BEFORE: Edwards, Chief Judge; Wald, Silberman, Buckley, Williams, Ginsburg, Sentelle, Henderson, Randolph, Rogers, and Tatel, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
and Consolidated Case No. 93-7223
On Appellants' Suggestion for Rehearing En Banc
The Suggestion for Rehearing En Banc of appellants/cross-appellees has been circulated to the full Court. No member of the Court requested the taking of a vote thereon. Upon consideration of the foregoing, it is ORDERED, by the court en banc, that the suggestion is denied.
A statement of Circuit Judge Williams concurring in the denial of rehearing en banc, joined by Circuit Judges Silberman and Ginsburg, is attached.
Williams, Circuit Judge, with whom Silberman and Ginsburg, Circuit Judges, join, concurring in the denial of rehearing en banc: Although the evidence supporting an inference of discrimination seems to me thin to the point of virtual invisibility, such an intensely fact-bound issue is unsuitable for en banc review. I do not construe the panel opinion to read St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742 (1993), as saying that the factfinder is free to find discrimination in every case where the plaintiff has established a prima facie case and offered evidence sufficient to disprove the defendant's attempted rebuttal. The Court wrote:
The factfinders' 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.
Id. at 2749 (emphasis added). The word "may" is ambiguous. It might mean that the factfinder is completely free to find discrimination, in the sense that an appellate court could never reverse such a decision on the evidence. Alternatively, it might mean that in some cases the combination will be adequate to sustain a finding of discrimination, in others not, to be determined by the factfinder initially, and the appellate court on review, according to the usual ...