                                                                               PUBLISH

                    IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                                                          FILED
                                                                   U.S. COURT OF APPEALS
                                         No. 95-2898                 ELEVENTH CIRCUIT
                                                                          10/28/98
                                                                      THOMAS K. KAHN
                                D. C. Docket No. 79-895/MMP
                                                                           CLERK


DIANN WALKER, CHARLES STEWART, DOROTHY ROBERTS, BARBARA KING,
PEARLIE WILLIAMS, LOUVENIA JONES, ROSA HENDERSON, DELORES COLSTON,

                                                                         Plaintiffs-Appellants,

                                            versus

SANDRA MORTHAM, SECRETARY OF STATE ,

                                                                         Defendant-Appellee.



                          Appeal from the United States District Court
                              for the Northern District of Florida


                                      (October 28, 1998)


Before TJOFLAT, DUBINA and CARNES, Circuit Judges.




TJOFLAT, Circuit Judge:
       Black employees and applicants for employment with the State of Florida brought suit

against the State and its Secretary of State under 42 U.S.C. §§ 2000e et seq. (Title VII),1

claiming that the State had engaged in a pattern and practice of unlawful racial discrimination in

its employment decisions. The case was certified as a class action, but then decertified for

inadequacy of representation. After a non-jury trial on the merits of the individual plaintiffs’

claims, the district court entered final judgment in favor of the defendants on all counts,

assuming that every plaintiff had proven a prima facie case of discrimination, but finding that

none of the plaintiffs had carried the ultimate burden of proving discrimination in light of the

defendants’ asserted nondiscriminatory reasons for the challenged employment decisions.

Plaintiffs then appealed to this court. We reversed and remanded, holding that the defendants

had not articulated a legitimate, nondiscriminatory reason for any of their challenged

employment decisions, and therefore directing the district court to determine for each claim

whether the plaintiff had established a prima facie case of discrimination. See Increase Minority

Participation by Affirmative Change Today of Northwest Florida, Inc. (IMPACT) v. Firestone,

893 F.2d 1189 (11th Cir. 1990) (“IMPACT”). On remand, the district court held that none of the

plaintiffs had established a prima facie case with respect to any claim, and again entered

judgment in favor of the defendants on all counts.



       1
          The plaintiffs’ original complaint was brought under 42 U.S.C. § 1981 (1994), and 42
U.S.C. § 1983 (1994). The district court promptly dismissed all claims against the State of
Florida brought under those two statutes, but denied the Secretary of State’s motion to dismiss
him as well. In their first amended complaint, the plaintiffs added claims under Title VII that
paralleled their claims under § 1981 and § 1983, and named the State of Florida as a Title VII
defendant. The parties then ceased to distinguish among the three statutes. After examining the
record, we conclude that only Title VII claims remain in this case. The district court on remand
should proceed only under that statute.

                                                 2
       Plaintiffs now appeal the district court’s judgment on remand, claiming that the district

court failed to comply with this court’s mandate and with the law of the case. Because we

conclude that the district court applied incorrect legal standards in deciding whether the plaintiffs

had established prima facie cases, we undertake the task ourselves.2 We vacate the court’s

judgment in part and affirm in part, remanding the case to the district court with directions.



                                                 I.



       This case was brought in 1979 as a class action in the District Court for the Northern

District of Florida. The named plaintiffs – a non-profit organization (“IMPACT”),3 black

employees of Florida’s Department of State (the “Department”), and black former applicants for




       2
           In determining whether a plaintiff established a prima facie case with respect to a given
claim, the district court’s task was to examine the evidence the plaintiff adduced at trial and
determine whether the plaintiff had presented credible evidence in support of the four elements
of a prima facie case established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.
1817, 36 L.Ed.2d 668 (1973): 1) she is a member of a protected class under Title VII; 2) she was
qualified for the employment position in question; 3) she applied for the employment position in
question and was rejected; and 4) the employment position remained open or was filled by a
person outside the protected class to which the plaintiff belongs. See id., 411 U.S. at 802, 93
S.Ct. at 1824; see also part II.A, infra. Inasmuch as this task only required the district court to
examine a cold record for the existence of evidence in support of the elements, we are equally
suited to undertake the same task on appeal. We must still remand, however, so that the district
court, as trier of fact, can determine whether the evidence supporting the prima facie case is
credible.
       3
          The full name of the organization was Increase Minority Participation by Affirmative
Change Today of Northwest Florida, Inc.; its membership consisted only of individual plaintiffs
in this case. On January 21, 1986, the district court dismissed IMPACT from the case for lack
of standing. The plaintiffs appealed that dismissal in IMPACT, 893 F2d 1189, and we implicitly
affirmed the district court’s decision. See IMPACT, 893 F.2d at 1192 (listing other issues on
appeal and stating that “[t]hese are the only claims we think merit attention on appeal”).

                                                 3
employment with the Department – brought suit on behalf of “all past, present, and potential

black employees” against the State and the then-Secretary of State, George Firestone,4 alleging

racial discrimination in violation of 42 U.S.C. § 1981, 42 U.S.C. § 1983, and Title VII.5 The

plaintiffs claimed that the State had engaged in a pattern and practice of employment

discrimination, carried out by a cadre of white supervisors who conducted discriminatory

subjective evaluations. The plaintiffs sought equitable relief, including reinstatement, hiring,

back pay, front pay, seniority compensation, and fees and costs.

         On November 7, 1980, the district court entered an order, pursuant to Rule 23 of the

Federal Rules of Civil Procedure, certifying a class in the case consisting of “all past, present and

future black persons employed by the Florida Department of State and all past, present and

future

black applicants for employment with the Florida Department of State.” The case then

proceeded as a certified class action. Following protracted discovery disputes, the plaintiffs filed

an “emergency motion” to suspend the pre-trial schedule. In that motion, the plaintiffs stated

that, because the defendants had repeatedly refused to comply with the plaintiffs’ discovery

requests, plaintiffs’ counsel would be “financially and physically unable to adequately represent

the interests of the certified class” if the court did not grant plaintiffs immediate relief from the

defendants’ recalcitrance. Based on the quoted representation by the plaintiffs, the district court


         4
         Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, George Firestone’s
successor, Jim Smith, was substituted as a party defendant for Firestone when Firestone left
office. When Smith finished his term as Secretary of State, his successor Sandra Mortham (the
current Secretary) was substituted for Smith.

         5
             See note 1, supra.

                                                   4
held a hearing regarding the continued ability of the named plaintiffs and of plaintiffs’ counsel

adequately to represent the class under Rule 23(a)(4). Following the hearing, the court

decertified the class based on financial inability.

        The case then proceeded toward trial on the individual plaintiffs’ claims. The court

entered numerous pretrial orders, including an order stating that “defendants need not include [in

their discoverable evidence] any information concerning employment tests; such tests are not an

issue in this case.”

        Non-jury trial commenced April 1, 1986. At trial, the court heard the claims of eleven

individual plaintiffs,6 each alleging racial discrimination in hiring or promotion and proceeding

on both disparate treatment and disparate impact theories. At the close of the plaintiffs’ case in

chief, the court, in response to oral motions by defendants’ counsel, 1) dismissed all disparate

impact claims, 2) dismissed all claims brought by plaintiff Gracie Holton, and 3) dismissed

plaintiff Charles Stewart’s claim based on the Department’s failure to hire him to the position of

Regional Representative.7


        6
           These eleven were Diann Walker, Charles Stewart, Dorothy Roberts, Barbara King,
Pearl Williams, Louvenia Jones, Rosa Henderson, Delores Colston, Linda Isaac, Jacquelyn Ross,
and Gracie Holton. Isaac and Ross were not originally named as plaintiffs in the suit; they
moved to intervene under Rule 24(b) of the Federal Rules of Civil Procedure on December 17,
1984. The court granted their motion on June 7, 1985.
        Two additional plaintiffs, Clifford Simmons and Marguerite Stewart, were included in all
pretrial motions but did not testify at trial. Towards the end of the plaintiffs’ case in chief,
Stewart and the defendants settled, and the parties stipulated to a voluntary dismissal of all her
claims. At the close of the plaintiffs’ case in chief, the plaintiffs renewed their pre-trial motion
to sever Simmons’ claims from the rest of the suit, which the court granted. After trial, the
parties stipulated to a dismissal, and the district court dismissed Simmons’ claims with prejudice
on September 17, 1986. Neither Simmons nor Stewart joins this appeal.
        7
         Before trial, the court had held that certain positions within the Department were
exempt from coverage under Title VII. At the close of the plaintiffs’ case in chief, the court

                                                  5
       On August 11, 1986, the district court entered an order detailing its findings of fact and

conclusions of law regarding the evidence presented at trial. The court assumed that each

plaintiff had established a prima facie case of discrimination, but found that the defendants had

produced evidence of legitimate, nondiscriminatory reasons for the employment decisions

challenged by the plaintiffs, and that the plaintiffs had failed to show they had been

discriminated against despite that evidence. It therefore entered judgment for the defendants on

all counts on October 3, 1986.

       The plaintiffs appealed to this court, claiming, inter alia, that the court had erred by 1)

eliminating testing evidence from the scope of discovery; 2) dismissing plaintiff Gracie Holton’s

claims; 3) decertifying the class and denying the plaintiffs’ motion to recertify; and (most

importantly for the purposes of the present appeal) 4) determining that defendants had carried

their burden of production under Texas Department of Community Affairs v. Burdine, 450 U.S.

248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). With regard to the last issue, the plaintiffs argued

that the defendants themselves had articulated no legitimate, nondiscriminatory reasons for their

employment decisions, and that the court had impermissibly substituted its own reasons as

support for its judgment against the plaintiffs. We issued an opinion addressing the plaintiffs’

claims on February 6, 1990. See IMPACT, 893 F.2d 1189.




found that Regional Representative was one of those exempt positions, and therefore held that
Stewart could not bring a claim under Title VII for failure to hire to a Regional Representative
position. Stewart moved for reconsideration of the court’s decision during the defendants’ case
in chief, and the court reaffirmed its dismissal. Thus, although the district court’s dispositive
order of August 11, 1986, purports to pass judgment on Stewart’s Regional Representative
claim, that claim was no longer properly before the court. Stewart does not appeal the court’s
earlier order dismissing the Regional Representative claim; we therefore do not address that
claim in this opinion.

