                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-8-1999

Iadimarco v. Runyon
Precedential or Non-Precedential:

Docket 98-5150




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1999

Recommended Citation
"Iadimarco v. Runyon" (1999). 1999 Decisions. Paper 251.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/251


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1999 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed September 8, 1999

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

NO. 98-5150

CHARLES A. IADIMARCO,

Appellant

v.

MARVIN T. RUNYON, POSTMASTER GENERAL

On Appeal from the United States District Court for the District of New
Jersey D.C. Civil No. 95-cv-05873 District
Judge: Hon. Garrett E. Brown, Jr.

Argued: February 9, 1999

Before: Becker, Chief Judge, McKee, Circuit Judges Lee, District Judge*

(Filed September 8, 1999)

Robert W. Beattie, Esq. (Argued) Beattie & Murray 800 Riverview Dr., Suite
103 Brielle, NJ 08730

Attorney for Appellant

_________________________________________________________________

*The Honorable Donald J. Lee, United States District Judge for the Western
District of Pennsylvania, sitting by
designation.

Dorothy J. Donnelly, Esq. (Argued) Office of United States Attorney 402
East State Street Room 502 Trenton, NJ
08608

Attorney for Appellee

OPINION OF THE COURT

McKEE, Circuit Judge.

We are asked to review the District Court's grant of summary judgment in
favor of the United States Postal Service,
and against its employee, Charles Iadimarco. Iadimarco filed an action
under Title VII of the 1964 Civil Rights Act
alleging "reverse discrimination" after he was denied a requested
promotion within the Postal Service. The District
Court ruled that Iadimarco had not established a prima facie case of
illegal discrimination. The court also ruled in the alternative that,
assuming Iadimarco had established a prima facie case, he had not rebutted
the defendant's
race-neutral explanation for the challenged employment decision. For the
reasons that follow, we hold that Iadimarco established a prima facie case
under Title VII. We also hold that he produced sufficient evidence to
raise a genuine issue of material fact as to whether the defendant's
explanation was a pretext for illegal discrimination. Accordingly, we will
reverse and remand for further proceedings consistent with this opinion.

I. Factual and Procedural Background

In 1992, the Postal Service undertook a national reorganization in which
many jobs were consolidated or eliminated. After the reorganization,
managerial employees were informed that they had to submit a "991 form" to
indicate their preferences for available jobs. Employees could apply for
positions as long as they were within six EAS levels for processing and
distribution positions. Charles Iadimarco, a White male, submitted a 991
form indicating his preference for three positions: Manager of In-plant
Support at Kilmer (EAS 21), Manager of In-plant Support at Trenton (EAS
21), and Manager of In-plant Support at Monmouth (EAS 19).

After the Kilmer and Trenton jobs were filled by White males, Iadimarco
contacted Robert Towler, the selecting
official for Monmouth, about the Monmouth position. Towler had rated each
of the 41 applicants for the Monmouth
position according to a "knowledge, skills and abilities" matrix ("KSA")
that was part of the applicants' 991 form.1
Iadimarco was one of only three candidates for the Monmouth position who
received a rating of "superior" in every
KSA category.

The District Court found that Towler interviewed Iadimarco for the
Monmouth position in March 1993, though the
issue was disputed. In any event, Iadimarco claims that Towler told him
that he (Iadimarco) would be selected for the position pending approval of
Henry Pankey, Towler's supervisor. However, on March 25, 1993, and again
on April 1, 1993, Towler requested permission to re- post the Monmouth
position. At trial, Towler testified that the other two top candidates for
the Monmouth position had been placed in other positions before the
Monmouth position could be filled, and he did not think that Iadimarco
should be promoted by "default." According to Towler, he therefore re-
posted the position rather than merely hiring Iadimarco who was then the
only applicant remaining who had received a superior rating in every KSA
category. Iadimarco alleges that Towler re-posted the

_________________________________________________________________
1. The KSAs for the position were the ability to:

(1) manage the implementation of national and area processing and
distribution programs and policies.

(2) manage the review and evaluation of local operations.

(3) manage the development of local requirements for resources.
(4) resolve issues with customers, major mailers, and suppliers.

(5) provide technical support to post offices.

(6) manage the work of people to meet organization goals, including
organizing and structuring the work, establishing effective work
relationships, and facilitating the flow of work-related information.
Dist. Ct. Op. at 2.
_________________________________________________________________

position because Towler was having difficulty getting Iadimarco's name
past Pankey. Iadimarco's contention is based upon his belief that Pankey
wanted to hire a minority applicant for the Monmouth position to diversify
the work place.2 Iadimarco's assertion is based in large part upon a
memorandum that Pankey issued to all plant managers and installation heads
in December of 1992 (the "diversity memo"). The memo stated:

As we proceed to fill vacancies, I want to ensure that very serious
consideration is given to the issue of diversity - I cannot emphasize this
point more strongly. The management teams in our plants should reflect the
composition of our workforce and communities if we are to benefit from the
contributions that minorities, women, and ethnic groups can bring to our
decision making processes and the social harmony that this will instill in
our work environment.

Your personal commitment is needed -- if there are any questions on this
matter, please feel free to contact me.
Although Pankey admitted signing this memo, he denied writing it.

On or about March 25, 1993, Iadimarco and Towler discussed placing
Iadimarco into the position of Operations
Support Specialist (EAS 16) in the Monmouth facility. Iadimarco claims
that he did not accept the position, but Towler testified that Iadimarco
did accept it. Nonetheless, it is undisputed that Iadimarco did accept the
position of Operations Support Specialist in the Trenton facility in early
March or April. Thereafter, Toni Williams, a Black female, was promoted to
Acting In-plant Support Manager for the Monmouth facility. Towler formally
announced Ms. Williams' selection as the In-plant Support Manager
approximately two weeks later.

