Kline v. Tennessee Valley Authority , 128 F.3d 337 ( 1997 )

JONES, J., delivered the opinion of the court, in which MARTIN, C. J., joined. RYAN, J. (pp. 352-359), delivered a separate opinion concurring in part and dissenting in part.

NATHANIEL R. JONES, Circuit Judge.

Plaintiff appeals the bench judgment for Defendants in this action alleging age and race discrimination under the Age Discrimination in Employment Act (“ADEA”) and Title VII of the Civil Rights Act of 1964. The district court found, upon remand from this court for trial, that Plaintiff failed to show that Defendants’ reason for Plaintiffs nonselection during a remedial reselection process was false or pretextual, and that under its analysis of St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742,125 L.Ed.2d 407 (1993), judgment for Defendants was mandated. We find that the district court misinterpreted relevant Title VII case law by heightening Plaintiffs burden and requiring him to produce direct evidence of discriminatory animus in the reselection procedure. We, therefore, reverse, enter judgment for Plaintiff, and remand this case to the district court for the calculation of damages.

I.

Plaintiff Charles A. Kline, an African-American male, was hired by the Tennessee Valley Authority (“TVA”) in 1964 as a machinist apprentice. He worked as a machinist until May 1977, when he became a personnel officer at TVA’s Watts Bar nuclear plant. In 1988, TVA undertook an extensive reorganization, which resulted in the elimination of Kline’s position. TVA terminated Kline through a reduction in force in September 1988.

Before his termination, Kline learned of and applied for the position of Personnel Officer at TVA’s Kingston Fossil Plant. He contacted Keith Leamon, Human Resource Manager for Power Production, to inquire about applying for the Kingston job. Unbeknownst to Kline, Leamon had already prepared a list of candidates for the position. Leamon advised Kline to present his résumé to Kingston’s plant manager, Fred Clayton. Acting on Leamon’s advice, Kline hand-delivered his résumé to Clayton.

Upon receipt of Kline’s résumé, Clayton told his secretary to take the résumé to Johnnie Brown, the supervisor of the Kingston plant’s services department, and ask Brown to “do something with this.” Brown placed Kline’s résumé in a desk drawer where it remained for the entire selection process and beyond.

Randy Cole, Clayton’s successor as plant manager made the final selection for the personnel position. Cole received the list of candidates from Leamon and interviewed the finalists with Brown’s help. Cole’s first choice, Pete Johnson, was offered the job on August 15, 1988, but declined the position. The position was then accepted by Carol Beckler, a Caucasian female, Cole’s second choice. Kline- was neither considéred nor selected for the personnel officer ■ position.

On October 31, 1988, Kline filed a formal complaint of race, age, and reprisal discrimination with the TVA Equal Opportunity (“EO”) Office concerning his nonselection.¹ On December 31, 1990, the TVA’s EO Office issued a Final Agency Decision finding that Kline was discriminated against on the basis of age and race when he was not considered for the position. It did not find reprisal discrimination. At the time of the selection Kline was 52 years old. The EO Office ordered TVA to take corrective action by placing Kline in the position with back pay, if, after comparison, he was determined to be better qualified than Beckler, the younger white female who had been selected.

On February 8,1991, Kline filed this action in the District Court for the Eastern District of Tennessee alleging violations of Title VII and the ADEA. Kline challenged some of the findings of the EO Office, and as an alternative remedy, requested that he be placed in the position immediately and receive back pay. Notwithstanding the pending district court action, on February 25, 1991, after conducting a reselection as required by the EO Office, TVA issued a memorandum stating that it had reselected Carol Beckler for the position at the Kingston Plant.

On January 28, 1992, the district court granted TVA’s motion for summary judgment as to the allegations set forth in Kline’s original complaint. The district court noted that the selection official, Mr. Cole, was unaware of Kline’s interest in the position and, therefore, could not have discriminated against Kline in his selection of Beckler. The district court found that while the parties involved in disregarding Kline’s résumé may have engaged in discriminatory action by so doing, this action could not be attributed to Cole and, therefore, his selection of Beckler was not tainted. The district court found that the remedy provided by TVA’s EO Office was adequate. The court stayed dismissal to allow Kline to amend his complaint to challenge the reselection of Beckler.

On May 20, 1992, after Kline amended his complaint to allege discrimination based on age and race² in the reselection process, the district-court granted TVA’s motion for summary judgment as to TVA’s reselection of Beckler. It found that Kline had made a prima facie case of race and age discrimination, but failed to rebut TVA’s legitimate and nondiscriminatory reason for not hiring him. Kline then appealed to this court.

In Kline’s first appeal this court found that summary judgment was inappropriate under the circumstances and remanded the case to the district court for trial' to determine “whether TVA in fact made a good faith determination that Ms. Beckler was better qualified for the job.” Kline v. TVA, No. 92-5919, 1993 WL 288280, at *5 (6th Cir. July 29, 1993) (per curiam). This court concluded that the evidence presented to the district court was sufficient to eliminate the presumption of discrimination, but was not sufficient to entitle TVA to judgment as a matter of law. Id. at *5. This court determined that based on the record a jury could, disbelieve the reasons articulated for choosing Beckler over Kline. Id.

This court concluded that the corrective action report choosing Beckler over Kline failed to consider the importance of several factors that distinguished the two candidates at the time of the original selection. These are as follows: Kline was a college graduate while Beckler was not; Kline had eleven years of management experience while Beckler had five years of such experience; the corrective action report is silent about Kline’s greater experience as a manager, as well as his hands-on experience as a machinist; and interviews may have given Kline the opportunity to demonstrate experience not documented in the Management Appraisal System (“MAS”) reviews, which were used as a mechanism to distinguish the candidates (in the reselection process interviews were not held as it was determined that an interview would favor Ms. Beckler since she had been serving in the position since 1988). Id.

