Hans J. Rapold v. Baxter International Inc.

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2715
HANS J. RAPOLD,
Plaintiff-Appellant,
v.
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
ARGUED JANUARY 12, 2012—DECIDED JANUARY 30, 2013
Before EASTERBROOK, Chief Judge, and ROVNER and
TINDER, Circuit Judges.
ROVNER, Circuit Judge. Hans J. Rapold, who is Swiss,
sued the pharmaceutical company Baxter International,
Incorporated (“Baxter”) after it revoked an employ-
ment offer for him to work as the Medical Director of
Cellular Therapy at its corporate headquarters in
Deerfield, Illinois. Dr. Rapold sued Baxter in state court
and alleged a number of state law causes of action, but

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2 No. 11-2715
Baxter removed the case to federal court in reliance on
Dr. Rapold’s claim under Title VII, 42 U.S.C. §§ 2000e
et seq. After the district court dismissed the state law
claims, Dr. Rapold proceeded to trial on his Title VII
claim. The jury returned a verdict for Baxter, and
Dr. Rapold appeals. He claims that the district court
erred by denying his motion for judgment as a matter
of law and by refusing to tender a “mixed-motive” instruc-
tion to the jury on the issue of why Baxter revoked
his employment offer. We affirm.
I.
Baxter is a global diversified healthcare company
with its world corporate headquarters in Illinois. In 2004,
Baxter added “Cellular Therapy” to its already extensive
array of businesses aimed at developing, manufacturing,
and marketing products for the treatment and cure of
diseases. The Cellular Therapy (“CT”) business focused on
developing new treatments using stem cells—specifically
treatments for chronic myocardial ischemia and critical
limb ischemia. Andrea Hunt, the Vice President of CT,
oversaw the business from its inception and continued in
that role at the time of trial. Hunt reported directly to
Dr. Hartmut Ehrlich, Vice President of Global Research
and Development for Baxter’s Bioscience Division, and
Ronald Lloyd, Vice President and General Manager of
Regenerative Medicine. Hunt’s supervisor Dr. Ehrlich is
a German national and resided at the time in Vienna,
Austria.
As Vice President, Hunt conducted an interna-
tional search effort to find a CT Medical Director. This

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No. 11-2715 3
process began in 2004 when the Medical Director at the
time, who was a Boston-based physician, declined to
relocate to Baxter’s corporate headquarters in Deerfield,
Illinois. Baxter thus needed a new Medical Director to
work with the United States Food and Drug Administra-
tion (“FDA”) and outside advisory boards (consisting
of physicians and “key opinion leaders”) in overseeing
clinical trials and shepherding new therapies through
the FDA-approval process. Baxter’s international search
for a CT Medical Director took over two years, and ulti-
mately concluded in late 2006 with Dr. Rapold, a Swiss
and Belgian national who resided in Germany.
Dr. Rapold holds the United States equivalent of an
M.D. and a Ph.D., and also possesses the equivalent of
board certification in both cardiology and internal medi-
cine. He worked from 1992 through 1996 for the global
pharmaceutical company Roche, where he led the throm-
bosis research department in conducting worldwide
clinical trials. He then worked as a consultant for the
American pharmaceutical company Searle, overseeing
two international clinical trials. Additionally, Dr. Rapold
was the recipient of the prestigious Naegeli Prize (awarded
for outstanding contributions to biomedical or clinical
research) and authored over 74 peer-reviewed articles.
After interviewing Dr. Rapold twice via video-
conference, Hunt sent him an offer letter in Decem-
ber 2006. The letter stated that Dr. Rapold would be an
“at will” employee, meaning that Baxter or Dr. Rapold
could end the employment relationship “at any time
and for any reason.” Accepting the CT Medical Director

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4 No. 11-2715
position necessitated that Dr. Rapold relocate to
Deerfield, Illinois, which meant securing a proper visa to
enable him to work legally in the United States. Because
of ongoing CT clinical trials, Baxter could not afford to
wait for Dr. Rapold to obtain his visa before he began
working. Thus, Baxter entered into a consulting agree-
ment with Dr. Rapold to enable him to begin work im-
mediately from Europe. The consulting agreement was
entered between Dr. Rapold and Baxter Healthcare, S.A.,
a Baxter affiliate organized under Swiss law. The
initial consulting term ran from January 2, 2007 through
April 30, 2007. As Medical Director of CT, Dr. Rapold
reported directly to Hunt.
Hunt testified that throughout Dr. Rapold’s con-
sultancy, she received reports of problematic behavior.
Six incidents in particular formed the basis for her
ultimate recommendation at the end of May 2007 to
withdraw Dr. Rapold’s offer of employment. Hunt and
other Baxter employees testified about these incidents
in detail at trial. Dr. Rapold testified as well, and
for the most part simply denied ever having acted inap-
propriately.
First, several of the individuals assisting Dr. Rapold
in obtaining his O-1 visa complained about issues that
they had working with him. Baxter sponsored Dr. Rapold
in obtaining the visa, which is reserved for temporary
workers who possess extraordinary ability or achieve-
ment in the sciences or other specified categories.
Christine Parro, the Human Resources Director for the
CT team, testified that she received multiple complaints

