Thomas, Valerie v. Natl Ftbl Leag Plyrs

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 13, 1997 Decided December 19, 1997

No. 96-7242

Valerie Thomas, et al.,

Appellees/Cross-Appellants

v.

National Football League Players Association,

Appellant/Cross-Appellee

Consolidated with

No. 96-7243

---------

Appeals from the United States District Court

for the District of Columbia

(No. 91cv03332)

Joseph A. Yablonski argued the cause for appellant/cross-
appellee, with whom Charles R. Both and Richard A. Berthel-
sen were on the briefs.

David L. Rose argued the cause and filed the briefs for
appellees/cross-appellants.

Before: Edwards, Chief Judge, Ginsburg, Circuit Judge
and Buckley, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge Edwards.

Edwards, Chief Judge: A principal claim in this case is that
the defendant, acting pursuant to "mixed motives," unlawfully
retaliated against the plaintiffs in violation of Title VII, 42
U.S.C. s 2000e et seq. (1994). The issues on appeal require
us to delimit the requirements of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), Texas Dep't of Community Af-
fairs v. Burdine, 450 U.S. 248 (1981), and Price Waterhouse
v. Hopkins, 490 U.S. 228 (1989), with respect to a plaintiff's
prima facie case, a defendant's burden of production, and the
ultimate burdens of persuasion, in a retaliation/mixed-motives
case.

The actions giving rise to this law suit occurred when
Eugene Upshaw, Executive Director of the National Football
League Players Association ("NFLPA"), first laid off, then
terminated employees Valerie Thomas and Rita Raymond on
the stated grounds that they had been disloyal in criticizing
NFLPA staff and policies in an anonymously distributed
document and in several legally taped telephone calls. Julie
Taylor-Bland (Bland at the time of the events) resigned in
the aftermath of the firing of the other two. Before leaving
the employ of the NFLPA, Thomas and Bland had suggested,
in conversations with management, that NFLPA promotion
policy discriminated against African-American women. The
three women subsequently sued the NFLPA, charging that
the lay-off and discharge of Thomas and Raymond, and the
alleged constructive discharge of Bland, came in retaliation to
their opposition to discriminatory employment practices, and
hence violated Title VII.

After trial, the District Court granted judgment as a
matter of law to the NFLPA on the plaintiffs' claim that
there existed a pattern and practice of discrimination at the
NFLPA. Joint Appendix ("J.A.") 902-09. It then found that

Thomas had been unlawfully fired, that Raymond had not
made out a prima facie case of retaliation, and that Bland
had not been fired at all. The trial court granted Thomas
back pay and prejudgment interest, but declined to reinstate
her. Thomas, et al., v. National Football League Players
Ass'n, No. 91-3332 (D.D.C. Jul. 24, 1996), reprinted in J.A.
279. In a subsequent order, the District Court refused the
NFLPA's request for costs, declaring Thomas the prevailing
party. Thomas, et al., v. National Football League Players
Ass'n, No. 91-3332 (D.D.C. Nov. 26, 1996), reprinted in J.A.
326. The NFLPA now appeals the decisions adverse to it;
Thomas, Raymond, and Bland cross-appeal the decisions ad-
verse to them.

We affirm the District Court's judgment on the merits as to
Thomas, Raymond, and Bland's claims. The District Court
properly considered the evidence before it and correctly
apportioned burdens of production and persuasion in this
mixed-motives case. We reverse and remand the District
Court's complete denial of the NFLPA's request for costs and
remand the grant of prejudgment interest to Thomas. On
remand, the District Court should apportion costs in line with
the final disposition of the case; the trial court should also
reconsider the grant of prejudgment interest for the period of
delay during which the plaintiffs repeatedly amended their
complaint. Finally, the District Court apparently erred in
computing "fringe benefits" in connection with back pay
awarded to Thomas; we therefore remand for reconsideration
on this point.

I. Background

In 1988, Thomas, Raymond, and Bland worked for the
NFLPA and belonged to Office and Professional Employees
International Union, Local 2 ("Local 2"). After the NFLPA's
unsuccessful strike against the owners during the 1987 sea-
son, the NFLPA's finances suffered, and NFLPA Executive
Director Upshaw devised a new budget for the NFLPA which
sought to reduce personnel costs through attrition. J.A. 281.
The board of directors of the NFLPA met during the first

week of March 1988, and elected George Martin president
and Mike Davis vice president. The board declined to adopt
Upshaw's proposed budget, instead demanding a ten percent
reduction in personnel costs by lay-off. Id.