On May 28, 1993, Iadimarco initiated a proceeding before the Equal
Employment Opportunity Commission because
_________________________________________________________________
2. The majority of managers at the relevant level are White males. A197.
_________________________________________________________________

he believed that he had been denied the Monmouth position because he is a
White male. The complaint was eventually heard by an Administrative Law
Judge who agreed that Iadimarco had been the victim of illegal race and
gender discrimination. However, the ALJ's findings were rejected by the
EEOC. The agency concluded that plaintiff failed to establish a prima
facie case of discrimination because he had accepted another position
before being denied the In-plant Manager position at Monmouth. Iadimarco
then filed a complaint in the United States District Court for the
District of New Jersey alleging illegal racial discrimination under Title
VII of the 1964 Civil Rights Act. Following discovery, the District Court
granted summary judgment in favor of the Postal Service and against
Iadimarco. This appeal followed.3

II. Discussion

A. The District Court's Decision.

The District Court concluded that it had to apply the ever-present burden-
shifting analysis announced in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). In conducting that
analysis, the District Court noted a split among the courts of appeals in
"reverse discrimination" cases as to the prerequisites of a prima facie
case required of a White male. See Dist. Ct. Op. at 5, n.2, and cases
cited therein. The court stated that although "the Third Circuit has yet
to address this issue, most of the [district] courts in this Circuit have
required plaintiffs to first establish background circumstances that
support an inference that the defendant employer is "the unusual employer
who discriminates against the majority." Id.
_________________________________________________________________
3. The District Court had jurisdiction pursuant to 42 U.S.C. § 2000e et
seq. We have jurisdiction pursuant to 28
U.S.C.§ 1291. Our review is plenary. Waldron v. SL Industries, Inc., 56
F.3d 491, 496 (3d Cir. 1995). See also
Marzano v. Computer Science Corp. Inc., 91 F.3d 497, 501 (3d Cir. 1996)
(citing Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994)). We
"must view the evidence in the light most favorable to the nonmovant,
giving that party the benefit of all reasonable inferences derived from
the evidence." Waldron, 56 F.3d at 496 (citing Torre v. Casio Inc., 42
F.3d 825, 830 (3d Cir. 1994)).
_________________________________________________________________

(quoting Wallick v. AT & T Communications Inc. , 1991 WL 635610 at *6
(D.N.J. 1991) ("Although Title VII .. . prohibits discrimination against a
majority group,`it makes little sense, within the historical context of
the Act, to infer discrimination against [the majority] in the same way
that discrimination is inferred against [minorities].' ")). The District
Court quoted Harding v. Gray, 9 F.3d 150 (D.C. Cir. 1993), in observing
that evidence of "background circumstances" "can be divided into two
general categories: (1) evidence indicating that the particular employer
at issue has some reason or inclination to discriminate invidiously
against [W]hites, . . . . and (2) evidence indicating that there is
something `fishy' about the facts of the case at hand that raises an
inference of discrimination." Harding, 9 F.3d at 153.4

The District Court then held that Iadimarco did not "sustain his burden of
showing the requisite background
circumstances," Dist. Ct. Op. at 6, under Harding. The court held that
"plaintiff has failed to present any evidence to
show that he was more qualified than Williams." Id. at 7. In reaching that
conclusion, the court rejected Iadimarco's
request that it examine the job applications of the two competing
candidates and find that he was more qualified than
Williams. The court stated "[p]laintiff does not . . . explain . . . how
his application exhibits that he has `superior
qualifications than Williams.' Moreover, from examining the applications,
this Court is unable to determine that plaintiff had `superior
qualifications.' " Id.5
_________________________________________________________________
4. In Harding, the court clarified that the "[b]ackground circumstances
need not mean `some circumstances in the employer's background.' " Id.
Rather, the court merely required a plaintiff who was not a member of a
"historically disfavored" group to present evidence of circumstances that
would support a finding that the challenged actions were motivated by
racial animus.

5. Iadimarco did present evidence that the Trenton plant manager, Stuart
Gossoff, who eventually hired Iadimarco, felt that the latter's
qualifications were superior to Williams'. However, the District Court
concluded that Gossoff 's opinion was irrelevant because he was not
involved in the decision to hire the In-plant Manager in Monmouth. See
Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 528 (3d Cir.
1992).
_________________________________________________________________

The District Court reasoned that the mere fact that both Pankey and Towler
were Black was "insufficient to show background circumstances supporting
the suspicion that the defendant is the unusual employer who discriminates
against the majority." Dist. Ct. Op. at 8. We agree that the race of the
selecting officials is not a sufficient circumstance to establish a prima
facie case of discrimination by itself. Although the race and/or gender of
the individual(s) responsible for a hiring decision is certainly relevant,
it is insufficient to establish a prima facie case of discrimination
without more.

In holding that Iadimarco had not presented any evidence of discrimination
other than the race of Pankey and Towler, the District Court rejected
Iadimarco's assertion that the diversity memo was a "smoking gun." See
Appellee's Br. at 22. The District Court held that the memo was
"insufficient to create the suspicion that the requisite background
circumstances existed" under Harding because the memo did nothing more
than restate policy enunciated in the Civil Service Reform Act. Dist. Ct.
Op. at 10. See also 5 C.F.R. § 720 App. to Pt. 720 at 13 ("The [Civil
Service Reform Act of 1978] establishes in law as the first merit
principle that recruitment should be designed to achieve a Federal
workforce from `all segments of society.' ").