                                                 6
       In IMPACT, we held, in relevant part, that the defendants indeed had failed to carry their

burden under Burdine, see IMPACT, 893 F.2d at 1193-94;8 thus, we concluded that the district

court had erred in its judgment with regard to all claims. We therefore reversed and remanded

with directions that the district court make specific findings with regard to the prima facie

strength of each plaintiff’s claim. See id. at 1194-95. We also held in IMPACT that the district

court had erred in precluding pretrial discovery of employment testing evidence, and that the

district court had incorrectly dismissed plaintiff Holton’s claims at trial. See id. at 1196-97.




       8
           Our precedent requires that if a defendant raises as its legitimate, nondiscriminatory
reason relative qualifications of the applicants, the defendant “must include the fact that the
decision-maker knew that the promoted individual’s qualifications were superior at the time the
decision was made.” Hill v. Seaboard Coast Line R.R. Co., 767 F.2d 771, 774 (11th Cir. 1985);
see also Turnes v. AmSouth Bank, NA, 36 F.3d 1057, 1061-62 (11th Cir. 1994) (holding that an
articulated reason based on after-acquired evidence does not meet the defendant’s burden of
production under Burdine). The defendant cannot testify in abstract terms as to what might have
motivated the decision-maker; it must present specific evidence regarding the decision-maker’s
actual motivations with regard to each challenged employment decision. See IMPACT, 893
F.2d at 1193-94. Likewise, a court may not assume, based on its own perusal of the record, that
the decision-maker in a particular case was motivated by a legitimate reason when the defendant
has offered none. See IMPACT, 893 F.2d at 1193-94; cf. Lee v. Russell County Bd. of Educ.,
684 F.2d 769, 775 (11th Cir. 1982) (rejecting on appeal the legitimate nondiscriminatory reasons
“assigned by the court” because they were “not [reasons] articulated by [the decision-makers]
when they were questioned”); Eastland v. Tennessee Valley Authority, 794 F.2d 613, 626 (11th
Cir. 1983) (holding that the district court erred in finding that relative qualifications were a
sufficient legitimate, nondiscriminatory reason when there was no evidence that the decision-
maker knew of the applicants’ relative qualifications when he made the adverse employment
decision).
        We determined in IMPACT that the defendants had failed to present any probative
evidence at trial regarding the motivations of the decision-maker with regard to any of the
plaintiffs’ claims. See IMPACT, 893 F.2d at 1194 (“In this case, the defendants offered no
evidence explaining any employment decision.”). Although a State official testified that the
Department of State hired only the best-qualified individuals for State jobs, the defendants
presented no evidence regarding the particular decisions challenged by the plaintiffs. Thus, we
held that the defendant failed to carry its burden of production under Burdine, explained in part
II.A, infra. See IMPACT, 893 F.2d at 1193-94.

                                                 7
Finally, we stated that the issue of recertification would “remain open for consideration by the

trial court on remand.” Id. at 1196.

       On remand, the district court stated that each plaintiff seeking to establish a prima facie

was required to prove the following four elements:

       1) The plaintiff was a member of a protected class;
       2) The plaintiff applied for and was qualified for the position in question;
       3) A person not a member of the protected class with equal or lesser qualifications
received the position, and;
       4) The adverse employment action complained of was actually taken against him.

The court concluded that none of the plaintiffs had succeeded in establishing a prima facie case

under these criteria with respect to any of their claims; therefore, no plaintiff was entitled to

judgment in his or her favor. The court then concluded that, because no plaintiff had succeeded

on his or her individual claim, the issue of recertification was moot. Finally, the court held that

because there existed no certified class, and because it had dismissed all disparate impact claims

before trial, employment testing evidence was irrelevant. Having disposed of all issues included

in our IMPACT mandate, the district court entered judgment, on May 22, 1995, against every

plaintiff save Gracie Holton (now named Gracie Dejerinette).9

       The plaintiffs now appeal that judgment, claiming that the district court erred on remand

in 1) finding that none of the plaintiffs had established a prima facie case of discrimination at




       9
         The court stated that it would hold an evidentiary hearing on Gracie Dejerinette (neé
Holton)’s claims. Thus, because the court did direct that the judgment be entered as a “final
judgment” under Federal Rule of Civil Procedure 54(b), we had no jurisdiction to review the
judgment under 28 U.S.C. § 1291 (1994). See Fed.R.Civ.P. 54(b). On July 19, 1995, however,
Dejerinette gave notice of a settlement with the defendants and voluntary dismissed of all her
claims. Her voluntary dismissal converted the district court’s judgment into a final judgment
and cleared the way under § 1291 for this appeal.

                                                  8
trial, 2) refusing to allow plaintiffs to pursue their claims concerning employment tests, and 3)

refusing to recertify the class. We consider these claims in turn.

          In part II.A, we conclude that the district court misapplied the law when evaluating the

prima facie strength of most of the plaintiffs’ claims; thus, we hold that the court erred in

entering judgment for the defendants on those claims. We then look to the record ourselves to

determine whether any of the erroneously-decided claims were supported by evidence at trial

that, if believed by the district court as the trier of fact, would suffice to establish a prima facie

case of discrimination in violation of Title VII. In part II.A.2, we vacate the court’s judgment

with respect to those claims for which the plaintiff established a prima facie case and remand for

further proceedings. In part II.A.3, we affirm the court’s judgment with regard to all other

claims.

          As we explain in part II.B, because we hold in part II.A that the plaintiffs’ prima facie

cases are determinative, we need not reach the plaintiffs’ arguments regarding admissibility of

testing evidence. With regard to the plaintiffs’ third issue – recertification – we again leave the

matter open for the district court on remand.



                                                    II.



                                                   A.

          Appellants first claim that the district court erred in assessing the prima facie strength of

their claims. Before addressing their argument, we pause to set forth the now-familiar

framework of burdens of proof, established by the Supreme Court in McDonnell Douglas Corp.


                                                    9
v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1981), that a Title VII plaintiff must

satisfy to obtain judgment in her favor if she possesses only circumstantial evidence of

discrimination.

       Under McDonnell Douglas, a Title VII plaintiff must first establish a prima facie case of

intentional discrimination. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. A valid

prima facie case creates a presumption that discrimination has occurred.10 See Burdine, 450 U.S.


       10
          We note that the prima facie case establishes a presumption, and not an inference, of
intentional discrimination. An inference is “[a] process of reasoning by which a fact or
proposition sought to be established is deduced as a logical consequence from other facts, or a
state of facts, already proved or admitted.” Black’s Law Dictionary 778 (6th ed. 1990). For
instance, in a murder case, if the prosecution can establish that the victim was alive when the
defendant entered his home, that the victim and the defendant were the only people in the house,
that the defendant was carrying a pistol, that neighbors heard a gunshot while the defendant was
in the victim’s home, and that the victim was dead when the defendant left his home, then a jury
could reasonably infer that the defendant murdered the victim, even though no one testified to
seeing the murder take place. In contrast, in an employment discrimination case, if the plaintiff
can establish the elements of the prima facie case – e.g., that she is female, that she applied for a
position with the defendant employer, that she was qualified for the position, and that the
position was given to a male – it does not logically follow that the employer discriminated
against the plaintiff on the basis of her sex. The prima facie case, standing alone, puts the
evidence in equipoise – although one could reasonably conclude that the plaintiff was not hired
because of her sex, one could just as reasonably conclude that the plaintiff was not hired because
the employer did not like the suit she was wearing, or because the employer’s son was also an
applicant, or because another applicant agreed to work for half the posted salary, or any number
of reasons other than sex discrimination. A factfinder cannot infer intentional discrimination
from the prima facie case.
         The prima facie case does, however, create a presumption of intentional discrimination.
See Burdine, 450 U.S. at 254 & n.7, 101 S.Ct. at 1094 & n.7. A presumption is “an assumption
of fact that the law requires to be made from another fact or group of facts found or otherwise
established.” Black’s Law Dictionary 1185 (6th ed. 1990). A presumption does not follow
logically from the facts establishing the presumption, but (in the case of a non-conclusive
presumption) acts as a procedural device to force the party against whom the presumption
operates to come forward with rebuttal evidence. See Robert Belton, Burdens of Pleading and
Proof in Discrimination Cases: Toward a Theory of Procedural Justice, 34 Vand. L. Rev. 1205,
1222 (1981). The presumption of intentional discrimination in employment discrimination cases
forces the employer – who is in the best position among the parties to know why certain
employment decisions were made – to present evidence regarding why the plaintiff was not

                                                 10
at 254 n.7, 101 S.Ct. at 1094 n.7; Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir.

