01A11045
09-18-2002
Andre Q. Duke, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Andre Q. Duke v. United States Postal Service (Great Lakes Area)
01A11045
September 18, 2002
.
Andre Q. Duke,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 01A11045
Agency Nos. 1-I-554-0036-99 and 1-I-554-0074-99
DECISION
INTRODUCTION
This case involves two equal employment opportunity (�EEO�) complaints
filed by Andre Q. Duke (�complainant�) against his employer, the United
States Postal Service (Great Lakes Area) (�the agency�). These complaints
alleged that, by taking certain adverse actions against complainant
(described below), the agency violated Title VII of the Civil Rights Act
of 1964 (�Title VII�), as amended, 42 U.S.C. � 2000e et seq., and/or
Section 501 of the Rehabilitation Act of 1973 (�the Rehabilitation
Act�), as amended, 29 U.S.C. � 791 et seq.<1> The agency denied any
such wrongdoing. At complainant's request, we � the United States
Equal Employment Opportunity Commission (�EEOC� or �this Commission�)
� are issuing this appellate decision to resolve this dispute.
BACKGROUND
Complainant worked as a PS-05 distribution clerk at the agency's
Processing and Distribution Center in Minneapolis, Minnesota. Because
of his various medical restrictions (including alleged carpal tunnel
syndrome, cubital tunnel syndrome, and bilateral lateral epicondylitis),
complainant had been assigned to light and/or limited duty since February
1989. For a time, complainant worked in the �box� section at the agency.
On or around March 29, 1999, however, he was told that the mail volume in
the box section � and the accompanying need for employees in this section
� had declined. Consequently, he learned he was being transferred to
the �outgoing primary� area of the facility.
Complainant refused the official written limited duty job offer for
this transfer (dated May 6, 1999), stating that it violated his medical
restrictions. This job offer explained that the position in question
required �rifling mail,� and could also include �casing mail� and �other
duties assigned by Supervisor within [r]estrictions.� Job Offer (May 6,
1999), at 1 [emphasis added]. However, this job offer also indicated
that complainant's only medical limitations of record were �no repetitive
motion with elbow� and �no lifting over 10 [pounds].� Id. Complainant
therefore submitted a physician's letter explaining that his restrictions
actually now included no lifting, no standing, no walking, and no other
physical activity (beyond sitting for eight hours per day in an ergonomic
chair with foot rest, and performing desk work). He was transferred
to the job offered anyway, apparently on the basis that this �outgoing
primary� position involved �self-paced� desk-type work, and complainant
was given an ergonomic chair and allowed to take breaks as needed.
Nevertheless, complainant maintained that the position exceeded his
physical abilities. He also claimed that agency managers began to harass
him for not being able to perform the job in question. On June 28, 1999,
for instance, complainant claims that his new supervisor (�Supervisor�)
came into his work area, shoved a table into his mid-section, yelled at
him, and told him to �shut up.� Complainant alleges Supervisor told
him that she did not care what his restrictions were or how much pain
he was in, and that he had to get to work. Supervisor explains events
differently. She claims that on June 28, 1999, she found complainant
and a co-worker sitting together talking about personal matters and
not working. Supervisor thus told them to get back to work. She says
that complainant:
took immediate and verbal exception to this. I walked over to where
they were sitting and . . . informed both that they were expected to at
least try to do some work. They were to work, rest their arms as needed,
and that I didn't care if all they could do was one-half of one tray or
less in a day � just give it an honest effort. [Complainant] wanted me
to put that in writing for his attorney. I repeated �you want me to put
in writing that you earn 30 some thousand dollars a year and I expect
you to at least try to work?� He said yes and that his attorney would
love to get a letter telling him he was suppose[d] to work. This was so
strange that I told him just give me your restrictions and we will see
why you can't do anything. He said he would have to go home because he
did not have them with him. I asked if he had anything with him at all
and he said no . . . . By now he [was] standing, speaking louder and
louder and not listening to anything I said. At no point did I push
the table against him . . . . It did not seem advisable to continue
attempting to talk to [complainant] until he was more reasonable and
in better control. I then talked to the other employee about her
restrictions and the need to at least attempt to perform some work.