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No. 11-2715 5
from both Baxter’s internal employees assigned to
assist with the process and the outside immigration
attorney hired to represent Dr. Rapold in obtaining the
visa. Parro relayed these complaints to Hunt, who also
received some complaints directly. Specifically, a Baxter
employee helping Dr. Rapold complained to Hunt that
Dr. Rapold’s repeated challenges to requests for infor-
mation rendered him one of the rudest individuals
with whom the employee had ever dealt. Similarly, the
outside immigration attorney reported difficulty ob-
taining necessary documentation from Dr. Rapold. He
was unable to obtain the requisite three recommenda-
tions from Dr. Rapold, who believed the third reference
unnecessary on account of his renown and prestige.
Because Dr. Rapold failed to provide the third reference,
Hunt ultimately obtained an additional reference so
that Dr. Rapold could obtain the visa. For his part,
Dr. Rapold denied ever having been difficult to work
with, although he did acknowledge that Hunt had ob-
tained the third reference on his behalf.
Dr. Rapold also had difficulty from the outset with
Baxter’s information technology (“IT”) personnel. For
instance, he was unhappy with the standard Blackberry
offered by Baxter because it lacked a Global Positioning
System (“GPS”) feature. Because Dr. Rapold continued to
insist on a Blackberry with GPS, Hunt ultimately enlisted
Dr. Norbert Reidel, Baxter’s Chief Scientific Officer and
a German national, to personally speak with Dr. Rapold
and convince him to accept the Blackberry without
GPS (which was the only Blackberry Baxter offered its
employees). Dr. Rapold also refused to utilize the

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6 No. 11-2715
speakerphone Hunt repeatedly instructed him to use
for weekly meetings at which he participated by
phone. Instead, he insisted on using Skype (a software
application that allows users to make voice calls over
the Internet), which was not supported by Baxter’s IT
department and repeatedly caused Dr. Rapold’s call to
be dropped. Despite being told both verbally and in
writing by Hunt to use a speakerphone (paid for by
Baxter), Dr. Rapold maintained that the speakerphone
would not solve the problem, which he attributed to
the microphone in Baxter’s conference room as opposed
to the fact that Skype occasionally cut out during calls.
He never did make the switch to a speakerphone.
The third incident informing Hunt’s ultimate with-
drawal of the offer occurred in February 2007. Because
Dr. Rapold could not yet legally work in the United
States, Baxter arranged a series of meetings in Toronto,
Canada with members of the CT team. Two individuals
present during those meetings were Lorna Williams, the
CT Director of Research and Design Project Manage-
ment, and Parro Uppal, CT Senior Marketing Director.
According to Dr. Rapold, he believed certain recruit-
ment metrics proposed by Williams and Uppal for
clinical trials were unreasonable and “he was trying to
bring them in line.” In his effort to prevent what
he termed “another recruitment blunder” for the trials,
he acknowledged at trial that he “might have raised”
his voice in order to make his view on the matter
known. Uppal, however, recounted that Dr. Rapold
became “very angry” about the process Williams pro-
posed and that he was “shouting” and “very agitated”
for what seemed like between fifteen and twenty min-

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No. 11-2715 7
utes. Both Uppal and Williams reported the incident
to Hunt, who discussed Dr. Rapold’s behavior with
him when she saw him at meetings in Vienna, Austria.
Specifically, Hunt informed Dr. Rapold that his
behavior had been unprofessional and inappropriate.
At trial, Dr. Rapold continued to maintain that he had
acted professionally at all times, but acknowledged
that when Hunt spoke to him in Vienna he assured her
that he would refrain from “yelling and screaming”
(which he denied having actually done) in the future.
The fourth incident also involved Uppal. She testified
that she had edited some slides prepared by Dr. Rapold
for submission to an advisory board (composed of
outside physicians from across the country to provide
guidance in developing clinical trials). After e-mailing the
slides back to Dr. Rapold for his review, she spoke with
him on the telephone to discuss the changes. Uppal
recounted her experience to Hunt, who testified that
Uppal informed her that Dr. Rapold had “screamed and
yelled at her on changing some slides and hung up
the phone on her.” Hunt later reviewed the slides and
Uppal’s modifications, which she characterized as
“minor and cosmetic.” For his part, Dr. Rapold asserted at
trial that he neither yelled nor screamed at Uppal but
firmly explained that as a marketing director it “was
not among her functions to change the slides of the
medical director.” Dr. Rapold also denied hanging up
on Uppal; instead, he surmised that the call may have
been dropped (Uppal was driving in her car when the
conversation occurred) and that he must have felt no
need to call back since he considered the “topic closed.”

