HANS J. RAPOLD, Plaintiff-Appellant,
BAXTER INTERNATIONAL, INC, Defendant-Appellee.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division No. 08 C 7369 William J. Hibbler, Judge.
Before FRANK H. EASTERBROOK, Chief Judge ILANA DIAMOND ROVNER, Circuit Judge JOHN DANIEL TINDER, Circuit Judge.
On consideration of the petition for rehearing and for rehearing en banc, no judge in active service has requested a vote on the petition for rehearing en banc, and all of the judges on the original panel have voted to deny rehearing. It is therefore ordered that the petition for rehearing and for rehearing en banc is DENIED.
The opinion of this court issued on January 30, 2013 is amended as follows:
Page 13, line 27, "'motivating factor' was" should be "'motivating factor' instruction was";
Page 16, line 30, "inappropriate, given that" should be "inappropriate:";
Page 17, line 2, "at least partially true." should be "at least partially true–and Baxter maintained at all times that Dr. Rapold's national origin played no role in its decision.";
Page 17, line 3, "agreed and concluded" should be "agreed. It concluded";
Page 18, line 3, the following should be added after the citation to "Smith, 602 F.3d at 333": "("[A]n employee who is discharged for perceived discriminatory reasons will surely always believe the employer lacked a legitimate reason for the termination, and the mixed-motive framework does not require the plaintiff to concede that the employer's stated reason was legitimate. That is why we have juries.")";
Page 18, beginning on line 25 the sentence beginning "For that reason" should be deleted. The remainder of the page (lines 26-30) should likewise be deleted. Page 19, lines 1 through 27 (ending with "(quoting 42 U.S.C. § 2000e-2).") should also be deleted;
Instead, the following should be inserted beginning on page 18, line 25, at the sentence concluding "from the outset.": "See Price Waterhouse v. Hopkins, 490 U.S. 228, 247 n.12 (1989) ("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.") (plurality opinion); see also Smith, 602 F.3d at 332. As the plurality in Price Waterhouse noted, [a]t some point in the proceedings, of course, the District Court must decide whether a case involves mixed motives. 490 U.S. at 247 n.12 (emphasis added).
The problem here is that the district court's conclusion was premised on its erroneous belief that a mixed-motive factor instruction was appropriate only if Dr. Rapold conceded that his behavior motivated, at least in part, Baxter's decision. Such a concession is unnecessary. Instead, once either party requests a motivating factor instruction, the district court should simply determine whether the evidence supports the instruction. See Desert Palace, 539 U.S. at 101 ("[I]n order to obtain an instruction under § 2000e-2(m), a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that . . . 'national origin was a motivating factor for any employment practice.'") (quoting 42 U.S.C. § 2000e-2)).";
Page 19, line 27, the sentence beginning "But this language" should be deleted. All of lines 27-31 on page ...