The court also held that, assuming arguendo that Iadimarco's evidence was
sufficient to establish a prima facie case, he had not presented
sufficient evidence to allow a reasonable fact finder to conclude that the
employer's justification for hiring Williams was a pretext for illegal
discrimination. The court accepted Towler's explanation that he hired
Williams because she was "the right person for the job." Dist. Ct. Op. at
14. In doing so, the court relied in part upon the following exchange from
Towler's deposition:
Toni Williams seemed to be right for the plant at the time. She offered a
fresh approach to the work room floor. She offered a fresh approach to the
employees out there . . . I am not viewed as the gentlest person around. .
. .

The In-Plant was meant to be a buffer. The Manager In-Plant was meant to
access those people on the work room floor with the problems that they
were having. . . . A person that had the ability to interface with people.
Had no problem in what operations were out there on the work room floor.

Q: You don't think Mr. Iadimarco had these qualities?

A: I could not recall Mr. Iadimarco having exhibited those qualities when
he was here in Monmouth.

Dist. Ct. Op. at 15.

The District Court correctly noted that we have not yet decided upon the
proper expression of a prima facie case in "reverse discrimination" cases.
Accordingly, we take this opportunity to provide guidance for the trial
courts in this
Circuit.

B. The Prima Facie Case in "Reverse Discrimination"

Suits Under Title VII.

42 U.S.C. Section 2000e-2 states that:
(a) Employer Practices

It shall be an unlawful employment practice for an employer -

(1) to fail or refuse to hire or to discharge any individual, or otherwise
to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-2 (West 1997).

The Supreme Court has recognized that an employer who discriminates will
almost never announce a discriminatory animus or provide employees or
courts with direct evidence of discriminatory intent. Accordingly, the
Court fashioned the McDonnell Douglas burden-shifting analysis to allow
plaintiffs to proceed without direct proof of illegal discrimination where
circumstances are such that common sense and social context suggest that
discrimination has occurred. In the "ordinary case" where a minority
plaintiff alleges race-based employment discrimination, the plaintiff
"must carry the initial burden under the statute of establishing a prima
facie case of racial discrimination . . . . 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.

Once the plaintiff establishes a prima facie case,"the burden then must
shift to the employer to articulate some legitimate, nondiscriminatory
reason for the employee's rejection." Id. at 802. However, "the defendant
need not persuade the court that it was actually motivated by the
proffered reasons." Texas Dept. of Community Affairs v. Burdine, 450 U.S.
248, 254 (1981). For purposes of defeating a plaintiff 's motion for
summary judgment, "[i]t is sufficient if the defendant's evidence raises a
genuine issue of material fact as to whether it discriminated against the
plaintiff." Burdine, 450 U.S. at 254. If the employer offers some evidence
of a legitimate, nondiscriminatory reason then plaintiff must "be afforded
a fair opportunity to show that [employer's] stated reason for [plaintiff
's] rejection was in fact pretext." McDonnell Douglas, 411 U.S. at 804.
"The prima facie case serves an important function in the litigation: it
eliminates the most common nondiscriminatory reasons for the plaintiff 's
rejection." Burdine, 450 U.S. at 253-54.

Inasmuch as the first prong of this test requires plaintiff to establish
his or her identity as a member of a minority group, the literal
application of the test would preclude its use by White plaintiffs
alleging "reverse discrimination." In fact, the historical context of
Title VII allowed for some debate as to whether Congress intended to
extend its reach to practices that have come to be known as "reverse
discrimination." However, in McDonald v. Santa Fe Trail
Transp. Co., 427 U.S. 273, 283 (1976), Justice Marshall, writing for a
unanimous Court, stated: "[t]he Act prohibits All racial discrimination in
employment, without exception for any group of particular employees. . .
." Thus, it is now clear that the dictates of Title VII "are not limited
to discrimination against members of any particular race [and Title VII]
proscribe[s] racial discrimination in private employment against [W]hites
on the same terms as racial
discrimination against nonwhites." Id. at 278-79, 280. No doubt because of
this country's history of race relations, most Title VII plaintiffs have
been members of a minority group, and the first prong of the McDonnell
Douglas test was stated in the context of that history.

The premise underlying the varied McDonnell Douglas standards remains
unchanged. It stems from Congressional
efforts to address this nation's history of discrimination against racial
minorities, a legacy of racism so entrenched that we presume acts,
otherwise unexplained, embody its effect.

Murray v. Thistledown Racing Club, Inc., 770 F.2d   63, 67 (6th Cir. 1985).
However, the holding of Santa Fe Trail as well as   the language of
McDonnell Douglas itself clearly establishes that   the substance of the
burden-shifting analysis applies with equal force   to claims of "reverse
discrimination."

Nevertheless, courts have struggled in attempting to apply the McDonnell
Douglas burden-shifting framework to Title VII suits by White plaintiffs,
and no universally accepted statement of the appropriate standard has
emerged. The confusion arises from the wording of the very first prong of
the McDonnell Douglas test. Obviously, a White plaintiff can not establish
"membership in a minority group" in the same way a Black plaintiff can. In
an effort to "cram"6 the "reverse discrimination" cases into the McDonnell
Douglas framework, most courts of appeals that have considered the issue
require White plaintiffs to present evidence of "background circumstances"
that establish that the defendant is "that unusual employer who
discriminates against the majority," Parker v. Baltimore & O. R. Co., 652
F.2d 1012, 1017 (D.C. Cir. 1981), instead of showing minority group
status. In Parker, the court
_________________________________________________________________
6. See Eastridge v. Rhode Island College, 996 F. Supp. 161, 167 (D. R.I.,
1998) ("attempting to cram a reverse discrimination case into the
McDonnell Douglas framework is not a reasonable approach. . . ."); Cully
v. Milliman & Robertson, Inc., 20 F. Supp. 2d 636, 641 (S.D.N.Y., 1998)
(same).
_________________________________________________________________

explained the rationale for adopting that change to the traditional
McDonnell Douglas prima facie case:

