Hill v. Lockheed Martin Logistics Management, Inc.

OPINION ON REHEARING EN BANC
PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

ETHEL LOUISE HILL, 
Plaintiff-Appellant,
v.
LOCKHEED MARTIN LOGISTICS
MANAGEMENT, INCORPORATED,
Defendant-Appellee,
EQUAL EMPLOYMENT OPPORTUNITY  No. 01-1359
COMMISSION,
Amicus Supporting Appellant.
CHAMBER OF COMMERCE, of the
United States; EQUAL EMPLOYMENT
ADVISORY COUNCIL,
Amici Supporting Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Margaret B. Seymour, District Judge.
(CA-99-2343-6-24)

Argued: May 7, 2003

Decided: January 5, 2004

Before WIDENER, WILKINSON, NIEMEYER, LUTTIG,
WILLIAMS, MICHAEL, MOTZ, TRAXLER, KING, GREGORY,
and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge Traxler wrote the majority
opinion in which Judges Widener, Wilkinson, Niemeyer, Luttig, Wil-
2 HILL v. LOCKHEED MARTIN
liams, and Shedd joined. Judge Michael wrote a dissenting opinion in
which Judges Motz, King, and Gregory joined.

COUNSEL

ARGUED: Ronald A. Rayson, Knoxville, Tennessee, for Appellant.
Susan R. Oxford, EQUAL EMPLOYMENT OPPORTUNITY COM-
MISSION, Washington, D.C., for Amicus Curiae Commission.
Andreas Neal Satterfield, Jr., HAYNSWORTH, BALDWIN, JOHN-
SON & GREAVES, L.L.C., Greenville, South Carolina, for Appellee.
ON BRIEF: David A. Burkhalter, II, Knoxville, Tennessee, for
Appellant. Nicholas M. Inzeo, Acting Deputy General Counsel, Philip
B. Sklover, Associate General Counsel, Lorraine C. Davis, Assistant
General Counsel, EQUAL EMPLOYMENT OPPORTUNITY COM-
MISSION, Washington, D.C., for Amicus Curiae Commission. Ste-
phen A. Bokat, Robin S. Conrad, Ellen D. Bryant, NATIONAL
CHAMBER LITIGATION CENTER, INC., Washington, D.C., for
Amicus Curiae Chamber of Commerce; Ann Elizabeth Reesman,
Katherine Y.K. Cheung, MCGUINESS, NORRIS & WILLIAMS,
L.L.P., Washington, D.C., for Amicus Curiae Council.

OPINION

TRAXLER, Circuit Judge:

Ethel Louise Hill brought this action against her former employer,
Lockheed Martin Logistics Management, Inc. ("Lockheed"), claiming
that she was wrongfully terminated from her employment because of
her sex and age and in retaliation for her complaints of such discrimi-
nation. Hill alleged violations of Title VII of the Civil Rights Act of
1964, as amended by the Civil Rights Act of 1991, see 42 U.S.C.A.
§§ 2000e to 2000e-17 (West 1994 & Supp. 2003) and the Age Dis-
crimination in Employment Act of 1967 ("ADEA"), 29 U.S.C.A.
§§ 621 to 634 (West 1999 & Supp. 2003), as well as state law claims
for such discrimination under the New York Human Rights Law,
N.Y. Exec. Law § 290 to 301. We granted en banc review to decide
 HILL v. LOCKHEED MARTIN 3
whether the district court properly granted Lockheed’s motion for
summary judgment. We affirm.

I.

Ethel Hill was hired by Lockheed as an aircraft sheet metal
mechanic in 1987. In this capacity, she worked as part of a contract
field team assigned to perform modifications to military aircraft at
various military bases in the eastern United States, pursuant to con-
tracts between Lockheed and the United States government. Thomas
Prickett was Lockheed’s program manager in charge of the contract
field teams and Archie Griffin was the East Coast senior site supervi-
sor for Lockheed, but they were rarely present at the individual mili-
tary jobsites. Rather, Hill and the other aircraft mechanics were
directly supervised by a "lead person" or "point of contact" at each
military base, who reported to Griffin in the line of authority. The
lead person was also responsible for enforcing the standard operating
procedures ("SOP") of Lockheed and ensuring that the military con-
tracts were satisfactorily performed at the jobsite.

In addition to the mechanics and the direct supervisor, Lockheed
assigned a safety inspector to each military jobsite. Specific aircraft
modifications scheduled to be performed under the military contracts
were set forth in modification work orders ("MWOs"). The safety
inspector was charged with checking the modifications to ensure that
they had been completed in accordance with the required specifica-
tions. However, the inspector had no supervisory authority over the
mechanics, nor any authority to discipline them. Like the mechanics,
the safety inspector reported to and worked directly under the supervi-
sion of the lead person.

During her last eight months of employment with Lockheed, Hill
received three written reprimands under Lockheed’s SOP: (1) a repri-
mand issued by Ronald Souders, the lead person at Fort Bragg in
North Carolina, for a violation of Rule 4 of the SOP —
"[u]nsatisfactory quality or quantity of work" — under a MWO
assigned to Hill in September 1997; (2) a reprimand and disciplinary
suspension issued by Richard Dixon, the lead person at Fort Drum in
New York, for Hill’s violation of Lockheed’s tool control safety pol-
icy in April 1998; and (3) a reprimand issued by Dixon at Fort Drum
4 HILL v. LOCKHEED MARTIN
for another violation of Rule 4 of the SOP under several MWOs
assigned to Hill in April and May 1998. J.A. 112.

Lockheed’s SOP 3.4.2 provides that "[a]n employee who receives
a combination of two written reprimands not involving a suspension
and one involving a suspension (not necessarily on the same rule) will
be subject to discharge." J.A. 110. Thus, after Hill’s third reprimand
became warranted, Dixon contacted Griffin to obtain guidance on
how to proceed and was told to follow the SOP. Dixon then for-
warded the disciplinary paperwork to Griffin, who along with Prickett
made the decision to terminate Hill under the provisions of the SOP.
Hill was fifty-seven years old at the time. Her position was ultimately
filled by a forty-seven-year-old male mechanic.

In June 1998, Hill filed a charge of discrimination and retaliation
with the Equal Employment Opportunity Commission, charging sex
and age discrimination and retaliation. She was issued a right-to-sue
letter in April 1999. Hill then filed this action under Title VII, the
ADEA, and the New York Human Rights Act, alleging that she was
terminated by Lockheed "because of" her sex and age and in retalia-
tion for her complaints of discrimination.1 Hill acknowledges that
Souders and Dixon, the lead persons on the Fort Bragg and Fort Drum
jobsites respectively, acted without a discriminatory or retaliatory
motive in issuing the three reprimands, and she does not dispute that
she violated the standards and rules referenced in each reprimand.
Hill also does not dispute that the three reprimands subjected her to
termination under SOP 3.4.2, nor does she allege that Griffin or Prick-
ett acted with a discriminatory or retaliatory motive when they made
the decision to terminate her. Rather, Hill’s allegation that she was
discharged because of her sex and age is grounded in her claim that
Ed Fultz, the safety inspector at Fort Drum, harbored a discriminatory
animus against her, as evidenced by his calling her a "useless old
lady" who needed to be retired, a "troubled old lady," and a "damn
woman," on several occasions while they were working together. J.A.
240-241A, 245. According to Hill, this discriminatory animus, along
with Fultz’s desire to retaliate against her when she complained to
1
The parties have agreed that the legal analysis applicable to the Title
VII and ADEA claims control the outcome of the claims alleged under
the New York Human Rights Act.
 HILL v. LOCKHEED MARTIN 5
Dixon about his comments, led Fultz to report admittedly valid infrac-
tions that resulted in her second and third reprimands and which,
when combined with her Fort Bragg reprimand, served as the basis
for her termination under SOP 3.4.2.

Concluding that Hill failed to present sufficient evidence to support
her claims of discrimination and retaliation by Lockheed’s decision-
makers, who terminated Hill without any such improper motivations,
the district court granted Lockheed’s motion for summary judgment.
On appeal, a divided panel of this court reversed the district court’s
grant of summary judgment, holding that "Hill ha[d] proffered direct
evidence of sex and age discrimination in the statements of [Fultz],
who substantially influenced the company’s decision to fire her" and
that "Hill ha[d] proffered sufficient evidence to create a genuine issue
of material fact about whether [Fultz’s] reports . . . were issued in
retaliation for her discrimination complaints against [him]." See Hill
v. Lockheed Martin Logistics Mgmt., Inc., 314 F.3d 657, 659 (4th Cir.
2003). A majority of the active circuit judges thereafter voted to
vacate the panel decision, and the court reheard the appeal en banc.

II.

We review the district court’s grant of summary judgment de novo.
See Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167
(4th Cir. 1988). Summary judgment is appropriate "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to a judg-
ment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). We construe the evidence in the
light most favorable to Hill and draw all reasonable inferences in her
favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

III.

Title VII makes it "an unlawful employment practice for an
employer . . . to discharge . . . or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s . . . sex." 42
U.S.C.A. § 2000e-2(a)(1) (emphasis added). The ADEA similarly for-
6 HILL v. LOCKHEED MARTIN
bids "an employer . . . to discharge any individual or otherwise dis-
criminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such indi-
vidual’s age." 29 U.S.C.A. § 623(a)(1) (emphasis added).

A.

Generally speaking, a plaintiff may avert summary judgment and
establish a claim for intentional sex or age discrimination through two
avenues of proof.

First, a plaintiff may establish a claim of discrimination by demon-
strating through direct or circumstantial evidence that sex or age dis-
crimination motivated the employer’s adverse employment decision.
The employee, however, need not demonstrate that the prohibited
characteristic was the sole motivating factor to prevail, so long as it
was a motivating factor. In such cases, historically referred to as
"mixed-motive" cases, it is sufficient for the individual to demonstrate
that the employer was motivated to take the adverse employment
action by both permissible and forbidden reasons. See 42 U.S.C.A.
§ 2000e-2(m); Price Waterhouse v. Hopkins, 490 U.S. 228, 241
(1989).

