concurring and dissenting:
I concur in the majority’s opinion in all respects but one. In part IV, it holds that the matter should be remanded to the trial judge because he did not properly apply McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, n. 6, 101 S.Ct. 1089, 1094, n. 6, 67 L.Ed.2d 207 (1981), having misconstrued our decision in League of United Latin American Citizens (LULAC), Monterey Chapter 2055 v. City of Salinas Fire Dept., 654 F.2d 557 (9th Cir. 1981). I think that Judge Conti construed LULAC correctly and that we need not refer the matter back to him for further consideration.
In LULAC we held that the defendants must shoulder the burden of persuasion by *1511clear and convincing evidence in the remedial phase of the trial, after the plaintiff has already proved by a preponderance of the evidence that the defendants intentionally discriminated. Judge Conti stated, in his conclusions of law, filed on January 19, Excerpts p. 16:
Defendant’s burden of proof in attempting to rebut the plaintiff’s prima facie case is to prove, by clear and convincing evidence, that even in the absence of the discrimination she would not have been hired for the position. LULAC v. City of Salinas Fire Department, 654 F.2d 557 (9th Cir.1981).
This is in essence what LULAC says on page 558 of 654 F.2d in the right-hand column under [3], except that the opinion said: “Once intentional discrimination is shown” rather than referring to a “prima facie case.” But surely a showing of intentional discrimination is a showing of a pri-ma facie case.
Moreover, in his Order Denying Motion for Additional Finding, etc., filed on April 9, 1982, Excerpts at page 27, Judge Conti says:
In the findings of fact and conclusions of law, the court concluded that “[t]he defendant intentionally discriminated against the plaintiff in the hiring decision” and that the “defendant has failed to prove by clear and convincing evidence that plaintiff would not have been hired despite the discriminatory treatment.” Thus, the burden of proof was properly placed on defendant after the finding of intentional discrimination was made.
This seems to me to make it clear that the judge was applying LULAC correctly. Under these circumstances, we should simply affirm rather than remanding to him to go through what would be essentially a meaningless ritual performance.
My view is strengthened by the decision of the Supreme Court in United States Postal Service Board of Governors v. Ai-kens,-U.S.-,-, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983). I refer particularly to the paragraph which begins at page 1482 of the Supreme Court Reporter and reads as follows:
All courts have recognized that the question facing triers of fact in discrimination cases is both sensitive and difficult. The prohibitions against discrimination contained in the Civil Rights Act of 1964 reflect an important national policy. There will seldom be “eyewitness” testimony as to the employer’s mental processes. But none of this , means that trial courts or reviewing courts should treat discrimination differently from other ultimate questions of fact. Nor should they make their inquiry even more difficult by applying legal rules which were devised to govern “the allocation of burdens and order of presentation of proof,” Burdine, supra [450 U.S.] at 252 [101 S.Ct. at 1093], in deciding this ultimate question.
I would affirm, rather than remand.