On remand, the case was tried before the district court. In addition to the facts established before remand, the district court made several factual findings. First, the district court concluded that the evidence adduced for selecting Beckler clearly supported TVA’s reselection decision. Second, it was concluded that TVA’s stated- reason for selecting Beckler was her greater experience in areas relevant to the Human Resource Officer position and her superior management skills. Third, Kline failed to prove that TVA’s reasons were mere pretexts for unlawful discrimination. Fourth, TVA’s MAS reviews were proper and objective bases for comparing the relative qualifications of the candidates. Fifth, the failure to interview Kline was in his favor, and he produced no evidence that it was intended to discriminate against him. Sixth, Kline’s work as a machinist and possession of a college degree were not relevant criteria in the selection process. Seventh, testimony concerning racist remarks made by Clayton were irrelevant and not credible. Finally, the district court concluded that there was no credible evidence that TVA used or manipulated any of the criteria to justify a discriminatory selection or as a pretext for unlawful discrimination.

The district court framed the issue for trial as “whether age or race was a factor in TVA’s 1991 reselection for the Kingston Human Resource Officer position.” It found that Kline had made a prima facie ease of both race and age discrimination. The court determined that TVA had come forward with proof -of a legitimate, non-discriminatory reason for the selection — Beckler was more qualified. The court ruled that the reasons had basis in fact and were sufficient to explain the-hiring of Beckler over Kline. The district court concluded that Kline failed to show that the stated reason was not the actual reason nor had he shown that the real reason was discrimination. This appeal followed.

II.

On appeal, Kline contends that the district court erred in framing the issue for trial. In addition, Kline argues that the evidence produced was sufficient to demonstrate that TVA’s stated reason for not selecting Kline in the reselection process was pretextual. Furthermore, Kline contends that the district court misapplied the law in requiring him to prove direct evidence of discrimination.

A.

The district court’s conclusions of law are , reviewed de novo. Waxman v. Luna, 881 F.2d 237, 240 (6th Cir.1989). This court reviews a district court’s findings of fact under the clearly erroneous standard of review. Anderson v. Bessemer City, 470 U.S. 564, 573-75, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985);' Fed.R.Civ.P. 52(a). A finding of fact will only be clearly erroneous when, although there may be some evidence to support the finding, “the reviewing court is left with the definite and firm conviction that a mistake has been committed.” Id.

Kline argues in his brief that the district court’s finding of pretext is a mixed question of law and fact, which should be reviewed by this court using the de novo standard of review. We disagree. A determination of pretext is an intermediate factual step in the determination of the ultimate factual finding of intentional discrimination or the lack thereof. It is a finding of fact subject to the clearly erroneous standard of review. In the case at bar, the district court’s determination of whether the Plaintiff proved that the reseleetion process was a pretext will be reviewed for clear error.

B.

We begin by addressing Kiline’s first argument on appeal that following remand the district court erred in framing the issue for trial. Kline contends that this court framed the ultimate issue as “whether TVA in fact made a good faith determination that Ms. Beckler was better qualified for the job.” He further contends that the district court impermissibly “redefined” the issue as whether age or race was a factor in TVA’s 1991 reselection for the Kingston HRO position. Kline’s position does not accurately reflect the mandate of this court as stated in the first appeal.

This court remanded this case “for further proceedings not inconsistent with this opinion.” Kline, 1993 WL 288280, at *5. The focus of this court’s opinion was on the reselection process. We found that the reason offered by TVA for the reselection of Beckler, that she was better qualified based on objective comparative criteria, was insufficient to support the granting of summary judgment. Id. The court concluded that a jury could disbelieve the proffered reasons finding them to be pretextual. Id. This court determined that disbelief of TVA’s reasons, along with the elements of the prima facie case, could warrant a finding of intentional discrimination. Id. Accordingly, this court concluded that the issue of whether TVA made a good faith determination that Ms. Beckler was more qualified was a question that could not be disposed of on summary judgment.

This court’s decision that summary judgment was improper meant that on remand the district court was to conduct a trial, focusing on whether the process used to choose Beckler over Kline was discriminatory. As a preliminary matter, the district court would have to determine if the process was fair. This determination would include an examination of whether Kline’s race or age negatively impacted TVA’s decision. The district court’s framing of the issue following remand was consistent with this court’s instructions. We do not agree with Kline’s assessment that the district court’s definition of the issue placed an impossible burden on him. ,

C.

We now turn to Kline’s second proffered assignment of error. Kline contends that the district court erred in requiring him to prove “pretext plus” in order to prevail on his claim of employment discrimination. He argues .that the pretext plus approach to employment discrimination cases, which requires a. direct showing of discrimination, in addition to proof of pretext, was rejected by the Supreme Court in St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 4Ó7 (1993) (hereinafter “Hicks”). As a preliminary matter, it is necessary to examine the relevant burdens of proof in employment discrimination cases.

1.

The burdens of proof in employment discrimination cases were first established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and later clarified by Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Under these cases Title VII cases require three stages of proof.³ First, the plaintiff must prove a prima facie case of discrimination. Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093 (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824 (1973)). If the plaintiff establishes its prima facie case, the burden then shifts to the defendant to “articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Id. (quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824). If the defendant carries 'this burden, the plaintiff must prove that the proffered reasons were pretextual. Id. (citing McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825). Pretext is established by a direct showing that a discriminatory reason more likely motivated the employer or by an indirect showing that the employer’s explanation is not credible. Id. at 256, 101 S.Ct. at 1095.