The original McDonnell Douglas standard required the plaintiff to show
"that he belongs to a racial minority."
Membership in a socially disfavored group was the assumption on which the
entire McDonnell Douglas analysis was predicated, for only in that context
can it be stated as a general rule that the `light of common experience'
would lead a factfinder to infer discriminatory motive from the
unexplained hiring of an outsider rather than a group member. Whites are
also a protected group under Title VII, but it defies common sense to
suggest that the promotion of a Black employee justifies an inference of
prejudice against White co-workers in our present society.
Parker, 652 F.2d at 1017. After Parker was decided, the Court of Appeals
for the D.C. Circuit amplified its "background circumstances" modification
of McDonnell Douglas. The court stated:

The evidence that this Court has found in the past to constitute
"background circumstances" can be divided into two categories: (1)
evidence indicating the particular employer . . . has some reason or
inclination to discriminate invidiously against whites, and (2) evidence
indicating that there is something "fishy" about the facts of the case at
hand that raises an inference of discrimination.

Harding, at 153. The court also cautioned that " `background
circumstances' need not mean`some circumstances in the employer's
background.' " Rather, the court noted "[o]n the contrary, other evidence
about the `background' of the case at hand -- including an allegation of
superior qualifications -- can be equally valuable." Id. The court also
insisted that the "background circumstances" test "is not an additional
hurdle for white plaintiffs," and asserted that it was merely"a faithful
transposition of the McDonnell Douglas/Burdine test . . ." into the
context of "reverse discrimination." Id. at 154.

Despite that clarification, some courts have concluded that substituting
"background circumstances" for the first prong of McDonnell Douglas does
raise the bar, and those courts have rejected the Parker/Harding analysis
for that reason. For example, in Eastridge, the court concluded that the
Parker/Harding test "require[s] a reverse discrimination plaintiff to show
that the specific employer has displayed a pattern of discrimination
against the majority in the past [and therefore] imposes a more onerous
burden on such a plaintiff as compared to any plaintiff from any protected
group." 996 F.Supp. at 161. See also Ulrich v. Exxon Co., 824 F.Supp. 677,
683-4 (S.D. Tex. 1993) (describing the "background circumstances" test as
imposing a"heightened burden" and citing cases that have criticized it).
In Cully v. Robertson, Inc., 20 F.Supp. 2d 636, 641 (S.D.N.Y., 1998), the
court invited a comparison between Parker and Lucas v. Dole, 835 F.2d 532
(4th Cir. 1987), and described the former as requiring a "higher prima
facie burden for reverse discrimination plaintiffs" and the latter as
having "no higher prima facie burden." In Collins v. School District of
Kansas City, 727 F.Supp. 1318, 1320 (W.D. Mo., 1990), the court concluded
that the "background circumstances" test required a "special showing" of
White Plaintiffs, and rejected the test for that reason. The court also
concluded that the "unusual employer" prong of Parker established an
"arbitrary barrier which serves only to frustrate those who have
legitimate Title VII claims." Although the Court of Appeals for the Eighth
Circuit had not yet spoken on the issue, the court in Collins relied upon
Loeffler v. Carlin, 780 F.2d 1365, 1369 (8th Cir. 1985) to reason that the
court of appeals would also decline to follow the Parker line of cases. In
Loeffler, the court concluded that a male plaintiff had established a
prima facie case in a gender discrimination suit without showing any
background circumstances to suggest that the defendant was the "unusual
employer who discriminates against the majority." The Collins court
reasoned that the Court of Appeals for the Eighth Circuit would not,
therefore, adopt the heightened burden the district court believed was
endemic in the "background circumstances" inquiry. However, when the Court
of Appeals was finally called upon to address the issue of the appropriate
prima facie standard required in "reverse discrimination" cases, it did
adopt the Parker/ Harding requirement of "background circumstances." See
Duffy v. Wolle, 123 F.3d 1026 (8th Cir. 1997). In Duffy, the court had to
decide if a White male plaintiff who had alleged gender discrimination in
the context of a Bivens action7 had established a prima facie case. The
plaintiff was precluded from bringing a Title VII action by statute8 but
the court used a McDonnell Douglas analysis in analyzing the applicable
burdens in the context of a Bivens claim. In doing so, the court relied
heavily upon the Parker line of cases. The court concluded that the
plaintiff had presented evidence of at least three "background
circumstances [to] support the suspicion that [the defendant] was that
unusual employer who discriminates against the majority." Id. at 1037
(internal quotation marks omitted).

The "background circumstances" test has been adopted by the respective
circuit court of appeals in each of the
following cases: Mills v. Health Care Serv. Corp., 171 F.3d 450, 457 (7th
Cir. 1999); Duffy, 123 F.3d at 1036-37;
Reynolds v. School Dist. No. 1, 69 F.3d 1523, 1534 (10th Cir. 1995);
Notari v. Denver Water Dept., 971 F.2d 585
(10th Cir. 1992); and Murray, 770 F.2d at 66-67. However, application and
interpretation of the test has often proven difficult. In addition to the
concerns expressed by the aforementioned district courts, the Court of
Appeals for the Sixth Circuit has gone so far as to question its earlier
adoption of the test. In Murray, the district court had relied upon Parker
in concluding that the White plaintiff had failed to show the required
"background circumstances" necessary to establish his prima facie case
under McDonnell Douglas. On appeal, the Court of Appeals for the Sixth
Circuit had stated: "[w]e agree with the district court that a prima facie
case of `reverse discrimination' is established upon a showing that
`background circumstances support the suspicion that the defendant is that
unusual employer who discriminates against the majority'[.]" 770 F.2d at
67 (citing Parker). However, nine years later in Pierce v. Commonwealth
Life Ins. Co., 40 F.3d 796 (6th Cir. 1994), the same court noted that the
"background circumstances" test had been criticized for imposing a
"heightened standard," on White plaintiffs.
_________________________________________________________________
7. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971).

