Thomas O. BIBBS, Jr., Appellant, v. John BLOCK, Secretary, United States Department of Agriculture, Appellee, 778 F.2d 1318

ARNOLD, Circuit Judge. This is a Title VII case in which the plaintiff, an employee of the United States Department of Agriculture, claims that he was denied a promotion because of his race. The District Court found “that racial considerations probably did play a minor role in the selection process, ... but that plaintiff would not have been selected for the position even if his race had been disregarded.” Bibbs v. Block, No. 81-0227-CV-W-6, slip op. 7 (W.D.Mo. June 14, 1983). It added that “race was not a determining factor in the decision to promote [another employee] rather than plaintiff.” Id. at 10.

Judgment was entered in favor of defendant. On appeal, a panel of this Court reversed. Bibbs v. Block, 749 F.2d 508 (8th Cir.1984). Pointing to the District Court’s finding that “race was a discernible factor at the time of the decision,” Bibbs v. Block, supra, slip op. 10, the panel took the view that the additional finding that “the same decision would have been made absent racial considerations” was “inherently inconsistent.” 749 F.2d at 512.

It vacated the judgment for defendant and remanded to the District Court “to enter a judgment in favor of plaintiff and to consider the necessary remedy to make plaintiff whole.” Id. at 513. The defendant petitioned for rehearing. He asked that the panel modify its opinion to make clear that any relief ordered on remand could not include retroactive promotion and back pay at the higher level plaintiff had unsuccessfully sought. Such relief, defendant argued, could not be appropriate where the trier of fact had found that plaintiff would not have been promoted in any event.

In the alternative, defendant asked for rehearing en banc. We granted the petition for rehearing en banc, thus automatically vacating the panel opinion. After oral argument, we now hold that plaintiff, having shown that race was • a discernible factor at the time of the decision not to promote him, has established a violation of Title VII. The cause will be remanded for a determination of appropriate relief. As to retroactive promotion and back pay, the District Court should make a new finding, this time placing the burden of persuasion on defendant.

If the court finds that defendant has shown by a preponderance of the evidence that plaintiff would not have been promoted in any event, retroactive promotion and back pay may not be ordered. I. Bibbs, who is black, is employed by the Agricultural Stabilization and Conservation Service (ASCS), a division of the Department of Agriculture. In September 1976, Bibbs applied for, but was denied, a promotion to a supervisory position in the ASCS print shop. Bibbs was one of seven individuals who applied for the position; he was the only black applicant.

All seven applications were forwarded to a selection committee comprised of three individuals, all of whom were white. The committee was dominated by one member, Joseph Tresnak, who was most familiar with the print shop and the print-shop employees. The District Court found that Tresnak was the “key figure” in making the selection. Tresnak’s central role in the selection process is significant in light of the direct evidence of Tresnak’s use of racial slurs.

One witness testified Tresnak had characterized Bibbs as a “black militant,” while another testified Tresnak referred to another print-shop employee who was black as “boy” and “nigger.” After interviewing each of the seven candidates, the committee selected Dennis Laube, who was white, for the position. The three members of the committee, after conclusion of all the interviews and without having agreed on any criteria for selection, selected the same top three candidates and each chose them in the same order.

They did not discuss their views of the relative merits of the . candidates before, during, or after the interviews. In determining that the decision not to promote Bibbs was not racially motivated, the trial court noted that the work force in the print shop was racially integrated. The trial court also found that Bibbs had a history of disciplinary and interpersonal problems and was not selected in part because he was difficult to work with and caused irritation among fellow workers.

Given the diverse factors each of the members of the selection committee used, and the alleged absence of any discussion among them during the deliberation process, the trial court judged the selection committee members “not particularly credible, either in demeanor or in the substance of their testimony. * * * The committee members were extremely guarded in their responses to questions and were quite defensive in their positions on matters that might reflect negatively on their decision. The Court is skeptical that it has heard the complete story concerning the committee’s deliberations.” Slip op. 5.