After a banquet held in conjunction with the board meet-
ing, Martin convened an informal gathering in his hotel room
that included Thomas and Bland. Thomas and others
complained about promotional opportunities for African-
Americans and women in the Local 2 bargaining unit. J.A.
282. Some time after March 10, 1988, Martin organized a
second meeting, which Thomas and Bland also attended.
Similar concerns were raised, and someone present accused
Upshaw of racism. Id.

In the weeks that followed, Martin and Davis conducted
personal and telephone interviews with staff on a range of
employment-related subjects. Interviewees were assured of
confidentiality. In their interviews, Thomas and Bland ex-
pressed views on race and sex discrimination at the NFLPA.
Davis also interviewed Raymond. J.A. 283. Around the
same time, Upshaw implemented the NFLPA board's di-
rective to lay off some employees to cut costs. Prior to the
lay-offs, Upshaw heard from Davis that Thomas and Ray-
mond had criticized various employees in telephone conversa-
tions with Davis, and were suspected of producing and circu-
lating a document harshly critical of the NFLPA. The
document was headed and referred to as "What every player
should know about the NFLPA." It included, among other
allegations, a variety of claims about unfair promotion prac-
tices at the NFLPA. J.A. 285-86. It did not include allega-
tions of racial discrimination.

On March 18, 1988, Upshaw laid off six employees, among
whom were Thomas and Raymond. When Thomas returned
to her office after learning of the lay-offs, she discovered
workers changing the locks on her door and shutting down
her computer. J.A. 284. At a time proximate to the lay-offs,
Martin undertook to investigate the employees' allegations of
misconduct at the NFLPA, and asked Upshaw about minority
issues at the NFLPA. Martin told Upshaw that Thomas had

called him a racist and had complained about promotion of
African-Americans and women. Id. Martin and Davis each
gave copies of the "What every player should know" memo-
randum to Upshaw. Davis told Upshaw about his telephone
conversations with Thomas and Raymond and that Raymond
had mailed him a copy of the memorandum. Id.

On March 23, 1988, Davis gave Upshaw tapes of his tele-
phone conversations with Thomas and Raymond. According
to Upshaw's uncontradicted testimony, the conversations in-
cluded ad hominem attacks on various NFLPA employees,
including Upshaw. On the tapes, Raymond promised to send
a copy of the "What every player should know" memorandum
to Davis. Upshaw concluded that Thomas and Raymond had
written the memo.

On April 12, 1988, five of the six employees laid off on
March 18 were fired for cause. Upshaw sent each employee
an identical letter explaining the firing on the grounds that
the employees had libeled and slandered NFLPA personnel;
had violated confidentiality; and had shown disloyalty to-
wards and intentionally embarrassed the NFLPA. J.A. 286.
Upshaw later testified that he fired Thomas and Raymond for
what he believed they had said and written about the NFLPA
employees. Some weeks later, Bland asked Upshaw about a
newly open paralegal/secretary position, and Upshaw told her
that he "did not see her in the job"; on May 20, 1988, Bland
resigned. J.A. 287.

Local 2 pursued grievances against the NFLPA on behalf
of Thomas and Raymond. The grievances were appealed to
arbitration and an arbitrator ruled that the two had been
dismissed without just cause. The arbitrator's award ordered
reinstatement, Plaintiffs' Trial Exhibits ("P.X.") 77, but the
NFLPA failed to comply. Thomas, Raymond, and Bland also
filed timely charges with the Equal Employment Opportunity
Commission ("EEOC"), which, after some delay, issued "no
cause" determinations on all their claims. At trial, the Dis-
trict Court dismissed as a matter of law plaintiffs' claim of a
pattern and practice of discrimination. J.A. 902-09. It found
for Thomas and awarded her back pay, without reinstate-

ment, with prejudgment interest for twenty-one months after
her firing, based on expert testimony that estimated the time
it should have taken Thomas to find new employment. The
District Court found against Raymond, who did not appear at
trial. Finally, the District Court found that Bland had not
been constructively discharged. The District Court declined
to award costs to the NFLPA, determining that Thomas was
the prevailing party.