1997), cert. denied sub nom. Combs v. Meadowcraft Co., – U.S. –, –, 118 S.Ct. 685, 139 L.Ed.2d

632 (1998); Crawford v. Western Elec. Co., 745 F.2d 1373, 1376 (11th Cir. 1984). If the prima




given the desired position.
        The importance of the inference/presumption distinction is in the burden placed on the
defendant at the McDonnell Douglas rebuttal stage. If establishment of the prima facie case
created an inference of intentional discrimination, the defendant’s legitimate, non-discriminatory
explanation would be an affirmative defense. Cf. NLRB v. McClain of Ga., Inc., 138 F.3d 1418,
1424 (11th Cir. 1998) (holding in a National Labor Relations Act case that a showing that an
employee’s involvement in union activity was a motivating factor in the discharge of that
employee creates an inference of anti-union animus; the employer can then raise the claim that
the employee would have been discharged even had he not engaged in union activity as an
affirmative defense). The defendant would therefore carry the burden of persuasion in regard to
that explanation. See Mulhall v. Advance Security, Inc., 19 F.3d 586, 592 n.12 (11th Cir. 1994).
Because establishment of the prima facie case creates only a presumption of intentional
discrimination, however, the defendant carries only the burden of production in regard to his
legitimate, non-discriminatory explanation. See id.; see also Fed. R. Evid. 301 (1998) (noting
that presumptions create a burden of production on the party against whom the presumption is
directed, but not a burden of persuasion); Black’s Law Dictionary 1185 (6th ed. 1990) (same).
The burden is then on the plaintiff to prove that the proffered explanation is pretextual.
        In many cases, this will be a distinction without a difference. For instance, if the plaintiff
establishes a prima facie case of intentional discrimination and the defendant fails to produce any
evidence impeaching that prima facie case or rebutting it with a legitimate, non-discriminatory
reason for the employment decision, then the plaintiff prevails as a matter of law – regardless of
whether the prima facie case is classified as a “presumption” or an “inference.” See Combs v.
Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997), cert. denied sub nom. Combs v.
Meadowcraft Co., – U.S. –, –, 118 S.Ct. 685, 139 L.Ed.2d 632 (1998); Thompkins v. Morris
Brown College, 752 F.2d 558, 562 (11th Cir. 1985). In such a case the defendant has met neither
the burden of production nor the burden of persuasion. There are, however, situations in which
the distinction is important. We therefore feel the need to clarify this point, especially in light of
dicta in a few Eleventh Circuit cases that illustrate confusion on the issue. See Jones v.
Bessemer Carraway Med. Ctr., 137 F.3d 1306, 1310 (11th Cir. 1998), superseded in part, – F.3d –
(11th Cir. 1998) (slip op. 97-6076, Aug. 24, 1998); Green v. School Bd. of Hillsborough County,
25 F.3d 974, 978 (11th Cir. 1994).
        The special concurrence argues that this distinction is needlessly complex and confusing.
We, however, feel that the distinction is fairly simple, and that it is instead the dicta in the case
law that is needlessly complex and confusing. As for the special concurrence’s argument that
the distinction is incorrect as applied to the McDonnell Douglas prima facie case, we note only
that we have considered the points it raises and nevertheless stand by what we have written.

                                                 11
facie case remains unrebutted, therefore, the plaintiff is entitled to judgment in her favor as a

matter of law, provided that the trier of fact believes the evidence put forward to establish the

prima facie case.11 See Combs, 106 F.3d at 1528 (“If the trier of fact believes the plaintiff’s

evidence, and if the employer is silent in the face of the presumption, the court must enter

judgment for the plaintiff because no issue of fact remains in the case.” (emphasis added) (citing

Burdine, 450 U.S. at 254, 101 S.Ct. at 1094)).

       The defendant may rebut a prima facie case of intentional discrimination by articulating a

legitimate, nondiscriminatory reason for the adverse employment decision of which the plaintiff

complains. Although this burden is not “onerous,” Burdine, 450 U.S. at 253, 101 S.Ct. at 1094,

neither is it a mere formality. The defendant may not satisfy its burden by presenting a

hypothetical reason for the employment decision in question; instead, it must raise “a genuine

issue of fact as to whether it discriminated against the plaintiff” by making that decision. Id. at

255, 101 S.Ct. at 1094. In other words, “the defendant must clearly set forth, through the

introduction of admissible evidence,” the reason for its adverse employment decision, and that

reason “must be legally sufficient to justify a judgment for the defendant.” Id.; see also Trotter

v. Board of Trustees of the Univ. of Ala., 91 F.3d 1449, 1455 (11th Cir. 1996).

       Once the defendant carries this burden and thereby rebuts the plaintiff’s prima facie case,

the initial presumption of intentional discrimination drops from the case. See Carter v. Three

Springs Residential Treatment, 132 F.3d 635, 643 (11th Cir. 1998) (“Successfully carrying this

burden bursts the presumption of discrimination and leaves only the ultimate question – whether


       11
         The only evidence in the prima facie case that is likely to be in dispute is the plaintiff’s
qualifications – the plaintiff’s sex, the existence of a job opening, and the sex of the person
placed in that opening tend to be undisputed.

                                                 12
the employer’s offered explanations are pretextual.”). The plaintiff must then persuade the trier

of fact that the defendant intentionally discriminated against her despite the defendant’s assertion

of a lawful reason for the challenged employment decision. See Burdine, 450 U.S. at 255, 101

S.Ct. at 1094-95; Combs, 106 F.3d at 1528 (citing McDonnell Douglas). The plaintiff cannot

simply stand on her prima facie case;12 instead, she must convince the court that the evidence in

the case as a whole preponderates in favor of a finding of intentional discrimination by the

defendant. If she does so, she is entitled to judgment in her favor.

                                                  1.

       Keeping this framework in mind, we turn to our decision in IMPACT, which is the

source of the district court’s mandate on remand.13 In IMPACT, we held that the defendants had

failed to produce any probative evidence of legitimate, nondiscriminatory reasons for their

challenged employment decisions. If any plaintiff had established evidence at trial sufficient to

raise a presumption of intentional discrimination, therefore, that presumption stood at the end of

trial and the plaintiff was entitled to judgment in her favor if she convinced the trier of fact of the


       12
           This is because a factfinder cannot infer intentional discrimination solely from
establishment of the prima facie case. See supra note 10. We note, however, that the same
evidence that is used to establish the prima facie case may also cast doubt on the employer’s
proffered legitimate, non-discriminatory basis for its decision. Thus, in some cases, the plaintiff,
in order to prove intentional discrimination, will not need to produce any more evidence than
what was required to establish the prima facie case. See Arrington v. Cobb County, 139 F.3d
865, 875 n.20 (11th Cir. 1998) (“A plaintiff may rely on the same evidence both to establish her
prima facie case and to cast doubt on the defendant’s non-discriminatory explanations.”);
Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 921 (11th Cir. 1993) (“In order to establish
pretext, the plaintiff is not required to introduce evidence beyond that already offered to establish
the prima facie case.”)
       13
            Under the law of the case doctrine, we are bound by the factual findings and legal
conclusions of that decision. See Venn v. St. Paul Fire and Marine Ins. Co., 99 F.3d 1058, 1063
(11th Cir. 1996).

                                                  13
credibility of her prima facie case. Because the district court had not made findings of fact with

regard to the prima facie strength of each plaintiff’s claim, we remanded the plaintiffs’ cases to

the district court for the necessary determinations. The court on remand found that no plaintiff

had established a prima facie case. The plaintiffs now contend that the district court erred in that

determination.

       We agree in part with the appellants’ contention. On remand, the district court applied

two incorrect legal standards when assessing the prima facie strength of the plaintiffs’ claims.

Any decision based on one or both of those standards, therefore, is in error.



       First, the district court required each plaintiff to prove the following elements by a

preponderance of the evidence:

       1) The plaintiff was a member of a protected class;
       2) The plaintiff applied for and was qualified for the position in question;
       3) A person not a member of the protected class with equal or lesser qualifications
received the position, and;
       4) The adverse employment action complained of was actually taken against him.

In other words, the court required each plaintiff to prove that he or she was equally or more

qualified than the successful applicant to hold each employment position in question. The

plaintiffs claim that the court erred by including relative qualifications at the prima facie stage of

the McDonnell Douglas framework. We agree.

       In this circuit, we appear to have articulated different standards for a prima facie case

depending on whether the relevant Title VII claim is classified as a “failure to hire” or a “failure




                                                 14
to promote” claim.14 There exist several different formulas for a “failure to promote” prima

facie case, including a formula akin to that articulated by the district court. We note in passing

that the promulgation of differing standards of proof for different types of injury under Title VII

only promotes confusion and inconsistency, a result undesirable in any context, but one which is

exacerbated in Title VII jurisprudence because of the general instability that pervades this area

of the law. Thus, although the Court in McDonnell Douglas noted that it may be necessary to

alter the requirements of the prima facie case somewhat to respond to unique fact patterns, see

McDonnell Douglas, 411 U.S. at 802 n.13, 93 S.Ct. at 1824 n.13, we believe that it is generally

unwise to fragment the applicable legal standards in this area. That said, we proceed to examine

the district court’s formulation of a prima facie case as including proof of relative qualifications.

       In McDonnell Douglas, the Supreme Court stated that a plaintiff may establish a prima

facie case for a Title VII claim by showing

       (i) that he belongs to a racial minority;
       (ii) that he applied and was qualified for a job for which the employer was seeking
       applicants;
       (iii) that, despite his qualifications, he was rejected; and
       (iv) that, after his rejection, the position remained open and the employer continued to
       seek applicants from persons of complainant’s qualifications.

McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824.15 This standard, however, was tailored to

the particular case at hand – a case in which there was no showing the defendant employer had


       14
            Several plaintiffs in this case claim discrimination based on the Department’s failure
initially to hire them from outside the Department, while others base their claims on the
Department’s failure to promote them from within the Department to a position of greater
responsibility and benefits. We believe, therefore, that this case presents both “types” of claims.
       15
          We note that this original formulation allows a plaintiff to establish her prima facie
case without even showing that another person was hired for the job, let alone anything about the
successful applicant.

                                                 15
hired anyone for the plaintiff’s coveted position. See Green v. McDonnell-Douglas Corp., 299

F.Supp. 1100 (E.D.Mo. 1969) (reciting the facts of the case but including no mention of a

successful applicant); Green v. McDonnell-Douglas Corp., 318 F.Supp. 846 (E.D.Mo. 1970)

(sam).16 In Crawford v. Western Elec. Co., 614 F2d 1300, 1315 (5th Cir. 1980),17 therefore, we

added an alternative to the fourth element of the McDonnell Douglas standard to address a

situation in which the plaintiff “loses out” to another applicant in competition for the coveted

promotion:

       [P]laintiffs may establish a prima facie violation by showing that they are
       members of a group protected by title VII, that they sought and were qualified for
       positions that [the defendant employer] was attempting to fill, that despite their
       qualifications they were rejected, and that after their rejection Western Electric
       either continued to attempt to fill the positions or in fact filled the positions with
       [persons outside the plaintiff’s protected class].