The trial court was particularly concerned about the committee members’ lack of credibility given the subjective criteria considered by the committee. The trial court observed that a subjective procedure may provide a “convenient screen for discriminatory decision making, and must be carefully scrutinized.” Id. at 4. After considering the evidence, the District Court made two factual findings. First, the court determined that race was a factor in the “selection process.” Id. at 7.

The court initially stated race played a “minor role in the selection process,” ibid.; later, it stated race was a “discernible factor at the time of the decision.” Id. at 10. Second, the court found that Bibbs “would not have been selected for the position even if his race had been disregarded,” id. at 7. Thus, the court concluded race was not a “determining” factor or a “but for” factor, meaning a factor that ultimately made a difference in the decision, and that liability was therefore not established. It dismissed the complaint. II.

In many Title VII cases, the proof proceeds on both sides on the premise that one motive only on the part of the employer— either an illegitimate one {e.g., race) or a legitimate one {e.g., ability to do the job)— has caused the adverse action of which the plaintiff complains. It is this type of case for which the familiar evidentiary framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), is designed.

After the plaintiff establishes a prima facie case, and the defendant “articulates” (a verb that refers only to the burden of producing evidence) a legitimate, nondiscriminatory reason for the action complained of, the burden then shifts back to the plaintiff to persuade the trier of fact that the defendant’s proffered reason was not the real one, but only a pretext hiding an impermissible racial motivation.

Typically, the plaintiff will contend that one reason— race — was operative, the defendant will contend that another single reason — ability to do the job — motivated it, and the trier of fact will find one reason or the other (but not a combination) to be the true one. In such a case, the issues of motivation and causation are not distinctly separated, nor do they need to be. If the plaintiff shows the defendant’s proffered reason to be a pretext for race, the case is over. Liability is established, and reinstatement is ordered (in a discharge case) absent extraordinary circumstances.

The very showing that the defendant’s asserted reason was a pretext for race is also a demonstration that but for his race plaintiff would have gotten the job. That is what pretext means: a reason for the employment decision that is not the true reason. If the District Court in the case before us had found that defendant’s reason or reasons for not promoting plaintiff were other than race, and that race played no

part in the decisionmaking process, we should be required simply to affirm the dismissal of the complaint — assuming the finding was not clearly erroneous. But the court here conducted a more sensitive analysis of the various factors at work. It found that race was “a discernible factor,” although not a but-for factor. It found, in other words, mixed motives. In this situation, we believe analysis is aided best by separating the issues of liability and remedy.

The District Court itself, citing Brodin, The Standard of Causation in the Mixed-Motive Title VII Action: A Social Policy Perspective, 82 Colum.L.Rev. 292 (1982), suggested such an approach, but decided, in view of its “novelty,” to leave to us whether to pursue it. Slip op. 10 n. 5. We accept the invitation. In doing so, we use as a factual predicate the District Court’s findings of fact, which are not clearly erroneous. We look first to the statute.

Section 703(a), 42 U.S.C. § 2000e-2(a) (1982), describes what conduct is unlawful: Employer practices It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. (Emphasis added.) As always, the. words of the Congress are the best indications of its intention.

It is not only failing to hire someone, or discharging him or her, because of race or sex, that is unlawful. The statute also forbids employers “otherwise to discriminate ... with respect to compensation, terms, conditions, or privileges of employment, because of ... race,” § 703(a)(1), and makes it unlawful for employers “to limit ... or classify ... employees ... in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect” him or her because of race.

Section 703(a)(2). To put it in terms of the present case, it would be unlawful for defendant to put Bibbs at a disadvantage in the competition for promotion because of his race, as well as actually to deny him the promotion for this reason. (Indeed, if an employer requires black employees to meet a higher standard, the statute is violated even if they actually meet it and get the jobs in question.) Every kind of disadvantage resulting from racial prejudice in the employment setting is outlawed. Forcing Bibbs to be considered for promotion in a process in which race plays a discernible

part is itself a violation of law, regardless of the outcome of the process. At the very least, such a process “tend[s] to deprive” him of an “employment opportunity].”