Prior to enactment of the Civil Rights Act of 1991, the Supreme
Court had recognized that adverse employment decisions could be
motivated by both legitimate and discriminatory reasons. See Price
Waterhouse, 490 U.S. at 241. To proceed under this mixed-motive
theory, however, the plaintiff was required to offer direct evidence of
discrimination. If the plaintiff was successful, the burden then shifted
to the employer, who could escape liability by proving that it would
have made the same decision in the absence of the discriminatory
motivation. See id. at 276 (O’Connor, J., concurring).

In response to Price Waterhouse, Congress added § 2000e-2(m) to
Title VII in the Civil Rights Act of 1991, providing that "an unlawful
employment practice is established when the complaining party dem-
onstrates that race, color, religion, sex, or national origin was a moti-
vating factor for any employment action." 42 U.S.C.A. § 2000e-2(m)
(emphasis added). The effect of the amendment was to eliminate the
employer’s ability to escape liability in Title VII mixed-motive cases
 HILL v. LOCKHEED MARTIN 7
by proving that it would have made the same decision in the absence
of the discriminatory motivation. Rather, through such proof, the
employer can now only limit the remedies available to the employee
for the violation. See 42 U.S.C.A. §2000e-5(g)(2)(B). "On a claim in
which an individual proves a violation under section 2000e-2(m)" and
the employer "demonstrates that [it] would have taken the same
action in the absence of the impermissible motivating factor, the court
. . . may grant declaratory relief, injunctive relief, and attorney’s fees
and costs demonstrated to be directly attributable only to the pursuit
of a claim under section 2000e-2(m)," but "shall not award damages
or issue an order requiring any admission, reinstatement, hiring, pro-
motion, or payment." Id.

Since enactment of section 2000e-2(m), our cases have nonetheless
adhered to Price Waterhouse’s requirement that a Title VII plaintiff
present direct evidence to establish a mixed-motive discrimination
case. See Taylor v. Virginia Union Univ., 193 F.3d 219, 232 (4th Cir.
1999) (en banc) (noting that a "plaintiff qualifies for the more advan-
tageous standard of liability applicable in mixed-motive cases if the
plaintiff presents direct evidence that decisionmakers placed substan-
tial negative reliance on an illegitimate criterion" in reaching their
decision (internal quotation marks omitted)); Brinkley v. Harbour
Recreation Club, 180 F.3d 598, 606-07 (4th Cir. 1999) (same). Such
proof, we held, commanded the production of "evidence of conduct
or statements that both reflect directly the alleged discriminatory atti-
tude and that bear directly on the contested employment decision."
Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995).

Recently, however, the Supreme Court considered whether direct
evidence is required for a plaintiff to obtain a mixed-motive instruc-
tion under § 2000e-2(m); the Court held that no such "heightened
showing through direct evidence" is required. Desert Palace Inc. v.
Costa, 123 S. Ct. 2148, 2153 (2003). Relying upon the plain text of
the statute, the Court held that a Title VII plaintiff "need only demon-
strat[e] than an employer used a forbidden consideration with respect
to any employment practice." Id. "In order to obtain an instruction
under § 2000e-2(m), a plaintiff need only present sufficient evi-
dence," direct or circumstantial, "for a reasonable jury to conclude, by
a preponderance of the evidence, that race, color, religion, sex, or
8 HILL v. LOCKHEED MARTIN
national origin was a motivating factor for any employment practice."
Id. at 2155 (internal quotation marks omitted).2

The second method of averting summary judgment is to proceed
under a "pretext" framework, under which the employee, after estab-
lishing a prima facie case of discrimination, demonstrates that the
employer’s proffered permissible reason for taking an adverse
employment action is actually a pretext for discrimination. See Texas
Dep’t of Comm. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981);
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 807 (1973). To
demonstrate the prima facie case of sex or age discrimination under
the pretext framework, the plaintiff must show that (1) she is a mem-
ber of a protected class; (2) she suffered adverse employment action;
(3) she was performing her job duties at a level that met her employ-
er’s legitimate expectations at the time of the adverse employment
action; and (4) the position remained open or was filled by similarly
qualified applicants outside the protected class. See Brinkley, 180
F.3d at 607. If a prima facie case is presented, the burden shifts to the
employer to articulate a legitimate, nondiscriminatory reason for the
adverse employment action. Assuming the employer meets this bur-
den of production, "the McDonnell Douglas framework — with its
presumptions and burdens — disappear[s], and the sole remaining
issue [is] discrimination vel non." Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 142-42 (2000) (internal quotation marks
omitted); see also St. Mary’s Honor Center v. Hicks, 509 U.S. 502,
507-08 (1993). In other words, the burden shifts back to the plaintiff
to prove by a preponderance of the evidence that the employer’s
stated reasons "were not its true reasons, but were a pretext for dis-
crimination." Reeves, 530 U.S. at 143. At this point, the burden to
demonstrate pretext "merges with the ultimate burden of persuading
the court that [the plaintiff] has been the victim of intentional discrim-
ination." Burdine, 450 U.S. at 256. Thus, the McDonnell Douglas
2
It has been assumed that the "mixed motive" provision of the Civil
Rights Act of 1991 does not apply to the ADEA and, therefore, that the
burden-shifting and direct evidence requirements of Price Waterhouse
continue to apply to such claims. Our decision, however, does not hinge
upon the method, but upon the sufficiency of proof under either frame-
work.
 HILL v. LOCKHEED MARTIN 9
framework "serves to bring the litigants and the court expeditiously
and fairly to this ultimate question." Id. at 253.

B.

Hill has pursued her sex and age discrimination claims under both
the mixed-motive and pretext frameworks. Specifically, Hill asserts
that she presented sufficient direct and circumstantial evidence to
demonstrate that, even if her performance-related problems and
accompanying reprimands were a motivating factor in Lockheed’s
decision to terminate her under the SOP, Fultz’s discriminatory moti-
vations rendered her termination by Lockheed the product of mixed-
motives on Lockheed’s part. In addition, Hill asserts that she has
established a prima facie case of sex and age discrimination and that,
because Fultz was involved in the events leading up to the termination
decision, Lockheed’s legitimate, nondiscriminatory reason for the ter-
mination — her reprimands and the SOP — can be considered a pre-
text for discrimination.

The district court concluded that Fultz’s remarks did not constitute
direct evidence of sex or age discrimination by Lockheed because
Fultz did not make the employment decision to terminate her. In addi-
tion, the district court concluded that the plaintiff failed to establish
a claim of discrimination under the pretext framework because Hill
was not meeting Lockheed’s legitimate expectations regarding her job
performance when she was terminated, Lockheed had articulated a
valid, nondiscriminatory reason for terminating Hill under its SOP,
and Hill failed to establish that Lockheed’s articulated reason was a
pretext for an unlawful discriminatory motive based upon Fultz’s
involvement in the events leading up to the termination decision.

Although the Supreme Court eliminated any heightened require-
ment of direct evidence to establish a mixed-motive sex discrimina-
tion claim under Title VII, see Desert Palace, 123 S. Ct. at 2153, the
fundamental basis for the district court’s decision has not been
affected. Regardless of the type of evidence offered by a plaintiff as
support for her discrimination claim (direct, circumstantial, or evi-
dence of pretext), or whether she proceeds under a mixed-motive or
single-motive theory, "[t]he ultimate question in every employment
discrimination case involving a claim of disparate treatment is
10 HILL v. LOCKHEED MARTIN
whether the plaintiff was the victim of intentional discrimination."
Reeves, 530 U.S. at 153 (2000); see Burdine, 450 U.S. at 256. To
demonstrate such an intent to discriminate on the part of the
employer, an individual alleging disparate treatment based upon a
protected trait must produce sufficient evidence upon which one
could find that "the protected trait . . . actually motivated the employ-
er’s decision." Reeves, 530 U.S. at 141 (internal quotation marks
omitted). The protected trait "must have actually played a role in the
employer’s decisionmaking process and had a determinative influence
on the outcome." Id. (internal quotation marks and alterations omit-
ted); cf. Price Waterhouse, 490 U.S. at 277 (O’Connor, J., concur-
ring) (noting that "statements by nondecisionmakers, or statements by
decisionmakers unrelated to the decisional process itself [do not] suf-
fice to satisfy the plaintiff’s burden" of proving discrimination); Koski
v. Standex Int’l Corp., 307 F.3d 672, 678 (7th Cir. 2002) (noting that
the pertinent inquiry is whether the decisionmaker, as opposed to
other managers or subordinates, evaluated the aggrieved employee
based upon discriminatory criteria).

IV.

In embarking upon a determination of who is a "decisionmaker" for
purposes of discrimination actions brought under Title VII and the
ADEA, we begin with the language of the statutes. Title VII and the
ADEA provide that "[i]t shall be an unlawful employment practice for
an employer . . . to discharge . . . or otherwise to discriminate against
any individual . . . because of" such individual’s sex or age. 42
U.S.C.A. § 2000e-2(a)(1); 29 U.S.C.A. § 623(a)(1). Both acts define
the term "employer" as "a person engaged in an industry affecting
commerce . . . and any agent of such a person." See 42 U.S.C.A.
§ 2000e(b); 28 U.S.C.A. § 630(b).

In evaluating the liability of an employer under the acts, we are
guided by agency principles. See Burlington Indus., Inc. v. Ellerth,
524 U.S. 742, 754 (1998) (holding, in the context of a sexual harass-
ment case brought under Title VII, that "[i]n express terms, Congress
directed federal courts to interpret Title VII based on agency princi-
ples"). The discrimination statutes, however, do not make employers
vicariously liable for the discriminatory acts and motivations of
everyone in their employ, even when such acts or motivations lead to
 HILL v. LOCKHEED MARTIN 11
or influence a tangible employment action. On the contrary, by defin-
ing employer to include "any agent" of the employer, Congress
"evince[d] an intent to place some limits on the acts of employees for
which employers . . . are to be held responsible." Meritor Savings
Bank, FSB v. Vinson, 477 U.S. 57, 72 (1986); see also Faragher v.
City of Boca Raton, 524 U.S. 775, 790-792 (1998).