As she and I tried to discuss this, [complainant] remained agitated
. . . . I clearly informed the woman I was talking with that she
would have to repeat what she said as I could not hear her[,] thinking
[complainant] would hear and quiet down. It was not successful, and after
twice more telling her to repeat what she said I could not understand
it over [complainant's] dialogue, I turned directly to [complainant]
and told him to shut up as I could not hear what she was saying.
Supervisor's Affidavit (Nov. 21, 1999), at 2-3.
Supervisor also stated that at a later meeting between the two of them
and a union steward:
[complainant] was informed that he, as all employees, is expected to
give an honest effort. If he did not feel he could sort or do labeling,
he was told to try uncoded mail. He could look up the address, rest his
arms, write the zip, and again rest his arms. If he were unable to do
even one-half of one tray in eight hours that was okay as long as he did
what he could. He insisted that he would not do it as it was against
his restrictions � and informed me that I had to stop harassing him.
I informed him that asking him to at least try to work was not harassment
and he should be willing to at least try . . . . He asked me if I
plan[ned] to continue to harass him, and I informed him that I would
certainly continue to remind him that he could not read magazines or
. . . write personal matters but rather [had] to perform some work when
he was in pay status. Nothing was said about how much pain he was in nor
did I ever tell him to ignore it . . . . He was clearly told to work,
rest, work and rest as needed . . . . [H]e worked at a table with an
adjustable lumbar support chair with adjustable arms. The work available
involves breakdown of raw mail, labeling or stamping . . ., remail of
keys and IDs, review of dead letters, etc. all of which is self-paced.
Id. at 3-5.
These incidents led complainant to file his first EEO complaint on
or around August 23, 1999. In it, he alleged that agency managers
discriminated against him on the bases of race (Black), sex (male),
retaliation (prior EEO activity), and disability (back and upper extremity
condition) by creating a hostile work environment (e.g., telling him to
�shut up,� forcing him to perform work outside his medical restrictions,
and physically assaulting him). Complainant sought �full and complete
compensation� as corrective action.
At or around the same time, it appears that complainant was notified that
a distribution/window clerk position had �dropped� to him (i.e., he was
presumptively entitled to the position as the most senior bidder) under
the agency's bid system. In a letter to complainant dated July 29, 1999,
an agency human resources specialist told him that this position had:
dropped to you, pending medical/pending qualification. You have been
identified as having permanent medical restrictions that may prevent
you from performing all the duties of the position. Before you can
officially start your Window clerk Training, you will need to provide
me with a copy of your most recent medical restrictions. Upon receipt,
I will forward the documentation to the gaining unit supervisor, who
will then make the determination if they can reasonably accommodate your
restrictions in that unit.
Letter from Agency Human Resources Specialist (Jul. 29, 1999).
Complainant complied with this request to submit documentation of
his medical restrictions. The agency human resources specialist
then forwarded this information to the relevant deciding official
(�Deciding Official�). However, after considering complainant's
medical restrictions, Deciding Official concluded that complainant
�would be unable to fulfill the physical requirements needed for the
posted position.� Email to Human Resources Specialist (Aug. 5, 1999).
Deciding Official later explained that:
I compared [c]omplainant's limitations with the position duties.
Based on that comparison, I could not award [c]omplainant the position.
His restriction[s] were such that he would place an undue hardship on
the unit. As a distribution/window clerk, the clerk must lift, push
and distribute heavy mail containers to numerous letter carriers in a
short but critical period of time . . . . Postal policy is such that
the senior bidding clerk must be able to physically perform the essential
functions of the position . . . .
Affidavit of Deciding Official (Mar. 8, 2000).