II. Analysis

A.Burdens of Pleading, Production, and Persuasion Un-
der Title VII

Title VII makes it unlawful to retaliate against an employee
who "has opposed any practice made an unlawful practice" by
the statute. 42 U.S.C. s 2000e-3(a). The legal framework
for analyzing retaliation claims under Title VII is as follows.

As in all Title VII cases, the plaintiff must first make out a
prima facie case of unlawful employment action. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Where
retaliation is alleged, a prima facie case requires a showing
that (1) plaintiff engaged in protected activity, (2) plaintiff
was subjected to adverse action by the employer, and (3)
there existed a causal link between the adverse action and the
protected activity. Mitchell v. Baldridge, 759 F.2d 80, 86
(D.C. Cir. 1985). A rebuttable presumption of unlawful dis-
crimination arises when a plaintiff makes out a prima facie
case. Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248, 254 (1981). The defendant may rebut the presump-
tion by asserting a legitimate, non-discriminatory reason for
its actions. The defendant's responsibility at this stage has
been characterized as a "burden of production," because the
ultimate burden of persuasion remains with the plaintiff. See
id. at 255.

When a defendant satisfies the burden of production, the
presumption of discrimination dissolves; however, the plain-
tiff still has the opportunity to persuade the trier of fact that
the defendant's proffered reason was not the actual or sole

basis for the disputed action. The plaintiff may aim to prove
that a discriminatory motive was the only basis for the
employer's action, or the plaintiff may seek to show that the
employer was motivated by both permissible and impermissi-
ble motives. The plaintiff often will--quite reasonably--
argue both alternatives. See Price Waterhouse v. Hopkins,
490 U.S. 228, 247 n.12 (Brennan, J.) ("Nothing in this opinion
should be taken to suggest that a case must be correctly
labeled as either a 'pretext' case or a 'mixed-motives' case
from the beginning in the District Court; indeed, we expect
that plaintiffs often will allege, in the alternative, that their
cases are both."). Where a plaintiff argues that discriminato-
ry motivation constituted the only basis for the employer's
action, the plaintiff may persuade the trier of fact of the
pretextual nature of the defendant's asserted reason "either
directly by persuading the court that a discriminatory reason
more likely motivated the employer or indirectly by showing
that the employer's proffered explanation is unworthy of
credence." Burdine, 450 U.S. at 256.

Where, on the other hand, the plaintiff argues that the
action resulted from mixed motives, a slightly different model
operates. A plaintiff asserting mixed motives must persuade
the trier of fact by a preponderance of the evidence that
unlawful retaliation constituted a substantial factor in the
defendant's action. Price Waterhouse, 490 U.S. at 276
(O'Connor, J., concurring); id. at 259 (White, J., concurring).
When the plaintiff successfully shows that an unlawful motive
was a substantial factor in the employer's action, the defen-
dant may seek to prove in response that it would have taken
the contested action even absent the discriminatory motive.
See id. at 244-45 (Brennan, J.). If the defendant fails to
persuade the trier of fact by a preponderance of the evidence
that it would have taken the action even absent the discrimi-
natory motive, the plaintiff will prevail. See id. at 276
(O'Connor, J., concurring).

This burden on a defendant in a mixed-motives case has
been characterized both as an affirmative defense, id. at 246
(Brennan, J.) and as a shifting burden of persuasion, id. at
274 (O'Connor, J., concurring). The question of characteriza-
tion is "semantic," and need not be definitively resolved. See
id. at 259 (White, J., concurring). What is noteworthy,

however, is that under Price Waterhouse a defendant who is
guilty of acting pursuant to an unlawful motive may nonethe-
less escape liability by proving that it would have made the
same decision in the absence of the unlawful motivation.1 In
short, the ultimate burden of persuasion as to the facts
constituting the defense properly falls on the defendant in a
mixed-motives case, because the plaintiff has proven that
unlawful motivation constituted a substantial factor in the
defendant's action. "[W]here a plaintiff has made this type of
strong showing of illicit motivation, the factfinder is entitled
to presume that the employer's discriminatory animus made a
difference to the outcome, absent proof to the contrary from
the employer." Price Waterhouse, 490 U.S. at 276 (O'Con-
nor, J., concurring).

