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SUPREME COURT OF THE UNITED STATES
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No. 92-602
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ST. MARY'S HONOR CENTER, et al., PETITIONERS
v. MELVIN HICKS
on writ of certiorari to the united states court
of appeals for the eighth circuit
[June 25, 1993]

  Justice Souter, with whom Justice White, Justice
Blackmun, and Justice Stevens join, dissenting.
  Twenty years ago, in McDonnell Douglas Corp. v. Green,
411 U. S. 792 (1973), this Court unanimously prescribed
a -sensible, orderly way to evaluate the evidence- in a
Title VII disparate-treatment case, giving both plaintiff
and defendant fair opportunities to litigate -in light of
common experience as it bears on the critical question of
discrimination.-  Furnco Construction Corp. v. Waters, 438
U. S. 567, 577 (1978).  We have repeatedly reaffirmed and
refined the McDonnell Douglas framework, most notably
in Texas Dept. of Community Affairs v. Burdine, 450 U. S.
248 (1981), another unanimous opinion.  See also United
States Postal Service Bd. of Governors v. Aikens, 460 U. S.
711 (1983); Furnco, supra.  But today, after two decades
of stable law in this Court and only relatively recent
disruption in some of the Circuits, see ante, at 9-10, the
Court abandons this practical framework together with its
central purpose, which is -to sharpen the inquiry into the
elusive factual question of intentional discrimination.-
Burdine, supra, at 255, n. 8.  Ignoring language to the
contrary in both McDonnell Douglas and Burdine, the
Court holds that, once a Title VII plaintiff succeeds in
showing at trial that the defendant has come forward with
pretextual reasons for its actions in response to a prima
facie showing of discrimination, the factfinder still may
proceed to roam the record, searching for some nondis-
criminatory explanation that the defendant has not raised
and that the plaintiff has had no fair opportunity to
disprove.  Because the majority departs from settled
precedent in substituting a scheme of proof for disparate-
treatment actions that promises to be unfair and unwork-
able, I respectfully dissent.
  The McDonnell Douglas framework that the Court
inexplicably casts aside today was summarized neatly in
Burdine:
-First, the plaintiff has the burden of proving by the
preponderance of the evidence a prima facie case of
discrimination.  Second, if the plaintiff succeeds in
proving the prima facie case, the burden shifts to the
defendant to articulate some legitimate, nondiscrimi-
natory reason for the employee's rejection.  Third,
should the defendant carry this burden, the plaintiff
must then have an opportunity to prove by a prepon-
derance of the evidence that the legitimate reasons
offered by the defendant were not its true reasons,
but were a pretext for discrimination.-  450 U. S., at
252-253 (citations and internal quotation marks
omitted).
We adopted this three-step process to implement, in an
orderly fashion, -[t]he language of Title VII,- which
-makes plain the purpose of Congress to assure equality
of employment opportunities and to eliminate those
discriminatory practices and devices which have fostered
racially stratified job environments to the disadvantage of
minority citizens.-  Id., at 800.  Because -Title VII toler-
ates no racial discrimination, subtle or otherwise,- id., at
801, we devised a framework that would allow both
plaintiffs and the courts to deal effectively with employ-
ment discrimination revealed only through circumstantial
evidence.  See Aikens, supra, at 716 (-There will seldom
be `eyewitness' testimony as to the employer's mental
processes-).  This framework has gained wide acceptance,
not only in cases alleging discrimination on the basis of
-race, color, religion, sex, or national origin- under Title
VII, 42 U. S. C. 2000e-2, but also in similar cases, such
as those alleging age discrimination under the Age Dis-
crimination in Employment Act of 1967.  See, e.g., Halsell
v. Kimberly-Clark Corp., 683 F. 2d 285, 289 (CA8 1982),
cert. denied, 459 U. S. 1205 (1983); see also Brief for
Lawyers' Committee for Civil Rights et al. as Amici
Curiae 3-4.