Prior to the Supreme Court’s decision in Hicks there was a split among the circuits as to whether plaintiffs were required to make both direct and indirect findings of pretext. Three distinct approaches emerged regarding the proving of pretext. They have been referred to by one commentator as “pretext only,” “permissive pretext only,” and “pretext plus.” See Kenneth R. Davis, The Stumbling Three-Step, Burden-Shifting Approach in Employment Discrimination Cases, 61 Brooklyn L.Rev. 703, 714-16 (1995). These approaches will be addressed in turn.

“Pretext only” is the least stringent of the three approaches. It simply requires that a plaintiff prove that the defendant’s proffered reason is pretextual. Once this is proven, the plaintiff is entitled to judgment as a matter of law. See Caban-Wheeler v. Elsea, 904 F.2d 1549, 1554 (11th Cir.1990); Tye v. Board of Educ., 811 F.2d 315, 318 (6th Cir. 1987); King v. Palmer, 778 F.2d 878, 881(D.C.Cir.l986); Thombrough v. Columbus and Greenville R.R., 760 F.2d 633, 646 (5th Cir.1985); Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393, 1396 (3d Cir. 1984).

The moderate approach to pretext analysis is dubbed the “permissive pretext only” standard. Under this method, if the plaintiff establishes that the defendant’s reasons are pretextual the trier of fact is permitted, but not required, to enter judgment for the plaintiff. The technique allows a permissive rather than a mandatory determination favoring the plaintiff. See Samuels v. Raytheon Corp., 934 F.2d 388, 392 (1st Cir.1991); Visser v. Packer Engineering Assoc., Inc., 924 F.2d 655, 657 (7th Cir.1991) (en banc); Benzies v. Illinois Dep’t of Mental Health and Developmental Disabilities, 810 F.2d 146, 148 (7th Cir.1987).

Under the “pretext plus” strand of analysis, a plaintiff acquires an additional burden. The plaintiff must not only demonstrate that the employer’s asserted reasons were pretextual, but the plaintiff also must introduce additional evidence of discrimination. Only with an indirect and direct showing of discrimination is the plaintiff entitled to judgment as a matter of law. The pretext plus approach was the position of a majority of the circuit courts prior to 1993. See EEOC v. Flasher Co., 986 F.2d 1312, 1321 (10th Cir.1992); Galbraith v. Northern Telecom Inc., 944 F.2d 275, 283 (6th Cir.1991); Lopez v. Metropolitan Life Ins. Co., 930 F.2d 157, 161 (2d Cir.1991); Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 9 (1st Cir.1990); Holder v. City of Raleigh, 867 F.2d 823, 827 (4th Cir.1989); Clark v. Huntsville Bd. of Ed., 717 F.2d 525, 529 (11th Cir.1983).

This circuit adopted the “pretext plus” approach to employment discrimination analysis. In Gagne v. Northwestern National Ins. Co., 881 F.2d 309, 314 (6th Cir.1989), an age discrimination case, the court noted that the plaintiff was required to produce direct evidence in addition to proof of pretext in order to prevail on his claim. While this court applied the “pretext only” rule in at least one case, this court commonly utilized the “pretext plus” standard prior to 1993. Compare Tye v. Board of Educ., 811 F.2d 315, 319-20 (6th Cir.1987) (holding that the district court erred in determining that plaintiff had not established pretext and concluding that because plaintiff established pretext she was entitled to judgment as a matter of law), with Gagne, 881 F.2d at 314 (concluding that finding of pretext does not mandate judgment for plaintiff; plaintiff was required to introduce direct evidence of discrimination in order to prevail), and Galbraith v. Northern Telecom, Inc., 944 F.2d at 283 (same). See also Manzer v. Diamond Shamrock Chemicals Company, 29 F.3d 1078, 1082 (6th Cir. 1994) (“The Sixth Circuit sided distinctly with the ‘pretext plus’ circuits.”).

2.

The Supreme Court attempted to resolve the confusion among the differing approaches to pretext in Hicks. Hicks was an appeal from the Eighth Circuit. The Eighth Circuit had applied the “pretext only” standard reasoning that once a plaintiff established that the defendant’s reasons were pretextual, he was entitled to judgment as a matter of law. Hicks, 509 U.S. at 509, 113 S.Ct. at 2748. The Supreme Court’s decision in Hicks effectively rejected both the “pretext only” and “pretext plus” approaches to employment discrimination cases and adopted the “permissive pretext” approach. See id. at 511 n. 4,113 S.Ct. at 2749 n. 4.

The Court held that rejection of the proffered reasons did not require that judgment be entered for the plaintiff. Id. at 511, 113 S.Ct. at 2749. The Court noted that a mandatory inference which compels judgment for the plaintiff after disbelief of the employer’s alleged non-discriminatory reasons disregards the traditional burdens of proof. Id. at 511, 113 S.Ct. at 2749. This is an explicit rejection of the “pretext only” standard.

The Supreme Court also rejected the “pretext plus” approach. The Court noted:

The factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant’s proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination, and the Court of Appeals was correct when it noted that, upon such rejection, “[n]o additional proof of discrimination is required.”

Id. (citation and footnote omitted) (emphasis in original). The Supreme Court determined that upon rejection of the reasons offered by the defendant an inference of discrimination is permitted and no additional proof of discrimination is required. This is a clear rejection of the “pretext plus” requirement.