Section 703(a)(2). It does not follow, though, that retroactive promotion is an appropriate remedy. Unless the impermissible racial motivation was a but-for cause of Bibbs’s losing the promotion, to place him in the job now would award him a windfall. He would be more than made whole. He would get a job that he would never have received whatever his race. At this point, we think, another provision of the statute,

Section 706(g), 42 U.S.C. § 2000e-5(g) (1982), becomes important: (

g) If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees with or without back pay * * *, or any other equitable relief as the court deems appropriate. * * * No order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement, or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of

section 2000e-3(

a) of this title. (Emphasis added.) Thus, the language of Title VII supports the separation of liability and remedy and allows an award of reinstatement or promotion and back pay only after a finding that discrimination was the but-for cause of the employment decision. After defining unlawful employment practices of an employer in Subsection 703(

a) of the statute, Congress set forth the conditions on which courts may grant injunctive and affirmative relief. By the terms of the statute, injunctive relief may be awarded after a finding of intentional discrimination; and affirmative relief such as reinstatement and back pay may not be awarded if the employment decision was “for any reason other than discrimination.” The “but-for” determination required for an award of affirmative relief is consistent with Title VII’s intended purpose of making persons whole for injuries suffered on account of unlawful employment discrimination. Albemarle Paper Co. v.

Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975). Focusing on Subsection 706(

g) of the statute, the Supreme Court recently reaffirmed the principle of make-whole relief, stating that competitive seniority can be awarded only to actual victims of discrimination. Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 104 S.Ct. 2576, 2589, 81 L.Ed.2d 483 (1984). The Supreme Court has not expressly addressed the mixed-motives problem in a Title VII case, but it has focused on it in other contexts.

For example, in the context of legislative and administrative decision making, the Court has considered whether a decision motivated by both lawful and unlawful considerations violated the Equal Protection Clause. See Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265-66, 97 S.Ct. 555, 563-64, 50 L.Ed.2d 450 (1977) (“When there is proof that a discriminatory purpose has been a motivating factor in the decision, * * * judicial deference [to the legislative/administrative decision] is no longer justified.”) (emphasis added).

The Court established the so-called same-decision test to review such decisions: Proof that the decision by the Village was motivated in part by a racially discriminatory purpose would not necessarily have required invalidation of the challenged decision. Such proof would, however, have shifted to the Village the burden of establishing that the same decision would have resulted even had the impermissible purpose not been considered. If this were established, the complaining party in a case of this kind no longer fairly could attribute the injury complained of to improper consideration of a discriminatory purpose.

In such circumstances, there would be no justification for judicial interference with the challenged decision. Id. at 270 n. 21, 97 S.Ct. at 566 n. 21. The Court also adopted the same-decision test for First Amendment retaliatory-discharge cases in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), decided the same day as Arlington Heights. See also Givhan v. Western Line Consolidated School District, 439 U.S. 410, 416-17, 99 S.Ct. 693, 697, 58 L.Ed.2d 619 (1979). The Court in Mt.

Healthy articulated the proper standard of causation as follows: Initially, in this case, the burden was properly placed upon respondent to show that his conduct was constitutionally protected, and that this conduct was a “substantial factor” — or, to put it in other words, that it was a “motivating factor” in the Board’s decision not to rehire him.

Respondent having carried that burden, however, the District Court should have gone on to determine whether the Board had shown by a preponderance of the evidence that it would have reached the same decision as to respondent’s reemployment even in the absence of the protected conduct. 429 U.S. at 287, 97 S.Ct. 568 at 576 (footnote omitted). See also NLRB v. Transportation Management Corp., 462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983) (similar mixed-motives analysis used in unfair-labor-practice cases).

