In the
United States Court of Appeals
For the Seventh Circuit

No. 99-4068

LEROY GORDON,

Plaintiff-Appellant,

v.

UNITED AIRLINES, INCORPORATED,

Defendant-Appellee.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 1378--Harry D. Leinenweber, Judge.


Argued May 16, 2000--Decided March 29, 2001



  Before EASTERBROOK, RIPPLE and ROVNER, Circuit Judges.

  RIPPLE, Circuit Judge. Leroy Gordon, a
probationary flight attendant for United
Airlines, Inc. ("United"), was released from his
employment by the company on the ground that he
had deviated without authority from his flight
schedule when he did not fly a scheduled flight
from Los Angeles to Seattle. The company decided
that this violation of its policy, when
considered in light of Mr. Gordon’s overall work
performance, warranted no lesser sanction. Mr.
Gordon then filed this action in the district
court; he alleged that United discriminated
against him because of his race, in violation of
Title VII of the Civil Rights Act of 1964, 42
U.S.C. sec. 2000e et seq., and in violation of 42
U.S.C. sec. 1981, and because of his age in
violation of the Age Discrimination in Employment
Act, 29 U.S.C. sec. 623. The district court
granted summary judgment for United, and Mr.
Gordon now appeals. For the reasons set forth in
the following opinion, we reverse the judgment of
the district court and remand the case for
proceedings consistent with this opinion.

I
BACKGROUND
A. Facts

  Leroy Gordon, an African-American male over 40
years of age, claims that United discriminated
against him because of his race and his age when
it terminated his employment as a probationary
flight attendant. United, however, asserts that
Mr. Gordon committed a violation of company
policy. According to United, that violation, when
coupled with his work history, justified its
decision to release Mr. Gordon from his position
as a probationary flight attendant.

1.

  Mr. Gordon began working at United as a Baggage
Systems Operator in 1995. While working in this
position, he received a Notice of Concern because
he had 21 incidents of tardiness and 2 absences.
Mr. Gordon questioned the validity of the
allegations in this notice, but he was told that
the notice would not be placed in his personnel
file.

  Mr. Gordon then applied for and received a
transfer to United’s flight attendant ("FA")
program in 1996. While in training, he was 20
minutes late for a training exercise, which
resulted in an incident report for failing to
meet minimum dependability requirements. Mr.
Gordon claims that, at that time, he was told the
incident would not be made a part of his
personnel record as long as there were no
reoccurrences. He graduated from his training
class in February 1997 and then started as a
probationary flight attendant ("PFA") at Chicago
O’Hare International Airport ("O’Hare"). Mr.
Gordon states that his supervisor, Gina
Siemieniec, told him that she would not consider
his training records when evaluating him as a
PFA.

  In May 1997, United confronted Mr. Gordon with
a check it had received from him that had been
returned due to insufficient funds. Mr. Gordon
had written the check in July 1996, while he was
still a Baggage Systems Operator, and he claims
that he thought his bank already had taken care
of the matter. United informed Mr. Gordon that,
if he did not pay immediately, he would be
subject to disciplinary action. Mr. Gordon
promptly paid. Siemieniec, who brought the matter
to Mr. Gordon’s attention, stated that the
situation was not serious and was not relevant to
his performance as an FA.

  Mr. Gordon’s next problem at United occurred in
June 1997 when a United passenger reported that
no pre-landing safety announcement had been made
on his flight. The First FA is the person
responsible for making the announcement, and, on
this particular flight, Mr. Gordon was the First
FA. In response to the passenger’s complaint,
Siemieniec asked Mr. Gordon for a written report.
In that report, Mr. Gordon wrote, "I believe the
prearrival announcement was made by [the Second
FA], just before I was about to make it." R.21,
Ex.27. Mr. Gordon claims that he was assisting a
wheelchair passenger and was about to make the
announcement when the Second FA made it. Indeed,
he asserts that the Second FA made the
announcement early. According to Siemieniec, she
did not issue Mr. Gordon a warning because she
decided to overlook the matter.

  Finally, United claims that Mr. Gordon was
unresponsive to Siemieniec’s requests for Mr.
Gordon to meet with her. Mr. Gordon asserts that
he had attempted to visit her, but that both he
and Siemieniec had unusual schedules. Siemieniec
responded that the PFAs bore the responsibility
for making an appointment to meet with her if
they were unable to find her in her office.

  We note several other relevant factors about Mr.
Gordon’s record at United. First, while a PFA,
Mr. Gordon never received an "Interim
Evaluation." An Interim Evaluation typically is
given to an employee for substandard performance.
After the employee receives the first Interim
Evaluation, the second incident of unacceptable
conduct by the employee will result in
termination. Moreover, in Mr. Gordon’s five-week
reviews, no problems were ever documented.
Finally, Mr. Gordon received awards as a PFA,
including PRIDE awards for perfect attendance and
Service in Every Sense awards for above-average
customer service.

2.

  The incident that led to Mr. Gordon’s
termination occurred on August 5-6, 1997. On
August 5, Mr. Gordon was assigned to work a
flight from O’Hare to Portland, Oregon, and then
to fly deadhead (fly but not work) to Los Angeles
International Airport ("LAX"). Once in Los
Angeles, he was to be reassigned. When he arrived
at LAX, he received his next assignment--a flight
from Los Angeles to Seattle--that was to begin 21
hours later. He then was transported to a Days
Inn where United had assigned him to stay the
night so that he could rest before his next
scheduled flight. In a report Mr. Gordon later
wrote about the incident, he explained that he
had experienced problems with his motel room at
the Days Inn:

I was [given] a ground level unit. This is a
drive up style motel, there was a car backed up 3
to 5 feet from my door with the engine running,
so when I entered the room there were exhaust
fumes present. (The car moved a short time later,
but the smell remained). It was a very hot night
in L.A. ([around] 90). The room had one window
style air conditioning unit in the living room,
but none in the bedroom. The carpet was dirty,
there were holes in the walls, and insects flying
around the room. There were what appeared to be
unsecured window in the bathroom and kitchen
sections, and there was one TV set in the living
room, (with no remote control). I did not feel
this room was safe, sanitary or acceptable. I
also was under the impression the flight
attendant union agreement would not allow FA to
be housed on first floor units for security
reasons.

R.21, Ex. 30 at 1-2./1 He attempted to move to
another room, but the Days Inn did not have one
available. He called the United Crew Desk at LAX
for help finding a room in a different hotel, but
he was told that none were available at that
time. Mr. Gordon also spoke with United’s
National Crew Desk which was unable to help him.

  Mr. Gordon then returned to LAX. Upon arriving
at the airport, he discovered that the United
Crew Desk had closed. At this point, Mr. Gordon
decided to take a red-eye flight from Los Angeles
back to Chicago. As he explained in his report,
"I thought this would give me an opportunity to
shower, change clothes, and still return to LAX"
in time to work his next scheduled flight. Id. at
2. He arrived at O’Hare at 6 a.m. on August 6, 14
hours before his scheduled flight from Los
Angeles to Seattle.