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8 No. 11-2715
Dr. Rapold also had a rocky first meeting in Vienna,
Austria with Dr. Ehrlich. At trial, Dr. Rapold explained
that in Dr. Ehrlich’s presence he and Lloyd had what
Dr. Rapold maintained was a professional but somewhat
“controversial” conversation. Dr. Rapold also claimed
that after the discussion, Dr. Ehrlich expressed support
for him by telling him that to be a medical director it
was necessary to be “stubborn.” He denied recalling
whether Dr. Ehrlich had also reminded him that he
needed to be a “team player.”
The final incident that ultimately prompted Hunt
to recommend the withdrawal of Dr. Rapold’s offer
occurred in May 2007. By this time, Baxter and Dr. Rapold
had extended the consulting period beyond its original
April 30, 2007 expiry date. Dr. Rapold’s O-1 visa was
approved at the end of April, and in mid-May, Parro
informed Dr. Rapold that his employment in Deerfield
would commence on June 4. With Parro’s assistance,
Dr. Rapold terminated his consulting agreement with
Baxter Healthcare, SA. He then traveled to Deerfield
in mid-May in order to look for housing.
Prudential International Relocation worked with
Baxter executives to find housing and had been retained
by Baxter to assist Dr. Rapold with his home search
the week of May 13, 2007. Prudential assigned Linda
Lincoln, who had worked as a relocation agent for over
20 years, to help Dr. Rapold find housing. Dr. Rapold
had looked at properties with Lincoln on a number of
occasions and had determined that instead of pur-
chasing a home as he had originally intended, he would

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No. 11-2715 9
look for a short-term rental instead. To that end, Lincoln
had located a unit for rent in Lake Point Tower, a
luxury condominium building in downtown Chicago.
Lincoln testified that she took Dr. Rapold to see the
unit after explaining to him that the listing agent and
possibly other agents and their clients would be present
during the showing. Once Dr. Rapold had seen the unit
he approached the listing agent and asked if the price
was negotiable and also whether he could have a short-
term, three-month rental. Lincoln testified that when
the listing agent rejected both of Dr. Rapold’s proposals,
he became agitated and started shouting at the listing
agent, whom he called a stupid American. At trial,
Dr. Rapold essentially denied Lincoln’s version of
events and focused on the fact that the two of them
had gone out together several times for drinks and that
she had sent him a cordial e-mail after the alleged incident.
Lincoln later e-mailed her supervisor to complain
about Dr. Rapold’s “abusive and argumentative” behavior
and requested that she no longer work with him. Lincoln
testified that in her 20-plus years as a relocation agent,
she had never before turned back a referral. The fol-
lowing Monday morning, Lincoln’s supervisor for-
warded her e-mail to Baxter’s human resources director
for international assignments, who in turn forwarded it
to Parro. Parro then forwarded the e-mails to Hunt and
the two of them met later that afternoon. The following
day, Hunt e-mailed Ehrlich and Lloyd with what she
identified as “6+ instances where [Dr. Rapold] has been
unreasonable, rude, and abusive to others” along with
her recommendation that Baxter withdraw its offer lest

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10 No. 11-2715
Dr. Rapold’s “behaviors . . . blow up potentially with
critical folks like the FDA” and key opinion leaders. In
her e-mail, she also stated that “[w]orking with Hans
has been difficult . . . some of which we attributed to
culture and stress in moving.” After both Ehrlich and
Dr. Reidel approved her recommendation, Hunt called
Dr. Rapold and withdrew his offer. Dr. Rapold e-mailed
Hunt later that day. In his e-mail, he dismissed Hunt’s
reasons as “irrelevant” and “ridiculous” and criticized
“the American ‘consensus culture’ (which in too many
of the meetings I participated in lead to nowhere else
but the next meeting).” He assured Hunt that he
would fight her decision to rescind his offer.
In addition to the reference to “culture” in her e-mail
to Ehrlich and Lloyd, Hunt referred to Dr. Rapold’s
culture on several other occasions. Specifically, when
Hunt spoke to Dr. Rapold after the incident in Toronto,
she told him that it was inappropriate in the United
States to dictate his opinion or scream at others in a
meeting, behaviors that she suggested may be tolerable
in Europe. Hunt also discussed Dr. Rapold’s work style
with David Amrani, who suggested that Dr. Rapold’s
behavior may be attributable to a European attitude
about working that included a desire not to “stress them-
selves for a job.” She also corresponded via e-mail with
Parro about discussing some of Dr. Rapold’s behaviors
with him and stated that “European cultural differences
will need to be addressed.” In various other conversations
about Dr. Rapold, Hunt referred to his “Germanic” atti-
tude; she also claimed that he had an “autocratic . . .
hierarchical way of managing.” When explaining these