B. Appellant's Claims

1. Meaning and Requirement of Direct Evidence

Appellant NFLPA, the defendant below, argues that, under
Price Waterhouse, the burden of persuasion shifts to the
defendant only where the plaintiff has provided "direct"
rather than "inferential" evidence of discriminatory animus.
Brief for Appellant 26. We reject this contention. Under
Price Waterhouse, the burden of persuasion shifts to the
defendant when the plaintiff has shown by a preponderance of
"any sufficiently probative direct or indirect evidence" that
unlawful discrimination was a substantial factor in the em-
ployment decision. White v. Federal Express Corp., 939 F.2d
157, 160 (4th Cir. 1991).

Appellant's suggestion results from confusion that has aris-
en regarding the meaning of the word "direct" in Justice
O'Connor's concurring opinion in Price Waterhouse, 490 U.S.
at 275, 276, 277 (O'Connor, J., concurring). As an initial
matter, it should be noted that Justice O'Connor's concur-
rence was one of six votes supporting the Court's judgment

__________
1 In 1991, Congress amended Title VII to provide that, in the
situation where there is a finding of discriminatory motive and also
a finding that the firing would have occurred even absent discrimi-
nation, the trial judge has discretion to grant some limited forms of
relief: injunctive or declaratory relief, and attorney's fees, but not
damages. 42 U.S.C. s 2000e-5(g)(2)(B).

(four Justices comprised the plurality, and Justice White filed
a separate concurrence), so that it is far from clear that
Justice O'Connor's opinion, in which no other Justice joined,
should be taken as establishing binding precedent. Justice
White's concurring opinion makes no mention of "direct"
evidence, see 490 U.S. at 258-60, nor does the plurality
opinion written by Justice Brennan. Furthermore, and more
importantly, Justice O'Connor's opinion clearly indicates that
the crucial prerequisite for burden-shifting is that the evi-
dence adequately establish that discriminatory motive played
a "substantial" role in the employment decision. The opinion
repeatedly describes the required impact of the discrimina-
tion as "substantial." See 490 U.S. at 271, 272, 274, 276, 277,
278. Justice White, in his concurrence, also focuses on the
substantial factor requirement. See id. at 259 ("As Justice
O'Connor states, [plaintiff's] burden was to show that the
unlawful motive was a substantial factor in the adverse
employment action."). The emphasis of Justice O'Connor's
opinion is on the substantial factor requirement, not on the
distinction between types of evidence.

In our view, Justice O'Connor's invocation of "direct" evi-
dence is not intended to disqualify circumstantial evidence
nor to require that the evidence signify without inference. In
context, the notion of "direct" evidence in Justice O'Connor's
concurrence means only that the evidence marshaled in sup-
port of the substantiality of the discriminatory motive must
actually relate to the question of discrimination in the partic-
ular employment decision, not to the mere existence of other,
potentially unrelated, forms of discrimination in the work-
place. Indeed, Justice O'Connor relies on circumstantial
evidence in Price Waterhouse to show that the employer's
discriminatory motive played a substantial role in the disput-
ed employment decision. The decisionmakers who denied
Ann Hopkins a partnership never admitted or stated express-
ly that the action was based on her gender. Rather, the
Court cites gender-related, stereotyping evaluations and com-
ments made by some partners as suggesting to the factfinder
that gender played a role in the denial. See 490 U.S. at 235-
37.

In dicta in her concurrence, Justice O'Connor describes
several pieces of evidence that, taken alone, would not show

that discrimination had formed a substantial factor in the
employment decision, including "stray remarks in the work-
place," statements by people who did not participate in the
decisionmaking process, or expert testimony that an illegiti-
mate factor "play[ed] a role" in the decision. Id. at 277. In
contrast to such evidence, Justice O'Connor says, "[w]hat is
required is what Ann Hopkins showed here: direct evidence
that decision makers placed substantial negative reliance on
an illegitimate criterion in reaching their decision." Id. The
word "direct" in this sentence simply distinguishes evidence
that shows that an unlawful consideration constituted a sub-
stantial factor in the particular employment decision from
evidence insufficiently related to the particular event.

The "direct" evidence to which Justice O'Connor alludes
certainly may be circumstantial in nature, so long as it
establishes that discriminatory motive played a substantial
role in the employment decision. See Griffiths v. CIGNA
Corp., 988 F.2d 457, 470 (3rd Cir. 1993) (circumstantial evi-
dence may shift burden if it "directly reflect[s]" the alleged
discriminatory attitude). Furthermore, such evidence--like
all evidence short of outright admission of discriminatory
motive--requires the factfinder to draw inferences. See Os-
trowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 182 (2nd Cir.
1992) (burden shifting requires "evidence of conduct or state-
ments by persons involved in the decisionmaking process that
may be viewed as directly reflecting the alleged discriminato-
ry attitude, and that ... is sufficient to permit the factfinder
to infer that the attitude was more likely than not a motivat-
ing factor in the employer's decision") (emphasis added);
Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444, 449 (8th
Cir. 1993) (quoting Ostrowski).