  In this litigation, United concedes that, at
this point, Mr. Gordon had done nothing to
warrant sanctions. If he had returned to Los
Angeles and made his scheduled assignment, he
would not have been terminated. As United states:
"It is true that if Plaintiff had returned to Los
Angeles and flown his scheduled flight, he would
not have been subject to discipline." Appellee’s
Br. at 16. However, Mr. Gordon did not return to
Los Angeles to work his scheduled flight.

  Once Mr. Gordon returned to O’Hare, he checked
in with the United Crew Desk and spoke to the
Crew Desk Supervisor, Henry Velasco. According to
Mr. Gordon’s report, he explained the hotel
problems to Velasco and "asked if [he] should
return to work the trip [from Los Angeles to
Seattle], or if [he] could be excused from the
[trip] because [he] had not had a legal rest."/2
R.21, Gordon’s Report to Siemieniec, Ex.30 at 4.
Mr. Gordon informed Velasco that, if his request
presented a problem, he would return to Los
Angeles to make his assigned flight. Velasco told
him that it would not be safe for him to return
to Los Angeles that day and that it was not a
problem to take him off the assignment, Mr.
Gordon wrote, but that he should discuss the
situation with his supervisor. Mr. Gordon also
explained in his report that he was not sure that
the Crew Desk understood his request, that is,
that he would be commuting to Los Angeles and not
that he would be working a flight to Los Angeles.
Finally, as Mr. Gordon concluded in his written
report, "my improper deviation was unintentional.
. . . This mistake was caused by my lack of
understanding of the regulations, but my intent
was not malicious in any manner." Id. at 3.

  Velasco also wrote a report for Siemieniec that
discussed the incident. In that report, he
explained that Mr. Gordon had been unhappy with
his hotel and had been unable to contact the LAX
Crew Desk. Velasco then wrote that Mr. Gordon had
"decided to DV8 from LAX back to ORD [O’Hare]
without authorization from any crew desk." R.21,
Ex.32. Once at Chicago, the report continued, Mr.
Gordon advised the O’Hare Crew Desk "that he was
illegal to continue flying, as he had not had a
legal rest at his original layover point at LAX."
Id. Velasco stated that he explained the
complications of this action and told Mr. Gordon
that he needed to speak with his supervisor. The
report also mentioned that Mr. Gordon offered to
return to LAX to pick up the balance of his
assignment. As the report noted, "I explained
that I could not have him flying knowing that he
had not had a rest, and would not jeopardize the
safety of his flying partner, the safety of the
customer, and the company." Id. Thus, Velasco
wrote, he removed Mr. Gordon from the remainder
of his scheduled assignment and told him to
contact his supervisor.

  The deposition testimony of Velasco, although
confusing, states that his role as supervisor of
the Crew Desk merely consisted of documenting the
actions of the PFAs and providing their
supervisors with information about what had
happened during their assignment. Yet, at his
deposition, Velasco testified that he had told
Mr. Gordon that the idea of Mr. Gordon’s
returning to Los Angeles was a safety issue
because Mr. Gordon could jeopardize the safety of
his flying partners, the customers on the flight,
and United. Moreover, Velasco stated that he
placed a Did Not Fly ("DNF") notation on Mr.
Gordon’s flight calendar. A DNF notation,
according to Velasco, could mean any number of
things, including a violation of United’s rules.
His role, he said, was merely to advise his
immediate supervisor of the occurrence of the
DNF.

  Before Siemieniec discharged Mr. Gordon, she
consulted United’s acting department manager,
James Younglove, for advice on handling Mr.
Gordon’s situation. Although Younglove stated Mr.
Gordon’s conduct "in and of itself [was]
disciplinary in nature," Younglove advised
Siemieniec to look at his entire record to
ascertain whether any factors suggested that he
was an exceptional employee that should be
retained or that he had a history of problems
that indicated they should not retain him. R.21,
Ex.15 at 21. As Younglove explained, he would
ask:

Is this someone that has made several mistakes
and I shouldn’t spend a lot of time on,
truthfully? Or is this somebody that is an
exceptional employee; that I’m looking to find
out if there’s anything available to us that’s
out of the norm with this individual? Is there
any problems dealing with family that we’re aware
of that the employee has brought to our attention
that would have placed him in this position.

Id. at 19-20.

  Siemieniec considered the incident of Mr.
Gordon’s missed flight and reviewed Mr. Gordon’s
entire work history with United when making her
decision to release Mr. Gordon. After reviewing
Mr. Gordon’s record, she released him from his
position as a probationary flight attendant. Mr.
Gordon thereafter filed this action for
discrimination.

B.   Proceedings in the District Court/3

  The district court granted summary judgment to
United after determining that Mr. Gordon had
failed to establish a prima facie case of
discrimination. First, the court discussed the
elements required for a plaintiff to survive
summary judgment when he is attempting to prove
discrimination indirectly./4 Under the burden-
shifting standard applied to discrimination
cases, the court explained, a plaintiff first
must make out a prima facie case of
discrimination by the employer. To make out a
prima facie case, the court stated, Mr. Gordon
must show "(1) he is a member of a protected
class, (2) his job performance was sufficient to
meet his employer’s legitimate expectations, (3)
his employer took an adverse employment action
against him and (4) he was treated less favorably
than similarly-situated, non-protected
employees." R.33 at 8. Once the plaintiff has
established a prima facie case, the burden then
shifts to the employer to proffer a legitimate,
nondiscriminatory reason for its adverse
employment action. Finally, the court explained,
the burden shifts back to the plaintiff, who must
show that the stated reason given by the employer
is a pretext for discrimination.
  Next, after noting that the parties agreed that
Mr. Gordon falls within a protected class for
both his race discrimination and age
discrimination claims, the court turned to the
second factor for establishing a prima facie
case: "[W]hether Gordon has raised a genuine
issue of material fact such that a reasonable
jury could find that Gordon’s job performance was
sufficient to meet United’s legitimate
expectations." R.33 at 9. According to the court,
to establish a prima facie case, "the plaintiff
cannot generally aver that he was meeting the
employer’s legitimate expectations; rather, the
plaintiff must ’specifically refute the facts
which allegedly support the employer’s claim of
deficient performance.’" Id. (quoting Sirvidas v.
Commonwealth Edison Co., 60 F.3d 375, 378 (7th
Cir. 1995)).

  The court stated that Mr. Gordon was unable to
show that he was fulfilling United’s legitimate
expectations at the time it released him from its
employment. The court noted that Mr. Gordon
received a Notice of Concern while a baggage
handler, that he arrived late once while in
training, that he wrote a check for insufficient
funds, that he did not issue a pre-landing safety
announcement, and that, in his terminating event,
he deviated from his schedule without
authorization. Although Mr. Gordon argued that he
should have received only a "missed flight"
warning for the terminating event, the court
stated that United had explained that a missed
flight designation was only for an incident that
was accidental or was outside the FA’s control.
The court pointed out that, in Foster v. Arthur
Andersen, LLP, 168 F.3d 1029, 1035 (7th Cir.
1999), we had warned that discrimination laws do
not prevent employers from making adverse
employment decisions although the employee may
think the infraction is de minimis. As the court
concluded, "Gordon admitted to not following
United procedure on several occasions;
consequently, as a matter of law, Gordon has not
shown that he satisfied United’s legitimate
expectations."/5 R.33 at 10. The court then
granted summary judgment for United.

