the washroom, all women would want to enter the washroom, was direct evidence of sex discrimination. See id. at 1557. It is unclear from the opinion whether this statement was made by the decisionmaker during trial or whether someone else testified that the decisionmaker made the statement; the opinion implies that the testimony came from someone other than the decisionmaker. In any event, as the opinion noted, once this testimony was found credible it constituted "highly probative evidence of illegal discrimination," id.; it did not prove the matter conclusively as would be the case if the testimony constituted direct evidence under the dictionary definition. Instead, the trier of fact needed to make the (imminently reasonable) inference that the decisionmaker's concerns about a "slippery slope" in the washroom formed the basis of his refusal to allow the plaintiff to work in the washroom.
In Lee v. Russell County Board of Education, 684 F.2d 769 (11th Cir.1982), three minority public school teachers alleged that they were terminated by the school board on the basis of their race. We held that the evidence presented by the plaintiffs constituted direct evidence of racial discrimination. See id. at 774-75. This evidence included testimony that a school board member was concerned about getting a greater "white presence" in the school, and that the same school board member later stated (after a new, white teacher was hired) that he was pleased that the new teacher was white. However, none of the school board members testified that race played a role in their decision— on the contrary, each explicitly denied the allegation. See id. at 772. Furthermore, there was no evidence linking the school board's general racial sentiments to the employment decisions at issue. There was therefore no direct evidence of racial discrimination under the dictionary definition; our holding in Lee makes sense only if the preponderance definition of direct evidence is used.
Finally, in Ramirez v. Sloss, 615 F.2d 163 (5th Cir.1980), the first case in which we explicitly held that McDonnell Douglas was inapplicable in direct evidence cases, the plaintiff alleged that he was not hired by the defendant because of his alienage.
In sum, an examination of our cases in which we held that the plaintiff had "direct evidence" of improper discrimination shows that the term was not used in its traditional sense as evidence that, if believed, proves the existence of a fact in issue without inference or presumption. See McClurg v. Santa Rosa Golf & Beach Club, Inc., 46 F.Supp.2d 1244, 1249 (N.D.Fla.1999) (noting that Eleventh Circuit employment discrimination cases do not use "direct evidence" in the traditional evidentiary sense). Rather, the cases are more consistent with a definition of "direct evidence" as evidence from which a reasonable trier of fact could find, more probably than not, a causal link between an adverse employment action and a protected personal characteristic.
The cases in which we have held that the plaintiff has failed to present direct evidence of employment discrimination do not undermine the conclusion that we have been relying on the preponderance definition of direct evidence. On the contrary, in each case in which we have held that direct evidence was lacking, the purported direct evidence would have been insufficient to support a finding that the plaintiff more probably than not was a victim of employment discrimination.
For instance, in Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318 (11th Cir. 1998), a Caucasian employee alleged that he was fired because of his race. The plaintiff contended that various persons in the defendant corporation made statements reflecting a desire for Hispanic employees, and that these statements constituted direct evidence of racial discrimination. We held that these statements did not constitute direct evidence, because they were made in regard to a different department from the one in which the plaintiff worked, at least two of the three statements were made by people unconnected to the decisionmaking process, and the remaining statement was made before the plaintiff was hired. See id. at 1330-31. Such evidence would not have been sufficient for a trier of fact to find more probably than not that the plaintiff's termination was caused by racial discrimination—statements made by persons other than the decisionmakers generally have no probative value,
In Jones v. Bessemer Carraway Medical Center, 137 F.3d 1306 (11th Cir.1998), the plaintiff, an African-American nurse, contended that she was discharged because of her race. As evidence in support of this contention, she testified that the head nurse had twice said, "You black girls make me sick," and once said, "You black girls get away with everything." See id. at 1313 n. 10. We held that these statements did not constitute direct evidence of racial discrimination. See Jones v. Bessemer Carraway Med. Ctr., 151 F.3d 1321, 1323 (11th Cir.1998). They proved at most that the head nurse had some inappropriate racial attitudes; they came nowhere near proving by a preponderance of the evidence that race was the cause of the plaintiff's discharge. As we noted, based on the plaintiff's evidence, a trier of fact "cannot infer it is more likely than not that [the plaintiff's] termination was based on an illegal discriminatory criterion." Id.