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No. 11-2715 11
comments at trial, Hunt averred that it was “well known
that businesses in Germany operate in a hierarchical
manner.” Hunt also once sent an e-mail to Dr. Rapold
recapping a previous conversation with him. That e-mail
referred to perceptions of Dr. Rapold as “stubborn and
difficult to work with” and posited that some of those
problems may have been “cultural in nature.” Hunt
forwarded that e-mail to Parro along with her addi-
tional suggestion that they enlist Dr. Riedel (Baxter’s
Chief Scientific Officer), to provide “a bit of very
limited coaching” to Dr. Rapold. Dr. Riedel, who is Ger-
man, was suggested because he “respects and under-
stands the Germanic approach.” Because Baxter with-
drew Dr. Rapold’s offer shortly thereafter, no “coaching”
was ever provided for him.
Before trial and again at the close of the evidence,
Dr. Rapold moved to introduce a “mixed-motive” instruc-
tion to the jury. Specifically, he proposed instructing
the jury that it could find in his favor if his national
origin was a “motivating factor” in Baxter’s decision to
withdraw his offer. The district court rejected the pro-
posed instruction, reasoning that Dr. Rapold’s case pre-
sented a binary proposition: either he was an excellent
employee and Baxter fired him because of his national
origin, or his national origin was irrelevant and the de-
fendant fired him because of his bad behavior.
Specifically, the district court noted both pre-trial and
at the jury instruction conference that a mixed-motive
instruction was inappropriate because by denying any
wrongdoing on his part, Dr. Rapold had created a

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12 No. 11-2715
“simple case” in which the jury could either believe him
or the defense, not some combination of the two. Over
Dr. Rapold’s objection, the court tendered the Seventh
Circuit pattern instruction, which states that “plaintiff
must prove by a preponderance of the evidence that
defendant withdrew his job offer because of his national
origin.” It continues: “To determine that plaintiff’s job
offer was withdrawn because of plaintiff’s national
origin, you must decide that defendant would not have
withdrawn its job offer had plaintiff been outside of
this protected class but everything else had been the
same.”
At the close of the evidence, Dr. Rapold also moved
for judgment as a matter of law under Rule 50(a) of the
Federal Rules of Civil Procedure, but the court denied
his motion. The jury returned a verdict for Baxter. After
trial, Dr. Rapold renewed his motion for judgment as a
matter of law under Rule 50(b), but the district court
again denied his motion. Dr. Rapold appeals.
II.
Dr. Rapold argues on appeal that the district court
erred by refusing to tender his proffered mixed-motive
jury instruction. He also maintains that the evidence at
trial established that Baxter withdrew his offer at least
in part on account of his national origin, and thus he
is entitled to judgment as a matter of law. Because
Dr. Rapold’s claim that he is entitled to judgment as a
matter of law hinges on his belief that the jury instruc-
tions were erroneous, we begin with that issue.

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No. 11-2715 13
We review the district court’s refusal to give a jury
instruction only for abuse of discretion. E.g., Consumer
Products Research & Design, Inc. v. Jensen, 572 F.3d 436,
438 (7th Cir. 2009). We consider the instructions as a
whole, analyzing them deferentially to determine
whether they accurately state the law and do not confuse
the jury. Guzman v. City of Chi., 689 F.3d 740, 745 (7th
Cir. 2012). The standard of review is “a liberal one: we
look at jury instructions only to determine if taken as
a whole they were sufficient correctly to inform the jury
of the applicable law. Even if the instruction contains
errors or misguides the jury, the error is reversible only
if a litigant is prejudiced.” Boyd v. Ill. State Police, 384
F.3d 888, 894 (7th Cir. 2004) (quoting Molnar v. Booth,
229 F.3d 593, 602 (7th Cir. 2000) (citation omitted)). Thus,
in order to obtain a new trial based on an incorrect
jury instruction, Dr. Rapold must establish both that
the instructions failed to properly state the law and that
he was prejudiced by the error because the jury was
likely to be misled or confused. Id.
Dr. Rapold maintains that the “but for” instruction
given to the jury made it virtually impossible for it to
find in his favor because it could not entertain the possi-
bility that both his behavior and his national origin
informed Baxter’s decision to withdraw his offer. He
claims the district court’s refusal to include his proposed
“motivating factor” was inconsistent with the 1991
amendments to the Civil Rights Act recognizing that
“an unlawful employment practice is established when
the complaining party demonstrates that . . . national
origin was a motivating factor for any employment