II
DISCUSSION
A. Standard of Review

  We review de novo the district court’s grant of
summary judgment for United and, viewing the
facts in the light most favorable to Mr. Gordon,
draw our own conclusions of law and fact from the
record before us. See Downs v. World Color Press,
214 F.3d 802, 805 (7th Cir. 2000); Sarsha v.
Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir.
1993). A grant of summary judgment is proper only
when there is no genuine issue of material fact
and the moving party is entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56(c); Sarsha,
3 F.3d at 1038.

B. McDonnell Douglas Indirect Method of
Proof
1.

  A plaintiff may show that his employer
discriminated against him because of his race or
his age by using the burden-shifting method set
forth by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973)./6

  Under McDonnell Douglas, a plaintiff first must
establish a prima facie case of
discrimination./7 A plaintiff establishes a
prima facie case of discrimination by
demonstrating that: (1) he belongs to a protected
class, (2) he performed his job according to his
employer’s legitimate expectations, (3) he
suffered an adverse employment action, and (4)
similarly situated employees outside the
protected class were treated more favorably by
the defendant. See Pitasi, 184 F.3d at 716;
Sirvidas, 60 F.3d at 377; Hughes v. Brown, 20
F.3d 745, 746 (7th Cir. 1994). Once the plaintiff
has established his prima facie case, a
presumption of discrimination arises, and the
burden shifts to the defendant to come forward
with evidence of a legitimate, nondiscriminatory
reason for discharging the plaintiff. See Pitasi,
184 F.3d at 716./8 If the defendant meets its
burden, the burden shifts back to the plaintiff
to show that the defendant’s stated reason for
the adverse action was a pretext for
discrimination. See McDonnell Douglas, 411 U.S.
at 804; Stewart, 207 F.3d at 376; Pitasi, 184
F.3d at 716. If the plaintiff meets his
respective burdens under McDonnell Douglas,
summary judgment is inappropriate; a plaintiff
need not come forward with direct evidence of
discrimination in order to survive summary
judgment. See Vanasco v. National-Louis Univ.,
137 F.3d 962, 965 (7th Cir. 1998) ("The plaintiff
may prove her case in one of two ways--through
direct evidence or via the indirect burden-
shifting method of McDonnell Douglas . . . .
Under either method, summary judgment is improper
if the plaintiff offers evidence from which an
inference of age discrimination may be drawn.")
(internal quotation marks and citations omitted).

2.

  At the outset, we note that not all elements of
the McDonnell Douglas analysis are at issue. The
parties do not dispute that Mr. Gordon belongs to
a protected class or that he suffered an adverse
employment action. Therefore, in determining
whether Mr. Gordon has established a prima facie
case, we need to consider only (1) whether Mr.
Gordon was meeting the legitimate expectations of
United at the time of his discharge and (2)
whether similarly situated employees outside the
protected class were treated more favorably. See
Pitasi, 184 F.3d at 716.

a.

  We first turn to whether Mr. Gordon was meeting
the legitimate expectations of United. As we have
pointed out on several occasions, this issue of
satisfactory job performance often focuses on the
same circumstances as must be scrutinized with
respect to the matter of pretext./9
Consequently, we will address the issue more
comprehensively when we discuss pretext.
Nevertheless, several factors ought to be pointed
out here.

  First, to put it mildly, United has not spoken
with one voice in defining what sort of activity
by a flight attendant constitutes an unauthorized
deviation. The record discloses a distinct
inability on the part of United’s management to
provide any consistent definition. Different
individuals in management positions articulated
very different views on what sort of activity on
the part of an employee constituted this
violation of United’s Code of Conduct. Indeed, it
is no wonder that United had difficulty in
articulating a definition because, apparently, it
had charged an employee with this offense only
once before (and, in the prior situation,
determined that discharge of the employee was not
appropriate).

  We ordinarily would defer to the definition of
the decision-maker in such a situation. However,
the material before us on summary judgment is
clearly susceptible to the interpretation that
the individual who made the decision to terminate
Mr. Gordon actually came to no independent
conclusion on the matter but simply accepted the
conclusion of lower ranking administrative
personnel on this important, indeed key,
definitional matter. Even if we were to assume
that the decision-maker applied her own
definition of unauthorized deviation, it is not
at all clear that Mr. Gordon committed such an
infraction. His account of his conversation with
Velasco certainly would permit the trier of fact
to conclude that he believed in good faith that
he had sought and had been granted permission not
to fly the LAX to Seattle leg that he had been
assigned previously.
  In short, the invocation of an offense that, to
this day, United has difficulty defining, the
lack of any clear management decision that Mr.
Gordon’s conduct violated clearly established
norms, and Mr. Gordon’s detailed account that he
acted only with the permission of those
responsible for the coordination of flight
attendant assignments raise a genuine issue of
material fact as to whether he had deviated at
all from permissible patterns of behavior for
flight attendants.

  Finally, United points to incidents in Mr.
Gordon’s work history at United to support its
contention that Mr. Gordon was not performing
satisfactorily. When combining his work record
with his unauthorized deviation, United asserts,
it is clear that Mr. Gordon fails to meet this
aspect of his prima facie case. Here too,
however, there is a dispute as to whether United
deviated from its established policy in
considering past incidents after it had assured
Mr. Gordon that these incidents would not be a
matter of record. Mr. Gordon claims that his work
record was not supposed to contain a notation of
these incidents, and indeed, that United
affirmatively had assured him that these matters
would not be used in evaluations of his
performance as a PFA. Moreover, Mr. Gordon
asserts that all but one of these incidents were
not relevant to his performance as a PFA. The
remaining incident, his failure to provide the
safety announcement when he was the First FA was
not, according to Mr. Gordon, an infraction. Not
only did Siemieniec tell Mr. Gordon that she
would not include a report on the incident in his
record, but the reports from the other FAs on the
flight also indicate that Mr. Gordon did nothing
wrong. Furthermore, United’s rules of procedure
state that both the First FA and the Second FA
are responsible for giving the announcement.
Here, the Second FA explained that she had given
the announcement and admitted that she had given
it early. Therefore, viewing the record in the
light most favorable to Mr. Gordon, his personnel
file should not have contained a record of any
infractions. His personnel file did show,
however, many commendations. Consequently, a
trier of fact could conclude on this record that
Mr. Gordon was performing up to United’s
expectations.

b.

  The fourth prong of the McDonnell Douglas
analysis requires that Mr. Gordon establish that
similarly situated employees outside the
protected class were treated differently. We
conclude that there is a genuine issue of triable
fact on this matter as well. Mr. Gordon points to
two different groups of similarly situated, non-
protected employees who were treated more
favorably than he. First, he and only one other
PFA in United’s history have been charged with
"unauthorized deviation." The other PFA to
receive such a designation was a white female,
and United did not discharge her after her
unauthorized deviation. Instead, it issued her a
warning and allowed her to remain with United.
Despite the absence of any warnings in his
record, Mr. Gordon was terminated for the same
conduct that resulted in only a warning for a
white female employee. Although United suggests
that the other PFA’s conduct was far less
intentional, that conclusion is dependent upon
the trier of fact’s interpretation of Mr.
Gordon’s encounter with Velasco. As we already
have noted, this encounter is open to different
interpretations.