(citing McDonnell Douglas) (emphasis added). This alternative was necessary because “the

fourth McDonnell Douglas criterion, that the position remained open and that the employer

continued to seek applicants after the plaintiff’s rejection, certainly should not be required when

the plaintiff’s rejection is simultaneous with the hiring or promotion of the person chosen to fill

the position.” Simon v. Honeywell Inc., 642 F.2d 754, 755 n.4 (5th Cir. 1981) (citing Burdine,

450 U.S. at 254 n.6, 101 S.Ct. at 1094 n.6).




       16
           On appeal, the Eighth Circuit did not add any information regarding a possible
successful applicant. See Green v. McDonnell Douglas Corp., 463 F.2d 337 (8th Cir. 1972). The
court of appeals, however, noted both that the plaintiff was qualified for the job and that the
employer was seeking workers of his qualifications. Id. at 339.
       17
          In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.

                                                 16
        The Crawford standard is well established in this circuit. See e.g., Coutu v. Martin

County Bd. of County Comms., 47 F.3d 1068, 1073 (11th Cir. 1995); Welborn v. Reynolds Metal

Co., 810 F.2d 1026, 1028 (11th Cir. 1987); see also Hill v. Seaboard Coast Line R.R. Co., 767

F.2d 771, 773 (11th Cir. 1985); McWilliams v. Escambia County Sch. Bd., 658 F.2d 326, 331 (5th

Cir. Unit B 1981)18 (cited in the district court’s original order of August 11, 1986).19 In

Perryman v. Johnson Prods. Co., 698 F.2d 1138 (11th Cir. 1983), however, we “created,” in

dicta,20 a very different prima facie standard, stating that:

        A plaintiff may establish a prima facie case of promotion discrimination by
        proving that he or she is a member of a protected minority, was qualified for and
        applied for the promotion, was rejected despite these qualifications, and that other
        employees with equal or lesser qualifications who were not members of the
        protected minority were promoted. Crawford v. Western Electric Co., Inc., 614
        F.2d 1300, 1315 (5th Cir. 1980); Bundy v. Jackson, 641 F.2d 934, 951 (C.A.D.C.
        1981).

Perryman, 698 F.2d at 1142 n.7 (emphasis added). Clearly Crawford does not support the

addition of a “relative qualifications” element to the fourth prong of the Crawford prima facie

standard.21 Although the second case Perryman cites as support, Bundy v. Jackson, may provide


        18
          In Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982), this court adopted
as binding precedent all decisions of Unit B of the former Fifth Circuit handed down after
September 30, 1981.
        19
            We recognize that when the plaintiff applies for a position for which there are a
number of openings, it is often impossible to determine which successful applicant for the
position actually got the “plaintiff’s” berth for purposes of comparing class status. In such a
situation, it is sufficient to identify any successful applicant for the position.
        20
           The issue on appeal in Perryman was whether the defendant had successfully rebutted
the plaintiffs’ prima facie case, Perryman, 698 F.2d at 1141; thus, the elements of the prima facie
case were not even in question and the formulation of the prima facie case is pure dicta.
        21
          The context of the Perryman standard does, however, provide insight into why the
Perryman court apparently miscited Crawford. In Perryman, a group of plaintiffs brought both
individual and class claims against the defendant employer, Johnson Products, claiming that

                                                  17
indirect support from outside the circuit,22 we have found no explanation for why the Perryman

court decided to alter the prima facie case in this way.

       Since Perryman, we have several times included the “lesser or equal qualifications”

prong in our articulation of a prima facie case for discrimination in failure to promote. See e.g.,

Carter v. Three Springs Residential Treatment, 132 F.3d 635, 642 (11th Cir. 1998); Evans v.

McClain of Ga., Inc., 131 F.3d 957, 963 (11th Cir. 1997); Combs v. Plantation Patterns, 106 F.3d




Johnson Products had violated Title VII by “discriminating against women in hiring, promotion,
and termination practices.” See Perryman, 698 F.2d at 1140. The Perryman court, when
reviewing the plaintiffs’ claims en masse, stated that
        a prima facie case of discrimination in termination is established where the
        plaintiff proves by a preponderance of the evidence that he or she is a member of
        a protected class, was qualified for the position held, and was discharged and
        replaced by a person outside of the protected class or was discharged while a
        person outside of the class with equal or lesser qualifications was retained. Lee v.
        Russell County Bd. of Educ., 684 F.2d 769, 773 (11th Cir. 1982).
Because the Perryman case dealt with claims other than claims based on discharge, however, the
court then stated that “A similar burden has been imposed on plaintiffs seeking to establish a
prima facie case of discrimination in promotion,” id. at 1142, and proceeded to articulate the
prima facie case standard quoted in the text. Apparently, the Perryman court overlooked the
disjunctive nature of both the Crawford and the Lee prima facie standards; neither case supports
an element of relative qualifications if the defendant employer has filled the plaintiff’s position
with a person outside the plaintiff’s protected class.
       22
           The Bundy court stated that,
        to make out a prima facie case [for failure to promote] the plaintiff must show that
        she belongs to a protected group, that she was qualified for and applied for a
        promotion, that she was considered for and denied the promotion, and that other
        employees of similar qualifications who were not members of the protected group
        were indeed promoted at the time the plaintiff's request for promotion was denied.
Bundy, 641 F.2d at 951. The court, however, then explained that the above-quoted formula had
to be altered slightly to fit Bundy’s case because plaintiff Bundy had produced evidence of
sexual harassment to support her claim. Id. The Bundy court stated that “[t]he most important
difference between [Bundy’s] formula and the McDonnell formula is that we are not requiring
the plaintiff to show as part of her prima facie case that other employees who were no better
qualified, but who were not similarly disadvantaged, were promoted at the time she was denied a
promotion.” Id. at 953.

                                                 18
1519, 1539 n.11 (11th Cir. 1997); Batey v. Stone, 24 F.3d 1330, 1334 n.11 (11th Cir. 1994); Hill

v. Seaboard Coast Line R.R. Co., 885 F.2d 804, 809-10 (11th Cir. 1989; Wu v. Thomas, 847 F.2d

1480, 1483 (11th Cir. 1988); Roberts v. Gadsden Mem’l Hosp., 835 F.2d 793, 796 (11th Cir.

1988). In only two of these cases, however, does the Perryman formulation give rise to a

holding inconsistent with recognition of the Crawford prima facie standard as the law of the




                                               19
circuit .23 More importantly, every one of these cases apparently traces its articulation of the

prima facie standard back to Perryman’s footnote pronouncement.



       23
            In Wu, the court cited the Perryman standard as the correct prima facie standard for a
failure to promote case. Wu, 847 F.2d at 1483. The court then held that the district court was
correct in determining that the plaintiff had failed to establish a prima facie case of sex
discrimination for failure to promote because the plaintiff had “clearly failed to show she was
qualified for promotion.” Id. at 1484. The court made an alternative holding, however, based on
the fact that the plaintiff had “also failed to prove that an equally or less qualified male was
promoted during the time of her promotional application.” Id.
         In Hill, even though the court quoted the McDonnell Douglas standard verbatim – and
therefore did not include a relative qualifications element – it stated that “the district court
applied the incorrect [prima facie] standard” because the court required the plaintiff, “as part of
his prima facie case, to show that a less qualified candidate was promoted in his place.” Hill,
885 F.2d at 809 (emphasis omitted). The district court had erred, the Hill court explained,
because “[a] plaintiff may establish a prima facie case even if he shows that the nonminority
employee selected was equally as well qualified; he need not show, as part of his prima facie
case, that his qualifications exceeded those of the nonminority employee.” Id. at 809-10 (citing
Perryman) (emphasis omitted). Thus, Hill implies that a showing of equal qualifications is
properly included as part of the plaintiff’s prima facie case, although the court in Hill then
partially contradicted this implication by stating that “although [the plaintiff] might prevail [on
remand] in establishing a prima facie case, he could not overcome a legitimate business
justification – i.e., choosing the most qualified candidates – specifically credited by the district
court.” Id. at 810.
         We believe, however, that neither Wu nor Hill is binding precedent establishing a prima
facie standard contrary to that of Crawford. In both Wu and Hill, we reviewed the district
court’s final judgment. See Wu, 847 F.2d at 1483; Hill, 885 F.2d at 807. The Supreme Court,
however, has made clear that once the defendant employer goes forward with sufficient evidence
successfully to rebut a prima facie case, the determination of whether the plaintiff established her
prima facie case is no longer relevant. See United States Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983) (“Where the defendant
has done everything that would be required of him if the plaintiff had properly made out a prima
facie case, whether the plaintiff really did so is no longer relevant. The district court has before
it all the evidence it needs to decide whether the defendant intentionally discriminated against
the plaintiff. . . . [T]he District Court in this case should have proceeded to this specific question
directly.” (internal quotations omitted)). The factfinder’s only task at that point is to determine
whether the plaintiff has proven, by a preponderance of the evidence, that the defendant
employer intentionally discriminated against her. Thus, the question of whether the plaintiff had
successfully established a prima facie case was not properly before us in either case. Moreover,
as explained infra in the text, Supreme Court precedent overrules the Perryman standard upon
which both Wu and Hill are based.

                                                 20
       Thus, in regard to the proper prima facie standard, we are faced with two conflicting lines

of precedent. In deciding which line of precedent to follow, we are, ironically, faced with two

conflicting lines of precedent. See Harris v. Menendez, 817 F.2d 737, 740 n. 5 (11th Cir. 1987)

(noting conflicting lines of precedent on this issue without choosing between them); Kent v.

Baker, 815 F.2d 1395, 1399 n. 3 (11th Cir. 1987) (same). One line of precedent holds that when

circuit authority is in conflict, a panel should look to the precedents that are most consistent with

Supreme Court cases or the weight of authority within the circuit; if there is no sufficiently

analogous Supreme Court case and the Eleventh Circuit cases are somewhat evenly divided, then

the panel should look to common sense and reason. See Georgia Ass’n of Retarded Citizens v.

