Lam v. University of Hawai'i

Professor Maivan Clech Lam, a woman of Vietnamese descent, claims that the University of Hawai'i's Richardson School of Law ("the Law School") discriminated against her on the basis of her race, sex and national origin both times she applied for the position of Director of the Law School's Pacific Asian Legal Studies Program. Lam first applied for the directorship during the Law School's 1987-1988 hiring search (the "first search") and became a finalist in that search; however, the faculty cancelled the search without hiring anyone. She again applied during the Law School's 1989-1990 search (the "second search"), but the Law School offered the position to another candidate. When that candidate declined to accept the position, the faculty again cancelled the search. Lam also claims that the Law School's actions constituted unlawful retaliation.

Lam filed suit under 42 U.S.C. Sec. 2000e et seq. ("Title VII") and other anti-discrimination statutes.1 The district court granted partial summary judgment to defendants as to the first search, then, after a bench trial, granted final judgment to defendants as to the second search. Because we find a genuine issue of material fact regarding whether the defendants violated Title VII in considering Lam's application during the first search, we reverse the award of partial summary judgment and remand for trial as to that search.2 However, finding no material legal errors in the district court's decision as to the claimed discrimination and retaliation during the second search, we affirm the court's award of final judgment as to that search.

Lam was born in Vietnam of French and Vietnamese parentage, and is fluent in French, English, Vietnamese and Thai. She graduated magna cum laude with a B.A. in English and Economics from Marygrove College in Detroit, Michigan in 1965. After college she received a masters degree in Southeast Asian studies at Yale University in 1967, and was later awarded a Ford Foundation Fellowship. After several years as a full-time mother, Lam taught anthropology courses at Hawai'i Loa College between 1974-1981. She then obtained a second masters degree from Yale in Anthropology.

In 1982, she collaborated with her husband, a professor at the University of Hawai'i, on two monographs on administration and social movements in Vietnam. In 1984, she graduated from the Richardson School of Law, after having completed an externship with the Chief Justice of the Federated States of Micronesia. While she was a law student, she wrote two law review articles on Hawai'ian land law that were published after her graduation: one in the Journal of Legal Pluralism and the other in the University of Washington Law Review. During and after law school, Lam was assistant director of the Law of the Sea Institute, an organization that was affiliated with the University of Hawai'i and under the direction of Emeritus Law Professor John Craven. After graduating from law school, Lam taught courses at Hawai'i Loa College, served as a lecturer in the University of Hawai'i's political science department, and gave guest lectures before Professor Craven's ocean law class at the Law School.3

In the fall of 1987, the Law School began a hiring search for a full-time director for its Pacific Asian Legal Studies ("PALS") program.4 Approximately 100 persons applied for the position, including Lam. The Law School established an appointments committee consisting of Professor Mari Matsuda, who was the chair, Professors Eric Yamamoto and Randall Roth, and two students to screen applicants and to recommend a list of finalists for review by the full faculty. By some time in January 1988, the appointments committee had prepared a list of ten names, including Lam's, for submission to the faculty. Five of the ten candidates were women, among whom were two of the three ethnic Asians recommended. Matsuda chose Lam as one of her top two candidates.

Because of a previously scheduled semester's leave, Matsuda had to resign from the appointments committee. Professor A., a senior faculty member, approached Matsuda expressing his interest in becoming chair and asking that she forward his request to the Dean of the law school. Matsuda, who was a friend of Lam's, knew that Professor A. and Lam had had a "run-in" the previous year.5 Matsuda nonetheless passed along Professor A.'s request to the Dean while also recommending that a woman faculty member be appointed to the committee. Subsequently, Professor A. was appointed to the committee along with a woman professor. At the same time, Professor Williamson Chang, a member of the PALS committee, began to attend appointments committee meetings on an ex officio basis.6

After Professor A. became chair of the appointments committee, the group discussed forwarding one name, that of a white male, rather than ten names to the faculty. When Chang informed Lam of this development, she became concerned and set up a meeting with the Dean to discuss the situation. Lam told the Dean of her prior problems with Professor A., but said that she was worried that if Professor A. were forced to resign from the committee his colleagues would blame her. She thus did not request Professor A.'s removal from the committee, but instead asked that the committee recommend five names to the faculty instead of one.