In Evans v. McClain of Georgia, Inc., 131 F.3d 957 (11th Cir.1997), the plaintiff alleged that he was terminated because of his race. As direct evidence of this allegation, he pointed to statements made by the employer that the plaintiff was "a very large, very strong, very muscular black man" who was attempting to intimidate "three smaller or overweight white men." Id. at 962. We held that these statements did not constitute direct evidence, and rightly so—they proved at most that the employer was aware of the racial difference between the plaintiff and other employees (and suspected that the plaintiff was exploiting this difference in some manner); they did not show any connection between such an awareness and the decision to discharge the plaintiff. Consequently, a trier of fact could not have concluded on the basis of this evidence that the plaintiff more probably than not was discharged because of his race.
In Clark v. Coats & Clark, Inc., 990 F.2d 1217 (11th Cir.1993), the plaintiff, a fifty-eight-year-old employee of a thread mill, alleged that he was forced to accept early retirement because of his age. He pointed to a statement by the plant manager telling the plaintiff that he had to retire immediately. (The plaintiff retired later that day.) We held that this did not constitute direct evidence of age discrimination—this statement was merely evidence that the plaintiff was involuntarily retired; it in no way tied that involuntary retirement to the plaintiff's age. See id. at 1226. Therefore, the trier of fact could not have found that the plaintiff more probably than not was dismissed on the basis of his age.
In Earley v. Champion International Corp., 907 F.2d 1077 (11th Cir.1990), the plaintiffs alleged that they were fired on the basis of their age. As direct evidence, they pointed to internal company documents listing the ages or birth dates of the employees. In addition, they pointed to the fact that they, unlike previous employees, received no help from the company in finding alternate employment. See id. at 1082. We held that this did not constitute direct evidence of age discrimination, a holding that fits with the preponderance definition—the evidence proved at most an awareness of the employees' ages and differential treatment in relation to post-employment assistance; there was nothing in the plaintiffs' evidence relating to the termination decision.
Finally, in Carter v. City of Miami, 870 F.2d 578 (11th Cir.1989), the plaintiff alleged that she was fired on account of her age. The decisionmaker, speaking in reference to another employee, once said that he did not want his office run by "little old Jewish ladies" like his mother-in-law. We held that this comment was not direct evidence of age discrimination—it was not made in relation to the plaintiff, and thus was only minimally probative of the reason that the plaintiff was terminated. See id.
In conclusion, in cases in which we have held that direct evidence of improper discrimination was lacking, there was not sufficient evidence from which a trier of fact reasonably could have found that the defendant more probably than not discriminated against the plaintiff on the basis of a protected personal characteristic.
Our own precedent is not the only ground of support for the preponderance definition of direct evidence. As discussed in this subsection, the preponderance definition of direct evidence is supported by the intent of Congress in enacting antidiscrimination laws and the intent of the Supreme Court in creating the McDonnell Douglas presumption. In addition, the preponderance definition—unlike the dictionary definition—does not contravene the general evidentiary rule in federal courts that circumstantial and direct evidence are to be treated alike. Finally, the preponderance definition of direct evidence fits better than the dictionary definition with other principles of employment discrimination law.
As discussed in part II.A, supra, the facts required to establish the McDonnell Douglas presumption are not necessary to establish discrimination under the traditional framework. For instance, it is both logically and practically possible for an employer to discriminate against a person on the basis of a protected personal characteristic despite the fact that the person is replaced by someone with the same characteristic—as shown by the example of the racist personnel manager in part II.A. Likewise, such discrimination is possible despite the fact that the person is not qualified for the relevant position.