8. See 42 U.S.C. § 2000e-16.
_________________________________________________________________

The court then stated: "[w]e have serious misgivings about the soundness
of a test which imposes a more onerous standard for plaintiffs who are
[W]hite or male than for their non-[W]hite or female counterparts."
Pierce, 40 F.3d at 801 n. 7. However, the Pierce court did not have to
resolve the obvious tension between that pronouncement and Murray's
adoption of that test, because the plaintiff in Pierce could not meet the
second prong of the McDonnell Douglas test.

Here, as stated above, the District Court substituted the "background
circumstances" requirement for the minority group status otherwise
required under the first prong of the McDonnell Douglas test. We now
reject the"background circumstances" analysis set forth in Parker ,
Harding, and their progeny.

The prima facie case under McDonnell Douglas merely states "the basic
allocation of burdens and order of presentation of proof [under] Title
VII. . ." Burdine, 450 U.S. at 252 (1980). It raises an inference of
discrimination
only because we presume these acts, if otherwise unexplained in the
context of the prongs of the McDonnell Douglas prima facie case, are more
likely than not based on the consideration of impermissible factors. See
Furnco Const. Corp. v. Waters, 438 U.S. 567, 577 (1978). However, "[t]he
central focus of the inquiry . . . is always whether the employer is
treating some people less favorably than others because of their race,
color, religion, sex, or national origin." Id. (internal quotation marks
omitted).

Accordingly, all that should be required to establish a prima facie case
in the context of "reverse discrimination" is for the plaintiff to
present sufficient evidence to allow a fact finder to conclude that the
employer is treating some people less favorably than others based upon a
trait that is protected under Title VII.

The factual inquiry in a Title VII case is whether the defendant
intentionally discriminated against the plaintiff. In other words, is the
employer treating some people less favorably than others because of their
race, color, religion, sex, or national origin. The prima facie case
method established in McDonnell Douglas was never intended to be rigid,
mechanized, or ritualistic. Rather, it is merely a sensible, orderly way
to evaluate the evidence in light of common experience as it bears on the
critical question of discrimination.

U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983).
Stating the prima facie case in terms of "background circumstances" and
the uniqueness of the particular employer is both problematic and
unnecessary. As noted above, many of the courts that have tried to apply
such an analysis have concluded that it results in a heightened burden for
the plaintiff despite the aforementioned proclamations to the contrary by
the court that developed the test.9
The pronouncement in Harding that the analysis there did not heighten the
plaintiff's burden has not convinced several of the district courts that
have had to determine the appropriate analysis.

Moreover, the suggestion that a plaintiff must prove "background
circumstances" to establish that the defendant is a "unique employer that
discriminates against the majority" has a tendency to force the plaintiff
to initially present proof that would otherwise only become relevant to
rebut the employer's explanation of the challenged conduct. As noted
above, in Harding, the court defined "background circumstances" to
include: "(1) evidence indicating that the particular employer at issue
has some reason or inclination to discriminate invidiously against whites,
. . . and (2) evidence indicating that there is something `fishy' about
the facts of the case at hand that raises an inference of discrimination."
Harding, 9 F.3d at 153. The court further stated that the "background
circumstances" test requires a member of a majority group to proffer
evidence that the challenged actions were motivated by racial animus. But
this is the underlying inquiry in any Title VII case. Thus, the
Parker/Harding modification can undermine the basic point of the McDonnell
Douglas burden-shifting regime to make it easier for employees to bring
claims that would otherwise be extraordinarily difficult to prove. The
Supreme Court imposed the burden-shifting test to eliminate early on some
of the most common nondiscriminatory reasons for employment decisions, as
well as to place
_________________________________________________________________
9. See Harding, 9 F.3d at 154.
_________________________________________________________________

the burden of production on the party with the most access to the
employer's decision making process, i.e., the employer itself. Parker,
Harding, and their progeny go too far in amending the prima facie case to
include allegations of reverse discrimination.

Moreover, to the extent it might be argued that Harding does not go as far
as we suggest, we believe that the concept of "background circumstances"
is irremediably vague and ill-defined. For example, one of the alleged
background circumstances here is that Iadimarco was more qualified than
Williams. That can hardly be termed a "background circumstance," unless
that term is defined to include anything that suggests discrimination.
Indeed, some courts have proclaimed their adoption of the "background
circumstances" requirement as suggested by Parker and Harding, but have
further modified that test in a manner that renders the test itself
absolutely unnecessary. For example, in Notari, 971 F.2d 585 (10th Cir.
1992), the court stated:

we agree that a Title VII disparate treatment plaintiff who pursues a
reverse discrimination claim, and seeks to obtain the benefit of the
McDonnell Douglas presumption, must, in lieu of showing he belongs to a
protected group, establish background circumstances that support an
inference that the defendant is one of those unusual employers who
discriminates against the majority.
971 F.2d at 589.

However, the court then held that such a plaintiff could also establish a
prima facie case by direct evidence, or by indirect evidence that
supported afinding of discriminatory intent.

We adopt the set of prima facie case alternatives that the Fourth Circuit
has outlined. Thus, a plaintiff who presents direct evidence of
discrimination or indirect evidence sufficient to support a reasonable
probability, that but for the plaintiff 's status the challenged
employment decision would have favored the plaintiff states a prima facie
case of intentional discrimination under Title VII. Id., at 590 (emphasis
added). However, it is obvious that this alternative method of indirect
proof negates the need to ever present evidence of "background
circumstances." All that will ever be required of a White-male plaintiff
under this test is that he present sufficient evidence to support the
reasonable probability of discrimination. There is no need to embark upon
the problematic detour of showing "background circumstances."