  At the outset, under the McDonnell Douglas framework,
a plaintiff alleging disparate treatment in the workplace
in violation of Title VII must provide the basis for an
inference of discrimination.  In this case, as all agree,
Melvin Hicks met this initial burden by proving by a
preponderance of the evidence that he was black and
therefore a member of a protected class; he was qualified
to be a shift commander; he was demoted and then
terminated; and his position remained available and was
later filled by a qualified applicant.  See 970 F. 2d 487,
491, and n. 7 (CA8 1992).  Hicks thus proved what we
have called a -prima facie case- of discrimination, and it
is important to note that in this context a prima facie
case is indeed a proven case.  Although, in other contexts,
a prima facie case only requires production of enough
evidence to raise an issue for the trier of fact, here it
means that the plaintiff has actually established the
elements of the prima facie case to the satisfaction of the
factfinder by a preponderance of the evidence.  See 450
U. S., at 253, 254, n. 7.  By doing so, Hicks -eliminat[ed]
the most common nondiscriminatory reasons- for demotion
and firing: that he was unqualified for the position or that
the position was no longer available.  Burdine, 450 U. S.,
at 254.  Given our assumption that -people do not act in
a totally arbitrary manner, without any underlying
reasons, especially in a business setting,- we have ex-
plained that a prima facie case implies discrimination
-because we presume [the employer's] acts, if otherwise
unexplained, are more likely than not based on the
consideration of impermissible factors.-  Furnco, 438 U. S.,
at 577; see also Burdine, 450 U. S., at 254.
  Under McDonnell Douglas and Burdine, however, proof
of a prima facie case not only raises an inference of
discrimination; in the absence of further evidence, it also
creates a mandatory presumption in favor of the plaintiff.
450 U. S., at 254, n. 7.  Although the employer bears no
trial burden at all until the plaintiff proves his prima
facie case, once the plaintiff does so the employer must
either respond or lose.  As we made clear in Burdine, -[I]f
the employer is silent in the face of the presumption, the
court must enter judgment for the plaintiff.-  Id., at 254;
see ante, at 7, n. 3 (in these circumstances, the factfinder
-must find the existence of the presumed fact of unlawful
discrimination and must, therefore, render a verdict for
the plaintiff-) (emphasis in original).  Thus, if the em-
ployer remains silent because it acted for a reason it is
too embarrassed to reveal, or for a reason it fails to
discover, see ante, at 10-11, the plaintiff is entitled to
judgment under Burdine.
  Obviously, it would be unfair to bar an employer from
coming forward at this stage with a nondiscriminatory
explanation for its actions, since the lack of an open
position and the plaintiff's lack of qualifications do not
exhaust the set of nondiscriminatory reasons that might
explain an adverse personnel decision.  If the trier of fact
could not consider other explanations, employers' autono-
my would be curtailed far beyond what is needed to
rectify the discrimination identified by Congress.  Cf.
Furnco, supra, at 577-578 (Title VII -does not impose a
duty to adopt a hiring procedure that maximizes hiring
of minority employees-).  On the other hand, it would be
equally unfair and utterly impractical to saddle the
victims of discrimination with the burden of either produc-
ing direct evidence of discriminatory intent or eliminating
the entire universe of possible nondiscriminatory reasons
for a personnel decision.  The Court in McDonnell Douglas
reconciled these competing interests in a very sensible
way by requiring the employer to -articulate,- through the
introduction of admissible evidence, one or more -legiti-
mate, nondiscriminatory reason[s]- for its actions.  411
U. S., at 802; Burdine, supra, at 254-255.  Proof of a
prima facie case thus serves as a catalyst obligating the
employer to step forward with an explanation for its
actions.  St. Mary's, in this case, used this opportunity to
provide two reasons for its treatment of Hicks: the sever-
ity and accumulation of rule infractions he had allegedly
committed.  970 F. 2d, at 491.
  The Court emphasizes that the employer's obligation at
this stage is only a burden of production, ante, at 4, 6; see
450 U. S., at 254-255, and that, if the employer meets the
burden, the presumption entitling the plaintiff to judgment
-drops from the case.-  Id., at 255, n. 10; see ante, at 4.
This much is certainly true, but the obligation also
serves an important function neglected by the majority,
in requiring the employer -to frame the factual issue with
sufficient clarity so that the plaintiff will have a full and
fair opportunity to demonstrate pretext.-  450 U. S., at
255-256.  The employer, in other words, has a -burden
of production- that gives it the right to choose the scope
of the factual issues to be resolved by the factfinder.  But
investing the employer with this choice has no point
unless the scope it chooses binds the employer as well as
the plaintiff.  Nor does it make sense to tell the employer,
as this Court has done, that its explanation of legitimate
reasons -must be clear and reasonably specific,- if the
factfinder can rely on a reason not clearly articulated, or
on one not articulated at all, to rule in favor of the
employer.  Id., at 258; see id., at 255, n. 9 (-An articula-
tion not admitted into evidence will not suffice-).