  Indeed, several other employees may well have
been similarly situated to Mr. Gordon. These
flight attendants all had missed flights
unintentionally. If a trier of fact were to
determine that Mr. Gordon had missed his assigned
flight unintentionally--a conclusion supportable
by the record--, he is similarly situated to
these employees but was treated less favorably
than they./10 Indeed, unlike Mr. Gordon,
several of these PFAs already had warnings in
their records at the time of their missed
flights; United nevertheless characterized their
actions as "missed flights" instead of
"unauthorized deviations." A trier of fact
reasonably could determine that Mr. Gordon, like
the other flight attendants, simply missed a
flight but was treated differently from the other
flight attendants. Drawing all reasonable
inferences in Mr. Gordon’s favor, we must
conclude that Mr. Gordon has demonstrated that
there is a genuine issue of triable fact as to
whether similarly situated employees outside the
protected class were treated differently.

3.

  Assuming that United has offered a facially
legitimate reason for Mr. Gordon’s discharge, his
unauthorized deviation, we now turn to whether
Mr. Gordon has demonstrated that United’s stated
reason is a pretext for discrimination. See
McDonnell Douglas, 411 U.S. at 804; Stewart, 207
F.3d at 376; Pitasi, 184 F.3d at 716.

a.

  To show pretext, Mr. Gordon bears the burden of
demonstrating that United’s ostensible
justification for its decision is unworthy of
credence. See Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 143 (2000); Adreani
v. First Colonial Bankshares Corp., 154 F.3d 389,
395 (7th Cir. 1998); see also Sanchez v.
Henderson, 188 F.3d 740, 746 (7th Cir. 1999)
(stating that a plaintiff can show pretext "by
showing that the employer’s proffered reason was
not worthy of belief"), cert. denied, 528 U.S.
1173 (2000). Mr. Gordon may make the requisite
showing by providing "evidence tending to prove
that the employer’s proffered reasons are
factually baseless, were not the actual
motivation for the discharge in question, or were
insufficient to motivate the discharge." Adreani,
154 F.3d at 395 (internal quotation marks and
citations omitted); see also Sanchez, 188 F.3d at
746.

  If United honestly believed its reason for
discharging Mr. Gordon, Mr. Gordon cannot meet
his burden. See Roberts v. Separators, Inc., 172
F.3d 448, 453 (7th Cir. 1999). This is true even
if United’s reason for Mr. Gordon’s discharge was
"foolish or trivial or even baseless"; as long as
United honestly believed its reason, then summary
judgment for United is appropriate. Brill v.
Lante Corp., 119 F.3d 1266, 1270 (7th Cir. 1997);
see also Crim v. Board of Educ. of Cairo Sch.
Dist. No. 1, 147 F.3d 535, 541 (7th Cir. 1998)
(explaining that it is not enough for the
plaintiff to prove that the employer’s reason was
doubtful or mistaken). Title VII sanctions
employers who discriminate, not those who are
simply inept or incompetent.

  Our cases have warned, repeatedly, that we do
not sit as a superpersonnel department that will
second guess an employer’s business decision. See
Stewart, 207 F.3d at 378. However, we need not
abandon good reason and common sense in assessing
an employer’s actions. Indeed, we have stated
that a "determination of whether a belief is
honest is often conflated with analysis of
reasonableness," Flores v. Preferred Technical
Group, 182 F.3d 512, 516 (7th Cir. 1999); "the
more objectively reasonable a belief is, the more
likely it will seem that the belief was honestly
held," id. Our cases therefore have acknowledged
that we need not take an employer at its word.
For instance, we have held that when an employee
provides "[a] detailed refutation of events which
underlie the employer’s negative performance
assessment," the employee demonstrates "that the
employer may not have honestly relied on the
identified deficiencies in making its decision."
Day v. Colt Constr. & Dev. Co., 28 F.3d 1446,
1460-61 (7th Cir. 1994). Furthermore, "[i]f the
employee offers specific evidence from which the
finder of fact may reasonably infer that the
proffered reasons do not represent the truth, the
case then turns on the credibility of the
witnesses." Collier v. Budd Co., 66 F.3d 886, 893
(7th Cir. 1995). In such circumstances, the
employee creates "a factual issue as to whether
the employer’s explanation is credible or merely
a pretext for discrimination." Day, 28 F.3d at
1461. "[W]hen the sincerity of an employer’s
asserted reasons for discharging an employee is
cast into doubt, a fact finder may reasonably
infer that unlawful discrimination was the true
motivation . . . ." Adreani, 154 F.3d at 395
(citations omitted).

b.

  In the present case, United’s proffered
justification for firing Mr. Gordon is his
"unauthorized deviation." Our review of the
record reveals inconsistencies in definition and
disparities in application that call into
question United’s proffered justification and
make summary judgment inappropriate.

1.

  Mr. Gordon admits that he did not receive
authorization before leaving Los Angeles to fly
to Chicago. United now admits that, even though
he had not received authorization, if he had
returned to Los Angeles to make his scheduled
flight, he would not have made an unauthorized
deviation. United determined, however, that Mr.
Gordon’s conduct constituted an unauthorized
deviation./11

  The record makes starkly clear that, at the time
of the incident, United did not have a clear
definition of what constitutes an "unauthorized
deviation." Apparently, the term is not defined
in any United manual. Furthermore, the
individuals involved in Mr. Gordon’s discharge
employed different definitions of the term.

  Velasco offered a conflicting definition of
unauthorized deviation from that of Siemieniec,
the person who discharged Mr. Gordon. Velasco
stated that a person commits an unauthorized
deviation when he is on a layover and without
authorization flies to another city, even if he
returns to the city of his layover and makes his
scheduled flight. Siemieniec explained in her
deposition, however, that a flight attendant
could fly to a different city while on a layover
and return to his departure city without
committing an unauthorized deviation. Siemieniec
supported her definition by stating that
"[p]rovided he is back in position for his
scheduled flight, he has not deviated." R.23,
Siemieniec dep. I, at 81.

  James Younglove, the department’s acting
manager, echoed Siemieniec’s deposition position
that, if Mr. Gordon had flown home and returned
in time to make his next scheduled flight, he
would not have violated any United rule "[a]s
long as he [was] back in their [sic] position to
fly his trip." R.21, Ex.15 at 46. Similarly, Glen
Scoggins, a senior staff representative for labor
relations, was presented with the following
hypothetical: "If a flight attendant is on
layover and is scheduled to fly out of my
hypothetical city at 8:00 at night . . . that
flight attendant took a plane to Pittsburgh, had
lunch, got back to the city in which she was
scheduled to fly out of in time to make her
flight, has that flight attendant violated
United’s articles of conduct?" R.23, Scoggins
dep., at 19-20. Scoggins replied: "I do not
believe they violated the articles of conduct."
Id. at 20. Indeed, United in its appellate brief
flatly admits that the conduct that Velasco
describes as an unauthorized deviation does not
constitute such an infraction.