Subsequently, our sister circuits have interpreted Hicks to adopt the “permissive pretext” standard. They have rejected a requirement of additional or direct evidence of discrimination.

. In Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994), the Third Circuit articulated the standard to defeat a defendant’s motion for summary judgment in employment discrimination eases. The court stated that in order to defeat a summary judgment motion, a plaintiff must either discredit the reasons offered by the defendant to justify the negative employment action or show that discrimination likely was the motivation behind the adverse employment action. Id. The court specifically noted, “if the plaintiff has pointed to evidence sufficiently 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 ease.” Id. Fuentes explicitly rejected the requirement that in order for a plaintiff to prevail following a rejection of the defendant’s proffered reasons, a plaintiff must introduce additional evidence of discrimination. Id.

In Sheridan v. E.I. DuPont de Nemours and Company, 100 F.3d 1061 (3d Cir.1996) (en banc) (hereinafter “DuPont”), an en banc decision by the Third Circuit, the court discussed the Hicks decision at length. DuPont involved a suit brought by Barbara Sheridan, a former DuPont employee, alleging sex discrimination and retaliation. Id. at 1063. Following a jury trial, the jury returned a verdict in Sheridan’s favor on her constructive discharge claim, but found in favor of DuPont on the remaining claims. Id. at 1064. After the verdict, both parties moved for judgment as a matter of law and the district court granted the defendant’s motion finding that the evidence failed to establish that gender was a motivating factor in Sheridan’s discharge. Id.

On appeal, a panel of the Third Circuit reversed the district court’s grant of judgment as a matter of law to DuPont on the constructive discharge claim. However, the majority and dissenting opinions differed, in their interpretation of Hicks. Id. at 1065. On rehearing en banc, the Third Circuit examined what it termed “this continuing and perplexing problem of interpreting the -shifting burden of Hicks.” Id.

The DuPont decision interpreted Hicks as determining that once a plaintiff establishes a prima facie case, disbelief of the defendant’s proffered reasons creates a situation in which the factfinder is permitted to infer intentional discrimination. Specifically, the court, stated:

[W]e have understood Hicks to hold that the elements of the prima facie case and disbelief of the defendant’s proffered reasons are the threshold findings, beyond which the jury is permitted, but not required, to draw an inference leading it to conclude that there was intentional discrimination.

Id. at 1066-67. The court explicitly rejected the requirement of the introduction of additional evidence following a rejection of the defendant’s alleged reasons for the adverse action. Id. at 1070. The court stated that an additional evidence requirement would “bring the courts of this circuit back to the confusion and uncertainty created by the ‘pretext plus’ and ‘some evidence’ language that prompted this court to consider this case en banc.” Id. The court concluded that a determination that the reason given by the defendant was pretextual, along with the evidence that established prima facie case, will permit a finding of intentional discrimination. Id. at 1071.

The D.C. Circuit has also concluded that the Hicks decision creates a permissive inference of discrimination following the disbelief of the reasons offered by the defendant. In Barbour v. Merrill, 48 F.3d 1270 (D.C.Cir. 1995), cert. granted in part, — U.S. -, 116 S.Ct. 805, 133 L.Ed.2d 752 (1996), and cert. dismissed, — U.S. -, 116 S.Ct. 1037, 134 L.Ed.2d 113 (1996), defendants appealed the district court’s denial of its motion for judgment as a matter of law following a jury verdict that defendants had unlawfully discriminated against the plaintiff, an African-American male. Id. at 1275.

On appeal, defendants argued that “because Barbour ‘failed to introduce even a shred of evidence that even remotely suggests that race played a role’ in his rejection, the jury could not have reached this conclusion and therefore the district court improperly denied their motion for judgment as a matter of law.” Id. at 1277. The D.C. Circuit rejected this argument as inconsistent with Hicks and noted: “[according to Hicks, a plaintiff need only establish a prima facie ease and introduce evidence sufficient to discredit the defendant’s proffered nondiscriminatory reasons; at that point, the factfinder, if so persuaded, may infer discrimination.” Id.

While the Supreme Court’s decision in Hicks was issued following the district court’s proceedings, the circuit court concluded that the district court’s jury instruction comported with the reasoning in Hicks. Id. Moreover, the D.C. Circuit concluded that because the plaintiff had introduced sufficient evidence to allow the district court to infer a prima facie case and also to conclude that the defendant’s proffered reasons were pretextual, the district court properly denied defendants’ motion for judgment as a matter of law. Id.

The Seventh Circuit has reached similar conclusions regarding the import of the Hicks decision. In Wallace v. SMC Pneumatics, 103 F.3d 1394, 1399 (7th Cir.1997), the court interpreted Hicks to allow a permissible belief of discrimination following disbelief of the defendant’s reasons for the adverse decision. Id. (“The defendant’s failure to persuade the jury that its proffered'reason was its real reason permits (depending of course on the other evidence presented at the trial) an inference that the true reason which it is hiding is discriminatory.”).

In Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1123-24 (7th Cir.1994), that court also concluded that once a plaintiff establishes the prima facie ease and shows that the defendant’s reasons are worthy of disbelief, the plaintiff is not automatically entitled to judgment finding intentional discrimination. However, the court noted that while the plaintiff is not entitled to judgment as a matter of law in this situation, the plaintiff can submit their case to the ultimate factfinder on this basis, and the factfinder may enter judgment for the plaintiff. Id. While rejecting an entitlement to judgment as a matter of law, the court concluded that at this stage the factfinder can find for the plaintiff without an additional evidence requirement. Id. (“The next logical question is whether the plaintiff may prevail, not automatically as a matter of law, but through submission of her ease to the ultimate factfinder, under such circumstances. Hicks answers this question in the affirmative.”). Moreover, the court stated that the plaintiff may want to introduce additional evidence of discrimination in order to strengthen its case, but by no means is this a requirement to prevail on the merits. Id. at 1124.⁴

The decisions of this circuit also indicate ■that- a plaintiff is- not required to introduce additional evidence of discrimination to prevail. In Manzer v. Diamond Shamrock Chemicals Company, 29 F.3d 1078 (6th Cir. 1994), this court interpreted the Hicks decision as rejecting a mandatory inference of discrimination upon the rejection of the defendant’s reasons in favor of a permissive inference of discrimination. Id. at 1084. The Manzer panel distinguished between three types of pretext showings and developed different evidentiary .bases for each. The court stated that in order to prove pretext, the plaintiff must show: 1) defendant’s reasons had no basis in fact; 2) the . reasons did not actually motivate the discharge; and 3) the reasons were insufficient to warrant a discharge. Id. at 1084 (citing McNabola v. Chicago Transit Authority, 10 F.3d 501, 513 (7th Cir.1993)).

The Manzer panel distinguished the first and third showings from the second showing and reasoned that the first and third showings could give an inference of a “suspicion of mendacity” as discussed in the Hicks decision.⁵ Id. at 1084. The court concluded that when the first or third findings of pretext are demonstrated, a court is permitted to infer discrimination from the circumstances. Id. Thus, when a plaintiff proves that the defendant’s proffered reasons either have no basis in fact or are insufficient to motivate disehargé, a permissive inference of discrimination arises.

- The Manzer panel distinguished the two situations discussed above from the situation when the reasons offered by the defendant did not actually motivate the discharge. Id. In this situation, the plaintiff admits “the factual basis underlying the employer’s proffered explanation and further admits that such conduct could motivate dismissal.” Id. at 1084. The court then reasoned that in this situation, a plaintiff is required to introduce additional evidence. of discrimination. Id. The Manzer panel requires plaintiffs to introduce additional evidence of discrimination when the plaintiff has failed to introduce evidence that the .reasons offered by the defendant are “factually false.” Id. The rule announced in the Manzer opinion is limited to the case when the reasons offered by the defendant are not factually challenged. In this situation, a plaintiff must introduce additional evidence of discrimination because the reasons offered by the defendant are not directly challenged and therefore do not bring about an inference of discrimination.

When a plaintiff fails to factually challenge the reasons offered by the defendant, the plaintiff has failed to satisfy one of the allocations of the McDonnell Douglas-Burdine burden-shifting mechanisms. When a plaintiff fails to factually challenge the reasons offered by á defendant, the plaintiff has failed to prove pretext and judgment for'-the defendant is warranted because the plaintiff has failed to fulfill the allocation of burdens outlined in McDonnell Douglas and Buvdine. The holding in Manzer is limited to situations when the plaintiff fails to challenge the reasons offered by the defendant. Indeed the court so noted: “because we hold that a plaintiff must introduce some evidence of age discrimination other than his prima facie case where there is no evidence which directly challenges the credibility of his employer’s proffered explanations, we hold that the district court did not err in granting Diamond Shamrock’s motion for a directed verdict. ...” Manzer, 29 F.3d at 1085.

In Wixson v. Dowagiac Nursing Rome, 87 F.3d 164 (6th Cir.1996), this court affirmed the entry of summary judgment for the defendants in an action alleging unlawful employment practices. The Wixson panel acknowledged the permissive pretext standard stated in Hicks, holding that “the, factfinder’s disbelief of the reasons put forward by the defendant ... may, together with the elements of the prima face case, suffice to show intentional discrimination.” Id. at 170 (quoting Manzer, 29 F.3d at 1083).

Nevertheless, this court noted that the plaintiffs failed to demonstrate that the reasons given by the defendants were pretextual. Id. at 171. In addition, the court concluded that there was no evidence that the defendants discriminated against the plaintiffs. The court noted that its affirmance of the district court’s decision granting summary judgment was not based on the failure of the plaintiff to introduce new evidence of discrimination when attempting to prove pretext. Id. The Wixson decision specifically rejects the “pretext plus” requirement that a plaintiff must introduce additional evidence following a rejection of the reasons offered by the defendant, and concludes that summary judgment was properly granted because the plaintiffs failed to prove that the reasons given for their discharge were pretextual and that the reason behind the discharge was discrimination.

Thus, preceding case-law of this circuit has interpreted the Hicks decision as creating a permissive inference of discrimination following a rejection of the reasons offered by the defendant. With the exception of the Manzer panel’s requirement of additional evidence when a plaintiff has not factually challenged the reasons offered by the defendant, a plaintiff is not required to introduce additional evidence of discrimination. The import of the Hicks decision in this circuit is that once a plaintiff has disproved the reasons offered by the defendant, the factfinder is permitted to infer discrimination. A plaintiff does not need to introduce additional evidence of discrimination to prevail on the merits. ■ Once a plaintiff establishes its prima facie case, this, along with disbelief of the defendant’s proffered reasons for the negative employment action, will permit a finding of discrimination by the factfinder.

III.

We now turn to the merits of Kline’s arguments on appeal. In the instant case, Kline contends that the district court heightened his evidentiary burden under Hicks and required him to produce direct evidence of pretext. He argues that the district court required him to prove “pretext plus,” a concept rejected by the Supreme Court in Hicks.