The "Fourth Circuit" case referred to in Notari is Holmes v. Bevilacqua,
794 F.2d 142 (4th Cir. 1986). Holmes involved a Title VII suit by a Black
plaintiff who alleged that he was denied a promotion based upon his race.
After the defendant employer selected a White applicant tofill the vacant
position, the vacancy ceased to exist, and Holmes could therefore not
establish that the position remained open after his rejection as required
by the fourth prong of the McDonnell Douglas analysis. Recognizing the
practical problem created by requiring a minority plaintiff in Holmes'
position to establish a continuing vacancy, the court made a common sense
adjustment to the fourth prong and simply required plaintiff to present
"some other evidence that his race was a factor considered by his employer
in not granting him the promotion." In adopting this substituted inquiry
the court stated: "[t]here must be some evidence that race was a
determining factor in the employer's decision." Holmes, 794 F. 2d at 147.
Prior to focusing on the problem presented by the original formulation of
the McDonnell Dougas inquiry, the court had stated:

This is a disparate treatment case, and a prima facie case may be
established by direct evidence of discrimination or
by indirect evidence whose cumulative probative force, apart from the
presumption's operation, would suffice under
the controlling standard to support as a reasonable probability the
inference that but for the plaintiff 's race he would
have been promoted. Without such evidence, the claimant must resort to the
McDonnell Douglas presumption with all of its ensuing complexities.
794 F.2d at 146 (footnote omitted).

The court in Notari used this statement of a methodology of proof under
the McDonnell Douglas analysis, and then incorporated it into the
McDonnell Douglas analysis it employed to fill the interstices left by the
"background circumstances" inquiry it had adopted.

Moreover, one might contend that a "background 960<!>circumstance" must be
something in the employer's background. Such a requirement does raise the
bar for the prospective "reverse discrimination" plaintiff,
notwithstanding the denial of this limitation in Harding. Moreover, a
review of cases addressing this issue illustrates that it is difficult, if
not impossible, to come up with a definition of "background circumstances"
that is clear, neither under- nor over inclusive, and possible to satisfy.
In Stock v. Universal Foods Corp., 817 F.Supp. 1300 (D. Md. 1993), the
court replaced the "background circumstances" requirement with the
requirement that plaintiff establish "he belongs to a class." 817 F.Supp.
at 1306. In Wilson v. Bailey, 934 F.2d, 304 (11th Cir. 1991), the court
also stated Title VII requires a White plaintiff to establish that "he
belongs to a class" as the first step in establishing a prima facie case
under McDonnell Douglas. However, neither court further defined the
"class" to which it was referring. The discussion in Stock and Wilson
illustrate just how vague and problematic the Parker/Harding approach can
be. Inasmuch as everyone belongs to some "class," substituting membership
in an undefined class for membership in a minority group is tantamount to
eliminating the first prong of the McDonnell Douglas framework sub
silentio.

Moreover, the amorphous nature of "background circumstances" can lead to
jury confusion. The Title VII plaintiff needs only to present sufficient
evidence to allow a fact finder to conclude that the unexplained decision
that forms the basis of the allegation of discrimination was motivated by
discriminatory animus. It is at the pretext stage that "background
circumstances" would normally be introduced. Courts struggling with
"cramming" the "background circumstances" inquiry into thefirst prong of
McDonnell Douglas may well require "pretextual" evidence as part of   the
plaintiff 's initial evidence. Such evidence may be relevant to the
"background circumstances" surrounding the claim of discrimination or to a
finding that defendant is an employer that is likely to discriminate. The
result is the "heightened burden" many district courts have criticized and
that Harding disclaimed.

Accordingly, rather than require "background circumstances" about the
uniqueness of the defendant employer, a plaintiff who brings a "reverse
discrimination" suit under Title VII should be able to establish a prima
facie case in the absence of direct evidence of discrimination by
presenting sufficient evidence to allow a reasonable fact finder to
conclude (given the totality of the circumstances) that the defendant
treated plaintiff"less favorably than others because of [his] race, color,
religion, sex, or national origin." Furnco, 438 U.S. at 577. With this
standard in mind, we turn to the evidence Iadimarco presented to support
his Title VII claim.10
_________________________________________________________________
10. Judge McKee believes that the approach set forth in Parker and Harding
is merely a restatement of the McDonnell Douglas test just as the Court of
Appeals for the D.C. Circuit intended it to be. He concludes that
"[I]nvidious discrimination against[W]hite [men] is relatively uncommon in
our society, and so there is nothing inherently suspicious in an
employer's decision to promote a qualified minority [or female] applicant
instead of a qualified [W]hite[male] applicant." Harding, 9 F.3d at 153.
In his view, requiring a White male plaintiff to show certain "background
circumstances" merely requires that plaintiff to present some evidence
from which a reasonable fact finder could conclude that it is more likely
than not that the unfavorable employment decision is the result of
discriminatory animus. Judge McKee's belief is based in part upon
Livingston v. Roadway Exp., Inc., 802 F.2d 1250, 1252 (10th Cir. 1986),
set forth above, wherein the court explained:

the presumptions in the Title VII analysis that are valid when the
plaintiff belongs to a disfavored group are not necessarily justified when
the plaintiff is a member of an historically favored group. Accordingly,
when a plaintiff who is a member of a favored group alleges disparate
treatment, the courts have adjusted the prima facie case to reflect this
specific context by requiring a showing of background circumstances
[which] support the suspicion that the defendant is that unusual employer
who discriminated against the majority.