McDaniel, 855 F.2d 794, 797-98 (11th Cir. 1988); Dorse v. Armstrong World Indus., Inc., 798

F.2d 1372, 1376 (11th Cir. 1986); Manufacturing Research Corp. v. Graybar Elec. Co., Inc., 679

F.2d 1355, 1360 n. 12 (11th Cir. 1982); United States v. Hobson, 672 F.2d 825, 827 (11th Cir.

1982); see also United States v. Gort, 737 F.2d 1560, 1564 (11th Cir. 1984) (following later line

of precedent because “it is clearly the more dominant and better reasoned one”). The other line

of precedent holds that when circuit authority is in conflict, a panel should look to the line of

authority containing the earliest case, because a decision of a prior panel cannot be overturned

by a later panel. See Johnson v. City of Fort Lauderdale, 126 F.3d 1372, 1380 n. 10 (11th Cir.

1997); Robinson v. Tanner, 798 F.2d 1378, 1383 (11th Cir. 1986); see also Bonner v. City of

Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (holding that decisions of prior panels are binding

on subsequent panels, and can be overturned only by the court sitting en banc).




                                                 21
        We believe that the latter of these conflict rules – the “earliest case” rule – is the correct

one, because of the importance of the prior precedent rule.24 The prior precedent rule, which

binds later panels to the decisions of former panels, is essential to maintaining stability in the

law. The rule is “emphatic” and “firmly established” in the Eleventh Circuit. See Cargill v.

Turpin, 120 F.3d 1366, 1386 (11th Cir. 1997); United States v. Hogan, 986 F.2d 1364, 1369 (11th

Cir. 1993); see also United States v. Steele, 117 F.3d 1231 (11th Cir. 1997) (following prior

precedent despite explicit disagreement), rev’d on other grounds, United States v. Steele, 147

F.3d 1316 (11th Cir. 1998) (en banc). Of course, by adopting the “earliest case” rule to resolve

intra-circuit splits, we are still in a sense ignoring the prior panel precedent rule – by choosing

one line of cases, we are implicitly overruling the other line of cases. This is, however, a

necessary consequence of an intra-circuit split, and the rule we adopt is more respectful of the

prior panel precedent rule than the alternative “common sense and reason” rule, which

essentially tells judges that once they find a division of authority they are free to throw precedent

to the wind.25 In this case, the Crawford standard (established in 1980) predates the Perryman

standard (established in 1983), and is therefore the standard to be applied in the Eleventh

Circuit.26




        24
          We note, however, that our holding in this case would be the same under either of the
intra-circuit conflict rules.
        25
          The “earliest case” rule also has the virtue (if consistently applied) of bringing intra-
circuit splits to a screeching halt; the “common sense and reason” rule, in contrast, can drag such
splits out indefinitely as different panels reach different conclusions about what is common-
sensical and reasonable.
        26
         The Crawford standard can in fact be traced back even earlier than 1980 to the case of
East v. Romine, Inc., 518 F.2d 332 (5th Cir. 1975), discussed infra.

                                                  22
       In addition to the controlling precedent within the Eleventh Circuit, the Supreme Court

cases of Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67

L.Ed.2d 207 (1981) and Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105

L.Ed.2d 132 (1989) have explicitly addressed the issue of relative qualifications in a way that

accords with the Crawford standard. The story of the first of these cases, Burdine, begins with

the case of East v. Romine, Inc., 518 F.2d 332 (5th Cir. 1975), decided eight years prior to

Perryman. In East, plaintiff Cora East, a welder from Savannah, Georgia, brought suit against

defendant Romine, Inc., a construction business that hired welders, under Title VII, claiming that

she was denied a position at the company because of her sex. We stated that, to establish a prima

facie case of discrimination, East had to show:

       (1) that [she] belong[ed] to a group protected by Title VII; (2) that [s]he applied
       and was qualified for a job for which the employer was seeking applicants; (3)
       that, despite [her] qualifications, [s]he was rejected; and (4) that, after [her]
       rejection the position remained open and the employer continued to seek
       applicants among persons of [East’s] qualifications.

East, 518 F.2d at 337 (citing McDonnell Douglas). We then found that East had established a

prima facie case with respect to one of her claims because:

       As a woman, Ms. East is in a group protected by Title VII. She formally applied
       for a welding job and was at least presumptively qualified on the basis of an
       application which showed a long history of welding work. Romine, Inc. accepted
       applications whenever they came in, and Ms. East was not offered a job. Lastly,




                                                  23
       and the crucial distinction between this claim and that for 1968,27 Romine hired
       nine welders within six months after East made her application.

Id. at 338 (footnote omitted). We note first that by so finding, we clearly did not require East to

prove anything regarding her qualifications relative to the “nine welders [hired] within six

months” after she applied for a welding position – the fact that the other welders were hired was

sufficient to establish that the position was actually “in contention” at the time that East applied.

Thus, East applied the later-articulated Crawford standard. Most importantly, however, after

finding that East had successfully established a prima facie case of sex discrimination, we

proceeded to evaluate Romine’s rebuttal evidence. We held that the defendant had failed to

carry its rebuttal burden because it failed to present evidence of relative qualifications:

“[C]omparative evidence lies at the heart of a rebuttal of a prima facie case of employment

discrimination. . . . When a prima facie case of discrimination has been made out, then we cannot

presume that the answer lies in the [successful applicant’s] judicially cognizable superior

credentials.” Id. at 339 (emphasis omitted).28 Thus, in East, we clearly placed relative




       27
           We found that Romine failed to establish a prima facie case with regard to the 1968
claim because “no position was open at the time of East’s application and no position ‘remained’
open. Rather, Romine was not doing any hiring . . . for at least the next six months.” East, 518
F.2d at 337. Thus, because “there [was] no indication in the record that the decision not to put
anyone on the payroll was a subterfuge for a discriminatory intent,” East could not show that
“after [her] rejection, the position remained open and the employer continued to seek applicants
from persons of [her] qualifications.” Id. By so holding with regard to East’s “1968 claim,” we
implied that the fourth prong of the McDonnell Douglas – the “remaining open” prong to which
both the Crawford and Perryman standards add – was originally included only to ensure that the
position applied for was actually “open” at the time of application, and that the defendant
employer intended to fill the position.
       28
            This statement provides further support for our decision in IMPACT. See supra note
8.

                                                 24
qualifications in the second stage of the McDonnell Douglas framework, not the prima facie

stage.

         Four years later, we adopted much of East wholecloth in Burdine v. Texas Department of

Community Affairs, 608 F.2d 563 (5th Cir. 1979). In Burdine, however, we interpreted East as

establishing a rule that a defendant could not succeed in defending against a Title VII claim

unless it established that the successful applicant for the plaintiff’s coveted position was more

qualified than the plaintiff. See id., 608 F.2d at 567.

         The Supreme Court subsequently granted certiorari in Burdine. In Texas Department of

Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)

(commonly referred to as “Burdine” in “the McDonnell Douglas-Burdine” framework), the

Court held the following:

         The Court of Appeals [] erred in requiring the defendant to prove by objective
         evidence that the person hired or promoted was more qualified than the plaintiff.
         McDonnell Douglas teaches that it is the plaintiff’s task to demonstrate that
         similarly situated employees were not treated equally. The Court of Appeals’ rule
         would require the employer to show that the plaintiff’s objective qualifications
         were inferior to those of the person selected. If it cannot, a court would, in effect,
         conclude that it has discriminated. . . .
                 . . . Title VII, however, does not demand that an employer give
         preferential treatment to minorities or women. . . .
                 The view of the Court of Appeals can be read, we think, as requiring the
         employer to hire the minority or female applicant whenever that person’s
         objective qualifications were equal to those of a white male applicant. But Title
         VII does not obligate an employer to accord this preference. Rather, the employer
         has discretion to choose among equally qualified candidates, provided the
         decision is not based upon unlawful criteria. The fact that a court may think that
         the employer misjudged the qualifications of the applicants does not in itself
         expose him to Title VII liability, although this may be probative of whether the
         employer’s reasons are pretexts for discrimination.

Id. at 258-59, 101 S.Ct. at 1096-97 (citations omitted). Thus, the Supreme Court overruled the

portions of our decision in East that 1) imposed a burden of persuasion instead of production on

                                                  25
the employer during the rebuttal stage of McDonnell Douglas, and 2) required the defendant to

prove that the plaintiff was less qualified than the successful applicant to succeed in defending

against a Title VII claim. See Burdine v. Texas Dep’t of Community Affairs, 647 F.2d 513, 514

(5th Cir. 1981) (reiterating the Court’s holdings on remand, and explaining how the Court’s

decision applies to cases in this circuit); Johnson v. Uncle Ben’s, Inc., 657 F.2d 750, 752 (same).

The Burdine Court did not, however, overrule the portion of East that placed relative

qualifications in the rebuttal stage of the McDonnell Douglas framework. In fact, the Court

implicitly affirmed this placement by stating that “[t]he fact that a court may think that the

employer misjudged the qualifications of the applicants does not in itself expose him to Title VII

liability, although this may be probative of whether the employer’s reasons are pretexts for

discrimination.” In other words, the Supreme Court implied that it is the employer who initially

presents evidence of relative qualifications, not the employee.

       Of course Perryman and its progeny were decided after the Supreme Court’s decision in

Burdine. In light of East, however – which remains binding precedent – and of the Court’s

implicit affirmation of East’s relevant holding, we believe that the articulation in the Perryman

cases of a prima facie standard that includes proof of relative qualifications is quite suspect.

