In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-4650

RAY FORRESTER,

Plaintiff-Appellant,

v.

RAULAND-BORG CORPORATION,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 4424—Charles R. Norgle, Sr., Judge.

____________

SUBMITTED MAY 3, 2006—DECIDED JUNE 29, 2006

____________

Before POSNER, EASTERBROOK, and WOOD, Circuit Judges.

POSNER, Circuit Judge. The plaintiff filed a Title VII suit

against his former employer, who had fired him on the basis

of a complaint of sexual harassment by a female coworker.

The district court granted summary judgment for the

employer. The plaintiff has appealed, arguing that the

employer’s investigation of the complaint was shoddy. But

as we have said countless times, the question in a discrimination case is not whether the employer’s stated nondiscriminatory ground for the action of which the plaintiff is

complaining is correct but whether it is the true ground of

the employer’s action rather than being a pretext for a
2 No. 05-4650

decision based on some other, undisclosed ground. E.g.,

Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir. 2000). If it

is the true ground and not a pretext, the case is over. If it is

not the true ground, the employer may still be innocent of

discrimination, Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 146-47 (2000); he may for example have

lied to conceal a reason that was discreditable but not

discriminatory. See Visser v. Packer Engineering Associates,

Inc., 924 F.2d 655, 657 (7th Cir. 1991) (en banc). But the case

could not be resolved on summary judgment, because a trier

of fact (judge or jury) would be entitled to infer a discriminatory motive from the pretextual character of the employer’s ground. Reeves v. Sanderson Plumbing Products,

Inc., supra, 530 U.S. at 147-48; OåNeal v. City of New

Albany, 293 F.3d 998, 1005 (7th Cir. 2002).

All this would be too familiar to require repetition in a

published opinion were it not for a persistent dictum to the

effect that pretext can be shown not only by proof that the

employer’s stated reason was not the honest reason for his

action but also by proof that the stated reason was “insufficient to motivate” the action. E.g., Cichon v. Exelon Generation Co., L.L.C., 401 F.3d 803, 813 (7th Cir. 2005); Davis v.

Con-Way Transportation Central Express, Inc., 368 F.3d 776,

784 (7th Cir. 2004); Dyrek v. Garvey, 334 F.3d 590, 598 (7th

Cir. 2003); Hoffman-Dombrowski v. Arlington Intål Racecourse, Inc., 254 F.3d 644, 652 (7th Cir. 2001); Amini v.

Oberlin College, 440 F.3d 350, 360 (6th Cir. 2006); McClain

v. NorthWest Community Corrections Center Judicial

Corrections Bd., 440 F.3d 320, 332 (6th Cir. 2006); Browning

v. Department of the Army, 436 F.3d 692, 695 (6th Cir. 2006).

It is time the dictum was laid to rest. (Because so many

decisions in this and other courts repeat the dictum, we

circulated this opinion to the full court before issuing it. 7th

Cir. R. 40(e). No judge in regular active service voted to hear

the case en banc.) It adds nothing to the analysis of pretext
No. 05-4650 3

but confusion. If the stated reason for the challenged action

did not motivate the action, then it was indeed pretextual.

If it was insufficient to motivate the action, either this means

that it didn’t motivate it, or that it shouldn’t have motivated

it. If the first is the intended sense, the dictum is just a

murky way of saying that the stated reason was not the real

reason. If the second sense is the one intended, then the

dictum is wrong because the question is never whether the

employer was mistaken, cruel, unethical, out of his head, or

downright irrational in taking the action for the stated

reason, but simply whether the stated reason was his

reason: not a good reason, but the true reason.

The multiplication of distinctions beyond differences is a

disease of the legal profession against which the judiciary

has not been inoculated. It is a pernicious disease because it

invites confusion between merely semantic variation and

substantive difference. The “sufficiency” formula could

easily be understood as creating an alternative to the “true

reason” test, especially when it is formulated, as it frequently is, as one of three alternative criteria, as when courts

say that to demonstrate pretext the plaintiff must show that

the employer’s stated reason “1) had no basis in fact; 2) did

not actually motivate its decision; or 3) was insufficient to

motivate its decision.” E.g., Davis v. Con-Way Transportation Central Express, Inc., supra, 368 F.3d at 784. Understood as creating a third alternative, the insufficiency

formula would tacitly effect a fundamental change in settled

law.