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14 No. 11-2715
practice, even though other factors also motivated the
practice.” 42 U.S.C. § 2000e-2(m) (emphasis added); see
also Desert Palace, Inc. v. Costa, 539 U.S. 90, 94 (2003) (ex-
plaining that in response to the Court’s holdings in
certain mixed-motive cases, the 1991 Act set forth stan-
dards applicable in such cases).
The Supreme Court has described a “mixed-motives”
case as one in which “an employee alleges that he
suffered an adverse employment action because of both
permissible and impermissible considerations.” Gross v.
FBL Fin. Servs., Inc., 557 U.S. 167, 171 (2009) (holding
that mixed-motive jury instruction is never proper in
an ADEA case). If an employee in a mixed-motive
case establishes that national origin, for instance, was
a motivating factor for the employment action, the
burden shifts to the employer to prove by a prepon-
derance of the evidence that it would have made the
same decision regardless of the plaintiff’s national origin.
Desert Palace, 539 U.S. at 101. This partial defense bars
the plaintiff from recovering damages but allows for
declaratory and injunctive relief as well as limited attor-
ney’s fees and costs. See 42 U.S.C. § 2000e-5(g)(2)(B).
The question of when a mixed-motive instruction is
appropriate has engendered considerable confusion. Since
the 1991 amendment, courts have developed instruc-
tions charging juries that they must find a defendant
liable but award no damages if a plaintiff proves that
national origin motivated an adverse action but the
defendant demonstrates it would have taken the action
anyway. See Seventh Cir. Pattern Jury Instruction § 3.01

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No. 11-2715 15
cmts. B & C. Several circuits now provide a mixed-
motive instruction in all Title VII cases, see 8th Cir.
Model Civil Jury Instructions § 5.01; 9th Cir. Model Civil
Jury Instructions § 12.1 & cmt.; 11th Cir. Pattern Jury
Instructions (Civil Cases) § 1.21 (stating that plaintiff
must prove “[race] [sex or gender] was a substantial or
motivating factor” that prompted the adverse employ-
ment action), but others provide it only when a case
presents an issue of mixed motives, see Watson v. Se. Penn.
Transp. Auth., 207 F.3d 207, 217-20 (3d Cir. 2000); Fields
v. N.Y. State Office of Mental Retardation & Dev. Disabilities,
115 F.3d 116, 121-24 (2d Cir. 1997). We have never ex-
plicitly adopted one approach over the other, and our
pattern instructions continue to retain a distinction be-
tween mixed-motive cases and those where a but-for
instruction is appropriate. See Seventh Cir. Pattern Jury
Instruction § 3.01 & cmt. B (noting that other circuits
employ “motivating factor” language in all Title VII
cases but assuming continued viability of but-for instruc-
tions in “non-mixed motive cases in the Seventh Circuit”);
see also Lewis v. City of Chi. Police Dep’t, 590 F.3d 427,
438 (7th Cir. 2009) (“This Court has yet to decide when
it is appropriate to apply a motivating factor instruc-
tion.”). Adding to the confusion is the fact that the
Second and Third Circuit cases adopting the pretext
versus mixed-motive approach both pre-dated Desert
Palace, which eliminated the need for direct evidence of
discrimination (often the stated distinction between so-
called “pretext” and mixed-motive cases) in mixed-motive
cases. Desert Palace, 539 U.S. at 101-02.
In Boyd, which dealt with a plaintiff’s challenge to a
district court’s supplemental instruction given to clarify