       The Supreme Court’s decision in Patterson v. McLean Credit Union, 491 U.S. 164, 109

S.Ct. 2363, 105 L.Ed.2d 132 (1989), further clarifies the place of relative qualifications in the

McDonnell Douglas framework and ultimately prohibits us from imposing on the plaintiff the

burden of proving relative qualifications at the prima facie stage.29 In Patterson, Brenda


       29
           Since Burdine, we have continually recognized that relative qualifications belong in
the rebuttal stage of the McDonnell Douglas framework, not the prima facie stage. See, e.g.,
Gilchrist v. Bolger, 733 F.2d 1551, 1553 (11th Cir. 1984) (recognizing as a sufficient legitimate

                                                 26
Patterson, a black woman, brought suit against her employer under 42 U.S.C. § 1981, claiming

that the employer “had harassed her, failed to promote her . . . and then discharged her, all

because of her race.” Patterson, 491 U.S. at 169, 109 S.Ct. at 2368-69. As its rebuttal to

Patterson’s prima facie case, the defendant employer claimed that the successful applicants were

more qualified than Patterson to perform the position to which she sought promotion. See

Patterson v. McClean Credit Union, 805 F.2d 1143, 1147 (4th Cir. 1986) (“[O]nce an employer

has advanced superior qualification as a legitimate nondiscriminatory reason for favoring

another employee over the claimant, the burden of persuasion is upon the claimant to satisfy the

trier of fact that the employer’s proffered reason is pretextual . . . . That was the situation here”).

After a jury trial, the district court instructed the jury that Patterson could not succeed on her

claim for failure to promote unless she showed that she “was better qualified than the white

employee she allege[d] was promoted in her stead.” Patterson, 491 U.S. at 170, 109 S.Ct. at

2369. Patterson challenged the instruction on appeal, but the Fourth Circuit affirmed. See




nondiscriminatory reason for denying plaintiff a promotion was “the fact that “[t]he man drawn
for the [coveted] position was selected because of his greater knowledge of postal requirements
and because of [the plaintiff’s] attendance problems”); Clark v. Huntsville City Bd. of Educ.,
717 F.2d 525, 527 (11th Cir. 1983) (“The defendants successfully rebutted the [prima facie]
presumption through evidence that they selected [the successful applicant] due to his superior
qualifications for the position.”); Olafson v. Dade County Sch. Bd., 651 F.2d 393, 395 (5th Cir.
Unit B 1981) (stating that the defendant employer successfully rebutted the plaintiff’s prima
facie case by “presenting evidence that [the successful applicant was successful] not because he
was a man, but because, in their considered opinions, he was the best person for the job. It was
then incumbent on the plaintiff . . . to prove she was ‘the victim of intentional’ discrimination”
(footnote omitted)); see also Hill, 885 F.2d at 810.

                                                  27
Patterson, 805 F.2d at 1146. The Supreme Court granted certiorari to determine whether the

district court’s instruction was in error. See Patterson, 491 U.S. at 170-71, 109 S.Ct. at 2369.30

       On review, the Court held that “the District court erred when it instructed the jury that

petitioner had to prove that she was better qualified than the white employee who allegedly

received the promotion.” Id. at 186, 109 S.Ct. at 2377. The Court then explained that the

McDonnell Douglas framework for Title VII applies equally well in section 1981 cases, but that

the Court of Appeals had “erred in describing petitioner’s burden” under McDonnell Douglas.

Id. at 186, 109 S.Ct. at 2378. The Court then explicitly adopted the Crawford standard, and

clarified the place of relative qualifications in the McDonnell Douglas framework:

       Under our well-established framework, the plaintiff has the initial burden of
       proving, by a preponderance of the evidence, a prima facie case of discrimination.
       The burden is not onerous. here, petitioner need only prove by a preponderance
       of the evidence that she applied for and was qualified for an available position,
       that she was rejected, and that after she was rejected respondent either continued
       to seek applicants for the position, or, as is alleged here, filled the position with a
       white employee.
               . . . [T]he employer [must then] present evidence that the plaintiff was
       rejected, or the other applicant was chosen, for a legitimate nondiscriminatory
       reason. Here, respondent presented evidence that it gave the job to the white
       applicant because she was better qualified for the position, and therefore rebutted
       any presumption of discrimination that petitioner may have established. . . .
               Although petitioner retains the ultimate burden of persuasion, our cases
       make clear that she must also have the opportunity to demonstrate that
       respondent’s proffered reasons for its decision were not its true reasons. In doing
       so, petitioner is not limited to presenting evidence of a certain type. . . .


       30
            The Court also granted certiorari to determine whether Patterson’s claim of racial
harassment was cognizable under 42 U.S.C. § 1981 although it did not pertain to the formation
of a contract. See Patterson, 491 U.S. at 170, 109 S.Ct. at 2369. The Patterson Court answered
this question in the negative, see id. at 171, 109 S.Ct. at 2369, a holding that was later
superseded by the 1991 amendments to the Civil Rights Act. See Vance v. Southern Bell Tel.
and Tel. Co., 983 F.2d 1573, 1577 (11th Cir. 1993) (“One effect of the 1991 Act, in cases where
it applies, is to make the rule in Patterson obsolete by statutorily adding certain categories of
post-hiring discrimination to the list of practices liable to suit under section 1981.”).

                                                 28
       [Petitioner] might seek to demonstrate that respondent’s claim to have promoted a
       better qualified applicant was pretextual by showing that she was in fact better
       qualified than the person chosen for the position. The District Court erred,
       however, in instructing the jury that in order to succeed petitioner was required to
       make such a showing. . . . It was, therefore, error for the District Court to instruct
       the jury that petitioner could carry her burden of persuasion only by showing that
       she was in fact better qualified than the white applicant who got the job.

Id. at 186-88, 109 S.Ct. at 2378-79 (footnote and citations omitted).

       Thus, under Patterson, we may never require a plaintiff to establish that she is more

qualified than the successful promotee, let alone impose that requirement at the prima facie

stage. We believe that Patterson also prohibits us from requiring a plaintiff to prove equal

qualifications at the prima facie stage. We cannot imagine that the Supreme Court would speak

so strongly regarding the lack of any burden to prove lesser qualifications and still leave

available to the defendant at summary judgment the argument that the plaintiff failed to prove

equal qualifications, especially in light of its clear affirmation of the Crawford alternatives.

       We also note that a prima facie standard that includes relative qualifications as a

necessary element runs contrary to the policies underlying the McDonnell Douglas prima facie

case. As explained in footnote 10, supra, the prima facie case enables the plaintiff to reach the

legal presumption of discrimination that shifts the burden of producing evidence to the defendant

employer. This presumption ensures that a plaintiff who cannot establish that the employer

harbored a discriminatory animus towards her may still survive a motion for judgment as a

matter of law at the close of her case and thus force the employer to articulate its motives for the

challenged employment decision so that the plaintiff has an opportunity to raise an inference of

intentional discrimination by circumstantial evidence. The presumption, therefore, accounts for




                                                 29
the disparity in access to information between employee and employer regarding the employer’s

true motives for making the challenged employment decision.

       The Crawford standard sufficiently accounts for this disparity. It enables the plaintiff

employee to establish a prima facie case or intentional discrimination by presenting evidence

that is (1) in the employee’s possession already (membership in a protected class, qualification,

the fact of application for the position, rejection), and (2) objectively verifiable and easily

obtainable (the fact that another person received the coveted position or the fact that the position

remained open and available to persons of the plaintiff’s qualifications). The Perryman standard,

however, introduces the element of relative qualifications – the evidence of which is not likely to

be in the plaintiff’s possession and may not easily obtainable or objectively verifiable. Only the

employer knows whether it truly considered relative qualifications when determining whether to

promote the plaintiff, and only the employer can establish what qualifications it actually used to

make its promotion decisions. Further, if the employer utilized subjective qualifications in

making the challenged decision, there is no way for the plaintiff employee to determine how he

“ranked” according to those subjective qualifications in the decisionmaker’s mind. It is therefore

appropriate to place the burden of articulating those qualifications – if relevant – on the

employer, not the employee.

       In light of our own precedent and the decisions by the Supreme Court in Burdine and

Patterson, we hold that district court in this case erred in imposing as part of the prima facie case

a requirement that each plaintiff establish that the successful applicant for his or her coveted

position was less than or equally qualified to hold the position. Although a plaintiff may be

forced to address relative qualifications if the defendant presents them to rebut the plaintiff’s


                                                  30
presumption of discrimination, the plaintiff need not introduce evidence regarding relative

qualifications before then; she need only prove that she herself was qualified to perform the

coveted job.

       The district court also made a second error when assessing the strength of the plaintiffs’

prima facie case for each of their claims. Several times the court found that a plaintiff had not

established a prima facie case with respect to one or more of her claims because the plaintiff

failed to identify the successful applicant for the coveted position by name, testifying only as to

the applicant’s race. A plaintiff, however, need not identify the successful applicant for a

position under the McDonnell Douglas prima facie framework; she is only required to establish

that the successful applicant is not within her protected class.

       We hold, therefore, that the district court erred in entering judgment for the defendants

whenever it based on its finding of no prima facie case on either the plaintiff’s failure to prove

relative qualifications, the plaintiff’s failure to identify the successful applicant by name, or on

both of these standards. For each erroneously-decided claim, we now examine the record

ourselves to determine whether the plaintiff indeed produced evidence at trial that, if credible,

was sufficient to create a prima facie case. For those claims that do pass muster, we vacate the

district court’s judgment and remand for a credibility finding.31 For those claims with regard to

which the plaintiff failed to present evidence sufficient to support a prima facie case, however,


       31
          Because in IMPACT we held that the defendants had failed to satisfy their burden of
production under Burdine, if the district court finds a plaintiff’s evidence on a given claim
credible on remand, it must enter judgment for the plaintiff on that claim. See Burdine, 450 U.S.
at 254, 101 S.Ct. at 1094 (“If the trier of fact believes the plaintiff’s evidence, and if the
employer is silent in the face of the presumption, the court must enter judgment for the plaintiff
because no issue of fact remains in the case.” (emphasis added) (cited in Combs, 106 F.3d at
1528)). The trial court is best equipped to make this credibility finding.

                                                  31
we affirm the district court because a Title VII plaintiff cannot succeed in proving that she was

intentionally discriminated against if she does not establish a prima facie case of discrimination.

