dissenting:
Although the hearing examiner relied upon an incorrect legal standard in determining that the employer had discharged claimant in retaliation for filing a workers’ compensation claim, the Director of the agency, upon review, applied the proper legal standard to the facts as found by the examiner and reached the same result. It is, of course, within the Director’s province to review the examiner’s conclusions of law de novo, as she did here, even though bound by the examiner’s factual findings. KOH Systems v. District of Columbia Dep’t of Employment Servs., 683 A.2d 446, 449 (D.C.1996) (citations omitted). Since there is substantial evidence in the record to support the Director’s decision, and it is consistent with applicable law, this court should not disturb it. Lyles v. District of Columbia Dep’t of Employment Servs., 572 A.2d 81, 84 (D.C.1990).
The hearing examiner’s initial error, which the Director corrected in the final agency decision, was in concluding that claimant had established a prima facie case of retaliatory discharge by showing only that she made a claim for workers’ compensation and that her employer terminated her “without allowing her the opportunity to return to her usual work duties-” The claimant must show that the employer’s termination decision was motivated by animus against the employee, resulting wholly or partly from the employee’s pursuit of rights under the Workers’ Compensation Act, which entails some additional showing beyond the firing. Lyles, supra, 572 A.2d at 84 (citations omitted). Here, the Director in fact relied upon many more facts, as found by the examiner, in reaching the final decision.1 Specifically, the Director relied upon the proximity of the time between the filing of the claim and the termination of the claimant’s employment;2 *1251an internal memo of the employer indicating that the employer was attempting to find a way to discharge the claimant because of her disability status which, nevertheless, would appear to be legal;3 claimant’s excellent evaluations,4 employer-paid training and certificates of achievement during some ten years as contrasted with negative communications after she lost time from work due to her work-related injury. These factors provide additional circumstantial evidence of the requisite animus sufficient to shift the burden of production to the employer to rebut the inference of retaliation, as the Director concluded. See Abramson, supra note 1, 596 A.2d at 553 (citations omitted).
I cannot agree with the majority that the Director erred in concluding that there was sufficient evidence for the hearing examiner to conclude that the reorganization was pre-textual.5 There was evidence from which it could be concluded reasonably that the employer reorganized claimant out of a job purportedly because it needed someone with additional skills which claimant did not possess. In concluding that there was substantial evidence in the record from which the examiner could conclude that the termination was pre-textual, the Director stated:
The hearing examiner found that a few months after claimant was fired, the employer made arrangements for an outside consultant to come in and provide ongoing training to its entire staff in the software usage skills claimant was suppose[d] to have needed in order to perform the duties of her new, “restructured” position.... The hearing examiner also cited the confidential memo of December 9, 1992 6 to show that employer’s alleged business reason was a pretext to fire claimant.... The other evidence the Hearing Examiner utilized to support her finding of retaliatory discharge gives added weight to her conclusion.
That other evidence, as set forth in the examiner’s findings, included: (1) the absence of pressure to reduce staff; (2) the continuation of prior accounting practices after claimant was terminated, thereby showing that no new skills were actually required; (3) the failure of the supervisor to evaluate claimant’s transferable skills; (4) the exclusion of other employees from the reorganization except for a temporary employee and an em*1252ployee subject to termination for misconduct; and (5) the failure to apprise the employer’s top administrator of the planned reorganization until after claimant was terminated. The hearing examiner could conclude reasonably from these facts, as she did, that the “employer’s stated reason for terminating claimant’s employment, i.e., its ‘restructuring’ justification, was pretextual[,]” even if we might have reached a different result from an independent review of the record. See Dell v. Dep’t of Employment Servs., 499 A.2d 102, 108 (D.C.1985).
Finally, I cannot agree with the majority that the claimant’s failure to apply for the reconstituted position after her firing eliminates the evidentiary significance of the fact, as found by the hearing examiner, “that a few months after claimant was fired, the employer made arrangements for an outside consultant to come in and provide ongoing training to its entire staff in the software usage skills claimant was suppose to have needed in order to perform the duties of her new, ‘restructured’ position.” The restructured position added the requirement for experience with spreadsheets using certain software which the employer knew that claimant did not possess. Since the new job description was written in such a way that claimant could not qualify, it would have been futile for her to apply. “The law does not require the doing of a futile act.” Ohio v. Roberts, 448 U.S. 56, 75, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); In re 638 A.2d 1123, 1129 (D.C.1993); Hercules & Co. v. Shama Restaurant Corp., 613 A.2d 916, 921 (D.C.1992); Hairston v. McLean Trucking Co., 520 F.2d 226, 232 (4th Cir.1975).7 That the employer provided training after elaim-ant’s firing which would have allowed her to perform the “new” job is relevant to show that restructuring the position was pretextual, particularly when considered with evidence showing an effort to devise a plan to fire her which would appear to be legal. Cases of retaliatory discharge are difficult to prove “because an employer rarely declares that retaliation is a motive for an employee’s discharge, [therefore] the employee must ordinarily rely upon circumstantial evidence to prove retaliatory animus.” Abramson, supra note 1, 596 A.2d at 553. To disregard the type of circumstantial evidence discussed here, erects yet another barrier to proving claims of retaliation and other acts of discrimination.