  Once the employer chooses the battleground in this
manner, -the factual inquiry proceeds to a new level of
specificity.-  Id., at 255.  During this final, more specific
enquiry, the employer has no burden to prove that its
proffered reasons are true; rather, the plaintiff must prove
by a preponderance of the evidence that the proffered
reasons are pretextual.  Id., at 256.  McDonnell Douglas
makes it clear that if the plaintiff fails to show -pretext,-
the challenged employment action -must stand.-  411
U. S., at 807.  If, on the other hand, the plaintiff carries
his burden of showing -pretext,- the court -must order a
prompt and appropriate remedy.-  Ibid.  Or, as we said
in Burdine: -[The plaintiff] now must have the opportunity
to demonstrate that the proffered reason was not the true
reason for the employment decision.  This burden now
merges with the ultimate burden of persuading the court
that [the plaintiff] has been the victim of intentional
discrimination.-  450 U. S., at 256.  Burdine drives home
the point that the case has proceeded to -a new level of
specificity- by explaining that the plaintiff can meet his
burden of persuasion in either of two ways: -either
directly by persuading the court that a discriminatory
reason more likely motivated the employer or indirectly
by showing that the employer's proffered explanation is
unworthy of credence.-  Ibid.; see Aikens, 460 U. S., at
716 (quoting this language from Burdine); id., at 717-718
(Blackmun, J., joined by Brennan, J., concurring); see also
Price Waterhouse v. Hopkins, 490 U. S. 228, 287-289
(1989) (Kennedy, J., dissenting) (discussing these -two
alternative methods- and relying on Justice Blackmun's
concurrence in Aikens).  That the plaintiff can succeed
simply by showing that -the employer's proffered explana-
tion is unworthy of credence- indicates that the case has
been narrowed to the question whether the employer's
proffered reasons are pretextual.  Thus, because Hicks
carried his burden of persuasion by showing that St.
Mary's proffered reasons were -unworthy of credence,- the
Court of Appeals properly concluded that he was entitled
to judgment.  970 F. 2d, at 492.
  The Court today decides to abandon the settled law that
sets out this structure for trying disparate-treatment Title
VII cases, only to adopt a scheme that will be unfair to
plaintiffs, unworkable in practice, and inexplicable in
forgiving employers who present false evidence in court.
Under the majority's scheme, once the employer succeeds
in meeting its burden of production, -the McDonnell
Douglas framework . . . is no longer relevant.-  Ante, at
7.  Whereas we said in Burdine that if the employer
carries its burden of production, -the factual inquiry
proceeds to a new level of specificity,- 450 U. S., at 255,
the Court now holds that the further enquiry is wide
open, not limited at all by the scope of the employer's
proffered explanation.  Despite the Court's assiduous
effort to reinterpret our precedents, it remains clear that
today's decision stems from a flat misreading of Burdine
and ignores the central purpose of the McDonnell Douglas
framework, which is -progressively to sharpen the inquiry
into the elusive factual question of intentional discrimina-
tion.-  Id., at 255, n. 8.  We have repeatedly identified the
compelling reason for limiting the factual issues in the
final stage of a McDonnell Douglas case as -the require-
ment that the plaintiff be afforded a full and fair opportu-
nity to demonstrate pretext.-  Id., at 258 (internal quota-
tion marks omitted); see id., at 256 (the plaintiff -must
have the opportunity to demonstrate- pretext); Aikens,
supra, at 716, n. 5; Furnco, 438 U. S., at 578; McDonnell
Douglas, 411 U. S., at 805.  The majority fails to explain
how the plaintiff, under its scheme, will ever have a -full
and fair opportunity- to demonstrate that reasons not
articulated by the employer, but discerned in the record
by the factfinder, are also unworthy of credence.  The
Court thus transforms the employer's burden of production
from a device used to provide notice and promote fairness
into a misleading and potentially useless ritual.
  The majority's scheme greatly disfavors Title VII plain-
tiffs without the good luck to have direct evidence of
discriminatory intent.  The Court repeats the truism that
the plaintiff has the -ultimate burden- of proving discrimi-
nation, see ante, at 4, 5, 8, 15, without ever facing the
practical question of how the plaintiff without such direct
evidence can meet this burden.  Burdine provides the
answer, telling us that such a plaintiff may succeed in
meeting his ultimate burden of proving discrimination
-indirectly by showing that the employer's proffered
explanation is unworthy of credence.-  450 U. S., at 256;
see Aikens, supra, at 716; id., at 717-718 (Blackmun, J.,
joined by Brennan, J., concurring).  The possibility of
some practical procedure for addressing what Burdine
calls indirect proof is crucial to the success of most Title
VII claims, for the simple reason that employers who
discriminate are not likely to announce their discrimina-
tory motive.  And yet, under the majority's scheme, a
victim of discrimination lacking direct evidence will now
be saddled with the tremendous disadvantage of having
to confront, not the defined task of proving the employer's
stated reasons to be false, but the amorphous requirement
of disproving all possible nondiscriminatory reasons that
a factfinder might find lurking in the record.  In the
Court's own words, the plaintiff must -disprove all other
reasons suggested, no matter how vaguely, in the record.-
Ante, at 20 (emphasis in original).