See Bonanni Ship Supply, Inc. v. United States, 959 F.2d 1558, 1561 (11th Cir. 1992) (“[T]his

court may affirm the district court where the judgment entered is correct on any legal ground

regardless of the grounds addressed, adopted or rejected by the district court.”). In addition, in a

minority of cases, the district court did not base its judgment on incorrect legal standards, but

correctly applied the law. For this group of claims, we review the district court’s ultimate

finding of nondiscrimination under a clearly erroneous standard. See Eastland v. Tennessee

Valley Auth., 704 F.2d 613, 620 (11th Cir. 1983). We find that the record supports the district

court’s findings, and we are not left with the “definite and firm conviction that mistake has been

committed.” See United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525,

542, 92 L.Ed.2d 746 (1948). We therefore affirm the court’s judgment with regard to these

claims as well.

                                                 2.

       We vacate the court’s judgment with regard to the following claims (listed by plaintiff)

and remand them for further proceedings:32

Diann Walker:




       32
           The panel in IMPACT found that 1) interveners Ross and Isaac had established a
prima facie case at trial for all their claims with respect to every element except non-protected
class status under Title VII, and 2) the evidence at trial established that all the plaintiffs were
qualified for all the positions they sought. IMPACT, 893 F.2D 1191-92 & n.3. We therefore
abide by these findings when addressing the strength of each of the plaintiffs’ claims infra. See
note 13, supra.

                                                 32
       Clerk V, Division of Elections, May 1978 (Tr. 26:16-18).33
       Staff Assistant II, Corporations (26:31-35).
       Staff Assistant II, Elections, February 1979 (26:37).
       Secretary IV, Archives, May 1980 (26:45-26:47, 55:29-55:31).
       Secretary IV, Office of the Secretary of State, May 1980 (55:30-31).

Charles Stewart:
       Bureau Chief of Administrative Code, July 1977 (36:12-36:13, 36:15).

       Bureau Chief of Election Records, 1979 (36:14-36:16).
       Office Operations Supervisor I, October 1979 (36:28-29).

Dorothy Roberts:
      Accountant III, Administrative Services, February 1979 (36:61-36:65).34

Barbara King:
       Secretary III, March 1979 (38:17, 38:17, 38:17-18).35
       Secretary III, General Counsel’s Office, April 1979 (38:18-38:19).36
       Secretary III, Archives, April 1979 (38:24-38:25).
       Word Processor Systems Operator I, May 1980 (38:27).
       Clerk V, June 1980 (38:28-38:29).
       Secretary IV, June 1980 (38:29-38:30).
       Secretary IV, August 1980 (38:30-38:31).

       33
            We identify each claim by the identifying characteristics noted by the district court in
its order on remand. The cites following the claims are cites to the record on appeal. Cites from
the trial transcript (“x:x”) are in the form of volume:page. Cites to Exhibits are in bluebook
form.
       34
          The district court also entered judgment for the defendants on Roberts’ claim that she
was discriminatorily denied a promotion to Accountant IV in Administrative Services. Roberts
had claimed that if she had received the Accountant III position, she would have been upgraded
to an Accountant IV when that position was reclassified during a Department reorganization.
Because Roberts’ argument relates to the relief she was entitled to if she had received the
Accountant III position, and does not state a separate claim for failure to promote, we do not
address this claim.
       35
           King established a prima facie case for failure to promote to a Secretary II position in
March 1979. See record, vol. 38, pp.18-19. We construe the court’s reference to a “Secretary
III” position applied for in March 1979 as a reference to this claim.
       36
          Although the district court identified this position as a Secretary III position, King’s
counsel referred to the position during direct examination of King at trial as a Secretary II
position. See record, vol. 38, pp.18-19.

                                                 33
Pearl Williams:
       Clerk IV, March 1980 (38:50-38:51).
       Secretary IV, 1982 (38:52, 38:54-38:55).
       Administrative Secretary, 1984/85 (filled by Elinor Kalfas) (38:57-58).37
       Administrative Secretary 1984/85 (filled by Nancy Downing) (38:57-58).
       Secretary IV, 1985 (38:57-58).
       Senior Clerk, 1985 (38:58-59; 46:97-106).38

Louvenia Jones:
      Clerk II, Library Services, January 1977 (30:13 & 43:13); Pls.’ Ex. Z-33, p.167.
      Clerk II, Corporations, April 1977 (30:13 & 43:13); Pls.’ Ex. Z-33, p.167.
      Clerk III, Elections, July 1977 (30:16-18 & 43:14); Pls.’ Ex. Z-33, p.100.
      Staff Assistant I, July 1982 (30:33-34 & 46:112-13); Pls.’ Exs. A-5 & 265(1).


Rosa Henderson:
      Clerk III, Elections (38:89-90).
      Clerk III, Corporations, 1977 (38:87-38:89).
      Clerk V, Corporations, 1979 (38:94-38:95).
      Clerk V, Corporations, January 1980 (38:96 & 38:94).
      Clerk V, 1980 (38:97-38:98).


       37
            The district court held that Williams had not established a prima facie case for this
claim and the next-listed claim because it found that “[t]he personnel cards of [Kalfas and
Downing] showed that neither Kalfas nor Downing occupied a position of Administrative
Secretary in 1984 and 1985.” Downing’s personnel card (Defs.’ Ex. 266(1)), however, shows
that she was indeed promoted to an “Admin.Sec.” position in Elections (the section of the
Department to which Williams testified she applied) on January 1, 1986. Moreover, Williams
testified at trial that persons holding Secretary IV positions were also referred to as
“Administrative Secretaries” within the Department, see record, vol. 38, p.57, see also record,
vol. 46, p. 48 (identical testimony by Jay Kassees, witness for the defense), and Kalfas’
personnel card (Defs.’ Ex. 272) reflects that she was promoted to a Secretary IV position in
Elections on January 3, 1984. We therefore vacate the district court’s judgment with respect to
Williams’ claims for these two positions because we find that the court’s finding is unsupported
by the evidence.
       38
          The district court found that Williams failed to establish a prima facie case with respect
to this claim because she testified that she had applied for the position in 1985, but the successful
applicant for the position was not hired until in January 1986. Because a plaintiff must only
establish that her coveted position remained open or was filled by someone outside her protected
class – she need not establish that the position was filled within any certain amount of time – we
find the district court’s reasoning unsupportable and therefore vacate the court’s judgment with
respect to this claim.

                                                 34
       Documentary Examiner, UCC of Corporations (38:98-38:101).

Delores Colston:
       Secretary IV, Elections, April 1977 (39:33-34).39

Linda Isaac:
       Clerk I, September 1977 (47:74 & Pls.’ Ex. Z-33).40
       Clerk II, September 1977 (47:74 & Pls.’ Ex. Z-33 p. 167).
       Clerk III, October 1977 (47:74 & Pls.’ Ex. Z-33 p.100).
       Clerk III, March 1979 (47:74 & Pls.’ Ex. Z-33 p.101).
       Clerk V, July 1980 (47:74 & Pls.’ Ex. Z-33 p. 67).
       Clerk V, August 1980 (47:74 p.68).

Jacquelyn Ross:
       Secretary III, January 1979 (47:73-74 & Pls.’ Ex. Z-33 p.80).


       On remand, we direct the district court to make credibility findings as to the plaintiff’s

evidence for each of these claims. If the court credits the plaintiffs’ evidence establishing the

McDonnell Douglas elements of a prima facie case, it must enter judgment in favor of the

plaintiff on that claim. See Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. If the court finds the

evidence not credible, it must enter judgment in favor of the defendants.

                                                  3.

       We affirm the court’s judgment with regard to the following claims:

Diann Walker:
      Clerk V, Corporations, August 1979 (successful applicant “Buck” Kohr).


       39
          The district court did not specifically identify this claim, referring only to “an
unknown number of Clerk-Typist IV, Secretary III and Secretary IV positions between 1974 and
1977.” Colston, however, established a prima facie case with regard to this claim at trial; thus,
we construe her appeal from the court’s judgment on remand as including an appeal from the
dismissal of this claim.
       40
           For all claims brought by plaintiffs Isaac and Ross, we cite only to record evidence
establishing that the successful applicant for the position at issue did not belong to the plaintiff’s
protected class.

                                                  35
       Clerk V, Corporations, August 1979 (successful applicant Kevin St. Louis).
       Clerk V, Corporations August 1979 (successful applicant Sandra Inks).
       Executive Secretary I, Archives, June 1980.
       Administrative Assistant II, Elections, August 1982.
       Executive Secretary II.

Barbara King:
       Clerk Typist III, February 1979.
       Secretary III, Cultural Affairs, April 1979.
       Secretary III, Archives, April 1979.
       Secretary III, Office of the Secretary of State, March 1980.
       Secretary III, Office of the Secretary of State, April 1980.

Pearl Williams:
       Clerk-Typist III, Corporations, February 1979.
       Secretary IV, April 1982.
       Administrative Secretary, 1984/85 (filled by Barbara Birks)

Louvenia Jones:
      Bookkeeping Machine Operator, September 1978.
      Staff Assistant I, August 1981.
      Record Management Technician, Archives, 1984.41

Rosa Henderson:
      Clerk III, Corporations, 1977.
      Microphotographer, Archives, 1978.
      Fiscal Clerk II, January 1986.

Delores Colston:
       Clerk Typist III, July 1978.
       Clerk Typist III, August 1979.
       Audio-Visual Technician, August 1979.
       Clerk Typist III, August 1979.
       Secretary III, August 1979.
       Secretary IV, August 1981.

Jacquelyn Ross:


       41
           The district court’s order on remand refers to “about a dozen Clerk I and Clerk II
positions” for which Jones testified she had applied before April 1977. The district court
considered that Jones’ allegations concerning these claims were too vague to make out a case for
Title VII relief and therefore dismissed them. We agree; thus, we affirm the district court’s
judgment with regard to these claims.

                                               36
       Clerk Typist III, January 1980.42


                                                 B.