The agency’s decision in this case is supported by substantial evidence and consistent with applicable law; therefore, we should affirm it. See KOH, supra, 683 A.2d at 449 (citations omitted). The mere existence of evidence to the contrary, even if substantial, does not permit this court to substitute its judgment for that of the agency. Spevak v. District of Columbia Alcoholic Beverage Control Bd., 407 A.2d 549, 554 (D.C.1979) (citing Schiffmann v. District of Columbia Alcoholic Beverage Control Bd., 302 A.2d 235, 238 (D.C.1973)). For the foregoing reasons, I respectfully dissent from the opinion of the court.
. Unlike the majority, I do not read the Director's decision as relying on an improper standard for proof of animus. While the Director stated erroneously that the bare minimum required to show a prima facie case is discharge within proximity to filing a workers’ compensation claim, she added immediately that "[hjerein, the claimant has a much stronger case than the bare minimum” and then identified various other circumstantial evidence supporting the finding of a prima facie case. See, e.g., Abramson Assocs. v. District of Columbia Dep't of Employment Servs., 596 A.2d 549, 553 (D.C.1991); Lyles, supra, 572 A.2d at 84.
. Contrary to the majority, I think that the examiner’s factual findings, which the Director accepted, adequately show the proximity of the timing of the claim to the claimant's termination. According to the findings of the hearing examiner, the first report of injury was filed on August 13, 1992, and in September 1992, claimant went on leave for a work-related injury. Her claim for temporary total disability benefits was approved *1251on December 22, 1992 retroactive to November 16, 1992. She received temporary total disability benefits from November 16, 1992 to February 7, 1993. The Assistant Director of Finance and Administration for the employer made the decision to terminate claimant on or before January 13, 1993. On February 12, 1993, the claimant received a termination letter dated February 8, 1993, effective February 23, 1993. The timing of the discharge in relation to other events is critical circumstantial evidence in proving retaliatory discharge. Abramson, supra, 596 A.2d at 553 (citations omitted).
.The memo, dated December 9, 1992, states in pertinent part:
1. The most immediate issue involves identifying the best strategy for hiring a permanent replacement for Pam Cary, given her present totally disabled status. You have stressed the criticality of filling her position, which I believe that we can do providing we hold a comparable position for her until she returns to work. Given Pam's present status, I feel that we must obtain legal advice concerning the best approach to take, ADA implications, etc.
2. Presently, Pam is pursuing a Workers’ Compensation insurance claim, for which we have received an initial notice of controversion from Hartford. Though Pam did not initially follow up with Hartford upon receipt of notice, her attorney (this week) supplied Hartford with her medical records and other information to expedite processing the claim. Once a final decision has been made regarding Pam's Workers' Compensation claim, I would like to have a general review of the legal implications of the options CDF will have to consider.
. There was one exception.
. The hearing examiner correctly stated that once the claimant establishes a prima facie case, the burden of production shifts to the employer to show a legitimate business justification for the termination of claimant's employment. See Abramson, supra note 1, 596 A.2d at 553. However, the examiner then appears to have held the employer to the burden of persuasion, which remains with the claimant. See id. at 553-54. The Director again remedied any error by applying the correct legal standard to the examiner’s factual findings. The Director concluded that “even if the employer met its burden of production in producing a legitimate business reason for terminating claimant, the Director holds that there was substantial evidence in the record for the Hearing Examiner to find it was pretextual."
. See note 3, supra.
. In Hairston, the district court denied back pay to some members of a class who were systematically discriminated against in employment because of race. Hairston, supra, 520 F.2d at 229. One reason for the district court’s denial of back pay was because the plaintiffs involved had not sought promotion or transfer. Id. at 230. Since the employment practices and polices of the employer would have rendered an effort for promotion or transfer futile, the plaintiffs’ failure to apply was not dispositive. Id. In reversing and remanding, the Fourth Circuit observed:
If an employer can avoid back pay liability through a policy which makes an attempt to gain a better job risky or futile, then this subtle form of discrimination is encouraged, not discouraged. Similarly, plaintiffs harmed by such policies — plaintiffs deterred by the futility or risk of seeking promotion — are denied an award which would "make them whole,” not because they were not disadvantaged by discrimination, but merely because of the peculiar method by which discrimination was implemented.
Id. at 232 (footnote omitted). "In other areas of Title VII relief, the law does not require a futile act as a precondition of relief.” Id. at 232 n. 2 (citing, e.g.. United States v. Sheet Metal Workers International Ass'n, Local Union 36, 416 F.2d 123, 127 (8th Cir.1969); Bing v. Roadway Express, Inc., 485 F.2d 441 (5th Cir.1973)).