  The inconsistent definition of unauthorized
deviation becomes even more troubling in light of
several other events. First, Siemieniec relied
upon Velasco’s definition of unauthorized
deviation as a justification for firing Mr.
Gordon, even though, according to her own
deposition, she did not believe that his
definition or the facts he alleged constituted an
unauthorized deviation. Siemieniec’s application
of a different definition than the one she
articulated in her deposition raises a
significant question about the truthfulness of
United’s proffered reason for the discharge.

  Second, the unauthorized deviation infraction
has been invoked rarely. United’s decision to
characterize Mr. Gordon’s conduct as an
"unauthorized deviation" was an almost
unprecedented occurrence. Other employees, who
engaged in facially similar conduct, received
only interim warnings because their conduct was
deemed a "missed flight." It is not the province
of this court to question an employer’s decision
to punish some conduct more harshly than other
conduct. Nevertheless, we are not bound by the
labels that an employer uses and must scrutinize
the conduct behind those labels to determine if
they are applied to similar conduct. Cf. Johnson
v. Zema Sys. Corp., 170 F.3d 734, 743 (7th Cir.
1999) (stating that "[a]n employer cannot
insulate itself from claims of racial
discrimination simply by providing different job
titles to each of its employees" and then deny
the existence of similarly situated employees).
Here, an employer applied a rarely used label to
sanction conduct that does not clearly fall
within the chosen category. Although this alone
may not cast doubt on United’s sincerity, when
considered together with the inconsistency noted
above, it is sufficient evidence of pretext and,
therefore, precludes summary judgment. See
Perdomo v. Browner, 67 F.3d 140, 145 (7th Cir.
1995) ("Because a fact-finder may infer
intentional discrimination from an employer’s
untruthfulness, evidence that calls truthfulness
into question precludes a summary judgment.").

2.

  However, although our analysis could stop here,
there is additional evidence of pretext. United’s
proffered reason for discharge is further placed
in question because no one claims responsibility
for making the determination that an unauthorized
deviation actually took place. Velasco stated
that, in his role as Supervisor of the Crew Desk,
he had no authority to make decisions; instead,
he merely acted as a conduit to Mr. Gordon’s
supervisors. Velasco wrote in his report to
Siemieniec that Mr. Gordon "decided to DV8 from
LAX back to ORD [O’Hare] without authorization
from any crew desk," R.21, Ex.32; yet, as Mr.
Velasco repeatedly stated in his deposition, he
had no decision-making authority and his role was
only to provide "information as to what
happen[ed] during their assignment and that is
it." R.23, Velasco dep. I, at 68./12

  United’s other supervisors, however, all claim
that they did not make the decision that Mr.
Gordon committed an unauthorized deviation. When
Siemieniec was asked what factors she considered
in making the determination that Mr. Gordon
deviated without authorization, she replied:
"That was already complete by the time I got
involved. That was something he was dealing with
at the moment at the crew desk. That
determination was between him and Henry [Velasco]
at the crew desk." R.28, Ex.49 at 40. She then
stated that "Mr. Gordon unauthorized his own
deviation." Id./13 These protestations, when
considered together with the lack of coherent
definition of unauthorized deviation cast
significant and substantial doubt on United’s
assertion that it honestly believed Mr. Gordon
committed an unauthorized deviation. As a result,
these circumstances demonstrate triable issues of
fact as to whether United’s justification of its
discharge of Mr. Gordon is "unworthy of credence"
and therefore "probative of intentional
discrimination." Reeves, 530 U.S. at 147.

  We also note that Mr. Gordon and Velasco offer
different accounts of the events leading to Mr.
Gordon’s unauthorized deviation, a disparity
which is relevant to the issue of whether
United’s proffered reason for discharge is a
credible one. Mr. Gordon states that, after a bad
experience at his hotel, he presented himself to
the Crew Desk to ask permission to be released
from his next assignment. Velasco acknowledges
that Mr. Gordon’s hotel experience was troubling
but states that Mr. Gordon presented himself as
illegal to fly. Mr. Gordon admits that he said he
did not have a legal rest. He also states that he
clearly would have had a legal rest by the time
of his next flight and that Velasco had to have
known that because Velasco had Mr. Gordon’s
schedule in front of him on his computer screen.
It is undisputed that Mr. Gordon offered to
return to Los Angeles to complete his scheduled
assignment.

  Therefore, the two individuals present at the
time Mr. Gordon committed his alleged
unauthorized deviation do not agree on the
material facts of the occurrence. Mr. Gordon
claims that he could have flown, and offered to
fly, his next assigned flight. He states that he
thought he received permission from Velasco to be
removed. Velasco, conversely, states that Mr.
Gordon presented himself as unable to fly his
next assignment. United therefore claims that Mr.
Gordon’s removal was not authorized. There is,
therefore, a genuine issue of triable fact
because, when a PFA deviates from his assignment
with authorization, it is not an infraction. As
Siemieniec states, when flight attendants "get
permission to take a different flight or do other
than what they’re scheduled to do then it is not
unauthorized." R.23, Siemieniec dep. I, at
82./14 According to Mr. Gordon, he asked for
authority from Velasco to miss his next flight
and Velasco seemingly provided that
authorization.

3.

  Finally, the weakness of the proffered
justification for the termination is further
emphasized by the fact that the only other time
that United has categorized an action as an
unauthorized deviation, the involved employee, a
white female, was not terminated. "A showing that
similarly situated employees belonging to a
different racial group received more favorable
treatment can also serve as evidence that the
employer’s proffered legitimate, non-
discriminatory reason for the adverse job action
was a pretext for racial discrimination." Graham
v. Long Island R.R., 230 F.3d 34, 43 (2d Cir.
2000); see also Williams v. City of Valdosta, 689
F.2d 964, 975 (11th Cir. 1982) ("It is
undisputed, however, that the City’s adherence to
its formal promotional policy was inconsistent
and arbitrary at best. This inconsistency
supports the conclusion that resort to the
examination requirement was a pretext for
singling out Williams for unfavorable
treatment.").

4.

  We note that in Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 142-46 (2000), the
Supreme Court, reinstating a jury verdict in
favor of the employee, engaged in a similar
factual analysis to ours in the present action to
determine that a company’s explanation for its
employment decision was suggestive of intentional
discrimination. In Reeves, the employer contended
that its discharge of the employee was due to a
non-discriminatory reason: the employee’s failure
to maintain accurate attendance records of those
under his supervision. See id. at 138. Reviewing
in detail the record before it, the Court
determined that, contrary to the employer’s
assertion, the evidence permitted the jury to
conclude that the employee did maintain proper
records and was not responsible for any failure
to discipline late or absent employees. See id.
at 144-47. As a result, the Court determined that
sufficient evidence existed to sustain a jury’s
determination that the employer’s asserted
justification was not true. See id. at 154-55.