In the ML Healthy group of cases, of course, the Supreme Court’s mixed-motives analysis is used to establish the defendant’s liability in the first place, not simply to determine the appropriate remedy. If the defendant establishes that it would have made the same decision in the absence of the illegitimate factor, it wins the case, and the complaint is dismissed. Our reading of Title VII is significantly different. In that statute, Congress has made unlawful any kind of racial discrimination, not just discrimination that actually deprives someone of a job.

A defendant’s showing that the plaintiff would not have gotten the job anyway does not extinguish liability. It simply excludes the remedy of retroactive promotion or reinstatement. In adopting this mode of analysis, we employ an approach similar to that used in King v. Trans-World Airlines, Inc., 738 F.2d 255, 259 (8th Cir.1984) (discrimination in interview process not cured by defendant’s legitimate reasons for not hiring plaintiff), approved in Easley v. Anheuser-Busch, Inc., 758 F.2d 251, 262 (8th Cir.1985). See also, e.g., Caviale v.

Wisconsin Department of Health and Social Services, 744 F.2d 1289, 1295-96 (7th Cir.1984); Fadhl v. San Francisco, 741 F.2d 1163, 1166-67 (9th Cir.1984); Pollard v. Grinstead, 741 F.2d 73, 75 (4th Cir.1984); Smallwood v. United Air Lines, Inc., 728 F.2d 614, 620 (4th Cir.), cert. denied, — U.S. -, 105 S.Ct. 120, 83 L.Ed.2d 62 (1984); Toney v. Block, 705 F.2d 1364, 1370 (D.C.Cir.1983) (Tamm, J., concurring); Milton v. Weinberger, 696 F.2d 94, 98-99 (D.C.Cir.1982); Harbison v. Goldschmidt, 693 F.2d 115, 116-17 (10th Cir.1982); Nanty v.

Barrows Co., 660 F.2d 1327, 1333 (9th Cir.1981); League of United Latin American Citizens v. City of Salinas Fire Department, 654 F.2d 557, 558 (9th Cir.1981); Richerson v. Jones, 551 F.2d 918, 923-25 (3d Cir.1977); Day v. Mathews, 530 F.2d 1083, 1085 (D.C.Cir.1976) (per curiam); see generally Brodin, The Standard of Causation in the Mixed-Motive Title VII Action: A Social-Policy Perspective, 82 Colum.L.Rev. 292 (1982). Under this approach, once the plaintiff has established a violation of Title VII by proving that an unlawful motive played some

part in the employment decision or decisional process, the plaintiff is entitled to some relief, including, as appropriate, a declaratory judgment, partial attorney’s fees, and injunctive relief against future or continued discrimination. However, even after a finding of unlawful discrimination is made, the defendant is allowed a further defense in order to limit the relief. The defendant may avoid an award of reinstatement or promotion and back pay if it can prove by a preponderance of the evidence that the plaintiff would not have been hired or promoted even in the absence of the proven discrimination.

This same-decision test will apply only to determine the appropriate remedy and only after plaintiff proves he or she was a victim of unlawful discrimination in some respect. Toney, 705 F.2d at 1370 (Tamm, J., concurring) (footnote omitted) (“It has no relevance to the liability phase of a Title VII suit.”). For that reason, the burden of production and persuasion shifts from the plaintiff to the defendant.

King, 738 F.2d at 259 (“The burden of showing that proven discrimination did not cause a plaintiff’s rejection is properly placed on the defendant-employer because its unlawful acts have made it difficult to determine what would have transpired if all parties had acted properly.”) (quoting League of United Latin American Citizens v. City of Salinas Fire Department, 654 F.2d 557, 559 (9th Cir.1981)). In the instant case, Bibbs has proved race was a discernible factor in the decision not to promote him.

We hold such proof is sufficient in a mixed-motive context to establish intentional discrimination and liability under Title VII. We therefore vacate the judgment dismissing the complaint and remand for the entry of a declaratory judgment in favor of Bibbs and an injunction prohibiting the ASCS from future or continued discrimination against Bibbs on the basis of race. In addition, the District Court should consider Bibbs a prevailing party for the purpose of an award of attorney’s fees. See 42 U.S.C. § 2000e-5(k); King, 738 F.2d at 259; Nanty v. Barrows Co. 660 F.2d 1327, 1334 n. 10 (9th Cir.1981).