The significance of this is two-fold. First, such a system would surely frustrate congressional intent. The purpose of employment discrimination law—as is clear from the plain language of the relevant statutes—is to prevent employment decisions based on certain protected personal characteristics. When such a decision can be proven by a preponderance of the evidence, but the plaintiff nevertheless loses, congressional intent has been frustrated.
Second, such a system would frustrate the purpose of McDonnell Douglas. Prior to McDonnell Douglas, employment discrimination cases were fairly straightforward—the plaintiff had the task of proving improper discrimination by a preponderance of the evidence. See supra part II.A. The McDonnell Douglas presumption was added to the law to make the plaintiff's task slightly easier. See id. This court has responded to the development of this presumption by stating that there are now two means of proving employment discrimination: (1) McDonnell Douglas, or (2) direct evidence. If we were then to use the dictionary definition of direct evidence, we would, in some instances, be making the plaintiff's task more difficult than it would have been in the absence of McDonnell Douglas—namely, in the situation in which the plaintiff can prove discrimination by a preponderance of the (circumstantial) evidence, but cannot satisfy the requirements needed to establish the McDonnell Douglas presumption. McDonnell Douglas would thereby be turned on its head; a presumption that was designed to help plaintiffs would be the basis for a system that makes a plaintiff's task more difficult.
The Supreme Court has stated that courts should not "treat discrimination differently from other ultimate questions of fact." Aikens, 460 U.S. at 716, 103 S.Ct. at 1482. If we were to require non-circumstantial evidence to prove that a protected personal characteristic was the basis of an employment decision, we would be treating this factual question very differently from other ultimate questions of fact. As a general rule in the federal courts, direct and circumstantial evidence are not distinguished; all relevant evidence is to be considered in deciding a case. Cf. Holland v. United States, 348 U.S. 121, 139-40, 75 S.Ct. 127, 137-38, 99 L.Ed. 150 (1954) (stating that, in criminal cases, circumstantial evidence is "intrinsically no different from testimonial evidence"). This is true, for instance, in equal protection jurisprudence; determining whether a given state action was motivated by a discriminatory purpose requires an "inquiry into such circumstantial and direct evidence of intent as may be available." Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 564, 50 L.Ed.2d 450 (1977). There is no rational reason why employment discrimination law should be an exception to this general rule, and any definition of direct evidence other than the preponderance definition would carve out such an exception. See Aikens, 460 U.S. at 714 n. 3, 103 S.Ct. at 1481 n. 3.
The preponderance definition of direct evidence is also the only logical definition when considered in the light of other tenets of employment discrimination law. First, as outlined in part II.A, supra, the
In addition, the law is clear that if the employer has articulated a legitimate, nondiscriminatory reason for the adverse employment action, it is irrelevant whether the plaintiff has properly established the elements needed to invoke the McDonnell Douglas presumption. See Aikens, 460 U.S. at 715, 103 S.Ct. at 1482. In other words, once the employer has done what would be required of it if the plaintiff properly invoked McDonnell Douglas, the McDonnell Douglas presumption is no longer relevant. Under the preponderance definition of direct evidence, this rule makes sense. The McDonnell Douglas presumption serves only to force the employer to produce certain evidence; once the employer has done so, the plaintiff still bears the burden of proving illegal discrimination by a preponderance of the evidence. Meanwhile, failure to establish the McDonnell Douglas presumption, under the preponderance definition of direct evidence, means only that the case will be treated like any other civil case—in other words, the plaintiff must present evidence sufficient to prove illegal discrimination by a preponderance of the evidence (but without the benefit of a proferred explanation from the employer). Therefore, if the employer has volunteered a nondiscriminatory reason for the contested employment action, the distinction between a McDonnell Douglas case and a direct evidence case breaks down, and the question of whether the plaintiff successfully established the McDonnell Douglas presumption becomes irrelevant. In contrast, under a dictionary definition of direct evidence, the rule that the McDonnell Douglas presumption becomes irrelevant once a legitimate, nondiscriminatory reason is volunteered by the employer is senseless. Under the dictionary definition, failure to establish the McDonnell Douglas presumption means that the plaintiff must prove improper discrimination without the benefit of any inferences by the trier of fact. Therefore, if on appeal it became clear that the district court erred in finding that the plaintiff had established the McDonnell Douglas presumption, then the appellate court would be required to make a separate inquiry into whether the plaintiff had presented "direct evidence" of discrimination. This need for a separate inquiry simply does not fit with the rule that if the employer has articulated a legitimate, nondiscriminatory reason for the adverse employment action, it is irrelevant whether the plaintiff has properly established the elements needed to invoke the McDonnell Douglas presumption.