  As in Reeves, Mr. Gordon has raised a factual
issue as to whether "the employer’s explanation
is credible or merely a pretext for
discrimination." Day, 28 F.3d at 1461. Mr.
Gordon’s argument that his discharge for
unauthorized deviation was pretextual is not
based on a contention that United simply
misapplied its policy or that its decision-makers
were confused. To so argue would be to misstate
the record before us./15 Although United
certainly ought to be permitted to argue such
managerial ineptness to the jury, on summary
judgment we must remember that Mr. Gordon
suggests another, and equally plausible,
characterization of the record. Our faithful
adherence to the Supreme Court’s holding in
Reeves will tolerate no other conclusion. A
reasonable jury could conclude, given United’s
inconsistent definition of unauthorized
deviation, the rarity with which the unauthorized
deviation provision was invoked, the disparate
ways it was applied when it was invoked in Mr.
Gordon’s case, and United’s inability to identify
the management employee responsible for
characterizing Mr. Gordon’s conduct, that
United’s stated reason was a pretext for
discrimination. "[W]hen the sincerity of an
employer’s asserted reasons for discharging an
employee is cast into doubt, a fact finder may
reasonably infer that unlawful discrimination was
the true motivation." Adreani, 154 F.3d at 395
(citations omitted). Summary judgment is
therefore inappropriate. See id.

Conclusion

  For the foregoing reasons, we reverse the
judgment of the district court and remand for
proceedings consistent with this opinion.
REVERSED and REMANDED




  Easterbrook, Circuit Judge, dissenting. This case
illustrates how McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), has become so encrusted with
the barnacles of multi-factor tests and inquiries
that it misdirects attention. Could a reasonable
trier of fact conclude that Gordon is the victim
of age or race discrimination? If yes, then
summary judgment must be denied; if no, then the
grant of summary judgment for the employer must
be affirmed. Instead of addressing this question
straightforwardly, however, my colleagues follow
a tortuous path to the conclusion that Gordon is
entitled to a trial because United Airlines, the
employer, does not have a written policy defining
"unauthorized deviation," so that people may in
good faith debate whether Gordon committed that
infraction. I grant that United is not petrified
with bureaucracy and does not cover every topic
with reams of paper, as my colleagues believe
that an employer must to prevail in an
employment-discrimination case. United can only
gaze toward the heights occupied by the Postal
Service, the Social Security Administration, and
the Immigration and Naturalization Service. But
what has the state of its manuals and handbooks
to do with race or age discrimination?

  The majority’s long discussion of legal criteria
and prima facie cases diverts attention from the
question whether a sensible trier of fact could
infer that age, race, or some other forbidden
characteristic, made a difference. The Supreme
Court set out in McDonnell-Douglas to identify
circumstances that would support an inference of
discrimination, throwing a burden of explanation
on the employer. Today’s case shows how that
program has failed. In every large firm it is
possible for almost every employee to make out a
prima facie case. United employs thousands of
flight attendants, of all ages, races, religions,
sexes, and so on; some were retained while others
were fired. Gordon met the airline’s minimum
standards, or he would not have been hired; he
had received good reviews as a probationary
flight attendant until the incident that
precipitated his discharge; and from this it
follows (he says) that all elements of McDonnell-
Douglas have been satisfied and it is more likely
than not that his discharge was caused by his age
or race. Only a lawyer trapped in a warren of
"tests" and "factors" could make such a
connection. Everything true about Gordon is true
about United’s other employees; can all of them
be victims of discrimination?

  Appellate judges must apply McDonnell-Douglas
while the Justices support it, and I therefore do
not quarrel with my colleagues’ conclusion that
Gordon has established a prima facie case of
discrimination. United provided an explanation
for discharging him--that instead of appearing in
Los Angeles for a flight to Seattle, Gordon flew
to Chicago and told the crew desk that he had
legally insufficient rest and therefore could not
serve as a flight attendant that day. United
understandably wants to discourage such conduct
by its probationary employees, because weaseling
out of flight assignments does not bode well for
future performance. Unless this nondiscriminatory
explanation is a fraud on the court--not just an
overreaction, but a lie--United must prevail. See
Reeves v. Sanderson Plumbing Products, Inc., 120
S. Ct. 2097, 2108-09 (2000); Wade v. Lerner New
York, Inc., No. 00-1115 (7th Cir. Mar. 5, 2001),
slip op. 6-7; Ritter v. Hill ’N Dale Farm, Inc.,
231 F.3d 1039, 1044-45 (7th Cir. 2000); Kulumani
v. Blue Cross Blue Shield Association, 224 F.3d
681 (7th Cir. 2000); Hartley v. Wisconsin Bell,
Inc., 124 F.3d 887, 890 (7th Cir. 1997) (employer
prevails if it "honestly believed in the
nondiscriminatory reasons it offered, even if the
reasons are foolish or trivial or even
baseless").

  What evidence could justify a reasonable trier
of fact in concluding that United is trying to
pull the wool over judicial eyes? In a word,
none. My colleagues emphasize that United lacks
formal policies defining "unauthorized deviation"
and that its supervisors did not agree among
themselves when asked what Gordon should have
done. This is a fair appreciation of the record.
But how does it support an inference that United
(or any of its managers) is trying to bamboozle
the court? "No company needs to have a set
procedure for what action it will take when
adjudicating every single employee problem." 6
West Limited Corp. v. NLRB, 237 F.3d 767, 778
(7th Cir. 2001). Uncertainty and disagreement
existed within the company, both about how
employees were supposed to behave and about what
supervisors should have done in response. There
is additional doubt about what Gordon told the
crew desk at O’Hare, as there is apt to be about
every oral exchange. Gordon insists that he told
United that he was unable to fly only at the
moment of the conversation; United responds that
this made the conversation pointless (why was
Gordon at the crew desk except to get out of duty
scheduled for later that day?); but no matter
which inference is drawn, race and age play no
role. What could anyone at United be trying to
hide by taking one view of the conversation
rather than another? Nothing in this record
suggests that anyone is lying (let alone
prevaricating to conceal reliance on Gordon’s
race or age). Disagreements about the
characterization of ambiguous acts are part of
the human condition, not proof of deceit or
unlawful discrimination. A demonstration that
United’s practices bore more heavily on black or
older workers might supply what is missing, see
Bell v. EPA, 232 F.3d 546, 552-54 (7th Cir.
2000), but Gordon has not adduced statistical
evidence.