In Ellerth, the Court defined the limits of such agency as encom-
passing employer liability for the acts of its employees holding super-
visory or other actual power to make tangible employment decisions.
Id. at 762 (holding that "[a]s a general proposition, only a supervisor,
or other person acting with the authority of the company," can under-
take a tangible employment action). Pertinent to our inquiry, the
Court explained its reasoning as follows:

Tangible employment actions fall within the special prov-
ince of the supervisor. The supervisor has been empowered
by the company as a distinct class of agent to make eco-
nomic decisions affecting other employees under his or her
control.

Tangible employment actions are the means by which the
supervisor brings the official power of the enterprise to bear
on subordinates. A tangible employment decision requires
an official act of the enterprise, a company act. The decision
in most cases is documented in official company records,
and may be subject to review by higher level supervisors.
E.g., Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir.
1990) (noting that the supervisor did not fire plaintiff;
rather, the Career Path Committee did, but the employer was
still liable because the committee functioned as the supervi-
sor’s "cat’s paw"). The supervisor often must obtain the
imprimatur of the enterprise and use its internal processes.
See Kotcher v. Rosa & Sullivan Appliance Center, Inc., 957
F.2d 59, 62 (2d Cir. 1992) ("From the perspective of the
employee, the supervisor and the employer merge into a sin-
gle entity").

For these reasons, a tangible employment action taken by
the supervisor becomes for Title VII purposes the act of the
12 HILL v. LOCKHEED MARTIN
employer. Whatever the exact contours of the aided in the
agency relation standard, its requirements will always be
met when a supervisor takes a tangible employment action
against a subordinate. In that instance, it would be implausi-
ble to interpret agency principles to allow an employer to
escape liability.

Ellerth, 524 U.S. at 762-763. Thus, "[i]n order to accommodate the
agency principles of vicarious liability for harm caused by misuse of
supervisory authority," the Court held that "[a]n employer is subject
to vicarious liability to a victimized employee for an actionable hos-
tile environment created by a supervisor with immediate (or succes-
sively higher) authority over the employee." Id. at 764-65.

In Shager v. Upjohn Co., 913 F.2d 398 (7th Cir. 1990), cited by the
Ellerth Court, the Seventh Circuit similarly applied agency principles
to hold that an employer would be liable for the discriminatory
employment actions taken by a supervisor. That court, however,
developed a "cat’s paw" or "rubber-stamp" theory for imposing liabil-
ity upon an employer for the discriminatory motivations of a supervi-
sor, even though the supervisor did not formally take the adverse
employment action. After having been presented evidence that the
plaintiff’s supervisor was motivated by age discrimination, the court
was confronted with the problem that the plaintiff was technically
fired by a "Career Path Committee" which was unaware of the super-
visor’s prejudice. Id. at 405. The court held that if the committee
"acted as the conduit of [the supervisor’s] prejudice — his cat’s paw
— the innocence of its members would not spare the company from
liability." Id. However, if the committee "was not a mere rubber
stamp, but made an independent decision to fire Shager," there would
be no basis for finding that the employer violated the ADEA. Id. at
406.

Similarly, in Reeves v. Sanderson, the Supreme Court evaluated an
employer’s liability for the discriminatory motivations of a supervi-
sory employee in the context of a disparate treatment claim. See
Reeves, 530 U.S. at 140. Reeves brought an action against his former
employer, alleging that he was terminated because of his age in viola-
tion of the ADEA. Although there was no direct or circumstantial evi-
dence that the formal decisionmakers for the employer harbored a
 HILL v. LOCKHEED MARTIN 13
discriminatory motivation, the Court held that the employer was not
entitled to judgment as a matter of law under the McDonnell Douglas
framework because the "petitioner [had] introduced additional evi-
dence that Chesnut," one of petitioner’s superiors in the chain of
authority, "was motivated by age-based animus and was principally
responsible for petitioner’s firing." Reeves, 530 U.S. at 151 (emphasis
added). Specifically, "Chesnut had told [petitioner] that he ‘was so
old he must have come over on the Mayflower’" and "that he ‘was
too damn old to do his job.’" Id. (internal alterations omitted). A
coworker had confirmed that there was an "obvious difference" in the
way petitioner was treated by Chestnut, and there was evidence that
Chesnut had supervised an efficiency study of only petitioner’s line
and placed only the petitioner on probation. Id. The Reeves Court also
noted that the plaintiff had "introduced evidence that Chesnut was the
actual decisionmaker behind his firing." Id. at 152 (emphasis added).
Although Chesnut had only recommended the petitioner’s termination
to the formal decisionmaker, the formal decisionmaker was the com-
pany president and Chesnut’s spouse, and there was testimony from
a supervisor in the company that the company "employees feared
Chesnut, and that Chesnut had exercised ‘absolute power’ within the
company for ‘as long as he [could] remember.’" Id. at 152 (internal
alteration omitted); see also id. at 138 (noting that Chestnut was "de-
scribed as wielding ‘absolute power’ within the company"). In sum,
Reeves informs us that the person allegedly acting pursuant to a dis-
criminatory animus need not be the "formal decisionmaker" to impose
liability upon an employer for an adverse employment action, so long
as the plaintiff presents sufficient evidence to establish that the subor-
dinate was the one "principally responsible" for, or the "actual deci-
sionmaker" behind, the action. Id. at 151-52.

On appeal, Hill asserts that Reeves does not define the outer con-
tours of who may be considered a decisionmaker for purposes of
imposing liability upon an employer. Instead, she urges us to adopt
a "substantial influence" inquiry as the appropriate standard. Under
Hill’s theory, a subordinate employee would be fairly viewed an
actual decisionmaker of the employer if the subordinate substantially
influences an employment decision made by the formal decision-
maker. The EEOC also supports such a view, although it appears to
ask that we go even further, urging us to hold that a subordinate
employee substantially influences an employment decision whenever
14 HILL v. LOCKHEED MARTIN
the influence is sufficient to be considered a cause of the employment
action, even if the formal decisionmaker did not simply rubber-stamp
the biased subordinate’s recommendation. We decline to endorse
either view of the permissible limits of employer liability under Title
VII and the ADEA.

First, we believe the statutes and governing precedents do not pro-
vide for such an expansive view of an employer’s liability. Although
in Reeves the Court did not embark upon an exhaustive reexamination
of agency principles applicable to discrimination cases, the Court’s
clear emphasis upon who holds "actual decisionmaking" power and
authority or who has "principal responsibility" for an employment
decision is consistent with the limitations set forth in Ellerth. Such
individuals, although perhaps not acting as formal decisionmakers,
nonetheless act in a supervisory or managerial capacity as the agents
of the employer. It is these individuals who must possess the requisite
discriminatory motivation behind the adverse employment decision
that they make or for which they hold principal responsibility.

Second, we note that, in the wake of Shager, our sister circuits
have often applied a "cat’s paw" or "rubber stamp" theory to deter-
mine employer liability for the discriminatory acts and motivations of
supervisory employees who do not exercise formal decisionmaking
authority. See e.g., Gee v. Principi, 289 F.3d 342, 345-47 (5th Cir.
2002); Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 876-78 (6th
Cir. 2001); Bergene v. Salt River Project Agric. Improvement &
Power Dist., 272 F.3d 1136, 1141 (9th Cir. 2001); Abramson v. Wil-
liam Paterson Coll. of New Jersey, 260 F.3d 265, 285-86 (3d Cir.
2001); Wascura v. City of South Miami, 257 F.3d 1238, 1247 (11th
Cir. 2001); Rose v. New York City Bd. of Educ., 257 F.3d 156, 162
(2nd Cir. 2001); Rios v. Rossotti, 252 F.3d 375, 381-82 (5th Cir.
2001); English v. Colorado Dep’t of Corr., 248 F.3d 1002, 1011 (10th
Cir. 2001); Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226-28
(5th Cir. 2000); Kendrick v. Penske Transp. Servs., Inc., 220 F.3d
1220, 1231 (10th Cir. 2000); Stimpson v. City of Tuscaloosa, 186 F.3d
1328, 1331 (11th Cir. 1999); Llampallas v. Mini-Circuits Lab, Inc.,
163 F.3d 1236, 1249-50 (11th Cir. 1998); Griffin v. Washington Con-
vention Center, 142 F.3d 1308, 1310-11 (D.C. Cir. 1998); Ercegovich
v. Goodyear Tire & Rubber Co., 154 F.3d 344, 354-55 (6th Cir.
1998); Eiland v. Trinity Hosp., 150 F.3d 747, 752 (7th Cir. 1998);
 HILL v. LOCKHEED MARTIN 15
Willis v. Marion County Auditor’s Office, 118 F.3d 542, 547 (7th Cir.
1997); Walden v. Georgia Pacific Corp., 126 F.3d 506, 514-15 (3d
Cir. 1997); Long v. Eastfield Coll., 88 F.3d 300, 307 (5th Cir. 1996);
Stacks v. Southwestern Bell Yellow Pages, Inc., 27 F.3d 1316, 1325
(8th Cir. 1994). In support of their positions as to how we should
approach the issue, the parties have pointed us to various lines in dif-
ferent cases as being supportive of their view of the parameters of the
theory. However, our review of the cases leads us to the conclusion
that, while the courts often utilize the same terminology as that
employed by the Shager court, they have not always described the
theory in consistent ways, and rarely have they done so after a discus-
sion of the agency principles from which the theory emerged and that
limit its application.