The district court framed the issue at trial as “whether age or race was a factor in TVA’s 1991 reselection for the Kingston HRO position.” It found that Kline had made out a prima facie case of both race and age discrimination. The court then determined that TVA had come forward with proof of a legitimate non-discriminatory reason for the selection — Beckler was more qualified. The court ruled that the reasons had basis in fact and were sufficient to explain the hiring of Beckler over Kline. Finally, the court decreed that Kline failed to show that the stated reason was not the actual reason or that the real reason was discrimination.

In its memorandum opinion, the district court concluded that the Plaintiffs “complete lack of proof as to pretext, coupled with the lack of any direct proof of discrimination, are fatal to plaintiffs case.” The requirement of the introduction of direct proof, in addition to a finding of pretext, placed an impermissible burden on the Plaintiff which is contrary to the Supreme Court’s decision in Hicks, as well as the case law of this circuit.⁶ The. district court’s intimation that in order for Kline to prevail he must introduce evidence of pretext, coupled with direct proof, is an. erroneous conclusion of law. The, Hicks decision effectively eliminated that “pretext-plus” requirement. See Hicks, 509 U.S. at 511, 113 5.Ct. at 2749 (“[R]ejeetion of the defendant’s proffered reasons, will permit the trier of fact to infer the ultimate fact of intentional discrimination, and the Court of Appeals was correct when it noted that, upon such rejection ‘[n]o additional proof of discrimination is required.’”) (footnote and citation omitted); Manzer, 29 F.3d at 1083 (“The Court, however, also rejected the ‘pretext plus’ position ____” (quoting language in Hicks)).

The district court’s opinion misstates the current state of "the law and the burden shifting mechanism outlined in Hicks and its progeny.⁷ The district court required Kline to prove “pretext plus”, a standard rejected both by the Supreme Court and this circuit. As discussed in detail above, the Supreme Court’s decision in Hicks, rejected the requirement that a plaintiff is required to introduce direct evidence of discrimination in order to prevail as a matter of law.

In effect, the district court placed a nearly impossible burden on Kline requiring direct evidence of discrimination. Rarely can discriminatory intent be ascertained through direct evidence because rarely is such evidence available. This is- the reason for the McDonnell Douglas-Burdine burden of proof mechanism, allowing a plaintiff to prove its case through circumstantial evidence. It is the rare situation when direct evidence of discrimination is readily available, thus victims of employment discrimination are permitted to establish their cases .through inferential and circumstantial proof. See United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1483, 75 L.Ed.2d 403 (1983) (“[t]here will seldom be ‘eyewitness’ testimony as to the employer’s mental processes”). The reasoning behind the McDonnell Douglas-Bur-dine burden shifting approach is to allow a victim of discrimination to establish their case through inferential and circumstantial proof. As Justice O’Connor has noted, “the entire purpose of the McDonnell Douglas prima facie case is to compensate for the fact that direct evidence of intentional discrimination is hard to come by.” Price Waterhouse v. Hopkins, 490 U.S. 228, 271, 109 S.Ct. 1775, 1802, 104 L.Ed.2d 268 (1989) (O’Connor, J. concurring); see also Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 622, 83 L.Ed.2d 523 (1985) (“The shifting burdens of proof set forth in McDonnell Douglas are. designed to assure that the ‘plaintiff [has] his day in court despite the unavailability of direct evidence.’ ”); DuPont, 100 F.3d at 1071 (“The distinct method of proof in employment discrimination cases, ... arose out of the Supreme Court’s recognition that direct evidence of an employer’s .motivation will often be unavailable or difficult to acquire.”)

As such, a plaintiff may establish discrimination either by introducing direct evidence of discrimination or by proving inferential and circumstantial evidence which would support an inference of discrimination. See Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1248 (6th Cir.1995) (“a plaintiff may establish a prima facie case of discrimination either by presenting direct evidence of intentional discrimination by the defendant, or by showing the existence of facts which create an inference of discrimination.” (internal citations omitted)). The direct evidence and circumstantial evidence paths are mutually exclusive; a plaintiff need only prove one or the other, not both. If a plaintiff can produce direct evidence of discrimination then the McDonnell Douglas-Burdine paradigm is of no consequence. Similarly, if a plaintiff attempts to prove its case using the McDonnell Douglas-Burdine paradigm, then the party is not required to introduce direct evidence of discrimination. The district court required Kline to establish both direct and circumstantial evidence of discrimination when only one type of evidence was required.

In addition, the district court entirely disregarded the evidence introduced by Kline to establish 1 his prima facie case. When a plaintiff attempts to establish its ease using the McDonnell Douglas-Burdine paradigm, the evidence which establishes the prima facie case is extremely important. In order to prove a prima facie case of discrimination, a plaintiff must show:

1) that he is a member of a protected group, 2) that he was subject to an adverse employment decision, 3) that he was qualified for the position, and 4) that he was replaced by a person outside of the protected class.

Talley, 61 F.3d at 1246 (citing Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992)). Intimating that the evidence used to establish the prima facie case was irrelevant, the court stated that “[t]here simply was no proof that discrimination was the reason Beckler was selected.” This statement ignores the fact that some evidence of discrimination had to be ascertained in order for Kline to prove his prima facie case. In fact, the issue of whether Kline established a prima facie case has never been in doubt. That Kline established his prima facie case has been implicitly and explicitly acknowledged both before this court in the first appeal and by the district court both in the initial proceeding and upon remand from this court.

The evidence that established Kline’s prima facie case, along with a rejection of the reasons offered by the defendant, would have been sufficient to allow the district coúrt to infer discrimination on the part of TVA. Implicit in Kline’s prima facie case was a determination of whether he was qualified for the personnel officer position. The district court erroneously - determined that inferences drawn from Kline’s prima facie case are unavailing and of no effect. The inferences drawn from Kline’s prima facie case along with a rejection of the reasons offered by the defendant to explain the adverse employment action, permit a factfinder to find the existence of discrimination.