  Instead of meeting head on the question whether
United’s explanation might have been fabricated,
the majority resorts to a quotation from Adreani
v. First Colonial Bankshares Corp., 154 F.3d 389,
395 (7th Cir. 1998), which said that a plaintiff
may demonstrate pretext with "evidence tending to
prove that the employer’s proffered reasons are
factually baseless, were not the actual
motivation for the discharge in question, or were
insufficient to motivate the discharge." This
sounds like a conclusion that pretext may be
demonstrated by showing that the employer’s
reason was mistaken, wrong, inadequate under the
collective bargaining agreement, and so on. Yet
Reeves and many other cases have emphasized that
an error won’t do; a truthful, nondiscriminatory
explanation, right or wrong, ends the case. See
also Anderson v. Baxter Healthcare Corp., 13 F.3d
1120 (7th Cir. 1994); Pollard v. Rea Magnet Wire
Corp., 824 F.2d 557 (7th Cir. 1987). My
colleagues recognize this--and then add that a
trier of fact may equate mistake with deceit. How
else could it be that an "insufficient" reason
shows pretext? Allowing debate about the adequacy
of the explanation to support an inference of
pretext removes the need to prove discrimination
from the law of employment discrimination and
confuses federal restrictions on employers’ deeds
with a quest for "just cause" under collective
bargaining agreements. To conclude that blunders
and intra-corporate disarray support an inference
of deceit is to countermand the instructions of
Reeves.
  Perhaps Adreani could be rehabilitated by
reading its last clause to refer only to
explanations "insufficient" in the sense that
they do not identify the actual cause of the
discharge. Pryor v. Seyfarth, Shaw, Fairweather &
Geraldson, 212 F.3d 976 (7th Cir. 2000),
illustrates an explanation "insufficient" in this
sense. But Gordon does not deny that United’s
stated reason is its actual one; the events that
ended in his absence from the Los Angeles to
Seattle flight led straight to his discharge.
Causation is undisputed; that United was actually
(and legitimately) disappointed with Gordon’s
conduct also is undisputed; what Gordon argues is
that these events should have led to a reproof
rather than a discharge. To say that such an
argument, fundamentally identical to one a labor
arbitrator would resolve in response to a
grievance, can be the core of a federal
employment-discrimination claim is to confuse the
lack of "just cause" with "discrimination."

  I appreciate the potential response that the
odder a reason seems in light of an employer’s
normal practices, the easier it is to understand
the explanation as a lie. But here the
explanation is not out of whack with the
employer’s norms; Gordon contends, rather, that
norms were applied inaccurately. He compares his
situation to that of other flight attendants who
overslept or missed flights by other mischance;
United responds that Gordon missed this flight by
choice, not by mishap, and that the difference is
vital to the success of its scheduling. My
colleagues’ emphasis on the fact that United did
not have a written definition of "unauthorized
deviation" and that different United supervisors
appeared to have different understandings of that
phrase simply demonstrates that the supervisors
and managers could not have been lying. There was
no "truth of the matter" at all. There may be
material disputes about whether the supervisors
were confused, or mistaken, or whether on balance
Gordon should have been allowed another chance.
But it is not possible to say that these
considerations entail a material dispute about
whether the major actors at United have committed
perjury.

  The majority’s opinion exemplifies the spirit of
cases such as Wright v. Illinois Department of
Corrections, 204 F.3d 727, 730 (7th Cir. 2000),
and Pitasi v. Gartner Group, Inc., 184 F.3d 709,
714 (7th Cir. 1999), which proclaim: "Because
issues of intent and credibility are especially
crucial in employment discrimination cases, we
must apply this summary judgment standard with
added vigor." (This language is from Wright;
similar assertions elsewhere are not hard to
find, though often, as in Pitasi, "added vigor"
changes to "added rigor". See Webb v. Clyde L.
Choate Mental Health & Development Center, 230
F.3d 991, 997 (7th Cir. 2000).) The majority
opinion is "added vigor" in action, even though
Wright does not receive a citation, and the
"added rigor" passage from Pitasi (an opinion
cited seven times) is not quoted. Yet I doubt
that appellate judges should be "adding" any
hurdles to either side in employment-
discrimination cases, beyond those prescribed by
Fed. R. Civ. P. 56. Summary judgment is a hurdle
high enough without "added vigor."

  What does "added vigor" mean? One possibility
could be that we review the district court’s
decision especially carefully in employment-
discrimination cases. Yet appellate review of all
orders granting summary judgment is de novo. To
say that we apply extra rigor in employment-
discrimination cases is to imply that we are not
doing our jobs in other cases--that we are
deferential in those cases but non-deferential
here. This is not an accurate statement of
circuit practice.

  Another possible meaning is that in employment-
discrimination cases, and other subjects in which
the pivotal question is the intent with which one
of the parties acted, district courts must
disfavor summary judgment. Poller v. CBS, Inc.,
368 U.S. 464, 473 (1962), announced such an
approach for antitrust, and appellate courts
extended it to other situations in which motive
mattered. That captures the spirit of the
majority’s opinion. The problems with Poller, and
the "added vigor" approach in general, are two.
First, it has no purchase in the language of Rule
56 or the standard announced in Celotex Corp. v.
Catrett, 477 U.S. 317 (1986), for implementing
that rule. The summary-judgment standard is
supposed to track the standard for sufficiency of
evidence at trial. If a sensible jury could find
in favor of the party opposing the motion, then
summary judgment must be denied. That is a
universally applicable standard; there is no room
for a thumb on the scale against summary judgment
in any class of cases. See Edward J. Brunet,
Martin H. Redish & Michael A. Reiter, Summary
Judgment: Federal Law and Practice sec.9.13 (2d
ed. 2000). Second, Poller itself has been
conformed to the Rule 56 standard. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986),
holds that no special standard is appropriate
when state of mind is at issue. See also
Matsushita Electric Industrial Co. v. Zenith
Radio Corp., 475 U.S. 574, 587, 595 (1986).

  Our "added vigor" cases do not cite Liberty
Lobby or Matsushita, and it may be that our
panels were unaware of the history behind this
approach, the fate of Poller in the summary
judgment trilogy of 1986, and the fact that
earlier panels had held (relying explicitly on
the decisions of 1986) that motions for summary
judgment in employment cases need not surmount
any extra hurdle. See, e.g., Wallace v. SMC
Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir.
1997). It is not an adequate response to say
(slip op. 27 n.15) that the "circuit has
confirmed--explicitly--that there is but one
standard by which we measure a grant of summary
judgment." Wohl v. Spectrum Manufacturing, Inc.,
94 F.3d 353, 355 n.1 (7th Cir. 1996), the case
cited for this proposition, predates the flurry
of references to "added vigor" and "added rigor"
during the last three years. Wohl says that there
is one summary judgment standard, applied
rigorously in all cases. What, then, are we to
make of the multiple post-Wohl assertions that in
employment-discrimination cases the court applies
added rigor (or vigor)? These decisions say that
the standard in employment cases is higher; that
is what the word "added" means. Our "added rigor"
cases are incompatible with Wohl, Wallace (a
decision my colleagues do not cite), and the
jurisprudence of the Supreme Court. We should
clear up this conflict rather than continue to
practice an approach disfavoring summary judgment
in employment-discrimination suits.


/1 Another PFA--a white female under 40--was also
assigned to stay at the Days Inn on August 5,
1997, and she avers that she spent that night on
the first floor of the Days Inn.

/2 According to both parties, a "legal rest" means
the amount of time necessary before a flight
attendant is eligible to begin another duty
period. The minimum length is between 8-11 hours,
and Mr. Gordon states that his length was 10
hours.

/3 Originally, Mr. Gordon also alleged that United
had discriminated against him because of his sex,
in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. sec. 2000e et seq. The
district court explained, however, that Mr.
Gordon had waived his sex discrimination claim
because he had failed to present it to the Equal
Employment Opportunity Commission ("EEOC").
According to the court, in failing to present his
claim to the EEOC, he failed to exhaust his
administrative remedies and, thus, waived his sex
discrimination claim. Mr. Gordon does not raise
this issue in his brief; therefore, he has waived
this argument on appeal. See Winter v. Minnesota
Mut. Life Ins. Co., 199 F.3d 399, 411 n.17 (7th
Cir. 1999).
/4 The parties agree that Mr. Gordon is attempting
to prove discrimination by indirect evidence.