We ultimately conclude that the more appropriate course is to focus
upon the language of the discrimination statutes and Supreme Court
precedents — which do not speak in such terms. Accordingly, we
decline the opportunity to further parse the varying applications of the
cat’s paw or rubber stamp theory as employed by our sister circuits.
Rather, we simply note that the premise behind the theory is not
inconsistent with the statutes and Supreme Court precedent — at least
insofar as the theory was originally conceived and used by courts
employing the more literal meanings of those terms. The holding in
Shager itself, for example, was quite limited. Employing agency prin-
ciples, the court declined to allow an employer to insulate itself from
discrimination on the part of a supervisor and dominant decision-
maker through the use of a formal decisionmaker who merely rubber-
stamped or acted as a cat’s paw for the supervisor’s decision. See
Shager, 913 F.2d at 405-06; see also Mateu-Anderegg v. Sch. Dist. of
Whitefish Bay, 304 F.3d 618, 623-24 (7th Cir. 2002); Kramer v.
Logan County Sch. Dist. No. R-1, 157 F.3d 620, 624-25 (8th Cir.
1998); Wascura, 257 F.3d at 1247. The Court cites Shager in both
Ellerth and Faragher with seeming approval and, although the terms
are not used by the Supreme Court in Reeves, the Court’s analysis in
Reeves would seem to place it quite comfortably within that terminol-
ogy. When a formal decisionmaker acts merely as a cat’s paw for or
rubber-stamps a decision, report, or recommendation actually made
by a subordinate, it is not inconsistent to say that the subordinate is
the actual decisionmaker or the one principally responsible for the
contested employment decision, so long as he otherwise falls within
16 HILL v. LOCKHEED MARTIN
the parameters of the discrimination statute’s definition of an
employer or agent of the employer. See Rogers v. City of Chicago,
320 F.3d 748, 754 (7th Cir. 2003) (The "decisionmaker is the person
responsible for the contested decision," but "[i]f there [is] competent
evidence that the [formal decisionmaker] acted as [the subordinate’s]
‘cat’s paw’ and rubber-stamped his recommendation, we would con-
sider [the subordinate] to be the decisionmaker regarding" the chal-
lenged action.); Schreiner v. Caterpillar, Inc., 250 F.3d 1096, 1100
(7th Cir. 2001) ("[A] decision-maker cannot act as the ‘cat’s paw’ for
another who harbors a discriminatory animus" or "be the ‘conduit’ of
another’s prejudice." Rather, "such a claim can survive only when
there is a factual basis in the record for the assertion that the biased
individual’s prejudice was the motivation for the decision-maker’s
actions."); but see Laxton v. Gap, Inc., 333 F.3d 572, 584 (5th Cir.
2003) (holding that "[t]he relevant inquiry is whether" the supervisor
harboring a discriminatory animus "had influence or leverage over"
the decisionmaking of those "principally responsible for the adverse
employment action" (internal quotation marks omitted)).

To conclude, Title VII and the ADEA do not limit the discrimina-
tion inquiry to the actions or statements of formal decisionmakers for
the employer. Such a construction of those discrimination statutes
would thwart the very purposes of the acts by allowing employers to
insulate themselves from liability simply by hiding behind the blind
approvals, albeit non-biased, of formal decisionmakers. See Reeves,
530 U.S. at 151-52. However, we decline to endorse a construction
of the discrimination statutes that would allow a biased subordinate
who has no supervisory or disciplinary authority and who does not
make the final or formal employment decision to become a decision-
maker simply because he had a substantial influence on the ultimate
decision or because he has played a role, even a significant one, in the
adverse employment decision.

We can discern no precedential or practical basis upon which to
depart from the inquiry as articulated and applied by the Supreme
Court in Reeves — and to expand the contours of the acts — by
embracing a test that would impute the discriminatory motivations of
subordinate employees having no decisionmaking authority to the
employer, and make them agents for purposes of the employment
acts, simply because they have influence or even substantial influence
 HILL v. LOCKHEED MARTIN 17
in effecting a challenged decision. Regarding adverse employment
actions, an employer will be liable not for the improperly motivated
person who merely influences the decision, but for the person who in
reality makes the decision. This encompasses individuals who may be
deemed actual decisionmakers even though they are not formal deci-
sionmakers, such as in Reeves, where the husband of the formal deci-
sionmaker wielded absolute power within the company, and in
Shager, where the supervisor’s reports and recommendation were
merely rubber-stamped by the formal decisionmaking committee. In
sum, to survive summary judgment, an aggrieved employee who rests
a discrimination claim under Title VII or the ADEA upon the discrim-
inatory motivations of a subordinate employee must come forward
with sufficient evidence that the subordinate employee possessed such
authority as to be viewed as the one principally responsible for the
decision or the actual decisionmaker for the employer.

V.

With these principles in mind, we now turn to the question of
whether Hill has presented sufficient evidence to demonstrate that she
has been "the victim of intentional discrimination" by Lockheed
based upon Fultz’s actions. Reeves, 530 U.S. at 153.

As is often the case in corporate employment settings, the decision-
making process at Lockheed involved several of Hill’s supervisory
employees. Specifically, Hill’s supervisor, Dixon, made decisions in
consultation with his superior, Griffin, to issue the second and third
reprimands to Hill for her violations of Lockheed’s rules and policies.
Griffin, with Prickett’s approval, then made the decision to terminate
Hill under the SOP for work performance deficiencies documented in
the three reprimands she received. It is undisputed that Dixon, Griffin,
and Prickett were not motivated in any way by age or sex discrimina-
tion to make their decisions. Accordingly, in order to survive sum-
mary judgment under either proof framework, Hill must be able to
hold Lockheed liable for the alleged discriminatory animus harbored
by Fultz — the safety inspector present at the Fort Drum jobsite who
held no formal disciplinary or supervisory authority over Hill, but
who was involved in reporting the violations to Dixon that led to her
second and third reprimands and, ultimately, her termination by Grif-
fin and Prickett under the SOP. The derogatory comments and alleg-
18 HILL v. LOCKHEED MARTIN
edly discriminatory motives of Fultz are only relevant if he can be
deemed a decisionmaker for, or agent of, Lockheed for purposes of
the discrimination statutes. To make that determination, we must
examine in more detail, and in the light most favorable to Hill, the
undisputed facts that surround the events underlying her three repri-
mands and her ultimate termination.

A. The First Reprimand (Fort Bragg)

Although Hill does not challenge the validity of her first reprimand,3
it is significant both because it is similar to her third reprimand and
because it also serves as a predicate for Hill’s ultimate termination
under SOP 3.4.2. The reprimand was issued during Hill’s assignment
to Fort Bragg, North Carolina, in September 1997, for
"[u]nsatisfactory quality of work," a violation of Rule #4 of the SOP.
J.A. 124. Specifically, Hill was reprimanded for installing rivets that
were too small to properly hold an antenna mount. Donald Wiggins,
the safety inspector at Fort Bragg, wrote up the violation, and Ronald
Souders, the lead person at Fort Bragg, issued it to Hill. Hill has
admitted that this reprimand was properly issued and that Wiggins
and Souders did not act unfairly or in a discriminatory manner
towards her.

B. The Second Reprimand (Fort Drum)

In January 1998, Hill was assigned to work at Fort Drum in New
York. Prior to Hill’s assignment to Fort Drum, Griffin spoke with her
about complaints he had received concerning her job performance.
Griffin told Hill that her work had not been up to par and that,
because the lead persons were ultimately responsible for "the quality
of [her] work on the road" and "she had to be followed up on," the
lead persons had expressed some resistance to her being assigned to
their jobsites. J.A. 188. Hill’s second written reprimand was issued
3
Actually, Hill had received two prior reprimands on a Lockheed job-
site in 1995. Because these reprimands had been removed from Hill’s
record pursuant to Lockheed’s SOP, they were not considered under SOP
3.4.2. The reprimand issued at Fort Bragg was considered to be the first
reprimand for purposes of the termination decision.
 HILL v. LOCKHEED MARTIN 19
approximately four months later by Richard Dixon, the lead person
at that site, for Hill’s violation of Lockheed’s tool control policy.

Lockheed’s tool control policy requires the aircraft mechanics to
accurately account for their tools at all times and to promptly report
lost or missing tools to their immediate supervisors. The importance
of the policy is not in dispute. As acknowledged by Hill, the policy
ensures that "all of the mechanics that are working around the aircraft
. . . keep track of their tools so they don’t get left in the aircraft." J.A.
76. All tools are marked for identification by the mechanic’s initials
or social security number, and the mechanic’s toolbox is outlined, or
"shadowed," so that missing tools are immediately apparent when the
toolbox is opened.

In April, military employees at Fort Drum found a pair of blue-
handled cutters bearing Hill’s identification mark and gave them to
Fultz, who had been assigned to the site as the safety inspector. Fultz,
in turn, gave the cutters to Dixon. After consulting with Hill and Grif-
fin, Dixon issued the following written reprimand and three-day sus-
pension, in accordance with Lockheed’s SOP:

On 14 April 98 it was brought to my attention that your 4"
Diagonal Cutters with Blue Handle Grips were found on a
maintenance stand. You failed to bring it to my attention or
the Inspector’s attention that you lost or misplaced this tool.
These cutters were held in my possession until you discov-
ered they were missing. During Tool Inventory Check at
close of business (COB) on 14 April 98, you were ques-
tioned as to the whereabouts of these cutters by the Inspec-
tor. Your answer: "I told Richard I had taken the tool home."
Your toolbox was checked again on 15 April 98 in the
morning and again at close of business. When asked if you
had all your tools, your answer was "yes."

On the morning of 16 April 98, after a very in-depth Safety
Brief on F.O.D. and Tool Control, your toolbox was
checked and a like pair of 4" Diagonal Cutters were in your
toolbox, when I still held your original pair in my posses-
sion.
20 HILL v. LOCKHEED MARTIN
When I confronted you at approximately 0900 hours on 16
April 98, you denied the 4" Diagonal Cutters with the Blue
Handle Grips, with your tool markings engraved in them,
were yours.

J.A. 125-126. At the time the reprimand was issued, Hill’s toolbox
was only partially "shadowed," a deficiency she corrected during her
three-day suspension.

Hill does not dispute that the reprimand and the three-day suspen-
sion were plainly authorized by Lockheed’s disciplinary rules. Indeed,
Hill acknowledged that she could have been immediately terminated
under the SOP for this violation. Nevertheless, Hill claims that this
valid reprimand was rendered discriminatory by Fultz’s involvement
in the incident. Specifically, Hill now denies that she ever discussed
the missing cutters with Fultz or told Fultz, "I told Richard [Dixon]
I had taken the tool home," as reflected in the reprimand. J.A. 125.
She claims that Fultz lied to Dixon about this conversation, which
caused Dixon to issue the reprimand.