Of course, in determining a reasonable fee, an adjustment based on the extent to which Bibbs has succeeded will be appropriate. See Hensley v. Eckerhart, 461 U.S. 424, 435-36, 103 S.Ct. 1933, 1940-41, 76 L.Ed.2d 40 (1983) (applying 42 U.S.C. § 1988). Nevertheless, we emphasize that “by proving unlawful discrimination, appellant prevailed on a significant issue in the litigation,” King, 738 F.2d at 259, and thereby vindicated a major purpose of Title VII, the rooting out and deterrence of job discrimination. III.

On this rehearing en banc the government did not challenge the panel’s holding that defendant is liable. Instead, it challenged the scope of relief available when there has been no finding that discrimination was the “but-for” cause of the denial of promotion. Because we agree that a but-for or same-decision finding must be made before affirmative relief such as retroactive promotion and back pay may be awarded, we remand the case for further analysis of the remedy issue.

As stated above, the District Court must consider whether Bibbs would have received the promotion but for the discrimination in the selection process. While the trial court’s statement that “[i]t cannot be concluded that plaintiff would have been selected by a committee free of racial considerations” would satisfy the same-decision standard, the trial court apparently placed the burden on Bibbs to show why he was denied the promotion.

We reiterate that to avoid an award of retroactive promotion and back pay, the defendant must prove by a preponderance of evidence that Bibbs would not have received the promotion even if race had not been considered. Vacated and remanded with instructions. . Plaintiff initially claimed age discrimination as well. The District Court found against this claim, and the panel to which this appeal was initially submitted affirmed that finding as not clearly erroneous. Bibbs v. Block, 749 F.2d 508, 509 (8th Cir.1984). This aspect of the case is not before the Court en banc. . The Hon. Howard F.

Sachs, United States District Judge for the Western District of Missouri. . Such “bottom line” statistics do not insulate an employer from liability for intentional discrimination against an individual employee. See Connecticut v. Teal, 457 U.S. 440, 454, 102 S.Ct. 2525, 2534, 73 L.Ed.2d 130 (1982). But they are relevant evidence, to be considered along with all other factors. . The District Court found that racial considerations were a discernible, though minor, factor in the selection process and in the decision of whom to promote, though not a determining factor in the "but for” sense.

The court found that race was a motivating factor but that plaintiff had not shown that he would have received the job had race not been considered. In this situation, we think liability on the part of the defendant is established. The plaintiff, however, will actually be awarded the promotion (or comparable relief such as front pay or damages) only if defendant fails to show that it would have made the same decision absent consideration of the impermissible factor. .

Although several courts considering the weight of the employer’s burden on the remedy question have imposed a "clear and convincing’’ proof requirement, see, e.g., Toney, 705 F.2d at 1373 (Tamm, J., concurring); Patterson v. Greenwood School District 50, 696 F.2d 293, 295; Ostroff v. Employment Exchange, Inc., 683 F.2d 302, 304 (9th Cir.1982), we recently rejected that higher standard of proof in Craik v. Minnesota State University Board, 731 F.2d 465, 470 n. 8 (8th Cir.1984) (Title VII class action alleging a pattern or practice of sex discrimination). But cf. King, 738 F.2d 255, 257 (8th Cir.1984).

In Craik we stated: “The normal standard of proof in civil litigation is that of a preponderance of the evidence, and we do not believe that the public and private interests involved require altering that distribution of the risk of error between'the litigants.” 731 F.2d at 470 n. 8. We adhere to that view now. Cf. Herman & McLean v. Huddleston, 459 U.S. 375, 389-90, 103 S.Ct. 683, 685, 74 L.Ed.2d 548 (recovery under § 10(

b) of the 1934 Securities Exchange Act, 15 U.S.C. § 78j(b), requires preponderance rather than clear and convincing evidence).