As this court recently noted, "the distinction between direct
and circumstantial evidence has no direct correlation with the
strength of [a] plaintiff's case." Crawford-El v. Britton, 93
F.3d 813, 818 (D.C. Cir. 1996) (en banc), cert. granted, 65
U.S.L.W. 3817, 3825 (U.S. June 16, 1997) (No. 96-827). The
purported distinction between "circumstantial" or "inferen-
tial" and "direct" evidence urged here does not make logical
sense, because the decision to shift the burden of persuasion
properly rests upon the strength of the plaintiff's evidence of

discrimination, not the contingent methods by which that
evidence is adduced. Such a distinction is incompatible with
both the facts and the logic of Price Waterhouse.

Burden-shifting under Price Waterhouse requires "evi-
dence of conduct or statements that both reflect directly the
alleged discriminatory attitude and that bear directly on the
contested employment decision." Fuller v. Phipps, 67 F.3d
1137, 1142 (4th Cir. 1995). This formulation should be read
carefully; evidence may "bear directly" on a decision without
referring to it specifically. Nonetheless the quotation from
Fuller correctly clarifies that "direct" describes a relationship
between proof and incidents and not a characterization of the
proof itself.

A number of other circuits have concluded, correctly in our
view, that there is no bar on using circumstantial or inferen-
tial evidence to shift the burden of persuasion under Price
Waterhouse. See Griffiths, 988 F.2d at 470 (3rd Cir. 1993);
Radabaugh, 997 F.2d at 449 (8th Cir. 1993); Ostrowski, 968
F.2d at 182 (2nd Cir. 1992); White, 939 F.2d at 160 (4th Cir.
1991). Some have understood "direct" evidence as a require-
ment of Price Waterhouse, and have remained silent as to the
precise meaning of the term, never expressly construing it as
the opposite of circumstantial or inferential evidence. See,
e.g., Jackson v. Harvard Univ., 900 F.2d 464, 467 (1st Cir.
1990); Gagn v. Northwestern Nat'l Ins. Co., 881 F.2d 309,
315 (6th Cir. 1989). Several circuits have both taken Justice
O'Connor's concurrence as the rule of Price Waterhouse and
have interpreted "direct" to mean non-inferential or non-
circumstantial. See, e.g., Brown v. East Mississippi Elec.
Power Ass'n, 989 F.2d 858, 861 (5th Cir. 1993); Heim v.
Utah, 8 F.3d 1541, 1547 (10th Cir. 1993); EEOC v. Alton
Packaging Corp., 901 F.2d 920, 923 (11th Cir. 1990). For the
reasons set forth above, we believe that the few circuits that
have taken Justice O'Connor's use of the word "direct" to
mean non-inferential or non-circumstantial have misread her
concurring opinion and misconstrued the rule of law to be
drawn from Price Waterhouse.

2. Defendants Notice of the Shifting Burden of Persua-
sion

The NFLPA next argues that a defendant must somehow
receive "notice" before the District Court that the burden of
persuasion has shifted to it under the mixed-motives model of
the case. Appellant's claim depends on a mistakenly formal-
istic conception of the order and allocation of proof in Title
VII cases. It is true that a written synthesis of the case law
describing tests and burdens for assessing a Title VII retalia-
tion claim gives the appearance of an algorithm. The law has
developed in this way for good reason: when a district court
articulates its reasoning in a Title VII case, it benefits from
conscientiously completing the analytic steps required by the
Supreme Court. The steps of the analysis aim to assure
compliance with the law and uniformity in its application.
This is not to say, however, that the case law aims to stifle
the parties in the course of litigation. It is quite the con-
trary.