Viewing the evidence in the light most favorable to Hill, we can
assume that Dixon would not have issued the reprimand to Hill had
Fultz not reported Hill’s missing tool to him. In this respect, Fultz was
clearly involved in the events leading up to the reprimand, as were the
military personnel who found Hill’s cutters and turned them in to
Fultz. But Hill’s eleventh-hour claim that she and Fultz did not have
a discussion about the lost cutters prior to her reprimand creates no
material issue of disputed fact because such evidence is plainly insuf-
ficient to support a conclusion that Fultz was the actual decisionmaker
or the one principally responsible for Lockheed’s decision to issue the
reprimand.

For purposes of this disciplinary action, we must look at the facts
as they appeared to Dixon, who met with Hill and made the decision
that disciplinary action was warranted. See Kendrick, 220 F.3d at
1231 (noting that in evaluating whether an employee has been disci-
plined or terminated "because of" a protected trait, we must "look at
the facts as they appear to the person making the decision" to disci-
pline); McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1129 (10th
Cir. 1998) (holding that plaintiff failed to establish pretext where
 HILL v. LOCKHEED MARTIN 21
plaintiff was terminated after the employer conducted an investigation
into a subordinate’s allegations of misconduct on the part of the plain-
tiff and believed the allegations to be true, even though plaintiff pre-
sented evidence in the lawsuit that the allegations may have been
false). The written reprimand completed by Dixon plainly set forth
the information he had regarding Hill’s lost tool, including the now-
disputed conversation between Fultz and Hill, and was signed by Hill.
Faced one-on-one by her immediate supervisor, a man that Hill freely
agrees was acting without a personal discriminatory motivation, Hill
had the opportunity to dispute any information which formed the
basis of Dixon’s decision to reprimand. Yet, there is no evidence, and
no claim, that she did so.4 Once Dixon informed Hill of the facts
which formed the basis of his determination that a reprimand was
warranted, it was incumbent upon her to dispute any basis for the rep-
rimand at that time if she intended to complain later. Cf. English, 248
F.3d at 1011 ("A plaintiff cannot claim that a firing authority relied
uncritically upon a subordinate’s prejudiced recommendation where
the plaintiff had an opportunity to respond to and rebut the evidence
supporting the recommendation."); Willis, 118 F.3d at 547-48 (hold-
ing that the "cat’s paw" line of cases was not applicable where the
decisionmaker investigated a subordinate’s motives by meeting with
the plaintiff before acting on the subordinate’s adverse recommenda-
tion).

In addition, the record fails to support the claim that Fultz was
principally responsible for the issuance of Hill’s second reprimand
because Dixon based his decision to reprimand Hill upon his belief
that Hill had lied to Fultz. After Fultz told Dixon about his encounter
with Hill, Dixon met with Hill about the incident. By that time, Hill
had replaced the missing cutter in her toolbox and told Dixon she had
all of her tools. When presented with the tool in Dixon’s possession
that bore her number, Dixon testified that Hill only acknowledged
that it "could be hers." J.A. 252 (emphasis added). Hill also admits
that, at the time Dixon was called upon to make a decision about the
4
Nor, for that matter, is there any indication that she did so during her
deposition. Hill’s denial of the conversation with Fultz appears for the
first time in the form of an affidavit, completed one day before her
response to Lockheed’s motion for summary judgment and four months
after her deposition had been taken.
22 HILL v. LOCKHEED MARTIN
reprimand, she only acknowledged that the cutters "had my number
on them," and "that’s all I said." J.A. 78. Even during her deposition,
Hill would only acknowledge that the cutters were "most likely" hers.
J.A. 81. And, when she was asked in her deposition directly whether
she had, in fact, lost a pair of diagonal cutters, Hill again refused to
own up, testifying instead that, "I had so many, I actually could not
answer that." J.A. 78.5

In short, when Dixon met with Hill, he was given no reason to
view the facts any differently than they had been related to him, and
at no time did Dixon testify that he based his belief that Hill was not
being candid on Fultz’s statement about the tool being taken home.
On the contrary, Dixon testified that if Hill had acknowledged that
she was missing a tool when he showed her with the cutters bearing
her identification mark, she probably would not have received a writ-
ten reprimand.6 His concern was Hill’s refusal to admit to him that
5
Later, Hill admitted that she had only owned three pairs of cutters
before Dixon gave her the disputed pair, and that she only had three pairs
afterwards. But, even then Hill would only admit that she lost a pair of
cutters, not that pair of cutters, and she raised the possibility that another
person could have etched her number on the pair of cutters that was in
Dixon’s possession. Of course, even if that were true, a pair would still
be missing and a safety concern would have still existed.
6
Q: And, of course, you relied on Mr. Fultz to be honest
because that’s a serious accusation when an employee is
being dishonest?
A: That’s right.
Q: Well, if she hadn’t been dishonest, you would have treated
her in a different way, wouldn’t you?
A: . . . If she’d acknowledged, "yes, I’m missing a tool,"
wouldn’t nothing ever been said.
Q: Okay. She wouldn’t have been written up at all, would she?
A: Probably wouldn’t’ve been wrote up at all.
Q: Okay. When did you . . . first talk to Mrs. Hill about it?
A: I talked to her the next morning, I believe. And in her box
at that time was a tool. She said it was . . . there, she had
her tools.
 HILL v. LOCKHEED MARTIN 23
she had misplaced the tool. And, given the fact that the very purpose
of the tool policy is to ensure that tools are not misplaced in an air-
craft where they could wreak havoc and perhaps tragedy, one hardly
wonders why Dixon felt it important that his aircraft mechanics be
candid when confronted by him about missing tools.

In sum, the record does not support a finding that Fultz was the
actual decisionmaker or the one principally responsible for Lock-
heed’s decision to issue Hill her second reprimand for the violation
of the tool control policy. Rather, Dixon obviously made an indepen-
dent, non-biased decision that Hill had violated an important Lock-
heed safety policy, that Hill had not been forthright in her
acknowledgment of her carelessness, and that a reprimand was war-
ranted.

C. The Third Reprimand (Fort Drum)

After Hill completed her three-day suspension, she returned to
work at Fort Drum. Over the next few days, Fultz issued six installa-
tion discrepancy reports to Hill for MWOs that Hill had signed off on

Q: Okay.
A: But I — at the time talking to her, I had the tool in my desk.
...
Q: Did she acknowledge it later that they were?
A: Could be hers.
Q: Could be hers. Acknowledged that it had her number of it?
A: Yeah. Had her number . . . .
...
Q: So if she hadn’t’ve lied to Mr. Fultz and told [him] that she
had did that and then she had come in and ultimately
acknowledged that these were hers, you wouldn’t have writ-
ten her up?
A: I wouldn’t. There wouldn’t’ve been nothing said.
J.A. 251A-253.
24 HILL v. LOCKHEED MARTIN
as completed, but which Fultz determined to be unsatisfactory.
Although not authorized to reprimand or discipline Hill or any other
mechanics, Fultz was charged with checking modifications to ensure
that they had been completed in accordance with the required contract
specifications. He reported those discrepancies on Lockheed’s stan-
dard installation "Discrepancy Record," in accordance with his job
duties as safety inspector. J.A. 128-31. Dixon, however, investigated
every discrepancy report before it was corrected and, with the excep-
tion of one, determined that all were accurate and legitimate write-
ups. He also met with Hill about each discrepancy, who admitted that
four of the five remaining discrepancy reports were factually correct,
and has never contested Dixon’s authority to issue a reprimand on
that basis alone.

As before, Hill does not contend that Dixon acted with a discrimi-
natory animus when he made the decision that the third reprimand
was warranted. Hill has presented no evidence and has made no claim
that similarly situated employees were not issued discrepancy reports
for the same or similar deficiencies in their work performance, or that
they were not issued written reprimands once such discrepancy
reports were verified by the lead person. On the contrary, Hill testi-
fied that Fultz had written "many discrepanc[y]" reports for faulty
work completed by other mechanics at the Fort Drum worksite during
their assignment there, at least one of which resulted in the suspension
of a male employee, J.A. 95, and Hill’s supervisor at Fort Bragg had
issued her first reprimand based upon a single discrepancy report by
the safety inspector there. Rather, Hill asserts that the discrepancy
reports issued by Fultz, although accurate, were "nit-picky and triv-
ial," J.A. 83, and that, because they were issued during the same time
period that Fultz was uttering discriminatory statements that she had
complained about to Dixon, a jury could find that she received the
reprimand "because of" her sex and age.

Even if we accept the proffered inference that Fultz was motivated
by discriminatory and retaliatory animus towards Hill to issue the dis-
crepancy reports, this fact does not transform Fultz into the actual
decisionmaker or the one principally responsible for Dixon’s decision
to issue the third reprimand. Rather, it is undisputed that Dixon per-
sonally investigated and verified the accuracy of the discrepancy
reports, and made an independent, non-biased decision, again in con-
 HILL v. LOCKHEED MARTIN 25
sultation with Griffin, that the infractions were sufficiently serious to
warrant not only a written reprimand, but the third reprimand that
would trigger Hill’s termination.

Hill’s argument that Fultz was the actual decisionmaker because
Dixon allegedly told Hill that he had no power to override Fultz’s
actions under the SOP is also unavailing. Accepting Dixon’s alleged
statement to Hill as true and viewing it in the light most favorable to
her, it only provides evidence that Dixon was not authorized to arbi-
trarily override a legitimate and accurate discrepancy report issued by
a Lockheed safety inspector charging an aircraft mechanic with
improper completion of an aircraft modification work order. It does
not alter Dixon’s ability to evaluate, and to verify or reject, discrep-
ancy reports when deciding whether disciplinary action is warranted
under Lockheed’s SOP.

Nor would it be appropriate to withhold summary judgment from
an employer who has terminated an employee for rules violations, and
wholly in the absence of any discriminatory motivation on the part of
the decisionmakers, simply because the violations might not have
been known in the absence of a subordinate’s discriminatory animus
that brought the infractions to light. Otherwise, an unbiased employer
could never discipline or terminate an employee for an undisputed
violation of company rules, including such egregious acts as fighting
or stealing (or endangering the lives of those who fly on aircraft care-
lessly attended by a mechanic), so long as the employee could demon-
strate that she was "turned in" by a subordinate employee "because
of" a discriminatory motivation.