  While the Court appears to acknowledge that a plaintiff
will have the task of disproving even vaguely suggested
reasons, and while it recognizes the need for -[c]larity
regarding the requisite elements of proof,- ante, at 21, it
nonetheless gives conflicting signals about the scope of its
holding in this case.  In one passage, the Court states
that although proof of the falsity of the employer's prof-
fered reasons does not -compe[l] judgment for the plain-
tiff,- such evidence, without more, -will permit the trier
of fact to infer the ultimate fact of intentional discrimina-
tion.-  Ante, at 8 (emphasis omitted).  The same view is
implicit in the Court's decision to remand this case, ante,
at 21-22, keeping Hicks's chance of winning a judgment
alive although he has done no more (in addition to
proving his prima facie case) than show that the reasons
proffered by St. Mary's are unworthy of credence.  But
other language in the Court's opinion supports a more
extreme conclusion, that proof of the falsity of the
employer's articulated reasons will not even be sufficient
to sustain judgment for the plaintiff.  For example, the
Court twice states that the plaintiff must show -both that
the reason was false, and that discrimination was the real
reason.-  Ante, at 13; see ante, at 5.  In addition, in
summing up its reading of our earlier cases, the Court
states that -[i]t is not enough . . . to disbelieve the
employer.-  Ante, at 17 (emphasis omitted).  This -pretext-
plus- approach would turn Burdine on its head, see n. 7,
supra, and it would result in summary judgment for the
employer in the many cases where the plaintiff has no
evidence beyond that required to prove a prima facie case
and to show that the employer's articulated reasons are
unworthy of credence.  Cf. Carter v. Duncan-Huggins,
Ltd., 234 U. S. App. D. C. 126, 146, 727 F. 2d 1225, 1245
(1984) (Scalia, J., dissenting) (-[I]n order to get to the jury
the plaintiff would . . . have to introduce some evidence
. . . that the basis for [the] discriminatory treatment was
race-) (emphasis in original).  See generally Lanctot, The
Defendant Lies and the Plaintiff Loses: The Fallacy of the
-Pretext-Plus- Rule in Employment Discrimination Cases,
43 Hastings L. J. 57 (1991) (criticizing the -pretext-plus-
approach).
  The Court fails to explain, moreover, under either
interpretation of its holding, why proof that the employer's
articulated reasons are -unpersuasive, or even obviously
contrived,- ante, at 21, falls short.  Under McDonnell
Douglas and Burdine, there would be no reason in this
situation to question discriminatory intent.  The plaintiff
has raised an inference of discrimination (though no
longer a presumption) through proof of his prima facie
case, and as we noted in Burdine, this circumstantial
proof of discrimination can also be used by the plaintiff
to show pretext.  450 U. S., at 255, n. 10.  Such proof is
merely strengthened by showing, through use of further
evidence, that the employer's articulated reasons are false,
since -common experience- tells us that it is -more likely
than not- that the employer who lies is simply trying to
cover up the illegality alleged by the plaintiff.  Furnco,
438 U. S., at 577.  Unless McDonnell Douglas's command
to structure and limit the case as the employer chooses
is to be rendered meaningless, we should not look beyond
the employer's lie by assuming the possible existence of
other reasons the employer might have proffered without
lying.  By telling the factfinder to keep digging in cases
where the plaintiff's proof of pretext turns on showing the
employer's reasons to be unworthy of credence, the major-
ity rejects the very point of the McDonnell Douglas rule
requiring the scope of the factual enquiry to be limited,
albeit in a manner chosen by the employer.  What is
more, the Court is throwing out the rule for the benefit
of employers who have been found to have given false
evidence in a court of law.  There is simply no justifica-
tion for favoring these employers by exempting them from
responsibility for lies.  It may indeed be true that such
employers have nondiscriminatory reasons for their
actions, but ones so shameful that they wish to conceal
them.  One can understand human frailty and the natural
desire to conceal it, however, without finding in it a
justification to dispense with an orderly procedure for
getting at -the elusive factual question of intentional
discrimination.-  Burdine, 450 U. S., at 255, n. 8.