Consequently, on August 5, 1999, the human resources specialist sent
complainant a letter stating that, �[a]fter review of your most recent
medical restrictions that you submitted, it has been determined by
[Deciding Official] . . . that he is unable to accommodate you with your
medical restrictions. Unfortunately, you will not be awarded this job
and you will remain in the assignment that you presently have.� Denial
Letter (Aug. 5, 1999).
After receiving this letter, complainant filed a second EEO complaint
on or around October 5, 1999. In this complaint, he claimed that
the agency had again discriminated against him on the bases of race,
sex, retaliation, and disability by failing to select him for this
distribution/window clerk bid position and/or failing to accommodate his
medical restrictions. He again sought �full and complete compensation�
as corrective action.
The agency accepted complainant's claims for processing. It issued
separate reports of investigation on this complaint and complainant's
first EEO complaint on or around May 30, 2000 and June 30, 2000,
respectively. At or around the same time, the agency also notified
complainant of his right to request either a final agency decision
(�FAD�), or a hearing before an EEOC administrative judge to resolve
the disputes. Complainant opted for the former, and the agency issued
a single FAD on October 31, 2000 which addressed the merits of both
complaints. In this FAD, the agency concluded that complainant had
not shown that any of the agency actions at issue constituted illegal
employment discrimination.
Complainant subsequently filed a notice challenging this FAD. We docketed
complainant's notice as this appeal � and we are now issuing this decision
� pursuant to 29 C.F.R. � 1614.405(a). For the reasons detailed below,
however, we agree with the agency and find that no unlawful employment
discrimination under Title VII or the Rehabilitation Act was proven here.
ANALYSIS AND FINDINGS
Standard of Review
This Commission is charged with reviewing this FAD de novo (or �anew�).
See 29 C.F.R. � 1614.405(a). This means that in deciding this case, we
are free to accept (if accurate) or reject (if erroneous) the agency's
factual and legal conclusions. See Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (rev. Nov. 9, 1999) (�EEO
MD-110�), at 9-15. Accordingly, we have carefully reviewed the entire
record before us in our attempt to discern whether a preponderance of the
evidence supports any finding of illegal employment discrimination here.
See 29 C.F.R. � 1614.405(a). We conclude that it does not.
Harassment Claims
Complainant is, at least in part, raising claims of race-based,
sex-based, reprisal-based, and disability-based harassment. However,
as this Commission's guidance points out:
the anti-discrimination statutes are not a �general civility code.�
Thus, federal law does not prohibit simple teasing, offhand comments,
or isolated incidents that are not �extremely serious.� Rather, the
conduct must be �so objectively offensive as to alter the �conditions'
of the victim's employment.� The conditions of employment are altered
only if the harassment culminated in a tangible employment action or
was sufficiently severe or pervasive to create a hostile work environment.
EEOC Notice No. 915.002, Enforcement Guidance: Vicarious Employer
Liability for Unlawful Harassment by Supervisors (June 18, 1999) (web
version) (�Vicarious Liability Enforcement Guidance�), at 4 [internal
notes and citations omitted].
Complainant has asserted that the actions of agency officials created
a �hostile work environment.� The record before us does not support
this conclusion, though. To begin, we are not persuaded that all
relevant events transpired the way complainant says they did (i.e.,
that complainant was forced to work outside his medical restrictions
and that Supervisor physically assaulted him by shoving a table at him).
Further, even if we assume that some or all of the incidents complainant
described did occur (e.g., Supervisor did admit to telling complainant to
�shut up�), these incidents were not sufficiently severe or pervasive
enough to have created a hostile work environment. See, e.g.,EEOC
Notice No. 915.002, Enforcement Guidance on Harris v. Forklift Systems,
Inc. (Mar. 8, 1994) (web version) (�Harris Enforcement Guidance�), at 6
(providing that, to determine whether a hostile work environment exists,
we must look to the �totality of the circumstances,� and consider �the
nature of the conduct (i.e., whether it was verbal or physical), the
context in which the alleged incident(s) occurred, the frequency of
the conduct, its severity and pervasiveness, whether it was physically
threatening or humiliating, whether it was unwelcome, and whether it
unreasonably interfered with an employee's work performance�).