Accordingly, Judge McKee concludes that the Court of Appeals for the D.C.
Circuit is correct in stating that the
"background circumstances" test "is not an additional hurdle for [W]hite
plaintiffs." Harding, 9 F.3d at 154. He agrees with that court's belief
that the test is merely "a faithful transposition of the McDonnell Douglas
/Burdine test . . ." into the context of "reverse discrimination," Id. at
154, so long as the analysis of "background
circumstances" and the "uniqueness" of the employer is undertaken in the
manner intended by the Court of Appeals
for the D.C. Circuit.

However, even though Judge McKee believes the test to merely be a
restatement of McDonnell Douglas, he
concedes that it is just too vague and too prone to misinterpretation and
confusion to apply fairly and consistently. He agrees that the approach
the court adopts today allows for less confusion and more consistency than
the
Parker/Harding approach.

_________________________________________________________________

1. Iadimarco's Evidence of Discrimination

As noted above, Ms. Williams, a Black female, was given the position
Iadimarco applied for. It is undisputed that Iadimarco had received a
ranking of "superior" in each KSA category, and that he was the only
candidate to be so ranked when the Monmouth position was filled. Williams
never received nor requested a KSA rating. As we also noted above, Towler
based his failure to hire Iadimarco on the fact that the other two
candidates who received a "superior" KSA rating had already taken other
positions and he (Towler) did not want to simply promote Iadimarco by
default. Although that may be true, the fact that Towler then offered the
position to someone who had no KSA rating at all certainly raises
suspicions. Towler did not simply recruit more applicants to compete with
Iadimarco. Rather, he recruited an additional applicant who wasn't even
evaluated using the KSA matrix. Moreover, Williams' application was
submitted after the deadline for applications had passed. In addition,
Iadimarco had previously been In-Plant manager in Trenton, and therefore
had experience as an In-Plant manager. Williams did not.

Most importantly, however, Iadimarco argues that he was told that an
engineering background was a prerequisite for the position of In-Plant
Manager at Monmouth. He had an engineering degree, and he alleges Williams
did not have one. Thus, although the employer may well have had legitimate
reasons for subsequently focusing on the applicant's human relations
skills, this does not explain why the initial focus on engineering
backgrounds was abandoned as Williams' candidacy emerged

Additionally, we must view these circumstances in light of Pankey's
diversity memo. In doing so, we caution that the memo is not, in and of
itself, sufficient to establish a prima facie case of illegal
discrimination. An employer has every right to be concerned with the
diversity of its workforce, and the work environment. Here, however, we
must draw all inferences in favor of Iadimarco, the nonmovant for summary
judgment. In doing so, we assume that Pankey did write the memo that he
signed and distributed even though he subsequently attempted to distance
himself from it. As noted above, Pankey admitted that he signed the memo,
but stated that it was nothing more than a "carbon copy" of a memo he had
received from headquarters. However, defendants were unable to produce any
such memo from headquarters. A reasonable fact finder could conclude that
Pankey was not credible, and that his attempt to deny authorship of the
memo was consistent with Iadimarco's allegations of bias.

A reasonable fact finder could also find Towler's denial that he had
interviewed Iadimarco significant. Towler originally conceded that
Iadimarco had been interviewed for the position, but later denied that any
interview had occurred. Rather, he dismissed his discussion with Iadimarco
by asserting that it was merely a "conversation."11 In Bray v. Marriott
Hotels, 110 F.3d 986 (3d Cir. 1997), the employer denied interviewing the
plaintiff/applicant, but we held that conflicting evidence about the
existence of an interview created a genuine issue of material fact. See
id. at 992
_________________________________________________________________
11. Q: Okay. The conversation that you had with him, was it a direct
result of him asking you could he come up to talk to you about the job?

A: Yes.

Q: Was it your own opinion to interview him for the job?

A: I can't say it was an interview. We had a conversation referencing
that particular position.
The Court: Face-to-face conversation?

The Witness: A face-to-face conversation.

App. at 83HH (Towler's testimony).
_________________________________________________________________

 ("there is no testimony to support either conjecture, and, even if there
were, it would be up to a jury to reconcile the conflicting testimony
surrounding [plaintiff's] interview and the ranking of candidates.").

Here, the District Court thought it significant that, except for Williams,
all of the supervisors that Towler hired were
White. See Dist. Ct. at 8-9; App. at A197 (noting that "out of the twenty-
seven plant managers hired, 74% of them
were [W]hite males."). The District Court reasoned that this suggested
that Towler did not discriminate against
Whites who applied to be supervisors. However, the inquiry is not whether
Towler and/or Pankey discriminated
against Whites in general, but whether they illegally discriminated
against Iadimarco.

A fact finder clearly could look at the number of White supervisors Towler
had hired and conclude that it suggested
that he treated Iadimarco fairly. However, a fact finder could also
conclude that Towler tried to manipulate the
process to hire Williams because he had already hired many White
supervisors. We cite this evidence not to suggest
our view of it, but because it shows that there are disputed issues of
material fact.12 "Summary judgment is precluded if a disputed fact exists
which might affect the outcome of the suit under the controlling
substantive law." Bray, 110 F.3d at 990 (citations and internal quotation
marks omitted). "A dispute regarding a material fact is genuine `if the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party.' " Josey, 996 F.2d at 637 (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); Fed.R.Civ.P. 56(c)).

The Postal Service has argued that Iadimarco's claim must fail because he
accepted another job before Williams was hired. That argument is based on
Iadimarco's acceptance of the position of Operations Support Specialist in
the Trenton facility in early March or April 1993. See Dist. Ct. Op. at 3.
Iadimarco counters by explaining that he
_________________________________________________________________
12. Nor do we mean to infer that Iadimarco was more or less qualified than
Williams. We take no position as to the
respective qualifications of those two employees. only accepted the other
position because it was becoming clear to
him that Pankey wanted to fill the In-Plant Manager position with
Williams.