The Dean, in turn, mentioned to her the idea of cancelling the search and reopening it to accommodate an Asian male candidate who had missed the application deadline. In his view, this course of action had the dual benefit of mooting any possibility of obstruction by Professor A., since there would be a new chair for the new search, and of allowing consideration of the late applicant. Lam disagreed with his proposal, stating that it would be unfair to reopen the search.

There was vigorous debate regarding Lam's application at a March 2, 1988 joint meeting of the PALS and appointments committees. Professor A., in particular, asserted that Lam was not collegial, was a poor scholar, and had poor administrative ability. He finally stated that in his view Lam was unfit to teach anywhere on the University of Hawai'i campus. He also labelled Lam's in-print criticism of another (white male) faculty member inappropriate. Craven spoke up strongly for Lam at this meeting.

Both Craven and Chang later went to the Dean to complain of Professor A.'s behavior and to recommend his removal as chair of the appointments committee. At approximately the same time, Lam spoke to the campus EEO officer about the Dean's idea of reopening the search in order to consider the late applicant, leading the EEO officer to call the Dean and advise him against that plan. In accordance with Lam's request and the EEO officer's recommendation, the Dean then announced that the faculty was not to consider the late applicant. The Dean also announced that Professor A. had resigned from the committee and that Roth had replaced him as chair. Although most of the faculty believed that Professor A. resigned because of a conflict with Lam, the Dean never attempted to alleviate the resulting controversy by publicly explaining the events.

The candidate list was eventually narrowed down to four, including Lam, whose applications were considered by the full fifteen-member faculty of the law school at a meeting on March 18. At that meeting both Craven and Professor A. spoke strongly for their respective positions regarding Lam. Their polarization apparently made the rest of the faculty uncomfortable. Although a white male candidate apparently received the highest number of votes, a consensus did not form around any of the candidates and there was no decision to extend any offer of employment. Two weeks later a bare majority of the faculty voted to cancel the search.

In response to the first search's cancellation, Lam filed a discrimination complaint with the office of the University vice-president. Although the University rejected her administrative grievance after an investigation, it issued a report detailing confidentiality breaches and procedural violations in the PALS director search process. The University vice-president told Lam that he would issue stern instructions to the Law School Dean requiring that the next search for the PALS directorship be conducted pursuant to strict guidelines, with the position's qualifications explicitly drawn. He asserted that it would be a "fishbowl operation" consistent with the highest standards of procedure.

At a Law School faculty meeting in September 1988, two University EEO officers discussed selection procedures and recommended, among other things, the use of rating sheets and a clear definition of the PALS program and its director. At the Dean's request, Professor Matsuda prepared a memo on search procedures for the law school in which she proposed that desired characteristics be ranked and that minority applicants be encouraged. Further procedures outlined in University affirmative action guidelines mandated that interview questions, rating sheets, selection evaluation sheets, and copies of recruitment/selection forms be kept on file for three years.

Lam and a support group that had formed around the issue of her treatment by the University leveled charges of discrimination and procedural irregularities in the first search in many outside fora, including the Equal Employment Opportunity Commission, the American Association of Law Schools (AALS), the ABA, the Hawai'i legislature, and the press. As a result, Lam's allegations received both newspaper and radio coverage, and the Dean of the Law School and the President of the University were "cross-examined" about them at an AALS meeting relating to the Law School's request for accreditation.

The faculty decided to reopen the search for a PALS director in 1989. The announcement for the position was essentially identical to the one employed during the first search, and Lam again applied, along with 87 other applicants. All of the members of the 1987-88 appointments committee were either unwilling or unable to serve again. The Dean asked two faculty members who had voted for Lam the first time to serve on the committee, but they declined. The appointments committee ultimately consisted of three white members of the faculty who did not support Lam in 19887 (one was an untenured woman professor), along with two students of Asian ancestry.