       The plaintiffs next contend that the district court erred on remand by failing to consider

employment examination evidence. Employment examination evidence, however, is irrelevant

to a prima facie case of disparate treatment; thus, because all of the plaintiffs’ claims may now

be resolved at the prima facie stage, this issue is moot.



                                                 C.

       Finally, plaintiffs claim that our mandate in IMPACT directed the district court to

recertify the class on remand, and that the court erred by failing to do so. This is simply

incorrect.

       In its original order, the district court entered judgment against every plaintiff; thus, there

existed no representative who could adequately represent a class, and the issue of recertification

was moot. On appeal, because we held that the district court had erred in entering judgment for

the defendants on all counts, we “opened the door” to a finding of nondiscrimination for at least

some of the plaintiffs. Thus, on remand after IMPACT, the issue of recertification was

“revived.”43 Because we wished the district court to address the continued validity of its


       42
          Although the district court purported to pass judgment on this claim, plaintiffs’
counsel stated for the record that Ross was withdrawing this claim. See record, vol. 47, p.74.
       43
           If the trial court, on remand, had entered judgment for one or more putative class
representatives, the representative or representatives might have been able to appeal the court’s
denial of recertification to this court despite the favorable judgment. See Deposit Guaranty Nat’l
Bank v. Roper, 445 U.S. 326, 339, 100 S.Ct. 1166, 1175, 63 L.Ed.2d 427 (1980) (holding that a
district court’s entry of judgment in favor of putative class representatives on their individual

                                                 37
decertification order before we did, however, we specifically reserved judgment on the issue of

recertification, stating only that the matter “remain[ed] open for consideration by the trial court

on remand.” This statement was not a mandate to the district court requiring it to revisit the

issue of certification, but merely a reminder to the district court of the legal ramifications of our

reversal of its judgment.

        On remand, the district court again entered judgment against every plaintiff, thereby “re-

mooting” the issue of recertification. In the instant appeal, we hold that the district court erred in

entering judgment against several plaintiffs; thus, we have once again provided the district court

with possible representatives for the putative class, resurrecting the issue of recertification a

second time. We still wish, however, to leave the initial determination regarding recertification

to the district court. We therefore leave the matter open on remand. We intimate no view as to

the propriety of certifying a class if the district court finds that at least one plaintiff is entitled to

judgment in her favor.



                                                    III.



        For the reasons stated above, we AFFIRM the district court’s judgment in part and

VACATE the judgment in part. We REMAND with directions that the original district court

determine, with regard to each vacated claim listed in part II.A.2, whether the plaintiff’s

evidence of a prima facie case is credible evidence. If the court credits the plaintiffs’ evidence




claims but “over their objections” does not preclude the representatives from appealing an
adverse certification ruling on appeal).

                                                    38
establishing the McDonnell Douglas elements of a prima facie case, we direct it to adjudge the

defendants liable on that claim, and thereafter to fashion an appropriate remedy.44 We deny the

plaintiffs’ request to assign this case to another judge on remand.



       SO ORDERED.

CARNES, Circuit Judge, concurring specially:

I concur in the court’s judgment and most of the language of the majority

opinion. I write separately, however, because I am concerned about some of the

dicta in footnote 10 of the majority opinion regarding the legal effect of a Title

VII prima facie case. Instead of clarifying matters as it seeks to do, the

discussion in that footnote may serve only to confuse things, and some of the

statements in it are inconsistent with prior circuit precedent.

       The majority opinion states: “We note that the prima facie case establishes

a presumption, and not an inference, of intentional discrimination.” Majority

Op. at 10 n.10 (emphasis in the original). While one of the footnotes in Texas

Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 n.7, 101 S. Ct. 1089,


       44
           This case was filed well before the effective date of the 1991 amendments to Title VII
that allow a Title VII plaintiff to recover damages. Thus, the plaintiffs will be limited to
equitable relief on remand. See Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128
L.Ed. 2d 229 (1994) (holding that the 1991 amendments do not apply retroactively); Batey v.
Stone, 24 F.3d 1330, 1336 (11th Cir. 1994) (same).

                                                39
1094 n.7 (1981), does support that statement, our decisions since Burdine have

consistently held that a prima facie case creates an inference of intentional

discrimination, see, e.g., Jones v. Bessemer Carraway Med. Ctr., 151 F.3d 1321,

1323 (11th Cir. 1998) (plaintiff has failed to establish prima facie case because

“one still cannot infer it is more likely than not that her termination was based

on an illegal discriminatory criterion.”); Eskra v. Provident Life and Accident

Ins. Co., 125 F.3d 1406, 1411 (11th Cir. 1997) (“If a prima facie case is

established, the inference is raised that discriminatory intent motivated the

adverse employment action . . . .”); Stewart v. Happy Herman’s Cheshire

Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir. 1997) (“Once a prima facie case is

established, the burden then shifts to the defendant employer to come forward

with legitimate non-discriminatory reasons for its actions that negate the

inference of retaliation.”); Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.

1997) (“Demonstrating a prima facie case is not onerous; it requires only that the

plaintiff establish facts adequate to permit an inference of discrimination”);

Maddow v. Procter & Gamble Co. Inc., 107 F.3d 846, 851 (11th Cir. 1997)

(“[O]nce a plaintiff has made a prima facie case, the employer may then rebut

the inference of discrimination by providing legitimate, non-discriminatory

                                       40
reasons for its decision.”); Walker v. Nationsbank of Florida, 53 F.3d 1548,

1556 n.12 (11th Cir. 1995) (“Whether a prima facie case has been established is

a fact specific inquiry: Would an ordinary person reasonably infer discrimination

if the facts presented remained unrebutted?”); Coutu v. Martin County Bd. of

County Commissioners, 47 F.3d 1068, 1073 (11th Cir. 1995) (“A prima facie

case of discrimination raises the inference that discriminatory intent motivated

the adverse employment action.”); Green v. School Bd. of Hillsborough County,

25 F.3d 974, 978 (11th Cir. 1994) (“[T]he plaintiff must create an inference of

discrimination by establishing a prima facie case by a preponderance of the

evidence.”) (emphasis added in all parentheticals). There are not, as the

majority opinion asserts, merely “a few Eleventh Circuit cases” which ostensibly

conflict with the majority’s statements. Instead, a long line of our prior

decisions clearly recognize and emphatically state that a prima facie case will

support an inference of discrimination.

      The reason that our long line of prior decisions is wrong, explains the

majority, is that if we treat the prima facie case as creating an inference of

discrimination, “the defendant’s legitimate, non-discriminatory explanation

would be an affirmative defense [and] [t]he defendant would therefore carry the

                                       41
burden of persuasion in regard to that explanation.” Majority Op. at 10-11 n.10.

That would come as quite a surprise to all of the judges on the panels that issued

the eight decisions cited in the prior paragraph. Every one of those eight

decisions recognizes that a prima facie case creates an inference of

discrimination, but none suggests that such an inference transforms the

defendant’s explanation into an affirmative defense. To the contrary, those

decisions recognize, some of them explicitly, that even with the inference

created by the prima facie case, the defendant’s burden in regard to a neutral

explanation is only a burden of production, not one of persuasion. See, e.g.,

Eskra, 125 F.3d at 1411; Walker, 53 F.3d at 1556 (“Once the defendant carries

the burden of production, the plaintiff must prove through presentation of a

preponderance of the evidence that the employer had a discriminatory intent.”);

Coutu, 47 F.3d at 1073 (“Once the employer satisfies this burden of production,

the plaintiff then has the burden of persuading the court that the proffered reason

is a pretext for the true discriminatory reason.”); Green, 25 F.3d at 978 (“[O]nce

the plaintiff establishes a prima facie case, the burden of production shifts to the

defendant to rebut the presumption of intentional discrimination by articulating



                                        42
legitimate, nondiscriminatory reasons for the employee’s rejection.”) (emphasis

added in all parentheticals).

      Our prior decisions recognize that whether a particular explanation or

response is an affirmative defense is not dependent on whether the plaintiff’s

evidence is sufficient to support an inference. See also 5 Wright and Miller,

Federal Practice and Procedure, Civil 2d § 1271 (discussing criteria used to

determine whether a particular defense is an affirmative defense). If the

majority opinion’s position were correct, in every case where the evidence

supports an inference of discrimination, i.e., in every case where the plaintiff’s

evidence is sufficient to go to a jury, the defendant’s response, if any, would be

an affirmative defense and the defendant would have the burden of persuasion.

Obviously, that is not the law.

      The majority opinion itself acknowledges there are at least some situations

in which the same evidence that creates a prima facie case, and consequently

raises an initial presumption of intentional discrimination, may also suffice to

create an inference of intentional discrimination. One example is where the

evidence presented to establish a prima facie case is also sufficient to show that

the defendant's proffered legitimate, non-discriminatory reason is pretextual.

                                       43
That does happen. See, e.g., Arrington v. Cobb County, 139 F.3d 865, 875 n.20

(11th Cir. 1998); Majority Op. at 13 n.12. Because a jury may infer intentional

discrimination if the plaintiff establishes a prima facie case that also casts doubt

on the employer's proffered non-discriminatory reason, see Combs, 106 F.3d at

1532, it follows that evidence establishing a prima facie case certainly will

sometimes be enough to establish an inference of unlawful discrimination.

      The majority opinion’s insistence upon the presumption versus inference

distinction serves no good purpose here, is needlessly complex, and is

confusing. The distinction serves no good purpose because everyone agrees that

the establishment of a prima facie case shifts only the burden of production and

not the ultimate burden of persuasion to the defendant. There is no dispute

about that. Everyone also agrees that in some cases the same evidence that

establishes a prima facie case, without more, will also create a jury issue as to

whether the defendant’s proffered explanation is pretextual. There is no dispute

about that. Those undisputed propositions need not be dressed up in more

complex or different terms than we have used over and over in prior decisions.

An about-face at this late date complicates matters. In law, as in other

intellectual fields, we would do well to keep in mind William of Occam’s

                                        44
maxim that the simpler the better, that unnecessary complexities only create

confusion. Law ought not be logomachy.




                                     45