Moreover, even if we conceded that these actions were severe or pervasive
enough to create a hostile work environment, we still could not find
the agency liable for unlawful harassment here. To prove a case of
harassment under Title VII and/or the Rehabilitation Act, complainant
must demonstrate that agency officials harassed him because he is Black,
a man, engaged in prior EEO activity and/or is disabled. See Vicarious
Liability Enforcement Guidance, at 4 (providing that �[h]arassment does
not violate federal law unless it involves discriminatory treatment on
the basis of race, color, sex, religion, national origin, age of 40 or
older, disability, or protected activity under the anti-discrimination
statutes�). We have scoured the record for any sign tending to show that
any agency official was motivated by this kind of prohibited animus.
There was no such evidence found. Thus, we cannot conclude it is more
likely than not that complainant was harassed because he is a member
of various classes protected from discrimination by Title VII and the
Rehabilitation Act. Consequently, we cannot hold the agency liable for
any illegal harassment-based discrimination.
Disparate Treatment Claims
We do not think the agency discriminated against complainant by
denying him the distribution/window clerk bid position, either. This
allegation suggests that the agency engaged in race-based, sex-based,
retaliation-based, and/or disability-based disparate treatment. In cases
of this kind, where there is no direct evidence of any illegal motive
for the agency actions in question, the complainant must put forth a
prima facie case of unlawful discrimination. The complainant may do so
by presenting facts which, if unexplained, reasonably give rise to an
inference of discrimination (i.e., that a prohibited consideration was
a factor in the relevant adverse employment action(s)). If complainant
successfully establishes such a prima facie case, the evidentiary burden
of production then shifts to the agency to articulate legitimate,
non-discriminatory reasons for its ostensibly objectionable conduct.
If and when the agency offers such a lawful explanation, complainant must
show that the explanation offered is but a pretext for the agency's true,
prohibited discriminatory intent. See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Furnco Construction Corp. v. Waters, 438 U.S. 567
(1978); Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24
(1978); Texas Department of Community Affairs v. Burdine, 450 U.S. 248
(1981); United States Postal Service Board of Governors v. Aikens, 460
U.S. 711 (1983); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993);
and Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
Here, with respect to his claim of disability-based disparate treatment,
specifically, complainant has not even taken the initial step of
establishing a prima facie case. To do so, complainant would have had
to demonstrate that (1) he was an �individual with a disability�; (2)
he was a �qualified individual with a disability�; and (3) he suffered
an adverse employment action because of his disability. See, e.g.,
Swanks v. Washington Metropolitan Area Transit Authority, 179 F.3d 929,
934 (D.C.Cir.), cert. denied, 528 U.S. 1061 (1999); Heyman v. Queens
Village Committee for Mental Health for Jamaica Community Adolescent
Program, Inc., 198 F.3d 68, 72 (2nd Cir. 1999); and Green v. United
States Postal Service, EEOC Appeal No. 01984874 (May 2, 2002). However,
even if we assume for argument's sake that complainant established that
he was an �individual with a disability�<2> who suffered an adverse
employment action (by not being selected for the bid position), we could
not conclude that complainant proved he was a qualified individual with
a disability at the time of the non-selection.
A �qualified individual with a disability� is �an individual with a
disability who satisfies the requisite skill, experience, education and
other job-related requirements of the employment position such individual
holds or desires, and who, with or without reasonable accommodation, can
perform the essential functions of such position.� 29 C.F.R. � 1630.2(m)
[emphasis added]. The determination of whether an individual with a
disability is �qualified� for these purposes:
should be made in two steps. The first step is to determine if
the individual satisfies the prerequisites for the position, such as
possessing the appropriate educational background, employment experience,
skills, licenses, etc. For example, the first step in determining whether
an accountant who is paraplegic is qualified for a certified public
accountant (CPA) position is to examine the individual's credentials to
determine whether the individual is a licensed CPA. This is sometimes
referred to in the Rehabilitation Act caselaw as determining whether
the individual is �otherwise qualified� for the position . . . .