D. The Termination

This brings us to Lockheed’s decision to terminate Hill because she
had accumulated the three predicate reprimands for termination under
SOP 3.4.2. The decision rested formally with Tom Prickett, Lock-
heed’s program manager in charge of the contract field teams, and
Archie Griffin, the senior site supervisor for Lockheed’s East Coast
jobsites, both of whom were located at sites away from Fort Drum.
For the reasons that follow, we are satisfied that they were also the
actual decisionmakers.
26 HILL v. LOCKHEED MARTIN
After Dixon determined that a third reprimand was warranted for
Hill’s unsatisfactory work performance, he sent Hill home to await
word on her status. Dixon then contacted Griffin for guidance on how
to proceed and, upon being told by Griffin to follow Lockheed’s SOP,
forwarded the disciplinary paperwork to him. At the time, Griffin had
before him Hill’s first reprimand for her violation of Rule 4 of the
SOP — unsatisfactory quality of work — issued by Ronald Souders
at Fort Bragg in September 1997; Hill’s second reprimand for her vio-
lation of Lockheed’s tool control policy issued by Dixon at Fort Drum
in April 1998; and Hill’s third reprimand for her second violation of
Rule 4 of the SOP — unsatisfactory quality of work — issued by
Dixon in May 1998. But the information Griffin possessed was not
limited to these admitted work performance problems. Griffin was
also personally aware of the dissatisfaction Hill had engendered on
jobsites prior to Fort Drum. Specifically, Griffin testified that,
although most of the people liked Hill as a person, none of his lead
men wanted her to be assigned to them because of the quality of her
work and because she had to have continuous guidance. He had per-
sonally spoken with Hill prior to sending her to Fort Drum about
these complaints and advised her that her work was not up to par.
Moreover, Griffin had already had several conversations with Dixon
concerning Hill’s work problems at Fort Drum.

Nevertheless, after Griffin was notified of the events warranting a
third reprimand and termination under the SOP, he consulted with
both Dixon and Fultz concerning Hill’s termination and confirmed
that Dixon had talked to Hill about her situation at Fort Drum.
Although Dixon declined to specifically recommend to Griffin that
Hill be terminated from her employment, Dixon testified that he "felt
like [Hill] couldn’t do the job anymore" and "that’s what I told the
boss, and he said put the paperwork in." J.A. 150. Dixon testified that
Hill "could do one job today normal. Tomorrow she would mess it up,
and . . . you’d tell her that she messed this up and then she’d correct
it. . . . This airplane may be fine. The next one may be off." J.A. 146.
In other words, Dixon testified, he needed another sheet metal
mechanic on his job. Fultz was also critical of Hill’s work perfor-
mance and was asked by Griffin to work with Dixon to prepare a
written report documenting "all the details of what happened." J.A.
255. Fultz wrote the report and gave it to Dixon, who ultimately for-
warded it to Griffin. Prickett, the program manager, testified that his
 HILL v. LOCKHEED MARTIN 27
decision to terminate Hill pursuant to Lockheed’s SOP was based on
the information provided to him by Griffin and Dixon.

In sum, although Fultz was in a position to report Hill’s safety and
work quality violations to Dixon, and ultimately to Griffin, the shards
of evidence put together by Hill regarding Fultz’s involvement in her
termination are insufficient to support a finding that Fultz was the
actual decisionmaker, or the one principally responsible for Lock-
heed’s decision to terminate her. By bringing Hill’s shortcomings to
light, Fultz merely initiated the decisionmaking process that led to the
final two reprimands issued by Dixon and the termination decision.
By Hill’s own account of the events leading up to her termination, it
was Dixon, the lead person and Hill’s direct supervisor, who was
principally responsible for the final two reprimands after he made
independent, non-biased determinations that they were appropriate
under Lockheed’s procedures. And, it was Griffin, with the approval
of Prickett, who made the independent, non-biased decision to termi-
nate Hill after having been advised of Hill’s performance problems
prior to her going to Fort Drum and receiving documentation of the
three reprimands and word from her on-site supervisor that Hill’s
work quality problems had continued there. The mere fact that Fultz’s
opinion was solicited by Griffin during the course of the decisionmak-
ing process is insufficient to change the undisputed fact that Griffin
reached an independent, non-biased decision to terminate Hill.

For the foregoing reasons, we affirm the district court’s grant of
summary judgment to Lockheed as to Hill’s sex and age discrimina-
tion claims brought under Title VII, the ADEA, and the New York
Human Rights Act. Hill has failed to demonstrate by legally sufficient
direct or circumstantial evidence that her sex or age was "a motivating
factor" for her termination by Lockheed, see 42 U.S.C.A. § 2000e-
2(m), because she has failed to demonstrate that any relevant deci-
sionmaker at Lockheed harbored such a discriminatory motivation.
Fultz possessed no supervisory or disciplinary authority over Hill and
the record does not support a conclusion that Fultz was the actual
decisionmaker or was otherwise principally responsible for the termi-
nation decision.

Hill likewise has failed to establish her termination claim under the
burden-shifting framework of Burdine and McDonnell Douglas. As
28 HILL v. LOCKHEED MARTIN
an initial premise, Hill has failed to establish a prima facie case of sex
or age discrimination because, by her own admissions of the work
performance and rules infractions that led to her termination, she has
failed to demonstrate that she was performing her job duties at a level
that met Lockheed’s legitimate expectations at the time of the adverse
employment action. However, even if it could be said that a prima
facie case had been stated, Hill could not prevail because Lockheed
articulated a legitimate, nondiscriminatory reason for the termination
decision, and Hill has come forward with no evidence to demonstrate
that the reason proffered by Lockheed was a pretext for discrimina-
tion on the part of its relevant decisionmakers.

VI.

For similar reasons, Hill’s claim that she was terminated by Lock-
heed in retaliation for her complaints to Dixon about Fultz’s discrimi-
natory remarks also fails. Section 704(a) of Title VII provides that:

[i]t shall be an unlawful employment practice for an
employer to discriminate against any of his employees . . .
because [the employee] has opposed any practice made an
unlawful employment practice by this subchapter.

42 U.S.C.A. § 2000e-3(a). To establish a prima facie case of retalia-
tion, the employee must show (1) that she engaged in a protected
activity; (2) that her employer took an adverse employment action
against her; and (3) that there was a causal connection between the
protected activity and the adverse employment action. See King v.
Rumsfeld, 328 F.3d 145, 150-51 (4th Cir. 2003).

In this case, Hill’s asserted "protected activity" was comprised of
complaints of discrimination that she allegedly made to her supervi-
sor, Dixon, about Fultz’s discriminatory comments towards her. How-
ever, Hill has failed to establish a prima facie case of retaliation
because she cannot demonstrate that Lockheed’s decision to terminate
her was caused by the complaints she made to Dixon.

First, even if we assume that Hill complained to Dixon about
Fultz’s age and sex comments,7 Hill does not claim that Dixon issued
7
While Hill testified that she complained to Dixon about Fultz’s age
and sex comments, Dixon testified that Hill only complained that Fultz
was picking on her and yelling at her.
 HILL v. LOCKHEED MARTIN 29
her the second or third reprimand in retaliation for her complaints
against Fultz. Nor does Hill claim that Griffin or Prickett made their
decision to terminate her for retaliatory reasons. Rather, as is the case
with her discrimination claims, Hill asserts that she may prevail on
her retaliation claim because, after she returned from the suspension
imposed upon her for her second reprimand, Fultz retaliated against
her for complaining to Dixon by issuing six discrepancy records for
unsatisfactory MWOs that had been signed by Hill as completed. This
evidence is similarly insufficient to establish a retaliation claim
because Fultz held no disciplinary authority and was neither an actual
decisionmaker nor otherwise principally responsible for Dixon’s deci-
sion to issue the third reprimand which triggered the termination deci-
sion. As noted previously, Dixon personally reviewed every alleged
deficiency reported by Fultz and verified each one before relying
upon it as a basis for his decision, as Hill’s immediate supervisor and
the lead person on the site, to issue the reprimand. There is no claim
that Dixon issued any reprimand in retaliation for Hill’s complaints,
and no claim that Griffin or Prickett acted in retaliation. There is no
claim that similar infractions were overlooked by Dixon when it came
to other employees or, for that matter, that similar infractions were
overlooked by Fultz when committed by Hill’s co-workers. Indeed,
the only evidence is to the contrary. And, Hill admitted that she com-
mitted all but one of the errors contained in the discrepancy reports
and acknowledged her belief that she would have been terminated
even if she had not complained to Dixon.8 Accordingly, we also
8
Q: Was [Fultz] mad at you because you had complained to Mr.
Dixon?
A: That, I don’t know. That was my assumption on that.
Q: But you don’t have any evidence to support that?
A: No.
Q: Do you think you would have been terminated if you had
not complained to Mr. Dixon?
A: Oh, yeah.
Q: Do you think you would have been terminated either way?
A: Yeah.
J.A. 106.
30 HILL v. LOCKHEED MARTIN
affirm the district court’s determination that Lockheed was entitled to
summary judgment on Hill’s claim of retaliation.

VII.

For the foregoing reasons, the decision of the district court granting
summary judgment to Lockheed is hereby affirmed.

AFFIRMED

MICHAEL, Circuit Judge, dissenting:

I respectfully dissent. A major purpose of Title VII and the ADEA
is to outlaw discriminatory employment decisions that are made
because of sex or age. Biased subordinates without decisionmaking
authority often influence these decisions. Yet the majority holds that
when a biased subordinate with no decisionmaking authority exer-
cises substantial influence over an employment decision, the subordi-
nate’s bias cannot be imputed to the formal decisionmaker who acts
for the employer. See ante at 16. This puts us at odds with virtually
every other circuit, and it puts us at odds with the language of the stat-
utes, which impose liability when an adverse employment decision is
taken "because of" sex or age discrimination, see 42 U.S.C. § 2000e-
2(a)(1); 29 U.S.C. § 623(a)(1). After today in this circuit, an employer
is off the hook for a discriminatory employment decision that is moti-
vated by the bias of a subordinate who lacks decisionmaking author-
ity. That is wrong. As for the facts in this case, the majority fails to
state them in the light most favorable to the plaintiff, Ethel (Lou) Hill,
who was the nonmovant in the summary judgment proceedings; it
especially fails to draw all justifiable inferences in Hill’s favor. As a
result, the majority errs in affirming the award of summary judgment
to Lockheed, the employer.