Early in the 1989-90 academic year, the new appointments committee reviewed applications for a commercial law position. At one meeting, a male committee member stated that the Law School should not have two women teaching commercial law. This comment was reported to the Dean, who said that he recognized that the professor had difficulty dealing with women but took no action to remove him from the committee or otherwise to remedy the problem.8

When the appointments committee concluded its deliberations regarding the commercial law position, the chair distributed copies of the announcement for the PALS directorship and a brief description of the program to aid the committee in reviewing the applicants for the position. Besides these materials, guidance for the selection process was minimal: members of the committee independently selected the 15 to 20 candidates that they considered most promising and the committee list was compiled based on these separate lists. The chair, who had been on leave the previous semester, had not been informed by the Dean of the extensive discussions and developments that had taken place regarding selection procedures. None of the suggestions or recommendations of Professor Matsuda or of the EEO officers was employed. Despite all of the past debate over the possibility of discrimination and the need for careful selection procedures, no mechanism was put into place to screen out potential bias or retaliatory sentiments resulting from the prior search.

Lam did not appear on any of the committee member's lists, and neither Lam nor her application was ever discussed at any committee meetings. The final list of candidates that the committee recommended to the faculty consisted entirely or almost entirely of persons of United States origin, both white and non-white,9 in contrast to the substantial number of non-whites and foreign-born candidates appearing on the list prepared by the previous appointments committee. The faculty met with six of the top candidates, three of whom had applied during the first search and been awarded lower ratings than Lam.10

The faculty voted to offer the PALS position to Alison Conner, a white Harvard Law graduate with a Ph.D in Chinese History who had substantial law teaching experience and several publications. Conner, however, declined to accept the offer. Rather than make an offer to any of the other applicants, the faculty again cancelled the search.

Lam filed suit in May 1989 against the University of Hawai'i, the Dean of the Law School, and the President of the University, alleging discrimination on the basis of race, sex and national origin with regard to the 1987-88 search, as well as retaliation. Defendants moved for summary judgment in July 1990 and Lam amended her complaint to allege discrimination and retaliation during the second search. In response, defendants filed a motion for summary judgment regarding that search. The district court granted defendants' motion for summary judgment regarding the first search, but determined that there was a genuine issue of material fact as to whether the defendants intentionally discriminated against Lam, or retaliated against her, in connection with the 1989-90 search. After a bench trial, the district court entered judgment for the defendants as to the second search. Lam now appeals both rulings.

Title VII provides that "[i]t shall be an unlawful employment practice for an employer ... to fail or refuse to hire ... any individual ... because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. Sec. 2000e-2(a)(1). It also prohibits an employer from retaliating against an applicant for employment because the applicant has opposed any unlawful employment practice, or has made a charge, testified, assisted, or participated in an employment discrimination investigation or proceeding. 42 U.S.C. Sec. 2000e-3(a).

We turn first to Lam's appeal of the district court's grant of summary judgment as to the first search.

A prima facie case of unlawful employment discrimination on the basis of protected characteristics may be established through indirect evidence under the familiar McDonnell Douglas four-part test. St. Mary's Honor Ctr. v. Hicks, --- U.S. ----, ----, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). In McDonnell Douglas, the Supreme Court held that the plaintiff can make out a prima facie case by showing that (1) she belongs to a protected class, (2) she applied for and was qualified for a job for which the employer was seeking applicants, (3) despite being qualified, she was rejected, and (4) after her rejection, the position remained open and the employer continued to seek applicants from people of comparable qualifications. 411 U.S. at 802, 93 S.Ct. at 1824.

After a prima facie case is established, "the burden then shifts to the defendant to articulate a legitimate nondiscriminatory reason for its employment decision. Then, in order to prevail, the plaintiff must demonstrate that the employer's alleged reason for the adverse employment decision is a pretext for another motive which is discriminatory." Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994) (quoting Lowe v. City of Monrovia, 775 F.2d 998, 1005 (9th Cir.1985), as amended, 784 F.2d 1407 (9th Cir.1986)).11

On summary judgment, the existence of a discriminatory motive for the employment decision will generally be the principal question. To survive an employer's summary judgment motion, only a genuine factual issue with regard to discriminatory intent need be shown, a requirement that is almost always satisfied when the plaintiff's evidence, "direct or circumstantial, consists of more than the McDonnell Douglas presumption." Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1111 (9th Cir.1991); compare J.R. Simplot Co., 26 F.3d at 890 (summary judgment appropriate, after showing of a "bare prima facie case," where evidence to refute defendant's legitimate explanation is "totally lacking"). Because we find that Lam satisfied this requirement, we reverse the district court's grant of summary judgment to defendants.