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16 No. 11-2715
a mixed-motive instruction, the concurring opinion
attempted to explain when a mixed-motive instruction
is appropriate. 384 F.3d at 893-94, 899-901.
In the Boyd concurrence, Judge Posner identifies four
potential scenarios for consideration, one of which is
relevant here: a case where the plaintiff proves that the
defendant is hostile to members of the plaintiff’s race (used
as shorthand for all protected classes) but the defendant
provides evidence “that it would have fired him any-
way, regardless of his race, because he was an unsatis-
factory employee.” Id. at 899. Judge Posner opines that
in this scenario—when a defendant presents a partial
defense arguing that it would have fired the plaintiff
because of poor performance anyway—the plaintiff
is entitled to an instruction putting the burden on the
defendant to prove that plaintiff’s poor performance, and
not his ethnicity, motivated the termination (and if it
does so the defendant escapes paying damages under
the 1991 amendment). Id. at 900. In responding to the
defendant in Boyd’s specific argument that the case
was a “pretext” case and not one of mixed motives,
Judge Posner explains that if instead the defendant
argues that poor performance is the only reason it fired
plaintiff, then the defendant is “going for broke” with a
complete defense. Id. at 901. In this scenario the
defendant prevails only if it demonstrates that perfor-
mance was the sole reason for an adverse employ-
ment action. Id. In its brief, Baxter seizes on this
“complete defense” example to support its position that
the mixed-motive instruction was inappropriate, given
that Dr. Rapold never acknowledged that Baxter’s

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No. 11-2715 17
stated reason for withdrawing his offer was at least
partially true.
The district court agreed, and concluded after hearing
the evidence that the mixed-motive instruction was
inappropriate because Dr. Rapold had for the most part
denied any wrongdoing. We are not convinced that
whether the plaintiff concedes that a defendant’s stated
reasons are true (at least in part) is the appropriate test,
and we have never held as much. The Fifth Circuit has
addressed the question directly, stating that “[r]equiring
the plaintiff to concede at trial the legitimacy of the em-
ployer’s stated reason for the discharge is contrary to the
purpose of the mixed-motive framework.” Smith v. Xerox
Corp., 602 F.3d 320, 333 (5th Cir. 2010). Like the concur-
rence in Boyd, the Fifth Circuit has observed that the
mixed-motive theory is probably best viewed as a defense
for an employer allowing it to counter the plaintiff’s
evidence that an illegitimate reason was a motivating
factor with evidence that it would have taken the same
action regardless. Id. It goes without saying that if an
employee believes he has been discharged for discrim-
inatory reasons, he certainly also believes the employer
lacked legitimate nondiscriminatory reasons for the
termination. But what of the quoted language from
Gross, above, to the effect that a mixed-motive case is
one in which a plaintiff alleges both permissible and imper-
missible motives by an employer, 557 U.S. at 171; must a
plaintiff concede some of a defendant’s stated reasons
for an adverse employment action to obtain a mixed-
motive instruction? Not necessarily. As the Smith opinion
observed, the mixed-motive framework does not require

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18 No. 11-2715
the plaintiff to concede the legitimacy of an employer’s
stated reasons—it is the jury’s task to decide between
two competing theories. Smith, 602 F.3d at 333. We agree.
The relevant question then is not a plaintiff’s concession
but whether the case overall is one where either the
plaintiff or the defendant’s evidence lends itself to co-
existing dual causes for an adverse employment action.
The Boyd concurrence’s focus on the defendant’s conces-
sion or lack thereof, then, is helpful only to a point,
since it is the plaintiff here who sought the mixed-motive
instruction. The Fifth Circuit highlighted the paradox
in Smith as follows:
[T]he reality is that the defendant will always prefer
a pretext submission that requires the plaintiff to
prove that there was no legitimate motivation (but-
for) while the plaintiff will always prefer a mixed-
motive submission with the burden on the defendant.
Illogical or not, that is the law we follow.
Id.; see also Fields, 115 F.3d at 122 (noting that some defen-
dants prefer not to have a “dual motivation” instruction
despite fact that it is an affirmative defense). The parties’
positions here lend credence to the Smith court’s observa-
tion. It is important to remember, however, that a case
will not always be easily identifiable as one of “pretext”
or “mixed-motives” from the outset. For that reason, it
is up to the district court to decide whether a given case
involves mixed motives. And we review this conclusion
only for an abuse of discretion.
The district court was within its considerable discre-
tion to conclude that neither Dr. Rapold’s nor Baxter’s

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No. 11-2715 19
evidence warranted giving a mixed-motive instruction.
Both parties consistently maintained that the evidence
pointed to a single cause for Dr. Rapold’s termination:
according to Dr. Rapold, he was an outstanding employee
who was fired only on account of his national origin;
according to Baxter, Dr. Rapold was a problematic em-
ployee whose repeated bad behavior formed the sole
basis for the ultimate withdrawal of his offer. Baxter here
clearly sought to present a complete defense: it never
argued, as it could have, that Dr. Rapold’s national origin
may have played a part in its decision but that it would
have rescinded his offer regardless of his national origin.
The only remaining question then is whether Dr. Rapold
presented a case from which the jury could conclude that
Baxter had both legitimate and illegitimate reasons for
revoking his offer. Dr. Rapold argues essentially that
because he presented one reason for his termination
(national origin) and Baxter presented another (inappro-
priate behavior), the district court necessarily should
have given the mixed-motive instruction. He buttresses
his argument with the language from Desert Palace
stating that “[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 prepon-
derance of the evidence, that . . . ‘national origin was
a motivating factor for any employment practice.’ ” 539
U.S. at 101 (quoting 42 U.S.C. § 2000e-2). But this lan-
guage is not as persuasive as Dr. Rapold suggests. First,
the Court in Desert Palace was answering the specific
question whether a plaintiff was required to present
direct evidence of discrimination in order to obtain a

