prima facie case, that he or she was replaced by someone
outside the protected class. "The fact that one person in the
protected class has lost out to another person in the protected
class is thus irrelevant, so long as he lost out because of his
age. . . . [T]here can be no greater inference of age
discrimination (as opposed to `40 or over' discrimination) when
a 40-year-old is replaced by a 39-year-old than when a
56-year-old is replaced by a 40-year-old." Id. at 312, 116
S.Ct. 1307 (emphasis in original).
The Court disagrees with plaintiffs position in this case to
the extent that it is based on O'Connor. Dispensing with the
fourth prong of the prima facie case makes sense in an age
discrimination case because it is the age disparity between the
discharged employee and the replacement employee that is the
probative factor creating an inference of discrimination;
whether one's replacement is outside of the protected class, by
itself, is not. See Phuong v. National Academy of Sciences,
927 F. Supp. 487, 489 & n. 3 (D.C. 1996). In the race or gender
discrimination context, however, this fourth prong retains
significant probative value because inferences of discrimination
can be drawn based on the fact that one's replacement is not in
the same protected class as the discharged employee. See Kidane
v. Northwest Airlines, Inc., 41 F. Supp.2d 12, 17-18 n. 8 (D.C.
1999) (Harris, J.) (O'Connor reasoning does not translate to
cases involving racial discrimination); Simens v. Reno,
960 F. Supp. 6, 8-10 (D.C. 1997) (Lamberth, J.) (holding that
O'Connor did not eliminate the fourth prong in a failure to
hire gender discrimination case). Thus, to the extent that the
argument for not insisting upon satisfaction of the fourth prong
in race or gender termination cases relies on O'Connor, the
Court is not persuaded.
The nine circuits that have decided that the fourth
requirement is no longer part of a plaintiffs prima facie
burden in a race or gender termination case did not base their
holdings exclusively on the Supreme Court's analysis in
O'Connor, however, but concluded that this fourth prong is
analytically less relevant in the termination context than in a
failure to hire case. Judge Lamberth has agreed with these
courts, concluding that failure to satisfy the fourth prong was
not fatal, by itself, to a termination complaint if other
circumstances could give rise to an inference of discrimination.
See Lewis v. NVT Technologies, Inc., 118 F. Supp.2d 51, 53-54
(D.C. 2000).*fn5 Three other judges of this Court, including
the undersigned, have reached the opposite conclusion, holding
that the fourth prong remains a required part of a plaintiffs
prima facie burden even in a termination case and that the
failure to satisfy it is fatal to the claim. See Kidane v.
Northwest Airlines, Inc., 41 F. Supp.2d at 17-18 n. 8 (Harris,
J.); Hogue v. Tandy Corp., Civil Action No. 97-0208, 1998 WL
765723, at * 4 (D.C. Oct. 23, 1998) (Friedman, J.); Phillips v.
Holladay Property Services, Inc., 937 F. Supp. 32, 34-35 (D.C.
1996) (Richey, J.).
Faced with decisions of nine circuits in conflict with its own
prior decision, this Court would be rigid indeed not at least to
reexamine its analysis in Hogue to see if it withstands
careful scrutiny. While the mere fact that nine courts of
appeals are in agreement is not alone reason to reconsider, the
reasoning of some of these
decisions demands attention. As Justice Frankfurter once wrote:
"Wisdom too often never comes, and so one ought not reject it
merely because it comes late." Henslee v. Union Planters Nat'l
Bank & Trust Co., 335 U.S. 595, 600, 69 S.Ct. 290, 93 L.Ed. 259
(1949) (Frankfurter, J., dissenting).
The Court now is persuaded that the fact that one's
replacement is not in the same protected class as the discharged
employee "may help raise an inference of discrimination, but it
is neither a sufficient or a necessary condition." Carson v.
Bethlehem Steel Corp., 82 F.3d at 159. Conversely, while the
fact that a man is replaced by a man or an African-American is
replaced by an African-American — as in this case — is "relevant
in evaluating the employer's motive," it also is "entirely
conceivable" that the discharged employee nevertheless may be
able to establish that he or she was the "object of
impermissible discrimination" related to race or gender. Walker
v. St. Anthony's Med. Ctr., 881 F.2d at 558. "[T]he single fact
that a plaintiff is replaced by someone within [his or her]
protected class does not negate the possibility that the
discharge was motivated [by] discriminatory reasons." Nieto v.
L & H Packing Co., 108 F.3d at 624 n. 7 (quoting Hornsby v.
Conoco, Inc., 777 F.2d 243, 246-47 (5th Cir. 1985)).
Judge Edward Becker has well articulated the reasons for the
more flexible approach now endorsed by most of the circuits in
termination cases. Recognizing that a major purpose of the
McDonnell Douglas prima facie case is "to eliminate the most
obvious, lawful reasons for the [employer's] action," he noted:
Requiring that a gender-discrimination plaintiff
prove she was replaced by a man . . . eliminates no
common, lawful reasons for the discharge. If a
plaintiff cannot prove that she was qualified for a
position or that the employer took an adverse
employment action against her, it is clear why her
discrimination case should fail. By contrast, a
plaintiffs inability to prove that she was replaced
by someone outside of her class is not necessarily
inconsistent with her demonstrating that the employer
treated her "less favorably than others because of
[her] race, color, religion, sex, or national
origin.". . . .Even if the plaintiff was replaced by
someone within her own class, this simply
demonstrates that the employer is willing to hire
people from this class — which in the present context
is presumably true of all but the most misogynistic
employers — and does not establish that the employer
did not fire the plaintiff on the basis of her
Pivirotto v. Innovative Systems, Inc., 191 F.3d at 352
(quoting Furnco Construction Corp. v. Waters,
denies defendant's motion for judgment on the pleadings and will
permit plaintiff to amend his complaint to add Count III.
For all of the foregoing reasons, the Court denies plaintiffs
motion to amend the complaint to add Counts IV, V, VI and VII
and to add Wendy Norwood as a defendant. It grants the motion to
amend insofar as it seeks to add Count III, alleging
discrimination based on gender, and it denies defendant's motion
for judgment on the pleadings with respect to Counts I and II.
An Order consistent with this Opinion will be issued this same
The Court has before it plaintiffs motion to amend his
complaint and defendant's motion for judgment on the pleadings.
Upon consideration of the arguments advanced by the parties and
for the reasons stated in the Opinion issued this same day, it
ORDERED that plaintiffs motion to amend his complaint [9-1] is
GRANTED in part and DENIED in part; it is
FURTHER ORDERED that plaintiff may amend his complaint to add
only Count III alleging discrimination based on gender under the
District of Columbia Human Rights Act, D.C.Code § 1-2501, et
seq.; it is
FURTHER ORDERED that defendant's motion for judgment on the
pleadings [12-1] is DENIED; and it is
FURTHER ORDERED that consistent with the Court's order of
October 2, 2000, each party shall have thirty (30) days from the
date of this order to take additional discovery. Should the
parties require more time in which to complete discovery, they
should file jointly with the Court an appropriate motion seeking
an extension of time. In addition, the parties shall file
jointly with the Court an agreed upon schedule with proposed
deadlines for briefing post-discovery dispositive motions within
ten (10) days from the date of this order.