  With no justification in the employer's favor, the conse-
quences to actual and potential Title VII litigants stand
out sharply.  To the extent that workers like Melvin Hicks
decide not to sue, given the uncertainties they would face
under the majority's scheme, the legislative purpose in
adopting Title VII will be frustrated.  To the extent such
workers nevertheless decide to press forward, the result
will likely be wasted time, effort, and money for all
concerned.  Under the scheme announced today, any
conceivable explanation for the employer's actions that
might be suggested by the evidence, however unrelated to
the employer's articulated reasons, must be addressed by
a plaintiff who does not wish to risk losing.  Since the
Court does not say whether a trial court may limit the
introduction of evidence at trial to what is relevant to the
employer's articulated reasons, and since the employer can
win on the possibility of an unstated reason, the scope of
admissible evidence at trial presumably includes any
evidence potentially relevant to -the ultimate question- of
discrimination, unlimited by the employer's stated reasons.
Ante, at 8.  If so, Title VII trials promise to be tedious
affairs.  But even if, on the contrary, relevant evidence is
still somehow to be limited by reference to the employer's
reasons, however -vaguely- articulated, the careful plaintiff
will have to anticipate all the side issues that might arise
even in a more limited evidentiary presentation.  Thus,
in either case, pretrial discovery will become more exten-
sive and wide-ranging (if the plaintiff can afford it), for
a much wider set of facts could prove to be both relevant
and important at trial.  The majority's scheme, therefore,
will promote longer trials and more pre-trial discovery,
threatening increased expense and delay in Title VII
litigation for both plaintiffs and defendants, and increased
burdens on the judiciary.
  In addition to its unfairness and impracticality, the
Court's new scheme, on its own terms, produces some
remarkable results.  Contrary to the assumption underly-
ing the McDonnell Douglas framework, that employers will
have -some reason- for their hiring and firing decisions,
see Furnco, 438 U. S., at 577 (emphasis in original), the
majority assumes that some employers will be unable to
discover the reasons for their own personnel actions.  See
ante, at 10-11.  Under the majority's scheme, however,
such employers, when faced with proof of a prima facie
case of discrimination, still must carry the burden of
producing evidence that a challenged employment action
was taken for a nondiscriminatory reason.  Ante, at 3-4,
6.  Thus, if an employer claims it cannot produce any
evidence of a nondiscriminatory reason for a personnel
decision, and the trier of fact concludes that the plain-
tiff has proven his prima facie case, the court must enter
judgment for the plaintiff.  Ante, at 7, n. 3.  The
majority's scheme therefore leads to the perverse result
that employers who fail to discover nondiscriminatory
reasons for their own decisions to hire and fire employees
not only will benefit from lying, but must lie, to defend
successfully against a disparate-treatment action.  By
offering false evidence of a nondiscriminatory reason, such
an employer can rebut the presumption raised by the
plaintiff's prima facie case, and then hope that the
factfinder will conclude that the employer may have acted
for a reason unknown rather than for a discriminatory
reason.  I know of no other scheme for structuring a legal
action that, on its own terms, requires a party to lie in
order to prevail.
  Finally, the Court's opinion destroys a framework
carefully crafted in precedents as old as 20 years, which
the Court attempts to deflect, but not to confront.  The
majority first contends that the opinions creating and
refining the McDonnell Douglas framework consist primar-
ily of dicta, whose bearing on the issue we consider today
presumably can be ignored.  See ante, at 12.  But this
readiness to disclaim the Court's considered pronounce-
ments devalues them.  Cases, such as McDonnell Douglas,
that set forth an order of proof necessarily go beyond the
minimum necessary to settle the narrow dispute pre-
sented, but evidentiary frameworks set up in this manner
are not for that reason subject to summary dismissal in
later cases as products of mere dicta.  Courts and litigants
rely on this Court to structure lawsuits based on federal
statutes in an orderly and sensible manner, and we
should not casually abandon the structures adopted.