On remand, the district court failed to evaluate the reasons which this court concluded could have caused a jury to disbelieve the reasons offered by the TVA and, therefore, establish pretext. In our first opinion we examined the reselection process and TVA’s reason for choosing Beckler over Kline. Kline, 1993 WL 288280 at *4-5. In order to show pretext, Kline only needed to show that TVA’s.proffered reason, that Beckler was better qualified, was false. Manzer, 29 F.3d at 1083. There are ample undisputed facts in the record which support the conclusion that TVA’s proffered reasons are pretextual. In order to evaluate those facts it is necessary to reconstruct the reselection process from the beginning.

Sharon Tousek worked with Randy Cole in evaluating the respective qualifications of Kline and . Beckler. Tousek reviewed the requirements for the Kingston Human Relations Officer position and reviewed the résumés and personal history records of both candidates. Tousek used the Management Appraisal System (“MAS”) reviews as the mechanism to review the candidates experience and management skills. Tousek did not interview each candidate. Based on this information Tousek arid Cole determined that Beckler was more qualified for the position.

Based on the record before it and the testimony at trial there was sufficient evidence for the district court to infer a finding of pretext on the part of TVA. There is conflicting testimony concerning the draft job description used in the reselection. At the time of the reselection process Tousek and Cole allegedly obtained a draft job description to conduct the reselection. Tousek testified that she obtained this draft job description from the EO Office investigative record. Likewise, the corrective action report refers to the attached job description. However, Cole stated during the EO Office investigation that the draft job description had been destroyed around the time of July 1989-Thus, it -is curious how the parties who were conducting the reselection process in 1991 could have relied on a draft job description that was allegedly destroyed in July 1989.

The district court notes that selection criteria were taken from the September 1988 job description and were the same as the draft job description used in making the original selection. However, the record contradicts this assertion. In our first opinion we noted that Cole’s testimony during the EO Office investigation stated that the draft job description had been destroyed in July 1989. Kline, 1993 WL 288280, at *4.

At trial, Tousek testified that the draft job description supplied to Beckler at the time when she took the position as human resources officer only contained six areas whereas the position description used by TVA during the trial contained seven criteria. The issue of the draft job description is at the crux of this casé because it makes this court question whether good faith was used in the reselection process. The EO Office found that the draft job description had been destroyed in 1989. TMs, it is inconceivable that TVA could have used the draft job description when implementing the reselection.

At trial, Tousek testified as follows:

Q: Look at the table of contents and tell me if that is Carol Beckler’s position description, if it’s listed as Carol Beckler’s position description?

A: Yes. •

Q: Okay. And that position description, if you will look at the last of it, lists six criteria, doesn’t it, or six principal accountabilities? '

A: Yes.

Q: And the position description that you have been using in court today lists actually seven, doesn’t it?

A: Yes.

Q: And the position description that TVA supplied to the TVA EEO does not list that as one of the criteria classification, does it?

A: No, it is not on this description.

Q: So the salary policy and trades and labor classification systems in which you found Ms. Beckler superior was not included in the position description that had been prepared for her and ■ supplied to the TVA Equal Opportunity Office____

'A: No. I don’t think that it is. I don’t disagree that this document is in this record.... I can’t explain the discrepancy, but clearly the job requires job classification.

Q: When you secured the job description to prepare your memorandum, you secured that from the investigative record, didn’t you?

A: No. If this is what is in the investigative record, the job description that I used' is the one that we have been referencing to today that lists the seven accountabilities including job classification.

Q: Do you remember at your deposition____ I asked you a question, I asked, “what did you- do after your discussion with Mr. Leamon?” You answered, “I ordered the personal history records on Mr. Kline and selectee, Carol Beckler. I secured the job description that was used for the selection from the investigative record because it was already a matter of record.... Basically I went through the job description outlining the major section criteria and so on” ...

A: I reviewed my testimony. I made a mistake. .That is ... five years after the fact. It’s very.very hard to remember things like that.

Q: You don’t have any explanation as to why there’s a different job description in the investigative record?

A: Unless that is what was an earlier draft and what happened to be available at the time in our working files, as opposed to having been taken directly from the personal history record.

Tousek’s testimony is questionable for several reasons. First, as we noted in the first opinion, the EO Office decision states twice that Cole stated that the draft job description had been destroyed in July 1989. Kline, 1993 WL 288280 at *4. Second, Cole’s trial testimony corroborates his statements to the EO Office that the job description was destroyed in 1989. In addition, the job description does not state classification as a criteria, whereas Tousek’s memorandum includes this criteria. The missing and conveniently reappearing job description forces this court to question whether TVA’s reselection was taken in good faith or whether it was engineered to buttress TVA’s initial decision to offer the position to Beckler.

The lack of an interview for Kline is another basis for a finding of pretext and the district court mistakenly discounted this evidence. The district court concluded that interviews of both candidates would have favored Beckler because she had already been in the position for two years. However, the relevant issue is not whether both candidates should have been interviewed during the reselection, but rather whether Kline should have been interviewed at all. Kline was never given the opportunity to demonstrate any qualities which qualified him for the human resource officer position that could not be ascertained from his paper credentials. Beckler was clearly given this opportunity during the initial selection and it appears that Beckler’s performance during the interview is what secured the position for her. During Cole’s sworn statement he testified: “what I recall from her interview, she appeared to be [sie][sic] a very aggressive and motivated individual, which impressed me. What she seemed to lack in the process and experience appeared to me would be made up in her willingness to pursue learning about that area and developing herself to handle that job.” In addition, a Memorandum sent to the EO Investigator from Keith Leamon dated September 29, 1989, states as follows:

Q: Statement of policies relied upon when making the selection for the position per number 1 above. Include documentation of the policies.