/5 The court also noted that two other managers at
United, James Younglove and Glen Scoggins, had
agreed with Siemieniec’s decision to release Mr.
Gordon.

/6 See Stewart v. Henderson, 207 F.3d 374, 376 (7th
Cir. 2000) (race); Pitasi v. Gartner Group, Inc.,
184 F.3d 709, 716 (7th Cir. 1999) (age); Hughes
v. Brown, 20 F.3d 745, 746 (7th Cir. 1994)
(race); Young v. Will County Dept. of Pub. Aid,
882 F.2d 290, 293 (7th Cir. 1989) (age).

Although some, including our colleague
in dissent, are anxious to
sound the death knell for the McDonnell Douglas
construct, such an action clearly is, at best,
premature. As recently as last term, the Supreme
Court in Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000), employed the McDonnell
Douglas analysis to assess a claim under the
ADEA. See Reeves, 530 U.S. at 142 ("This Court
has not squarely addressed whether the McDonnell
Douglas framework, developed to assess claims
brought under sec. 703(a)(1) of Title VII of the
Civil Rights Act of 1964, . . . also applies to
ADEA actions. Because the parties do not dispute
the issue, we shall assume arguendo that the
McDonnell Douglas framework is fully applicable
here.") (internal citations omitted).

Furthermore, as an intermediate appellate court,
we certainly have no authority to abandon
governing case law from the Supreme Court. Cf.
DeWalt v. Carter, 224 F.3d 607, 617 (7th Cir.
2000) (noting that the Supreme Court looks
askance at appellate courts’ actions in
prematurely anticipating the overruling of prior
case law). Indeed, we recently have been reminded
that "it is [the Supreme] Court’s prerogative
alone to overrule one of its precedents." State
Oil Co. v. Khan, 522 U.S. 3, 20 (1997). Finally,
we note that Congress has attempted to harmonize
more recent enactments with the McDonnell Douglas
burden-shifting analysis. See H.R. Rep. No. 102-
40 (II) (Judiciary Committee), at 7, 1991
U.S.C.C.A.N. 699-700 ("The Committee notes that
placing the burden of proof on employers to
establish business necessity in disparate impact
cases, is not inconsistent with the allocation of
burden of proof in disparate treatment cases as
set forth in McDonnell Douglas Corporation v.
Green, 411 U.S. 792 (1973), and Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248
(1981)."). Giving due deference to the
pronouncements of a higher judicial bench and of
the reliance by the legislature on those
pronouncements, we cannot, with the ease of our
dissenting colleague, cast aside McDonnell
Douglas. Given these considerations--the
deference we owe to the Supreme Court of the
United States and the respect we owe the policy
decisions of the Congress--this case is neither
the time nor the place to engage in an extended
discussion of the utility of the McDonnell
Douglas methodology. Our task is to decide this
case under its well-established principles.

/7 See McDonnell Douglas, 411 U.S. at 802; Stewart,
207 F.3d at 376; Pitasi, 184 F.3d at 716.

/8 See also McDonnell Douglas, 411 U.S. at 802-03;
Stewart, 207 F.3d at 376.

/9 See Denisi v. Dominick’s Finer Foods, Inc., 99
F.3d 860, 864 (7th Cir. 1996) ("Here, as in many
employment discrimination cases, the second
element of the prima facie case, satisfactory job
performance, and the issue of pretext focus on
the same circumstances because the employer
maintains that the discharge was based on its
reasonable belief that the employee was not
performing in an acceptable manner."); see also
Fortier v. Ameritech Mobile Communications, Inc.,
161 F.3d 1106, 1113 (7th Cir. 1998) (stating
that, "[a]s is also often the case, there is a
great deal of overlap with respect to the factual
inquiry relevant" to the legitimate performance
expectations prong of the prima facie case and
the pretext argument).

/10 Five other PFAs missed a flight but received
warnings only. The reasons these employees missed
their flights were as follows: (1) one employee
did not call into United’s Crew Desk, (2) another
employee’s pager did not beep (there was also an
allegation that another time she fraudulently
called in sick when her problem really related to
her ability to commute), (3) a third employee
left her pager at home, (4) a fourth employee was
prevented from commuting from her home city to
her departure city due to the weather, and (5)
the final employee overslept, which caused him to
check in late.

/11 The guidelines provided to PFAs at their training
establish the rules for their discipline and
outline several categories under which a PFA
could be disciplined for substandard performance.
The applicable category here is titled "Violation
of Company rules and [p]olicies." R.23, Ex.9 at
6. Under that heading, the PFA guidelines read:
"Violation of the Articles of Conduct will, in
most instances, result in immediate separation."
Id. One of the violations of the Articles of
Conduct is "Unauthorized deviation from a
scheduled trip assignment." R.23, Ex.15 at 3.
The Articles of Conduct further warn
that an unauthorized deviation by
an employee is one of the violations of company
policy that "will result in disciplinary action
up to and including discharge." Id. It then notes
that, for violations such as an unauthorized
deviation, "[d]iscipline will normally commence
with a suspension unless the particular situation
or the employee’s record warrants more severe
action." Id.

/12 Velasco originally wrote "DNF" on Mr. Gordon’s
schedule. At his deposition he explained that a
"DNF is a term that we use for different things.
It is not a violation. It just says that the
flight attendant did not fly. Now the flight
attendant needs to provide to his immediate
supervisor what is the occurrence of that DNF and
what happened in his situation. All we do is
provide the information to the immediate
[supervisor]." R.23, Velasco dep. I, at 92.
Several days after Mr. Gordon’s missed flight,
Siemieniec asked for a report on the incident and
only at that point did Velasco characterize Mr.
Gordon’s conduct as a deviation "without
authorization." R.21, Ex.32.

/13 According to Younglove, Siemieniec did not ask
him whether Mr. Gordon’s conduct constituted an
unauthorized deviation; instead, Siemieniec came
to him and stated: "’I think I have an individual
that has deviated from his assignment that’s at
the crew desk at this time.’" R.21, Ex.15 at 15.

/14 Moreover, Glen Scoggins defined an unauthorized
deviation as when "the flight attendant was not
available to take their scheduled assignment
because they had made themselves unavailable
either by taking another trip or some other
means. And they did that without approval from
Crew Scheduling." R.21, Ex.19 at 17-18.

/15 We are also constrained to note that the
dissenting opinion’s suggestion that we are
applying a higher summary judgment standard than
the one mandated by the precedent of the Supreme
Court and this court finds no support in the text
of this opinion. This circuit has confirmed--
explicitly--that there is but one standard by
which we measure a grant of summary judgment. See
Wohl v. Spectrum Mfg., Inc., 94 F.3d 353, 355 n.1
(7th Cir. 1996). To suggest that we have applied
another standard without disclosing it is totally
unwarranted.