I.

A detailed account of the facts, stated in Hill’s favor, appears in the
panel opinion, Hill v. Lockheed Martin Logistics Management, Inc.,
314 F.3d 657, 660-62 (4th Cir. 2003), vacated by en banc order, Feb-
ruary 12, 2003. A somewhat abbreviated version of those facts fol-
 HILL v. LOCKHEED MARTIN 31
lows. Lou Hill, who is an experienced sheet metal mechanic, was
almost fifty-eight years old when Lockheed sacked her in 1998. By
that time Hill had worked her trade in the aircraft industry for nearly
twenty-five years, the last eleven with Lockheed. At Lockheed, Hill
was assigned to field teams that went to U.S. military bases to do
modification work on military airplanes. Hill was working on a Lock-
heed job at Fort Drum, New York, when she was fired in May 1998.
Hill ran into trouble on this job after Edward Fultz became her safety
inspector in February 1998. Fultz did not like to have women working
under him, and Hill was the only woman (and the oldest employee)
on her eight-person crew. Fultz targeted Hill immediately, and during
the three months in 1998 when Fultz was Hill’s inspector, he made
many derogatory remarks about her sex and age. On several occasions
Fultz referred to her as a "useless old lady." J.A. 240A. One time he
said that Hill was a useless old lady who needed to go home and
retire. Another time Fultz said that Hill was "useless and they need-
[ed] to retire her." J.A. 240B. He also called her a "damn woman,"
J.A. 241A, and "a troubled old lady," J.A. 245. Hill complained sev-
eral times to her supervisor, Richard Dixon, about Fultz’s harassment,
but Dixon did nothing to stop it. Fultz was thus free to act on his bias
against Hill by orchestrating disciplinary actions against her that
made her eligible for termination. Once Hill’s job was in jeopardy,
formal Lockheed decisionmakers fired her based on Fultz’s negative
assessment of her work.

Fultz’s first move was to manipulate Dixon into reprimanding Hill
for violating Lockheed’s tool control policy. Under this policy an
employee must keep track of her tools and report missing tools to her
supervisor. Hill had three identical pairs of four-inch cutters, and an
Army employee found a pair of Hill’s cutters on a maintenance stand
on April 14, 1998. The Army employee took the cutters to Fultz, who
then gave them to Dixon. Fultz told Dixon that he had checked Hill’s
toolbox at the end of Hill’s shift and asked her where her extra cutters
were. According to Fultz, Hill replied, "I told Richard [Dixon] I took
[them] home." J.A. 145. Hill insists that she did not have any discus-
sion with Fultz about her cutters and that Fultz lied to Dixon. Indeed,
Hill did not even know that a pair of her cutters were missing, so she
had no occasion to claim that she had talked to Dixon about missing
cutters. Hill was therefore surprised when Dixon showed her a pair
of cutters and asked if they were hers. Believing that all of her cutters
32 HILL v. LOCKHEED MARTIN
were accounted for, Hill simply replied that the cutters had her num-
ber on them. This answer did not satisfy Dixon because he mistakenly
believed — based on Fultz’s false report — that Hill already knew for
sure that her cutters were missing. Dixon also believed that Hill had
lied to Fultz by telling him that she had talked to Dixon about her
missing cutters. (Dixon did not tell Hill about Fultz’s report to him,
so Hill had no opportunity to point out that Fultz was lying.) Because
Fultz’s false report led Dixon to conclude that Hill had lied, Dixon
gave Hill a written reprimand and a three-day suspension.

After Hill returned from her three-day suspension at the end of
April 1998, she complained again to Dixon that Fultz was discrimi-
nating against her. Dixon mentioned to Fultz that Hill had registered
a complaint, and Fultz reacted with noticeable anger towards Hill.
Fultz immediately began to write discrepancy reports (reports docu-
menting worker error) on Hill, writing six reports in the next three
workdays. Fultz marked each of the errors as "minor," and Hill said
they were "nit-picky and trivial." J.A. 83. Fultz, as safety inspector,
had the discretion on whether or not to write up minor mistakes.
Dixon, as supervisor, had no control over whether a discrepancy
report was written. Dixon could, however, check a report for accu-
racy, and he refused to endorse one of the reports that Fultz issued
against Hill. Dixon said that Hill’s minor work errors during her ten-
ure at Ft. Drum were never serious enough for him to engage in for-
mal counseling with her.

Nevertheless, Hill was handed another written reprimand on May
4, 1998, as a result of the flurry of discrepancy reports Fultz had
issued against her during the three workdays at the end of April and
the beginning of May 1998. This last reprimand was Hill’s third in
twelve months (one had carried over from another job), and she was
now subject to discharge. Within days she was fired. The formal deci-
sion to fire Hill was made by two Lockheed officials, Archie Griffin
and Thomas Prickett, neither of whom was located at Fort Drum.
According to Griffin, the decision to fire Hill was based entirely on
information provided by Fultz and Dixon, especially Fultz. Griffin
talked with Fultz about Hill several times prior to the termination
decision, and Fultz provided Griffin with a written statement of his
observations about Hill’s work performance. Neither Griffin nor Pri-
ckett talked with Hill while she was being considered for termination,
 HILL v. LOCKHEED MARTIN 33
and neither official had any firsthand knowledge of her work at Fort
Drum. (It was a violation of Lockheed policy not to give Hill the
opportunity to present her side of the story before she was fired.)
Dixon, Hill’s supervisor, did not make any recommendation to Griffin
or Prickett about whether Hill should be fired. On the other hand,
Griffin and Prickett relied on Fultz to write and sign Hill’s termina-
tion statement, a document explaining that Hill was fired because
Fultz found her work to be unsatisfactory. After Hill was fired, her
work was initially assigned to a thirty-one-year-old man, and she was
ultimately replaced by a man who was forty-seven.

II.

The majority renders Title VII and the ADEA essentially toothless
when it comes to protecting employees against unlawful employment
decisions that are motivated by biased subordinates. The majority
holds that an "employee who rests a discrimination claim under Title
VII or the ADEA upon the discriminatory motivations of a subordi-
nate employee must come forward with [proof] that the subordinate
employee possessed such authority as to be viewed as the one princi-
pally responsible for the [adverse] decision or the actual decision-
maker for the employer." Ante at 17 (emphasis added). This proof
makes the employer liable, the majority says, because such a subordi-
nate "act[s] in a supervisory or managerial capacity as the agent[ ] of
the employer." Ante at 14. "It is [this] individual[ ]," the majority
emphasizes, "who must possess the requisite discriminatory motiva-
tion behind the adverse employment decision that [he] make[s] or for
which [he] hold[s] principal responsibility." Ante at 14. This holding
is unduly narrow. It authorizes discriminatory employment decisions
that are motivated by biased subordinates who do not act in a supervi-
sory or managerial capacity. The majority goes astray, I respectfully
suggest, because it bases its holding on principles of agency law that
do not get to the real issue in this case, and it overlooks the statutory
focus on causation, that is, whether an adverse employment action
was taken "because of" a protected trait such as sex or age. Moreover,
the majority’s restrictive approach for determining whether a subordi-
nate’s discrimination should be counted is out of step with the law in
other circuits, and it lacks support from the Supreme Court.

The majority argues that Burlington Industries, Inc. v. Ellerth, 524
U.S. 742 (1998), dictates the principle that an employer cannot be
34 HILL v. LOCKHEED MARTIN
held vicariously liable for an employment decision motivated by a
biased subordinate unless the subordinate "act[s] in a supervisory or
managerial capacity as the agent[ ] of the employer." Ante at 14.
Ellerth does not dictate any such rule. Ellerth is bottomed on the
unremarkable fact that corporations and other institutional employers
act through agents. The decision recognizes that the agency relation-
ship triggers vicarious liability for the employer when its supervisor,
or some other person acting with authority, takes a tangible employ-
ment action (discharge, for example) against an employee. Ellerth,
524 U.S. at 760-62. The agency relationship extends liability to the
employer even when the supervisor or other agent takes tangible
employment action for discriminatory reasons. Id. As Judge Posner
puts it in Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990):
"a supervisory employee who fires a subordinate is doing the kind of
thing that he is authorized to do, and [doing it with] wrongful intent
. . . does not carry his behavior so far beyond the orbit of his responsi-
bilities as to excuse the employer." The Supreme Court in Ellerth
sums it up in about the same way: "When a supervisor makes a tangi-
ble [and adverse] employment decision, there is assurance that the
injury could not have been inflicted absent the agency relation."
Ellerth, 524 U.S. 742. Ellerth simply tells us that when a supervisor
or other decisionmaker fires an employee for whatever reason, we
automatically have an agent whose personnel action is imputed to the
employer. That does not answer today’s question: when a biased sub-
ordinate who lacks decisionmaking authority substantially influences
an employment decision, may his bias be imputed to the formal deci-
sionmaker who acts for the employer. I would hold that it can be.

The basis for imputing the influential subordinate’s discriminatory
motive to the formal decisionmaker is rooted in the words of Title VII
and the ADEA. The statutes make it unlawful "for an employer . . .
to discharge . . . or otherwise to discriminate against any individual
. . . because of such individual’s" sex or age. 42 U.S.C. § 2000e-
2(a)(1) (outlawing sex discrimination in employment); 29 U.S.C.
§ 623(a)(1) (outlawing age discrimination in employment). The stat-
utes hinge employer liability on causation, that is, whether the adverse
employment action was taken "because of" sex or age. When the sex-
or age-based bias of the subordinate has a substantial or determinative
influence on a formal decisionmaker’s adverse employment action,
the causation (or liability) requirement is satisfied. The employer is
 HILL v. LOCKHEED MARTIN 35
liable for the discriminatory action because the subordinate’s bias is
imputed to the formal decisionmaker who acted for the employer.
This approach has had support in the circuits for a long time.