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20 No. 11-2715
mixed-motive instruction. Id. at 92. Second, the Court
recognized in the course of answering that question that
§ 107 of the 1991 Act specifies that §§ 2000e-2(m) and
2000e-5(g)(2)(B) set forth standards “applicable in ‘mixed
motive’ cases,” Desert Palace, 539 U.S. at 94 (emphasis
added) (quoting Civil Rights Act of 1991, § 107), and
specifically declined to decide “when, if ever, § 107 ap-
plies outside of the mixed-motive context,” id. at 94 n.1.
Thus, Dr. Rapold’s Desert Palace quote is limited to estab-
lishing the rule for those cases that arise in the “mixed-
motive context.” The district court concluded that
Dr. Rapold’s case did not.
Although we do not find this conclusion inescapable,
we reiterate that it was not an abuse of discretion. The
district court got off track with its seeming insistence
that Dr. Rapold concede that his behavior motivated
Baxter’s decision. Indeed, we think the district court
could have concluded that Dr. Rapold had presented
sufficient evidence that his national origin played some
part in Baxter’s decision. Baxter would then have had
the option to defend with the argument that although
national origin played a part in its decision, it would
have rescinded Dr. Rapold’s offer irrespective of his
national origin. But Baxter chose to make a complete
defense, denying that Dr. Rapold’s national origin
played any part in its decision. And Dr. Rapold es-
sentially did the same by insisting that Baxter’s stated
reasons for rescinding his offer were a pretext for its
real reason—his national origin. These positions lent
themselves to the district court’s conclusion that the
mixed-motive instruction was inappropriate. The district

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No. 11-2715 21
court thus concluded, in the words of the Boyd concur-
rence, that this case was not a case of “dual causes”—i.e.,
national origin, but also performance. Boyd, 384 F.3d at 901.
More importantly, we are unpersuaded by Dr. Rapold’s
claim that he was prejudiced by the denial of the mixed-
motive instruction. Our review of the evidence con-
vinces us Dr. Rapold was not entitled to judgment
in his favor either with or without the mixed-motive
instruction. Taken in context, the repeated references to
Dr. Rapold’s “culture” by Hunt and others at Baxter
evince little more than an attempt to give Dr. Rapold
the benefit of the doubt in the face of increasingly
unprofessional behavior. Far from painting Dr. Rapold
in an unfavorable light on account of his “Germanic” or
“autocratic” tendencies, the testimony establishes Hunt’s
attempt to help Dr. Rapold succeed at Baxter even
as she received increasing feedback of unacceptable
behavior by him. Given the evidence, Baxter was
entitled to maintain its position that Dr. Rapold’s
national origin was irrelevant to its actual decision to
rescind his offer; the starkly different picture Dr. Rapold
attempted to paint with his own testimony left little
common ground for the jury to conclude that Dr. Rapold
may have behaved badly but that Baxter in some
way discriminated against him because of his national
origin. The district court was therefore within its
wide discretion to conclude that the evidence painted
an either-or picture that did not lend itself to the mixed-
motive instruction. Although our review may have
been more straightforward if the jury had been allowed
to reject the notion that Dr. Rapold’s national origin

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22 No. 11-2715
played any part in the rescinding of his offer, we are
confident that had it been given such an option, the
result would have been the same. Cf. Boyd, 384 F.3d at
895 (“The evidence of discrimination is simply too thin
on this record to warrant a new trial, even if proper in-
structions had been given.”).
This conclusion undergirds our rejection of
Dr. Rapold’s contention that he is entitled to judgment
as a matter of law. We review de novo the district court’s
denial of Dr. Rapold’s Rule 50(b) renewed motion for
judgment as a matter of law. May v. Chrysler Group, LLC,
692 F.3d 734, 742 (7th Cir. 2012); see also Fed. R. Civ. P. 50(b)
(permitting the court to order a new trial or direct the
entry of judgment as a matter of law upon a finding that
a reasonable jury lacked legally sufficient evidentiary
basis to find for a party). In doing so, we construe all
evidence strictly in favor of Baxter, the prevailing
party, and ask only whether that evidence provides a
reasonable basis for the jury’s verdict. Passananti v. Cook
Cnty., 689 F.3d 655, 659 (7th Cir. 2012). Although
we review the entire record, we do not reweigh the evi-
dence, make credibility determinations, or consider
evidence favorable to Dr. Rapold that the jury was not
required to believe. Id.
The jury here had ample evidence from which to con-
clude that Baxter did not rescind Dr. Rapold’s offer of
employment on account of his national origin. As
detailed above, the jury heard from numerous witnesses
about Dr. Rapold’s problematic behavior during his
consultancy. Individuals from the IT department testi-