  Because the Court thus naturally declines to rely
entirely on dismissing our prior directives as dicta, it
turns to the task of interpreting our prior cases in this
area, in particular Burdine.  While acknowledging that
statements from these earlier cases may be read, and in
one instance must be read, to limit the final enquiry in
a disparate-treatment case to the question of pretext, the
Court declares my reading of those cases to be -utter[ly]
implausib[le],- ante, at 10, imputing views to earlier
Courts that would be -beneath contempt,- ante, at 15,
n. 7.  The unlikely reading is, however, shared by the
Solicitor General and the Equal Employment Opportunity
Commission, which is charged with implementing and
enforcing Title VII and related statutes, see Brief for
United States et al. as Amici Curiae 1-2, not to mention
the Court of Appeals in this case and, even by the Court's
count, more than half of the Courts of Appeals to have
discussed the question (some, albeit, in dicta).  See ante,
at 9-10.  The company should not be cause for surprise.
For reasons explained above, McDonnell Douglas and
Burdine provide a clear answer to the question before us,
and it would behoove the majority to explain its decision
to depart from those cases.
  The Court's final attempt to neutralize the force of our
precedents comes in its claim that Aikens settled the
question presented today.  This attempt to rest on Aikens
runs into the immediate difficulty, however, that Aikens
repeats what we said earlier in Burdine: the plaintiff may
succeed in meeting his ultimate burden of persuasion
-`either directly by persuading the court that a discrimina-
tory reason more likely motivated the employer or indi-
rectly by showing that the employer's proffered explana-
tion is unworthy of credence.'-  Aikens, 460 U. S., at 716
(quoting Burdine, 450 U. S., at 256).  Although the Aikens
Court quoted this statement approvingly, the majority
here projects its view that the latter part of the statement
is -problematic,- ante, at 17, arguing that the next sen-
tence in Aikens takes care of the -problem.-  The next
sentence, however, only creates more problems for the
majority, as it directs the District Court to -decide which
party's explanation of the employer's motivation it be-
lieves.-  460 U. S., at 716 (emphasis supplied).  By
requiring the factfinder to choose between the employer's
explanation and the plaintiff's claim of discrimination
(shown either directly or indirectly), Aikens flatly bars the
Court's conclusion here that the factfinder can choose a
third explanation, never offered by the employer, in ruling
against the plaintiff.  Because Aikens will not bear the
reading the majority seeks to place upon it, there is no
hope of projecting into the past the abandonment of
precedent that occurs today.
  I cannot join the majority in turning our back on these
earlier decisions.  -Considerations of stare decisis have
special force in the area of statutory interpretation, for
here, unlike in the context of constitutional interpretation,
the legislative power is implicated, and Congress remains
free to alter what we have done.-  Patterson v. McLean
Credit Union, 491 U. S. 164, 172-173 (1989).  It is not as
though Congress is unaware of our decisions concerning
Title VII, and recent experience indicates that Congress
is ready to act if we adopt interpretations of this statutory
scheme it finds to be mistaken.  See Civil Rights Act of
1991, 105 Stat. 1071.  Congress has taken no action to
indicate that we were mistaken in McDonnell Douglas and
Burdine.
                         *  *  *
  The enhancement of a Title VII plaintiff's burden
wrought by the Court's opinion is exemplified in this case.
Melvin Hicks was denied any opportunity, much less a
full and fair one, to demonstrate that the supposedly
nondiscriminatory explanation for his demotion and
termination, the personal animosity of his immediate
supervisor, was unworthy of credence.  In fact, the District
Court did not find that personal animosity (which it failed
to recognize might be racially motivated) was the true
reason for the actions St. Mary's took; it adduced this
reason simply as a possibility in explaining that Hicks
had failed to prove -that the crusade [to terminate him]
was racially rather than personally motivated.-  756 F.
Supp. 1244, 1252 (ED Mo. 1991).  It is hardly surprising
that Hicks failed to prove anything about this supposed
personal crusade, since St. Mary's never articulated such
an explanation for Hicks's discharge, and since the person
who allegedly conducted this crusade denied at trial any
personal difficulties between himself and Hicks.  App. 46.
While the majority may well be troubled about the unfair
treatment of Hicks in this instance and thus remands for
review of whether the District Court's factual conclusions
were clearly erroneous, see ante, at 21-22, the majority
provides Hicks with no opportunity to produce evidence
showing that the District Court's hypothesized explanation,
first articulated six months after trial, is unworthy of
credence.  Whether Melvin Hicks wins or loses on remand,
many plaintiffs in a like position will surely lose under
the scheme adopted by the Court today, unless they
possess both prescience and resources beyond what this
Court has previously required Title VII litigants to
employ.
  Because I see no reason why Title VII interpretation
should be driven by concern for employers who are too
ashamed to be honest in court, at the expense of victims
of discrimination who do not happen to have direct
evidence of discriminatory intent, I respectfully dissent.