The district court found that Lam had established a prima facie case of discrimination under the four-part McDonnell Douglas test.12 It then found that defendants had met their burden of proffering legitimate reasons for not hiring Lam--specifically, Lam's lack of scholarship, and faculty disagreement regarding the desired characteristics of the PALS director--shifting the burden back to Lam to show the existence of a triable issue of fact.

Lam submitted evidence of discriminatory bias at two stages of the hiring process, with respect to at least two senior white male professors. Most significantly, Craven testified that Professor A., who headed the appointments committee for a month and disparaged Lam's abilities before the committee and the faculty as a whole, had a biased attitude toward women and Asians. Indeed, the district court specifically found that "the evidence suggests that Professor A. harbored prejudicial feelings towards Asians and women." There was also evidence that another white male professor had stated that, given Japanese cultural prejudices,13 the PALS director should be male. This evidence is, as a matter of law, sufficient to preclude the award of summary judgment for defendants.

The district court articulated two reasons in support of its decision to grant summary judgment, the primary one being that any faculty prejudice that existed could not, in its view, be attributed to the named defendants in the action. Although the court acknowledged that members of the faculty "may very well have harbored prejudices against Asians and women in general, and against plaintiff in particular," it ruled that "without proof that the named defendants either shared those prejudices or conformed their conduct under influence of those prejudices, [the facts] are insufficient to support a showing of intentional discrimination by defendants." Consistent with its focus on the individual defendants, the court found it crucial that the Dean asked Professor A. to resign as chair of the appointments committee.14 As this undue emphasis on the Dean and corresponding disregard of the faculty members demonstrates, however, the court failed to give proper consideration to the nature of the university's hiring process.

The principal defendant in this case is the University, which has delegated to the faculty near-total control over hiring. The faculty, first in committee, then as a whole, reviews applications, chooses the final candidates, and votes on whether to extend any candidate an offer of employment. The hiring process is therefore not insulated from the illegitimate biases of faculty members. Indeed, since the faculty is small--only fifteen members--and great emphasis is placed on collegiality and consensus decisionmaking, even a single person's biases may be relatively influential. That is particularly true where, as here, that person plays a significant role in the selection process and leads the fight pro or con with respect to a particular candidate. See Gutzwiller v. Fenik, 860 F.2d 1317, 1327 (6th Cir.1988) (two biased faculty votes sufficient to establish discriminatory employment decision in tenure process that required decisions at four separate levels).

As other courts have recognized, discrimination at any stage of the academic hiring or promotion process may infect the ultimate employment decision. Roebuck v. Drexel Univ., 852 F.2d 715, 727 (3d Cir.1988). Accordingly, a plaintiff in a university discrimination case need not prove intentional discrimination at every stage of the decisionmaking process; impermissible bias at any point may be sufficient to sustain liability. Id.; Fields v. Clark University, 817 F.2d 931, 933-35 (1st Cir.1987) (where departmental recommendation important, evidence of sexist bias within sociology department sufficient to sustain liability under Title VII, even absent evidence of improper bias on the part of the ultimate deciding authority). Here, the purported bias allegedly had its ultimate impact at the faculty meeting stage.

Defendants argue, nonetheless, that they can only be held liable if it is shown that they "knew or in the exercise of reasonable care should have known" of Professor A.'s biased attitudes. They cite EEOC v. Hacienda Hotel, 881 F.2d 1504, 1515-16 (9th Cir.1989); Ellison v. Brady, 924 F.2d 872, 881 (9th Cir.1991), as mandating this rule. However, Hacienda Hotel and Ellison are both sexual harassment cases involving employer liability for the creation of a hostile work environment under the doctrine of respondeat superior. Limitations on liability appropriate in that context are wholly inapplicable to the discriminatory hiring context. As numerous cases involving discrimination in faculty hiring and promotion demonstrate, where a university has delegated employment decisions to a committee and members of that committee have allegedly engaged in discriminatory treatment, the university is liable.15 See, e.g., Ruggles, 797 F.2d at 784; Fields, 817 F.2d at 932.

