dissenting:
At the close of plaintiff’s case, defendants moved under Fed.R.Civ.P. 41(b) for dismissal of the complaint. They specifically argued that “plaintiff has not made out a prima facie case of race discrimination under Title VII,” and that plaintiff failed to meet “the Burdine standard” and that his case was “not like the McDonnell Douglas case ...” As I read the somewhat enigmatic, rambling oral opinion of the district court, it decided only that issue, namely that plaintiff had failed to prove a prima facie case. The correctness of that ruling, and not how the case should be decided on the merits, is the sole issue before us.*
In my view, the district court decided the question incorrectly. My reasons are set forth in the majority panel opinion, Holmes v. Bevilacqua, 774 F.2d 636 (4 Cir.1985), and need not be repeated at length here. In agreement with Bell v. Bolger, 708 F.2d 1312 (8 Cir.1983), I think that in a promotion case, plaintiff proved a prima facie case when he proved that he was black, he was qualified for the job, he was rejected, and a white applicant was promoted.
Even if the majority of the in banc court is correct in saying that there must be further proof of the employer’s improper motivation, I think that there was such evidence. The individual defendant, Bevi-lacqua, sought to justify his promotion of Cullum on the ground of his “skill and experience that comes from municipal government and local community experience,” yet plaintiff’s proof showed that when candidates for promotion were interviewed, they were not interrogated in these areas. As the majority recognizes, any information that Bevilacqua gained about the applicants in this regard was fortuitous. To my mind, the claimed criteria for appointment are suspect. Unless they represent an afterthought, why else would an employer fail to inquire about the very factors on which he claims to have made his choice? If the claimed criteria are not bona fide, the inference may properly be drawn that there was a hidden, invidious reason for promoting Cullum rather than the black plaintiff.
I respectfully dissent. I think that the judgment of the district court should be reversed and the case remanded for full trial.
Relying on U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983), the majority asserts that the in banc court should concern itself only with the merits of the entire case and not whether plaintiff established a prima facie case. This assertion misapplies the holding in Aikens. Ai-kens was a case which "was fully tried on the merits ..460 U.S. at 714, 103 S.Ct. at 1481. In the instant case, only plaintiff had presented his direct case when the motion to dismiss was made. The only issue is not whether, plaintiff should ultimately prevail; it is whether plaintiff proved enough to require defendants to present their defense.