The leading case for this approach is Shager v. Upjohn Co., 913
F.2d 398 (7th Cir. 1990) (Posner, J.). The Shager plaintiff, a fifty-
year-old seed salesman, claimed that he was fired in violation of the
ADEA because his supervisor was hostile to older workers. The
supervisor did not personally fire the plaintiff; rather, a committee,
unbiased and unaware of the supervisor’s prejudice, fired the plaintiff
on the recommendation of the supervisor. In analyzing whether the
supervisor’s motives could be imputed to the employer, the court
looked to whether "the committee’s decision to fire [the plaintiff] was
tainted by [the supervisor’s] prejudice." Id. at 405. The record estab-
lished that the supervisor "not only set up [the plaintiff] to fail by
assigning him an unpromising [sales] territory but influenced the
committee’s deliberations by portraying [the plaintiff’s] performance
to the committee in the worst possible light." Id. at 405. Because the
committee "acted as the conduit of [the supervisor’s] prejudice," his
prejudice could be imputed to the employer for liability purposes. Id.
A later Seventh Circuit case, Wallace v. SMC Pneumatics, Inc., 103
F.3d 1394 (7th Cir. 1997) (Posner, J.), likewise discussed what hap-
pens in a Title VII case when "the discriminatory motive of [a subor-
dinate employee], not the autonomous judgment of the non-
discriminating decision-maker, is the real cause of the adverse
employment action." Id. at 1400 (emphasis added). The answer is
clear: "the prejudices of [the subordinate] are imputed to the
employee who has formal authority over the plaintiff’s job." Id. The
Shager and Wallace opinions were nevertheless careful to point out
that the subordinate’s bias will not be imputed to a formal decision-
maker who acts for reasons that are untainted by discrimination. See
Shager, 913 F.2d at 405; Wallace, 103 F.3d at 1400.

Most other circuits, in either mixed-motive or pretext cases, have
held that when the discriminatory bias of a subordinate influences an
employment decision, the employer will be charged with the subordi-
nate’s bias. See, e.g., Griffin v. Washington Convention Ctr., 142 F.3d
1308, 1312 (D.C. Cir. 1998) ("[E]vidence of a subordinate’s bias is
relevant where the ultimate decision maker is not insulated from the
subordinate’s influence."); Santiago-Ramos v. Centennial P.R. Wire-
36 HILL v. LOCKHEED MARTIN
less Corp., 217 F.3d 46, 55 (1st Cir. 2000) ("One method [of proving
pretext] is to show that discriminatory comments were made by . . .
those in a position to influence the decisionmaker."); Rose v. New
York City Bd. of Educ., 257 F.3d 156, 162 (2d Cir. 2001) (discrimina-
tory comments of plaintiff’s supervisor, who did not have formal fir-
ing authority but who "had enormous influence in the decision-
making process," constitute direct evidence of discrimination);
Abramson v. William Paterson Coll. of New Jersey, 260 F.3d 265,
286 (3d Cir. 2001) (internal quotations and citation omitted) ("Under
our case law, it is sufficient if those exhibiting discriminatory animus
influenced or participated in the decision to terminate . . . [because]
an evaluation at any level, if based on discrimination, [may] influ-
ence[ ] the decisionmaking process and thus allow[ ] discrimination to
infect the ultimate decision."); Russell v. McKinnsey Hosp. Venture,
235 F.3d 219, 226 (5th Cir. 2000) ("If the [plaintiff] can demonstrate
that others had influence or leverage over the official decisionmaker
. . . it is proper to impute their discriminatory attitudes to the formal
decisionmaker."); Ercegovich v. Goodyear Tire & Rubber Co., 154
F.3d 344, 354 (6th Cir. 1998) ("[R]emarks by those who did not inde-
pendently have the authority . . . to fire the plaintiff, but who never-
theless played a meaningful role in the decision to terminate the
plaintiff, [are] relevant."); Stacks v. Southwestern Bell Yellow Pages,
Inc., 27 F.3d 1316, 1323 (8th Cir. 1994) (internal quotation marks
omitted) (discriminatory remarks of a manager, who was the fired
plaintiff’s supervisor and who was "closely involved in employment
decisions," constitute direct evidence of discrimination); Bergene v.
Salt River Project Agric. Improvement & Power Dist., 272 F.3d 1136,
1141 (9th Cir. 2001) (manager’s comment was direct evidence of
retaliation because "[e]ven if [the] manager was not the ultimate deci-
sionmaker [in denying the plaintiff a promotion], that manager’s retal-
iatory motive may be imputed to the company if the manager was
involved in the . . . decision").

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133
(2000), an ADEA pretext case cited by the majority, supports the
approach of imputing to the employer the biased motives of a subor-
dinate who substantially influences an employment decision. The
Supreme Court in Reeves begins by focusing on the importance of
causation in employment discrimination cases: "liability depends on
whether the protected trait (under the ADEA, age) . . . actually played
 HILL v. LOCKHEED MARTIN 37
a role in [the employer’s decisionmaking] process and had a determi-
native influence on the [adverse decision]." 530 U.S. at 141 (quota-
tion marks and citations omitted; first alteration in original). Reeves
thus assumes that the formal employment decision will be made by
someone in authority, that is, an agent of the employer. What matters
for liability purposes is whether bias against a protected trait —
including bias from a subordinate — had a "determinative influence"
on the decision. See id.

The majority is frank in explaining that its holding removes an
entire class of discrimination cases from the protection of Title VII
and the ADEA. It rejects the approach of a number of other circuits
by refusing to "embrac[e] a test that would impute the discriminatory
motivations of subordinate employees having no decisionmaking
authority to the employer . . . simply because they have influence or
even substantial influence in effecting a challenged decision." Ante at
16-17. By only counting the discriminatory motivation of someone
who "act[s] in a supervisory or managerial capacity as the agent[ ] of
the employer," ante at 14, the majority improperly narrows the scope
of Title VII and the ADEA. Under the majority’s standard, unlawful
discrimination will go unaddressed in many cases where a subordi-
nate’s discriminatory bias taints the employment decision. To prevent
this from happening, our circuit should hold that when a biased subor-
dinate has substantial influence on an employment decision, the sub-
ordinate’s bias will be imputed to the formal decisionmaker. This, of
course, means that the subordinate’s bias should not be imputed if the
formal decisionmaker conducts an independent investigation and
exercises independent judgment that is free of discrimination.

III.

The summary judgment record, taken in the light most favorable to
Hill, establishes the following. Fultz, Lockheed’s safety inspector at
Ft. Drum, regularly made discriminatory comments on the job about
Hill’s sex and age, calling her a "useless old lady" whom the company
"need[ed] to retire." J.A. 240A, 240B. Fultz’s discriminatory attitude
was also reflected in actions that Fultz took or orchestrated against
Hill. Fultz’s discriminatory animus towards Hill may be imputed to
Griffin and Prickett, the two formal decisionmakers (or company
38 HILL v. LOCKHEED MARTIN
agents), because Fultz had a substantial influence on the decision to
fire Hill.

To begin with, Fultz, as safety inspector, had considerable say in
the evaluation of Hill’s performance. Fultz inspected all of Hill’s
work, and Fultz alone had the authority to issue discrepancy reports
that documented worker error. Using his position, Fultz took a series
of steps that set up Hill to be fired. First, Fultz manipulated Hill’s
supervisor, Dixon, into believing that Hill had lied about her missing
cutters. This led Dixon to issue the second reprimand (with a three-
day suspension) to Hill. Second, when Hill returned to work from her
suspension, she complained to Dixon that Fultz was discriminating
against her. Fultz became quite angry when he learned of Hill’s com-
plaint, and he wasted no time in taking it out on her. Fultz quickly
issued six discrepancy reports against Hill, all for minor or trivial mis-
takes. These discrepancy reports led to Hill’s third reprimand, and the
three reprimands made Hill eligible for discharge. Third, once dis-
charge was under consideration, Fultz provided Griffin with a written
statement that detailed Fultz’s observations about Hill’s work perfor-
mance. Fultz portrayed Hill’s performance in the worst possible light,
and Hill was fired in due course.

Griffin and Prickett, the formal decisionmakers for Lockheed, did
not exercise independent judgment in making the termination deci-
sion. Griffin and Prickett, who were not located at Ft. Drum, did not
observe Hill’s work, nor did they give her the chance to state her case
against discharge. They relied entirely on information provided by
Fultz and Dixon, but especially Fultz. Dixon simply submitted Hill’s
file without a recommendation. Griffin talked with Fultz several times
prior to the termination decision, and in the end, Griffin and Prickett
relied on Fultz to write and sign Hill’s termination statement. The ter-
mination statement explained that Hill was being fired because Fultz
found her performance to be unsatisfactory. Fultz mainly relied on the
grounds for the reprimands that he had orchestrated against Hill. The
summary judgment record allows the inference that Fultz orchestrated
those reprimands because of his animus towards Hill. Because Griffin
and Prickett relied on tainted information from Fultz in reaching the
decision to fire Hill, Fultz’s discriminatory animus may be imputed
to them. (The record also provides ample grounds for labeling Fultz
as an actual decisionmaker, which is an alternative basis for imputing
 HILL v. LOCKHEED MARTIN 39
his discrimination to the company. See part II.A.2.c of the vacated
panel opinion, Hill v. Lockheed Martin Logistics Management, Inc.,
314 F.3d at 671-73. I do not press this point today, however.)

IV.

The vacated panel opinion (parts II.B, II.C, and III) considers each
of Hill’s claims under Title VII and the ADEA — that she was fired
because of her sex and age and that she was also fired because of her
complaints of discrimination. For the reasons stated in the panel opin-
ion, Lockheed’s motion for summary judgment on these claims
should be denied. See Hill v. Lockheed Martin Logistics Management,
Inc., 314 F.3d at 673-80. Hill’s evidence entitles her to a trial, and we
ought to give her one.

Judge Motz, Judge King, and Judge Gregory join in this dissent.