The district court's second justification for granting summary judgment was based on the defendants' favorable consideration of two other candidates for the PALS position: one an Asian man, the other a white woman. In assessing the significance of these candidates, the court seemed to view racism and sexism as separate and distinct elements amenable to almost mathematical treatment, so that evaluating discrimination against an Asian woman became a simple matter of performing two separate tasks: looking for racism "alone" and looking for sexism "alone," with Asian men and white women as the corresponding model victims. The court questioned Lam's claim of racism in light of the fact that the Dean had been interested in the late application of an Asian male.16 Similarly, it concluded that the faculty's subsequent offer of employment to a white woman indicated a lack of gender bias.17 We conclude that in relying on these facts as a basis for its summary judgment decision, the district court misconceived important legal principles.

To begin with, even the Law School's favorable treatment of other Asian women would not necessarily defeat Lam's claim at trial. See Gutzwiller, 860 F.2d at 1320-21 (tenure position denied one white female professor in favor of another). Certainly it could not do so at summary judgment, for such evidence creates at most a genuine dispute as to a material factual question.18 8] At least equally significant is the error committed by the court in its separate treatment of race and sex discrimination. As other courts have recognized, where two bases for discrimination exist, they cannot be neatly reduced to distinct components. See Jefferies, 615 F.2d at 1032-34; Graham v. Bendix Corp., 585 F.Supp. 1036, 1047 (N.D.Ind.1984); Chambers v. Omaha Girls Club, 629 F.Supp. 925, 946 n. 34 (D.Neb.1986), aff'd, 834 F.2d 697 (8th Cir.1987).19 Rather than aiding the decisional process, the attempt to bisect a person's identity at the intersection of race and gender often distorts or ignores the particular nature of their experiences.20 Cf. Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 480 (9th Cir.1983) (black female not necessarily representative of interests of black males and white females). Like other subclasses under Title VII, Asian women are subject to a set of stereotypes and assumptions shared neither by Asian men nor by white women.21 In consequence, they may be targeted for discrimination "even in the absence of discrimination against [Asian] men or white women." Jefferies, 615 F.2d at 1032 (discussing black women); Hicks v. Gates Rubber Co., 833 F.2d 1406, 1416 (10th Cir.1987) (same). Accordingly, we agree with the Jefferies court that, when a plaintiff is claiming race and sex bias, it is necessary to determine whether the employer discriminates on the basis of that combination of factors, not just whether it discriminates against people of the same race or of the same sex. Cf. Connecticut v. Teal, 457 U.S. 440, 455, 102 S.Ct. 2525, 2535, 73 L.Ed.2d 130 (1982) ("Title VII does not permit the victim of a facially discriminatory policy to be told that he has not been wronged because other persons of his or her race or sex were hired.").

The defendants assert several additional arguments in support of the grant of summary judgment. First, citing Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1423 (7th Cir.1986), and Garvey v. Dickinson College, 763 F.Supp. 799, 801-02 (M.D.Pa.1991), they argue that Craven's testimony as to Professor A.'s biases was inadmissible because it concerned acts and comments on Professor A.'s part that were too remote in time or too attenuated from Lam's situation. Although the Allis-Chalmers court stated that acts "remote in time or place" may be excluded under Fed.R.Evid. 403, it affirmed the admission of evidence of long-term harassment of black workers because such evidence demonstrated a "persistent pattern" of racial hostility. 797 F.2d at 1423-24. The Garvey court affirmed the admissibility of evidence of discriminatory incidents that occurred within the plaintiff's department, while excluding such evidence from other departments. 763 F.Supp. at 802. Even read broadly, neither case is helpful to defendants. Craven testified not to remote acts but to a consistent pattern of behavior on the part of Professor A.--a member of the relevant department--with one manifestation of his alleged discriminatory attitude having occurred only a few months before the directorship search.

Next, defendants argue that Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), establishes a rule, triggered here, that if the factual context renders a plaintiff's claim implausible, she must come forward with more persuasive evidence to support her claim than would otherwise be necessary. See id. at 587, 106 S.Ct. at 1356. They argue that because Professor A.'s alleged ethnic and gender biases would amount to professional suicide in today's politically correct academic climate, Lam's charges "simply make[ ] no economic sense," id., thus justifying this more demanding evidentiary burden. Specifically, they cite to the lack of corroboration of Craven's testimony as to Professor A., insisting on other evidence of his bias. We find defendants' reliance on Matsushita to be misplaced.