It defies all logic to hold that an alleged victim of discrimination is
precluded from recovering damages under Title VII merely because he or she
accepted another position after concluding that racial bias would govern
the challenged hiring decision. If that were the law, an employer could
freely discriminate by dillydallying until the discrimination victim was
forced to take another position. The employer could then insulate itself
from its discriminatory animus, and reap the fruits of its bias merely by
arguing that the applicant had removed himself or herself from
consideration. That would protect and reward the unscrupulous employer
willing to delay ultimate hiring decisions in order to force the unwanted
applicant to look elsewhere. Accordingly, we hold that the District Court
erred in ruling that Iadimarco failed to establish a prima facie case of
illegal race discrimination under Title VII.

However, that conclusion does not end our inquiry. The District Court
ruled that even if Iadimarco had established a
prima facie case, the Postal Service presented a race- neutral explanation
for its decision to hire a Black female, and
Iadimarco had not met his burden of presenting sufficient evidence of
pretext to rebut it. Accordingly, we will examine what, if any, evidence
of pretext Iadimarco presented.

2. Pretext

"[T]o defeat summary judgment when the defendant answers the plaintiff 's
prima facie case with legitimate, non-discriminatory reasons for its
action, the plaintiff must point to some evidence, direct or
circumstantial, from which a fact finder could reasonably either (1)
disbelieve the employer's articulated legitimate reasons; or (2) believe
that an invidious discriminatory reason was more likely than not a
motivating or determinative cause of the employer's action." Fuentes v.
Perskie, 32 F.3d 759, 764 (3d Cir. 1994) (emphasis added). However, "if
the plaintiff has pointed to evidence sufficient[ ] to discredit the
defendant's proffered reasons, to survive summary judgment the plaintiff
need not also come forward with additional evidence of discrimination
beyond his or her prima facie case ." Id. (emphasis added).

In Fuentes, we held: "to avoid summary judgment, the plaintiff's evidence
rebutting the employer's proffered legitimate reasons must allow a
factfinder reasonably to infer that each of the employer's proffered non-
discriminatory reasons . . . was either a post hoc fabrication or
otherwise did not actually motivate the employment action." Id. (citations
omitted). The complainant must show "such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer's
proffered legitimate reasons for its action that a reasonable factfinder
could rationally find them`unworthy of credence,' and hence infer `that
the employer did not act for [the asserted] non-discriminatory reasons.' "
Id. at 765 (citing Ezold, 983 F.2d at 527).

"The plaintiff must be given the opportunity to introduce evidence that
the proffered justification is merely a pretext for discrimination."
Furnco, 438 U.S. at 577. Where the plaintiff does offer evidence that
would allow reasonable minds to conclude that the evidence of pretext is
more credible than the employer's justifications, the employer's motion
for summary judgment must fail. White v. Westinghouse Elec. Co., 862 F.2d
56, 62 (3d Cir. 1989) ("[i]n the context of a motion for summary judgment,
the District Court cannot decide issues of fact").
Here, the District Court held:

when examining the "overall scenario" in the matter at hand, plaintiff has
not presented evidence such that a factfinder could reasonably disbelieve
defendant's articulated legitimate reasons or that an invidious
discrimination reason was more likely than not a determinative cause of
defendant's actions. In light of the objective evidence presented in the
record, no reasonable factfinder could conclude that defendant's
articulated reasons for not selecting plaintiff were pretextual.
Consequently, defendant's motion for summary judgment will be granted.
Dist. Ct. Op. at 19. However, based upon all the evidence we have already
mentioned in our discussion of Iadimarco's prima facie case, we believe
that this record clearly allows a reasonable fact finder to conclude that
the proffered explanation was a pretext for race-based discrimination. See
Fuentes, 32 F.3d at 764.

The District Court accepted Towler's explanation for hiring Williams. The
court capsulized that explanation as follows:
" [Towler] did not believe that plaintiff was the right person for the
job." Dist. Ct. Op. at 14. As we noted above,
Towler explained that Williams "seemed to be right for the plant at the
time." Id. at 15. This was based upon Towler's purported belief that the
position in question required someone with a human resources dynamic that
Williams had, and Iadimarco lacked.

However, an employer can not successfully defend a hiring decision against
a Title VII challenge merely by asserting that the responsible hiring
official selected the man or woman who was "the right person for the job."
The problematic nature of such an explanation is most easily seen in the
context of discrimination against a minority or female applicant. Such an
applicant may never be the "right person for the job" in the eyes of one
who feels that the job can only be filled by a White male. The biased
decision maker may sincerely believe that the White male who was offered
the job was the right person, and minority and female candidates who were
rejected were simply wrong for the job. The mere fact that one who
discriminates harbors a sincere belief that he hired the "right person"
can not masquerade as a race-neutral explanation for a challenged hiring
decision. Such a belief, without more, is not a race-neutral explanation
at all, and allowing it to suffice to rebut a prima facie case of
discriminatory animus is tantamount to a judicial repeal of the very
protections Congress intended under Title VII. Here Towler's professed
belief that he hired Williams because she was "right for the job" can not,
by itself, be accepted as an adequate race- neutral explanation for
rejecting Iadimarco. Accordingly, the District Court erred in concluding
that Iadimarco had not come forward with sufficient evidence to allow a
factfinder to believe that the defendants' explanation of this personnel
decision was pretextual.

III. Conclusion

For the reasons set forth herein, we hold that Iadimarco did establish a
prima facie case of employment discrimination, and that there was a
genuine issue of material fact as to whether the proffered explanation for
not hiring him was a pretext for illegal discrimination. Accordingly, we
will reverse and remand for proceedings consistent with this opinion.

A True Copy: Teste:

Clerk of the United States Court of Appeals for the Third Circuit 26

FOOTNOTES