Finally, the preponderance definition is consistent with the rule that if a plaintiff can prove improper discrimination by direct evidence, the defendant can nevertheless prevail by showing that the same employment decision would have been made
We now turn to the facts of this case. The plaintiff, James Wright, alleges two possible impermissible motivations for his discharge: (1) his age, or, alternatively, (2) his filing of a complaint with the EEOC. We address both claims below.
The district court, applying the dictionary definition of direct evidence, held that Wright had failed to present direct evidence of age discrimination in regard to his termination. The district court then concluded that Wright could not make use of the McDonnell Douglas presumption because he could not prove that he was replaced by someone who differed in regard to the relevant personal characteristic (age); Wright's employer, Southland, introduced unrebutted evidence that Wright was replaced by someone six months older than he. Consequently, the district court granted the employer's motion for summary judgment.
Applying the proper definition of direct evidence, however, it is clear that Wright had direct evidence that he was terminated because of his age. The two people at Southland responsible for the decision to terminate Wright were Sharon Powell and Phil Tatum, the market manager and field consultant (respectively) in the geographical area in which Wright's store was located. According to Wright, less than three months before his termination, Sharon Powell told him that he might want to cease working as a 7-11 store manager because he may be getting too old to understand the store's new computer programs.
This is of course not to say that Wright in fact has a valid claim of age discrimination; Southland has substantial evidence to support its position that Wright was fired because of problems relating to merchandise control and accounting procedures.
In sum, Wright has presented direct evidence of age discrimination. Consequently, there is a genuine issue of material fact as to the cause of Wright's termination, an issue that turns largely on whether Wright's witnesses or Southland's witnesses are to be believed. Such a credibility determination can be made only after trial, and the entry of summary judgment on Wright's ADEA claim was therefore inappropriate.
Wright also alleges, as an alternative to his ADEA claim, that his termination was in retaliation for his filing of an age discrimination complaint with the EEOC, in violation of Title VII. The filing of a complaint with the EEOC is an impermissible basis on which to take an adverse employment action against an individual, just as race, sex, and age are impermissible bases for such an action. Consequently, the same analytical framework applies to retaliation claims as applies to other employment discrimination claims, including the availability of the McDonnell Douglas presumption. See Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 919 (11th Cir.1993).
The district court initially held that the plaintiff had failed to present direct evidence of retaliation, again using the dictionary definition of that term. It then assumed arguendo that the plaintiff had proven the facts required to establish the McDonnell Douglas presumption.
We hold that Wright has presented direct evidence of retaliation. Wright filed an age discrimination complaint with the EEOC on November 28, 1994. In mid-January of the following year, Wright received a telephone call from Mike Raymond, a human resources specialist for Southland whose job responsibilities included handling charges of discrimination. According to Wright, Raymond asked him whether he was going to drop his complaint with the EEOC. Wright responded that he intended to continue pursuing the complaint, at which point Raymond said, "You will regret it," and hung up the telephone. Approximately one month later, Raymond recommended to Sharon Powell and Phil Tatum that Wright be terminated.
Again, this is not meant to discount the weight of Southland's evidence to the contrary—namely, the documentary and testimonial evidence discussed in part III.A, supra, that Wright was fired because of accounting problems and merchandise shortages. This evidence, however, is not so overwhelming as to prevent a reasonable jury—if it found Wright's evidence credible—from concluding that Wright was fired in retaliation for pursuing a complaint with the EEOC.