The rule established in Matsushita pertains only to the plausibility of inferences drawn from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1207 (9th Cir.1988). Matsushita does not, therefore, affect our consideration of Craven's allegations--which we accept as true for purposes of summary judgment--even if it would require us to question implausible inferences therefrom.

Moreover, while in antidiscrimination cases as in other areas of law, a plaintiff bears a heavier evidentiary burden if the factual context renders his claim implausible, see Morales v. Merit System Protection Board, 932 F.2d 800, 802-03 (9th Cir.1991), Lam's charges are by no means implausible. The fact that adverse economic consequences may flow from an alleged act of employment discrimination does not render the allegation implausible. Antidiscrimination laws are not predicated upon the existence of economically "rational" discrimination; the problem that exists and which such laws target is, to a large extent, stubborn but irrational prejudice. Thus, we cannot say that Lam's charges are "implausible" simply because the discriminatory actions might have an adverse economic impact on Professor A. or the University. Cf. Sischo-Nownejad, 934 F.2d at 1110 n.10 (finding no circumstances rendering Title VII claim implausible).22 Nor are we persuaded by the University's assertion that Lam's claims are implausible in the present academic climate because acts that have even the appearance of bias would constitute professional suicide. To accept the University's argument would be to create a presumption that acts of academic employment discrimination are implausible and that the Matsushita burden applies to all such cases. This presumption is patently contrary to fact and we squarely reject it. There is no question that acts of bias and discrimination occur in university hirings today. The process of rooting out discrimination against women and minorities on our nation's faculties is far from ended.

Finally, not only is the point of defendants' argument that "charges of bias should not be made lightly," somewhat elusive, but the cases they cite, which concern recusal of administrative law judges and other impartial arbitrators in judicial and administrative hearings, are inapposite.23 ALJs and judges are presumed to be impartial in their decisions. A member of a faculty appointments committee is, in contrast, likely to be personally interested in the outcome of the process.

As we have previously explained, "[w]e require very little evidence to survive summary judgment" in a discrimination case, "because the ultimate question is one that can only be resolved through a 'searching inquiry'--one that is most appropriately conducted by the factfinder, upon a full record." Sischo-Nownejad, 934 F.2d at 1111. Besides an overall more particularized factual inquiry, a trial provides insight into motive, a critical issue in discrimination cases. The existence of an intent to discriminate may be difficult to discern in depositions compiled for purposes of summary judgment, yet it may later be revealed in the face-to-face encounter of a full trial.

The university setting--in which, as in this case, employment decisions are made by a group, and collegiality and personal relationships are often significant factors--presents an especially difficult one in which to evaluate allegations of discrimination. As with all group decisionmaking, a complex of motives may exist. Personal animus, factional infighting and politics may influence and even determine certain faculty employment decisions, and are legally permissible if not praiseworthy bases for such decisions. Without a full factual inquiry, however, it may be extremely difficult to distinguish these types of permissible, though relatively personal, motivations from unlawful ones. Accordingly, although for purposes of this appeal we have considered the evidence in the light most favorable to Lam, because the district court granted summary judgment for defendants, we express no view on the reasons underlying the faculty's decision to cancel the first search. Instead, we necessarily reserve the resolution of all factual issues to the district court following a full presentation of the evidence.

We turn next to Lam's appeal of the final judgment regarding discrimination and retaliation in the second search.

We review the district court's findings of fact under the "clearly erroneous" standard. Muntin v. State of Cal. Parks & Recreation Dept., 738 F.2d 1054, 1055 (9th Cir.1984). Legal conclusions are reviewed de novo. Miller v. Fairchild Industries, Inc., 885 F.2d 498, 503 (9th Cir.1989), cert. denied, 494 U.S. 1056, 110 S.Ct. 1524, 108 L.Ed.2d 764 (1990).

Under Title VII the ultimate burden of persuading the trier of fact that the employer intentionally discriminated " 'remains at all times with the plaintiff.' " St. Mary's Honor Ctr. v. Hicks, --- U.S. ----, ----, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993) (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981)); see also United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 716,