The second step is to determine whether or not the individual can perform
the essential functions of the position held or desired, with or without
reasonable accommodation. The purpose of this second step is to ensure
that individuals with disabilities who can perform the essential functions
of the position held or desired are not denied employment opportunities
because they are not able to perform marginal functions of the position
. . . .
The determination of whether an individual with a disability is qualified
is to be made at the time of the employment decision. This determination
should be based on the capabilities of the individual with a disability
at the time of the employment decision, and should not be based on
speculation that the employee may become unable in the future or may
cause increased health insurance premiums or workers compensation costs.
Appendix to Part 1630 � Interpretive Guidance on Title I of the Americans
with Disabilities Act (�Appendix to Part 1630�), at Section 1630.2(m):
Qualified Individual with a Disability.
In this case, the record reflects that at the time complainant's name
came up on the bid list, he could not have performed the essential
functions of the distribution/window clerk job with or without a
reasonable accommodation. According to the job description and Deciding
Official's testimony, the essential functions of this position included
distributing incoming mail to carriers, accepting packages from patrons,
selling stamps and other postal merchandise to customers, and verifying
the correct size/weight/postage of mailings. These duties often required
heavy lifting (of up to 70 pounds), moderate carrying (between 15 to 44
pounds), repeated bending (for one to three hours), pushing rolling mail
containers (of up to 1,000 pounds), standing (for up to eight hours per
day), walking (for up to eight hours per day), pushing, reaching, and
using fingers and both hands. However, complainant could not perform any
lifting, standing, walking, or other physical activity (beyond sitting
for eight hours per day in an ergonomic chair with a foot rest, and
performing desk work). Indeed, in his first EEO complaint, complainant
alleged that the agency had discriminated against him by forcing him to
work outside his medical limitations by transferring him to the �outgoing
primary� section where his only duties included self-paced and seated
mail sorting duties. As the agency argues in its FAD, this work was:
far less demanding than working at a customer service window where
complainant would have to wait on customers, sell stamps, accept
packages, etc. Complainant has not identified how he can, with or
without accommodation, perform the essential functions of [such a]
window clerk or any other position. He cannot lift, he cannot stand,
he cannot walk, he cannot bend, push or pull. He cannot distribute mail
to the carriers, accept even moderately heavy parcels at the window, or
otherwise serve as a window clerk. Having failed to show that he could
perform these essential functions, his claim of disability discrimination
is not supported . . . .
FAD (Oct. 30, 2000), at 6.
We agree. Because the agency concluded that there was no reasonable
accommodation that would have enabled him to perform the essential
functions of the distribution/window clerk bid position � and because
complainant never identified one either � he was not a �qualified
individual with a disability� at the time the agency refused to place him
in this position. Cf. Velez v. United States Postal Service, EEOC Appeal
No. (May 20, 1993), request for reconsideration denied, EEOC Request
No. 05930840 (June 30, 1994). Accordingly, his disability-based disparate
treatment claim must fail. Cf. Kite v. United States Postal Service
(Pacific/Western Area), EEOC Appeal No. 01962355 (Jul. 27, 1998).<3>
Reasonable Accommodation Claims
As noted above, because the record does not reflect that there was
any reasonable accommodation that could have enabled complainant to
perform the essential functions of the distribution/window clerk job,
the agency is not liable for failing to provide him with one. We further
find that the agency did not fail in its duty to provide reasonable
accommodation for complainant's medical restrictions when it transferred
him to the �outgoing primary� area of the agency. In this new position,
the agency allowed complainant to stay seated all day, provided him with
an ergonomic chair, permitted him to rest and take breaks as needed,
told him simply to try his best to get as much work done as he could,
etc. On these facts, we simply cannot conclude that the duties he was
assigned in �outgoing primary� were outside his medical restrictions,
or that the agency failed to provide him the accommodations necessary
to enable him to perform such duties. This reasonable accommodation
allegation therefore falls short, as well.