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No. 11-2715 23
fied that he was inflexible and demanding. The attorney
who helped secure his visa recalled him as exceptionally
difficult to work with. Parro, Uppal, and others reported
to Hunt that Dr. Rapold was rude and unprofessional.
The Linda Lincoln debacle was simply one more
incident of alarming behavior by Dr. Rapold. Taken
together, this evidence easily supports the jury’s con-
clusion that Dr. Rapold’s behavior alone informed
Hunt’s ultimate withdrawal of his offer.
Dr. Rapold conflates the issue of whether Baxter ever
considered or discussed his national origin with the
actual but distinct issue of whether it took an adverse
employment action against him on account of his
national origin. The jury had no obligation to believe
Dr. Rapold’s assertions that his national origin, and not
his behavior, prompted Baxter to withdraw his offer.
As detailed above, there is evidence that Hunt and
others explained Dr. Rapold’s behavior with references
to his “Germanic” approach, to his “culture,” and other
rather stereotypical notions. But when taken in the
light most favorable to Baxter, each of these references
can be seen as an attempt by Baxter to accommodate
actions by Dr. Rapold that Baxter would have other-
wise viewed as intolerable. Indeed, Baxter’s attempt to
arrange “coaching” for Dr. Rapold from Dr. Reidel illus-
trates that Baxter did not consider Dr. Rapold to possess
immutable “Germanic” or “European” attributes that
somehow rendered him unfit for the position. When
viewed in Baxter’s favor, such actions demonstrate
a commitment to help Dr. Rapold succeed in spite of a
string of missteps.

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24 No. 11-2715
Dr. Rapold also makes much of the fact that at the end
of the consultancy, Baxter paid him a substantial perfor-
mance bonus. He claims this demonstrates that Baxter
was pleased with his work during the consultancy and
that it must not have had any issues with his on-the-
job behavior. But the payment of the bonus could
just as easily demonstrate Baxter’s commitment to
Dr. Rapold in spite of his behavior: Baxter had invested
considerable time and resources in staffing this crucial
position and was willing to overlook his problematic
behavior right up until the incident with Linda Lincoln,
which, taken together with the other incidents, became
a deal-breaker for Baxter. Thus, far from proving
Baxter was fully satisfied with Dr. Rapold’s performance,
the payment of the bonus could simply signify that
until the very end, Baxter still wanted Dr. Rapold to
succeed as Medical Director.
Finally, Dr. Rapold’s insistence on the existence of an
anti-Germanic or anti-European bias is undercut by the
fact that Hunt extended the employment offer to
Dr. Rapold and then later withdrew it. Moreover,
after withdrawing Dr. Rapold’s offer, Baxter filled his
position temporarily with a Belgian national and ulti-
mately replaced Dr. Rapold with a German physician.
Although we have rejected the notion that a common
actor hiring and later firing an employee creates a pre-
sumption of nondiscrimination, it is certainly one more
piece of evidence for the jury to consider. See Blasdel v.
Nw. Univ., 687 F.3d 813, 820 (7th Cir. 2012) (“When
the same person hires and later fires the employee
who claims that his firing was discriminatory, judges are

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No. 11-2715 25
skeptical, because why would someone who disliked
whites, or Germans, or members of some other group to
be working for him have hired such a person in the
first place?”). Certainly Hunt’s hiring of Dr. Rapold
followed by her decision to hire two additional
individuals from Europe in his stead would allow the
jury to infer that Hunt did not generally harbor animus
towards Swiss, German, or European individuals.
This conclusion further buttresses our view that the
only reasonable inference to draw from the evidence is
that Dr. Rapold’s national origin came into play only in
a way that would support the jury’s conclusion that
Hunt and others were testifying truthfully when they
said that Dr. Rapold’s nationality was not a factor in the
ultimate withdrawal of Baxter’s employment offer.
III.
For the foregoing reasons, we AFFIRM the judgment of
the district court.
1-30-13

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