A: Standard interview techniques were used in the selecting process. Since there was no time for an extensive review of personal history records, the interview played a more critical role than usual. Interviews are inherently subjective but considered critical in management selections, as it is particularly important to select an individual who has a compatible management style and philosophy.

Beckler’s interview during her initial selection allowed her to demonstrate and strengthen her credentials for the position of HRO. Kline should have been given a similar opportunity. Thus, the appropriate inquiry was not whether interviewing the candidates during the reselection process would have given Beckler an unfair advantage, as the district court notes, but whether Kline was entitled to the same degree of consideration that Beckler received. It would have been unnecessary to interview Beckler a second time to determine whether she was qualified for the job, but it would have been helpful to determine whether Kline had qualifications that were not adequately represented in his paper credentials. The district court focused on the wrong criteria in determining that an interview was unnecessary.

Based on Cole’s testimony during the EO Office investigation, Beckler was given the job based in large part on her interview. Clearly, Kline should have been given the same opportunity to bolster his paper credentials through an interview. This is especially true since Beckler’s interview played a large part in the determination that she was qualified for the position. Thus, TVA’s failure to afford Kline similar consideration by interviewing him, a factor which TVA admittedly concedes is highly relevant and important, creates an inference of pretext on the part of TVA.

There was ample evidence in the record from which the district court could have inferred pretext. The record evidence demonstrates that TVA’s reselection was not undertaken in good faith. It is questionable whether Beckler was more qualified than Kline or whether the reselection was skewed in her favor. Thus, the district court’s conclusion that Kline failed to establish pretext is clearly erroneous.

As the Supreme Court’s opinion in Hicks indicates, a factfinder is ■ permitted. to infer discrimination upon a determination that the reasons, given by defendants are pretextual. There was sufficient evidence in the record from which the district court could have inferred pretext. Therefore, the district court’s conclusion that “[t]here simply was no proof that discrimination was the reason Beckler was selected,” is clearly erroneous. The evidence offered by Kline was legally sufficient to rebut the nondiscriminatory reasons offered by TVA. While the district court’s findings of fact concerning pretext are entitled to deference, they must be reversed because they are based on “contradictory and evasive testimony.” Tye v. Board of Educ., 811 F.2d 315, 320 (6th Cir.1987).

In the instant case.it is unnecessary to remand this case for findings on the issue of ultimate discrimination because our finding is based on historic facts which are contained in the record. See id, (holding that the district court erred in determining that plaintiff had failed to prove pretext and entering judgment for plaintiff).

IV.

The district court erred in requiring that Kline prove “pretext plus,” a standard rejected by the Supreme Court in Hicks. In addition, the district court erred in determining that Kline had failed to prove pretext. Based on the foregoing, we REVERSE the judgment of the district court, enter JUDGMENT for Kline, and REMAND for a finding of appropriate relief.

1 . During his employment with TVA, Kline had filed numerous discrimination complaints both internally and with the Equal Employment Opportunity Commission (“EEOC”). Kline also complained informally about what he perceived to be discriminatory practices at TVA.

2 . It appears that Kline dropped the reprisal claim at this point.

3 . The McDonnell Douglas framework has also been applied in cases alleging violations under the ADEA. See Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1081 (6th Cir. 1994); Gagne v. Northwestern Nat. Ins. Co., 881 F.2d 309, 313 (6th Cir. 1989).

4 . Similarly, opinions from other circuits have concluded that the Hides decision creates a permissible inference of discrimination upon the rejection of the defendant's proffered' reasons. See, Isenbergh v. Knight-Ridder Newspaper Sales, Inc., 97 F.3d 436, 442 (11th Cir.1996) ("[W]e have no confidence that the Hides decision dictates to circuit and district judges, or even was intended to suggest, that every time the evidentiary record in a case could support' a jury's disbelief of the employer's explanation for the pertinent employment action, no court may grant a motion for judgment as a matter of law to the employer---- In our view, Hides, taken as a whole, more likely supports a different conclusion: in such circumstances, the watchword would be not 'every time,' but ‘sometimes.’ ”); EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994) ("A finding of pretextuality allows a juror to reject a defendant's proffered reasons for a challenged employment action and thus per-mils the ultimate inference of discrimination.”); Gaworski v. ITT Commercial Finance Corp., 17 F.3d 1104, 1109 (8th Cir.1994) ("[I]f (1) the elements of a prima facie case are present, and (2) there exists sufficient evidence for a reasonable jury to reject the defendant's proffered reasons for its actions, then the evidence is sufficient to allow the jury to determine whether intentional discrimination has occurred, and we are without power to reverse the jury's finding." (citation omitted)).

5 . Specifically, the Hicks decision, states: "The factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination.” Hicks, 509 U.S. at 511, 113 S.Ct. at 2749(empha-sis added).

6 . See discussion of Hides and cases interpreting the decision decided by this and other circuits, supra.

7 . The dissent’s attempt to recast the legally incorrect basis advanced by the district court in granting summary judgment is unavailing. The dissent disregards the plain language of the district court's opinion and supplants its own reasoning in an effort to explain what the district court may have intended by its opinion. The language of the district court, however, cannot be reworded to fit a conclusion that justifies their result. The dissent clearly concedes that the district court misunderstood the legal analysis required by Hides.