Forrester, Ray v. Rauland-Borg Corp ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 05-4650
RAY FORRESTER,
Plaintiff-Ap p ellant,
v.
RAULAND-BORG CORPORATION,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 4424—Charles R. Norgle, Sr., Jud ge.
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SUBMITTED MAY 3, 2006—DECIDED JUNE 29, 2006
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Before POSNER, EASTERBROOK, and WOOD, Circuit Jud ges.
POSNER, Circuit Jud ge. The plaintiff filed a Title VII suit
against his former employer, who had fired him on the basis
of a complaint of sexual harassment by a female coworker.
The district court granted summary judgment for the
employer. The plaintiff has appealed, arguing that the
employer’s investigation of the complaint was shoddy. But
as we have said countless times, the question in a discrimi-
nation case is not whether the employer’s stated nondis-
criminatory ground for the action of which the plaintiff is
complaining is correct but whether it is the true ground of
the employer’s action rather than being a pretext for a
2 No. 05-4650
decision based on some other, undisclosed ground. E.g.,
Stew art v. Hend erso n, 207 F.3d 374, 378 (7th Cir. 2000). If it
is the true ground and not a pretext, the case is over. If it is
not the true ground, the employer may still be innocent of
discrimination, Reeves v. Sand erso n Plum bing Pro d ucts,
Inc., 530 U.S. 133, 146-47 (2000); he may for example have
lied to conceal a reason that was discreditable but not
discriminatory. See Visser v. Pack er Engineering Asso ciates,
Inc., 924 F.2d 655, 657 (7th Cir. 1991) (en banc). But the case
could not be resolved on summary judgment, because a trier
of fact (judge or jury) would be entitled to infer a discrimi-
natory motive from the pretextual character of the em-
ployer’s ground. Reeves v. Sand erso n Plum bing Pro d ucts,
Inc., sup ra, 530 U.S. at 147-48; OåNeal v. City o f New
Albany, 293 F.3d 998, 1005 (7th Cir. 2002).
All this would be too familiar to require repetition in a
published opinion were it not for a persistent dictum to the
effect that pretext can be shown not only by proof that the
employer’s stated reason was not the honest reason for his
action but also by proof that the stated reason was “insuffi-
cient to motivate” the action. E.g., Cicho n v. Exelo n Genera-
tio n Co ., L.L.C., 401 F.3d 803, 813 (7th Cir. 2005); Davis v.
Co n-Way Transp o rtatio n Central Exp ress, Inc., 368 F.3d 776,
784 (7th Cir. 2004); Dyrek v. Garvey, 334 F.3d 590, 598 (7th
Cir. 2003); Ho ffm an-Do m bro w sk i v. Arlingto n Intål Race-
co urse, Inc., 254 F.3d 644, 652 (7th Cir. 2001); Am ini v.
Oberlin Co llege, 440 F.3d 350, 360 (6th Cir. 2006); McClain
v. No rthWest Co m m unity Co rrectio ns Center Jud icial
Co rrectio ns Bd ., 440 F.3d 320, 332 (6th Cir. 2006); Bro w ning
v. Dep artm ent o f the Arm y, 436 F.3d 692, 695 (6th Cir. 2006).
It is time the dictum was laid to rest. (Because so many
decisions in this and other courts repeat the dictum, we
circulated this opinion to the full court before issuing it. 7th
Cir. R. 40(e). No judge in regular active service voted to hear
the case en banc.) It adds nothing to the analysis of pretext
No. 05-4650 3
but confusion. If the stated reason for the challenged action
did not motivate the action, then it was indeed pretextual.
If it was insufficient to motivate the action, either this means
that it didn’t motivate it, or that it shouldn’t have motivated
it. If the first is the intended sense, the dictum is just a
murky way of saying that the stated reason was not the real
reason. If the second sense is the one intended, then the
dictum is wrong because the question is never whether the
employer was mistaken, cruel, unethical, out of his head, or
downright irrational in taking the action for the stated
reason, but simply whether the stated reason w as his
reason: not a good reason, but the true reason.
The multiplication of distinctions beyond differences is a
disease of the legal profession against which the judiciary
has not been inoculated. It is a pernicious disease because it
invites confusion between merely semantic variation and
substantive difference. The “sufficiency” formula could
easily be understood as creating an alternative to the “true
reason” test, especially when it is formulated, as it fre-
quently is, as one of three alternative criteria, as when courts
say that to demonstrate pretext the plaintiff must show that
the employer’s stated reason “1) had no basis in fact; 2) did
not actually motivate its decision; or 3) was insufficient to
motivate its decision.” E.g., Davis v. Co n-Way Transp o rta-
tio n Central Exp ress, Inc., sup ra, 368 F.3d at 784. Under-
stood as creating a third alternative, the insufficiency
formula would tacitly effect a fundamental change in settled
law.