Pleadings in the alternative, vagaries of evidence, and the
general disorderliness of testimonial narrative all ensure that
various elements of proof do not present themselves to the
trial court in a regimented fashion. For this reason, the Title
VII algorithm need only govern the trial court's assessment
of the evidence, not the precise order in which that evidence
is presented. What the Supreme Court has said of the prima
facie case approach of McDonnell Douglas applies as force-
fully to the entire Title VII framework: it was "never intend-
ed to be rigid, mechanized, or ritualistic. Rather, it is merely
a sensible, orderly way to evaluate the evidence in light of
common experience as it bears on the critical question of
discrimination." Furnco Constr. Corp. v. Waters, 438 U.S.
567, 577 (1978). The Title VII algorithm was designed to
clarify the question of whether discrimination occurred, not
"to make [courts'] inquiry even more difficult." United
States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,
716 (1983). Thus, it is ridiculous to suggest, as the NFLPA
does here, that a trial court must give some kind of "notice"
to a defendant during the course of a trial as soon as it
appears that the burden of persuasion has shifted. Profes-

sional football games may be played in clearly defined "quar-
ters," but we do not litigate Title VII claims in this way.

Furthermore, the argument that a defendant might some-
how suffer prejudice absent notice of burden-shifting makes
little sense in light of the normal progress of Title VII
litigation. If a defendant has evidence tending to show that it
would have discharged the plaintiff notwithstanding any dis-
criminatory motive, it would be foolish not to introduce this
evidence under its Burdine burden of production to rebut the
prima facie case of discrimination. The defendant would
introduce this evidence regardless of whether the case fell
under the Burdine rubric of single reason or the Price
Waterhouse rubric of mixed motives. Where the factfinder
concludes that the employer's decision resulted from mixed
motives, it will consider the self-same exculpatory evidence as
a proffered refutation of the argument that discrimination
constituted a substantial factor in the employment decision.
As a result, the parties will normally litigate the defendant's
claim fully, as indeed occurred in the case before us. Accord-
ingly, we conclude that no formal notice of burden-shifting is
required under Price Waterhouse.

C. District Court Decision on the Merits

The District Court in the case at bar correctly followed the
Title VII algorithm in assessing the evidence before it. It
found that Thomas engaged in protected activity by partici-
pating in two conversations with Martin in which she raised
the issue of discrimination against women and African-
Americans in promotion at the NFLPA, and by distributing
the memo to Martin. J.A. 289-90. The District Court found
that the NFLPA fired Thomas "immediately following" the
protected activity, and permissibly concluded that Thomas
had made out a prima facie case. Because it did not find
evidence that Raymond engaged in protected conduct, the
District Court correctly found that Raymond had not made
out a prima facie case. J.A. 291-92. The District Court
further found that Bland was not constructively discharged,
because she had not presented evidence of aggravating fac-
tors making her work intolerable. J.A. 292-93; see Dashnaw

v. Pena, 12 F. 3d 1112, 1115 (D.C. Cir. 1994). Neither of
these conclusions was clearly erroneous; the legal framework
for both was correct.

The District Court then assessed the evidence that served
to refute the NFLPA's claim that it had non-discriminatory
reasons sufficient to fire Thomas. It found that the way in
which the firing followed Upshaw's learning of Thomas's
taped comments; the unusual security measures surrounding
the firing; and Upshaw's possession of the memorandum
which he believed Thomas had co-authored sufficed to prove
that Thomas's firing was motivated "in substantial measure"
by her protected activity. J.A. 291. This constituted an
acceptable finding of mixed motives, and was not clearly
erroneous. Although the District Court did not cite Price
Waterhouse, it correctly concluded that the burden of persua-
sion had shifted, and that as a result "it was NFLPA's burden
to demonstrate that Thomas would have been discharged
regardless of her protected activity." Id. In the District
Court's view, "the NFLPA failed to sustain that burden" in
that it did not successfully separate permissible from imper-
missible motives in its decision. Id. This conclusion was not
clearly erroneous, either, but reflected the factfinder's assess-
ment of the evidence surrounding the firing.

Appellant urges that even if the burden did shift to it, it
established adequately that it would have fired Thomas re-
gardless of her protected actions, because it fired other
employees who did not engage in protected activity. This
argument, which the NFLPA calls a "syllogism," Brief for
Appellant 30, is thoroughly defective. It is a non sequitur to
argue that if an employer fires several employees with legal
motivation, all other firings that occur simultaneously also
acquire the color of legality. The NFLPA could have retali-
ated against Thomas for protected activity, and then fired
other employees at the same time either to mask its retalia-
tion or in a corporate fit of pique.