Probably all that is meant is that nondiscriminatory

factors may have influenced the employer but not to

the extent of actually inducing the action of which the

employee is complaining. This is suggested by the variants

of the three-part formula that are found in Webber v.

International Paper Co., 417 F.3d 229, 237 (1st Cir. 2005)
4 No. 05-4650

(emphasis in original)—“had no basis in fact, did not

actuate the termination, or was insufficiently weighty to

motivate such a decision”—and in the case that invented the

test, La Montagne v. American Convenience Products, Inc.,

750 F.2d 1405, 1414-15 (7th Cir. 1984) (though there is an

anticipatory hint of the test in T & S Service Associates, Inc.

v. Crenson, 666 F.2d 722, 727 (1st Cir. 1981)). The opinion in

LaMontagne states that pretext may be proved “by showing

that the Company’s reasons have no basis in fact, by

showing that they were not really factors motivating the

discharge, or, if they were factors, by showing that they

were jointly insufficient to motivate the discharge”—in

other words, they were factors that the employer considered

but that did not have enough weight in his thinking to

induce him to take the action complained of. (See also Davis

v. Wisconsin Dept. of Corrections, 445 F.3d 971, 977 (7th Cir.

2006), where the “insufficiency” test was used in this sense.)

But this is implicit in the “true reason” test (see Gordon v.

United Airlines, Inc., 246 F.3d 878, 890-91 (7th Cir. 2001),

and Stalter v. Wal Mart Stores, Inc., 195 F.3d 285, 290 (7th

Cir. 1999)): if the stated reason, even if actually present to

the mind of the employer, wasn’t what induced him to take

the challenged employment action, it was a pretext.

Johnson v. Kroger Co., 319 F.3d 858, 866-67 (6th Cir. 2003),

and Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d

1078, 1084 (6th Cir. 1994), give still another twist to the

“sufficiency” test. They deem it satisfied by “evidence that

other employees, particularly employees not in

the protected class, were not fired even though they engaged in substantially identical conduct to that which the

employer contends motivated its discharge of the plaintiff.”

Id.; 319 F.3d at 866. Again this is evidence that the stated

reason was not the true one. Cicero v. Borg-Warner Automotive, Inc., 280 F.3d 579, 589 (6th Cir. 2002), distinguishes

tests 2 and 3 (the stated reason “did not motivate the action,
No. 05-4650 5

or . . .was insufficient to motivate the action”) by reference

to the difference between direct and circumstantial evidence. There is no need to complicate life by reference to

that distinction.

There is also a potential for confusion in the first test

(“had no basis in fact”) in the three-part formula articulated

in cases like Davis v. Con-Way Transportation Central

Express, Inc., supra. If the stated reason was not the actual

one, it is a pretext even if it had some basis in fact—even if

it might have induced some employers to fire or take other

adverse action against the plaintiff but did not induce this

employer to do so. That is test number 2, and it is all that

the law needs. Number 1 could be understood (though it is

not so intended) to mean that a reason that had no factual

basis was necessarily pretextual, yet it would not be if,

though profoundly mistaken, it was the actual motive for

the employer’s action. Suppose the complaint of sexual

harassment in this case had been a pure fabrication, with

“no basis in fact” whatsoever—yet it was believed by the

employer and it was that belief and nothing else that caused

him to fire the plaintiff. There would be nothing pretextual

about his action. A pretext, to repeat, is a deliberate falsehood. Farrell v. Butler University, 421 F.3d 609, 613 (7th Cir.

2005); Millbrook v. IBP, Inc., 280 F.3d 1169, 1175 (7th Cir.

2002); Price v. Thompson, 380 F.3d 209, 215 n. 1 (4th Cir.

2004); Silvera v. Orange County School Board, 244 F.3d

1253, 1261 (11th Cir. 2001). An honest mistake, however

dumb, is not, and if there is no doubt that it is the real

reason it blocks the case at the summary-judgment stage.

“The only concern in reviewing an employer’s reasons for

termination is the honesty of the employer’s beliefs.”

Balderston v. Fairbanks Morse Engine Division, 328 F.3d

309, 323 (7th Cir. 2003).

AFFIRMED.
6 No. 05-4650

A true Copy:

Teste:

 _______________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-29-06