The idea of "direct evidence" has been a source of great confusion in employment discrimination law. After examining the cases on the topic and the legal framework within which the term is used, it is clear that direct evidence can mean nothing other than evidence from which a trier of fact could conclude, more probably than not, that the defendant discriminated against the plaintiff in regard to the contested employment decision on the basis of a protected personal characteristic. Once "direct evidence" is so understood, it becomes equally clear that the plaintiff in this case has direct evidence of both age discrimination and retaliation. He therefore has a case for the jury.
The district court's order granting summary judgment is VACATED and the case is REMANDED for further proceedings consistent with this opinion.
COX, Circuit Judge, specially concurring:
I do not join Judge Tjoflat's opinion. But I agree that the evidence is sufficient to create genuine issues of material fact on Wright's discharge claim and on Wright's retaliation claim. I therefore concur in the judgment vacating the entry of summary judgment on these claims and remanding for further proceedings.
HULL, Circuit Judge, specially concurring:
I agree that the district court erred in granting summary judgment for the defendant in this case but I concur only in the result reached by Judge Tjoflat's opinion. The plaintiff presented sufficient evidence to create a jury issue regarding both age discrimination and retaliation. Judge Tjoflat's opinion correctly vacates the judgment of the district court and correctly remands plaintiff's claims for a trial.
Id. at 802, 93 S.Ct. at 1824. Requirements (ii) and (iii) in the McDonnell Douglas case correspond to requirements (2) and (1), respectively, of the general requirements stated in the text. Requirements (i) and (iv) adapt requirement (3) of the general requirements stated in the text to the unique situation in which the position sought by the plaintiff remains unfilled. See Crawford v. Western Elec. Co., 614 F.2d 1300, 1315 (5th Cir.1980) (stating that the plaintiff must establish that the employer "either continued to attempt to fill the positions or in fact filled the positions with whites").
Many of the early McDonnell Douglas cases (and some later cases) state that the plaintiff must be a member of a protected class—for instance, as quoted above, McDonnell Douglas itself states that the plaintiff must establish "that he belongs to a racial minority." Later cases, however, have made clear that Title VII's protections are not limited to certain classes of people; for instance, a Caucasian who is discriminated against on the basis of his race has a claim under Title VII that is equal in validity to that of an African American who is discriminated against on the basis of his race. See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 278-80, 96 S.Ct. 2574, 2578-79, 49 L.Ed.2d 493 (1976); see also Diaz v. Pan Am. World Airways, 442 F.2d 385, 386 (5th Cir.1971) (sex discrimination). Age discrimination, which is prohibited under the ADEA rather than Title VII, is a slight exception—the plaintiff must establish that he is over 40 years of age. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312, 116 S.Ct. 1307, 1310, 134 L.Ed.2d 433 (1996). Once this is established, however, he need only prove that he was replaced by someone younger, regardless of whether the replacement is over 40. See id.
Under McDonnell Douglas, however, once the plaintiff has presented the above evidence, the employer is required to articulate a lawful reason for its actions. For instance, in this hypothetical, the employer might claim that the plaintiff was fired because of his inability to work with others. The plaintiff could then attempt to prove that the proffered explanation was pretextual—for instance, by offering testimony from numerous supervisors, coworkers, and customers that the plaintiff had outstanding interpersonal skills. If the plaintiff's attempt is successful, this would tend to prove that the employer is hiding the true reasons for firing the plaintiff. Furthermore, the evidence relating to the employer's profferred reason for the discharge may lead to the discovery of other evidence tending to prove discrimination. All of this new evidence—combined with the evidence that the plaintiff was a qualified African American who was replaced by a Caucasian—might be sufficient to create an issue for the trier of fact on whether racial discrimination was the cause of the plaintiff's termination. In this way, the McDonnell Douglas presumption allows a plaintiff to prove discrimination in cases in which he otherwise might not be able to do so.