D. Rejection of Statistical Evidence

The District Court correctly ruled as a matter of law that
plaintiffs did not make out a prima facie statistical case of a

pattern and practice of discrimination on the part of the
NFLPA. The crucial basis for this ruling was that plaintiffs'
expert did not consider the relevant qualifications of those
passed over or approved for promotion. J.A. 906-07. A
prima facie case of statistical disparity must include the
minimum objective qualifications of the applicants. Palmer v.
Schultz, 815 F.2d 84, 91 n.6 (D.C. Cir. 1987); Segar v. Smith,
738 F.2d 1249, 1274 (D.C. Cir. 1984). Here, the expert did
not account for minimum qualifications. Indeed, he could not
have done so, because Appellees never specifically requested
qualification standards from Appellant in discovery. We need
not reach the District Court's other reasons for dismissal,
because even if the trial court had found adequate sample size
and statistical significance (which it did not, J.A. 906-07), a
non-discriminatory, qualifications-based reason for the dispa-
rate impact could have existed. The District Court properly
dismissed the statistical case as insufficient as a matter of
law.

E. The Relief

The District Court awarded Thomas back pay from the
date of her firing to December 1989, by which time, it found,
she should have secured employment. J.A. 294-97. The
District Court did not abuse its discretion in weighing expert
testimony regarding job availability to arrive at this time
period.

In computing the award on reconsideration, the District
Court used a form prepared by plaintiffs' expert, labeled
Attachment C3, which computed fringe benefits for 1988 and
1989 as $6,173 and $8,305 respectively. J.A. 310. However,
in his testimony, the expert certified a different version of
this form, labeled Attachment C1, Version 3, J.A. 313, P.X.
375, as accurate and as the basis for his estimates. See J.A.
689-90, 752. This second form gives fringe benefits for 1988
and 1989 as $2,685 and $3,767. The District Court apparently
erred by using the wrong document in its damage computa-
tion; we remand for correct computation of damages or for
explanation.

The District Court did not abuse its discretion in declining
to reinstate Thomas. Although the acrimony of litigation
alone probably would not suffice to rule out reinstatement,
see Dickerson v. Deluxe Check Printers, Inc., 703 F.2d 276,
281 (8th Cir. 1983), the District Court's denial of reinstate-
ment reflected its own observation that some of Thomas's
actions "might well have warranted discharge." J.A. 291.
The District Court reasonably concluded that reinstatement
would not serve the interests of justice where the employee
engaged in behavior that could conceivably have given rise to
a legitimate discharge under other circumstances.

The District Court awarded Thomas prejudgment interest
on the back pay. The presumption strongly favors prejudg-
ment interest, Barbour v. Merrill, 48 F.3d 1270, 1278-79
(D.C. Cir. 1995), but the trial court may disallow interest
where attributable to substantial, unexplained delay by the
plaintiff. See Williamson v. Handy Button Mach. Co., 817
F.2d 1290, 1298 (7th Cir. 1987). Although Thomas reasonably
awaited the EEOC's disposition of her request for a right to
sue letter, which was delayed through no fault of her own, the
same cannot be said of the three-year period during which
Thomas and her co-plaintiffs repeatedly amended their com-
plaint. The District Court must reconsider this issue on
remand.

F. Costs

The District Court abused its discretion in finding Thomas
alone to be the prevailing party and, therefore, declining to
award any costs to the NFLPA. J.A. 326. In determining
the prevailing party in mixed-outcome cases, the case must be
"viewed as a whole." Fogelman v. ARAMCO, 920 F.2d 278,
285 (5th Cir. 1991). Although the NFLPA did violate Title
VII with regard to Thomas, the NFLPA prevailed on twenty-
four of the twenty-six counts before the trial court, including
eight of the ten counts relating to Thomas. While statistical
precision is not necessary in determining the prevailing party,
the District Court should have apportioned costs in a manner
that, at least approximately, reflected the success of the

NFLPA on the great majority of the claims brought against
it. See Quaker Action Group v. Andrus, 559 F.2d 716, 719
(D.C. Cir. 1977) (apportioning appeal costs by percentage and
"contemplat[ing]" similar action by trial court).

III. Conclusion

For the foregoing reasons, the judgment of the District
Court is affirmed regarding Thomas, Raymond, and Bland.
The judgment is reversed and the case remanded on the
questions of computation of damages, apportionment of costs,
and granting of prejudgment interest.

So ordered.