decision, although it is not compelled to do so. See 113 S. Ct. at 2749. Here, Kolstad says, the jury obviously did not believe the ADA's witnesses, all of whom testified that, fairly comparing their credentials, Spangler's recent experience was thought to be more relevant, and that, for congressional lobbying purposes, his writing style was superior to Kolstad's.
Hicks, however, involved a non-jury trial, and the holding of the case merely reaffirmed the Supreme Court's seminal formulation of the standard of proof required to present a successful Title VII claim found in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981), namely, that even a finding of "pretext," i.e., that an employer's explanation of a suspect employment decision is disingenuous, is not actionable unless shown actually to have been a pretext for discrimination. The Hicks court, in reversing a decision of the 8th Circuit that had itself overturned the decision of a district court, sitting without a jury, in favor of a defendant-employer whose professed reasons for dismissing the plaintiff-employee the district judge had nevertheless refused to credit, asserted that "the Title VII plaintiff at all times bears the 'ultimate burden of persuasion.'" Hicks, 113 S. Ct. at 2749. In other words, " a reason cannot be proved to be 'a pretext for discrimination ' unless it is shown both that the reason was false, and that discrimination was the real reason." Id. at 2752 (emphasis in the original).
At least three appellate cases, from the 6th, 11th and 1st Circuits, albeit antedating Hicks, have expressly held that, in the absence of proof that a discriminatory motive underlies an adverse employment decision, disbelief of the pretextual reasons given for it cannot alone support a finding of discrimination if the evidence admits of some other -- but not unlawful -- motivation. See Goostree v. State of Tennessee, 796 F.2d 854, 862 (6th Cir. 1986); cert. denied, 480 U.S. 918, 94 L. Ed. 2d 689, 107 S. Ct. 1374 (1987); White v. Vathally, 732 F.2d 1037, 1040 (1st Cir. 1984), cert. denied, 469 U.S. 933, 83 L. Ed. 2d 267, 105 S. Ct. 331 (1984); Clark v. Huntsville City Bd. of Education, 717 F.2d 525, 529 (11th Cir. 1983).
If Hicks, were the only, and the most recent controlling authority, this Court would be reluctant to conclude that the requirement of at least some evidence of an illegal discriminatory animus had been abandoned. Unfortunately, Hicks is neither.
In a case directly on point, not yet a year old, and representing for this Court's purposes an authoritative interpretation of Hicks, the D.C. Circuit has held that, after a plaintiff's prima facie showing, juries, too (at their election, to be sure) may infer unlawful discrimination solely from a rejection of a defendant-employer's professedly innocent explanations as "pretext". See Barbour v. Merrill, 310 U.S. App. D.C. 419, 48 F.3d 1270, 1277 (D.C. Cir. 1995). That, it would appear, is what the instant jury has done, and its verdict must therefore be allowed to stand.
Were it open to this Court to set aside the verdict under Fed. R. Civ. P. 50(c), however, the Court would do so. While the evidence may have been sufficient to have convinced the jury that Kolstad's candidacy for the position of Director of Legislation at ADA was treated cavalierly, and Spangler given a preference from the start, it is insufficient to prove to the Court's satisfaction that her sex or his more likely than not had anything to do with her rejection. Thus, in the absence of any grounds for action asserted other than the statutory Title VII claim of sex discrimination -- Kolstad having made no claim on any other theory -- the Court's equitable jurisdiction to complete the relief affords no basis for it to order a remedy for a wrong that it concludes has not been proven, the jury's verdict notwithstanding.
For the foregoing reasons, therefore, it is, this 22nd day of January, 1996,
ORDERED, that the motion of defendant American Dental Association for judgment as a matter of law is denied, and final judgment for plaintiff Carole Kolstad against the defendant in the amount of $ 52,718 is confirmed; and it is
FURTHER ORDERED, that the motion of plaintiff Carole Kolstad for an order of instatement to the position of Director of Legislation and an award of her attorney's fees and costs is denied.
Thomas Penfield Jackson
U.S. District Judge