CONCLUSION
For the foregoing reasons, the FAD in question is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations within thirty (30) calendar days of
receipt of this decision or within twenty (20) calendar days of receipt
of another party's timely request for reconsideration. See 29 C.F.R. �
1614.405; see also EEO MD-110, at 9-18. All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal
Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036.
In the absence of a legible postmark, the request to reconsider shall be
deemed timely filed if it is received by mail within five days of the
expiration of the applicable filing period. See 29 C.F.R. � 1614.604.
The request or opposition must also include proof of service on the
other party.
Failure to file within the time period will result in dismissal of the
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with the request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
Complainant has the right to file a civil action in an appropriate United
States District Court within ninety (90) calendar days from the date that
complainant receives this decision. If complainant files a civil action,
complainant must name as the defendant in the complaint the person who is
the official agency head or department head, identifying that person by
his or her full name and official title. Failure to do so may result in
the dismissal of complainant's case in court. �Agency� or �department�
means the national organization, and not the local office, facility or
department in which complainant works. If complainant files a request
to reconsider and also files a civil action, filing a civil action will
terminate the administrative processing of the complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If complainant decides to file a civil action, and if complainant does
not have or cannot afford the services of an attorney, complainant may
request that the Court appoint an attorney to represent complainant and
that the Court permit complainant to file the action without payment of
fees, costs, or other security. See Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq.; and the Rehabilitation
Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial
of the request is within the sole discretion of the Court. Filing a
request for an attorney does not extend complainant's time in which to
file a civil action. Both the request
and the civil action must be filed within the time limits as stated in
the paragraph above entitled �Right to File A Civil Action.�
FOR THE COMMISSION:
______________________________
Carlton Hadden, Director
Office of Federal Operations
September 18, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The Rehabilitation Act was amended in 1992 to apply the standards
in the Americans with Disabilities Act (�the ADA�) to complaints of
discrimination by federal employees or applicants for federal employment.
2An �individual with a disability� is one who (1) has a physical or mental
impairment which substantially limits one or more of such person's major
life activities; (2) has a record of such impairment; or (3) is regarded
as having such an impairment. See 29 C.F.R. � 1630.2(g). A �physical or
mental impairment� could be (1) any physiological disorder or condition,
cosmetic disfigurement, or anatomical loss affecting one or more of
various body systems (e.g., neurological, musculoskeletal, special
sense organs, respiratory (including speech organs), cardiovascular,
reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and
endocrine); or (2) any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. See 29 C.F.R. � 1630.2(h). �Major life
activities� include functions such as caring for one's self, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning,
and working. See 29 C.F.R. � 1630.2(i).
3So, too, must his other disparate treatment claims. Even if we
assume for argument's sake that complainant did put forth a prima
facie case of race-based, sex-based, and/or reprisal-based disparate
treatment, the agency responded accordingly. That is, it articulated
a legitimate, non-discriminatory reason for failing to place him
in the distribution/window clerk bid job (namely, that complainant
could not perform the essential functions of this job with or without a
reasonable accommodation). Complainant failed to prove that this facially
legitimate, non-discriminatory explanation was a pretext for race-based,
sex- based, and/or reprisal-based animus. The preponderance of the
evidence simply does not support the notion that complainant was treated
adversely because he is Black, a man, and/or engaged in prior protected
activity. Cf. St. Mary's Honor Center, 509 U.S. at 515, 519 (holding that
�a reason cannot be proved to be �a pretext for discrimination' unless it
is shown both that the real reason was false, and that discrimination was
the real reason� for the defendant's employment action, and noting that
�[i]t is not enough . . . to disbelieve the employer; the fact finder
must believe the plaintiff's explanation of intentional discrimination�).