Probably all that is meant is that nondiscriminatory
factors may have influenced the employer but not to
the extent of actually inducing the action of which the
employee is complaining. This is suggested by the variants
of the three-part formula that are found in Webber v.
Internatio nal Pap er Co ., 417 F.3d 229, 237 (1st Cir. 2005)
4 No. 05-4650
(emphasis in original)—“had no basis in fact, did not
actuate the termination, o r was insufficiently weighty to
motivate such a decision”—and in the case that invented the
test, La Mo ntagne v. Am erican Co nvenience Pro d ucts, Inc.,
750 F.2d 1405, 1414-15 (7th Cir. 1984) (though there is an
anticipatory hint of the test in T & S Service Asso ciates, Inc.
v. Crenso n, 666 F.2d 722, 727 (1st Cir. 1981)). The opinion in
LaMo ntagne states that pretext may be proved “by showing
that the Company’s reasons have no basis in fact, by
showing that they were not really factors motivating the
discharge, or, if they were factors, by showing that they
were jointly insufficient to motivate the discharge”—in
other words, they were factors that the employer considered
but that did not have enough weight in his thinking to
induce him to take the action complained of. (See also Davis
v. Wisco nsin Dep t. o f Co rrectio ns, 445 F.3d 971, 977 (7th Cir.
2006), where the “insufficiency” test was used in this sense.)
But this is implicit in the “true reason” test (see Go rd o n v.
United Airlines, Inc., 246 F.3d 878, 890-91 (7th Cir. 2001),
and Stalter v. Wal Mart Sto res, Inc., 195 F.3d 285, 290 (7th
Cir. 1999)): if the stated reason, even if actually present to
the mind of the employer, wasn’t what induced him to take
the challenged employment action, it was a pretext.
Jo hnso n v. Kro ger Co ., 319 F.3d 858, 866-67 (6th Cir. 2003),
and Manzer v. Diam o nd Sham ro ck Chem icals Co ., 29 F.3d
1078, 1084 (6th Cir. 1994), give still another twist to the
“sufficiency” test. They deem it satisfied by “evidence that
other employees, particularly employees not in
the protected class, were not fired even though they en-
gaged in substantially identical conduct to that which the
employer contends motivated its discharge of the plaintiff.”
Id .; 319 F.3d at 866. Again this is evidence that the stated
reason was not the true one. Cicero v. Bo rg-Warner Auto -
m o tive, Inc., 280 F.3d 579, 589 (6th Cir. 2002), distinguishes
tests 2 and 3 (the stated reason “did not motivate the action,
No. 05-4650 5
or . . .was insufficient to motivate the action”) by reference
to the difference between direct and circumstantial evi-
dence. There is no need to complicate life by reference to
that distinction.
There is also a potential for confusion in the first test
(“had no basis in fact”) in the three-part formula articulated
in cases like Davis v. Co n-Way Transp o rtatio n Central
Exp ress, Inc., sup ra. If the stated reason was not the actual
one, it is a pretext even if it had some basis in fact—even if
it might have induced some employers to fire or take other
adverse action against the plaintiff but did not induce this
employer to do so. That is test number 2, and it is all that
the law needs. Number 1 could be understood (though it is
not so intended) to mean that a reason that had no factual
basis was necessarily pretextual, yet it would not be if,
though profoundly mistaken, it was the actual motive for
the employer’s action. Suppose the complaint of sexual
harassment in this case had been a pure fabrication, with
“no basis in fact” whatsoever—yet it was believed by the
employer and it was that belief and nothing else that caused
him to fire the plaintiff. There would be nothing pretextual
about his action. A pretext, to repeat, is a deliberate false-
hood. Farrell v. Butler University, 421 F.3d 609, 613 (7th Cir.
2005); Millbro o k v. IBP, Inc., 280 F.3d 1169, 1175 (7th Cir.
2002); Price v. Tho m p so n, 380 F.3d 209, 215 n. 1 (4th Cir.
2004); Silvera v. Orange Co unty Scho o l Bo ard , 244 F.3d
1253, 1261 (11th Cir. 2001). An honest mistake, however
dumb, is not, and if there is no doubt that it is the real
reason it blocks the case at the summary-judgment stage.
“The only concern in reviewing an employer’s reasons for
termination is the honesty of the employer’s beliefs.”
Bald ersto n v. Fairbank s Mo rse Engine Divisio n, 328 F.3d
309, 323 (7th Cir. 2003).
AFFIRMED.
6 No. 05-4650
A true Copy:
Teste:
_______________________________
Clerk o f the United States Co urt o f
Ap p eals fo r the Seventh Circuit
USCA-02-C-0072—6-29-06