Sheridan v. EI DuPont de Nemours

Opinions of the United

1996 Decisions States Court of Appeals

for the Third Circuit

11-14-1996

Sheridan v. EI DuPont de Nemours

Precedential or Non-Precedential:

Docket 94-7509

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 94-7509

BARBARA R. SHERIDAN,

Appellant

v.

E.I. DUPONT DE NEMOURS AND COMPANY,

JACQUES AMBLARD

On Appeal from the United States District Court

for the District of Delaware

(D. C. Civil No. 93-cv-00046)

Argued May 4, 1995

Before: SLOVITER, Chief Judge, ALITO, Circuit Judge,

and SCHWARZER, District Judge*

Reargued en banc May 14, 1996

Before: SLOVITER, Chief Judge, BECKER, MANSMANN, GREENBERG,

SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, MCKEE,

and SAROKIN*, Circuit Judges

(Opinion Filed November 14, 1996)

Thomas S. Neuberger (Argued)

Wilmington, DE 19801-1646

Martin D. Haverly

Wilmington, DE 19801

Attorneys for Appellant

________________________

* Hon. William W Schwarzer, Senior United States District Judge,

United States District Court for the Northern District of

California, sitting by designation.

** Hon. H. Lee Sarokin heard argument but retired from office

prior to the issuance of the opinion.

Raymond M. Ripple (Argued)

Donna L. Goodman

E. I. DuPont de Nemours & Co.

Legal Department

Wilmington, DE 19880-0036

Attorneys for Appellees

Nancy Erika Smith

Neil Mullin

Lisa Manshel

Smith Mullin, P.C.

West Orange, NJ 07052

David Rocah

American Civil Liberties Union of N.J.

Newark, NJ 07102

Attorneys for Amicus Curiae

American Civil Liberties Union of N.J. in Support of Appellant

Elaine R. Jones

Theodore M. Shaw

Charles Stephen Ralston

NAACP Legal Defense and Educational Fund, Inc.

New York, NY 10013

Attorneys for Amicus Curiae NAACP Legal Defense

and Educational Fund in Support of Appellant

C. Gregory Stewart

Gwendolyn Young Reams

Carolyn L. Wheeler

Robert J. Gregory

Equal Employment Opportunity Commission

Washington, DC 20507

Attorneys for Amicus Curiae Equal Employment

Opportunity Commission in Support of Appellant

Alice Ballard

Samuel & Ballard

Philadelphia, PA 19102

Scott A. Burr

Alan B. Epstein

Jablon, Epstein, Wolf & Drucker

Philadelphia, PA 19102

Attorneys for Amicus Curiae National Employment

Lawyers' Association in Support of Appellant

Kathryn H. Levering

Drinker Biddle & Reath

Philadelphia, PA 19107-3496

Attorney for Amicus Curiae

Lockheed Martin Corp. in Support of Appellees

OPINION OF THE COURT

SLOVITER, Chief Judge.

This appeal offers the en banc court the opportunity to

attempt to clarify the quantum and nature of evidence that will

permit a jury to find that an employer engaged in impermissible

employment discrimination. Although we believe that several of

our opinions in recent years accurately and adequately set forth

the applicable legal principles, the decision of the district

court and that of a panel of this court, now withdrawn, require

us to return to the central issue presented here.

I.

Barbara Sheridan, a former employee of E.I. DuPont de

Nemours & Co. (DuPont), filed this action under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e-1 et seq., charging

DuPont and her former supervisor, Jacques Amblard, with several

claims of sex discrimination and retaliation. Sheridan, who had

been an employee of the Hotel du Pont since 1979 and was at the

time her employment ceased one of the Head Captains of the

hotel's Green Room, asserted that DuPont discriminated against

her on the basis of her sex when it failed to promote her to

Manager of Restaurants in 1991 (Count I), retaliated against her

for complaining about sex discrimination by putting her on

probation and taking various disciplinary actions against her

(Count II), and created intolerable working conditions,

culminating in her removal from a supervisory position, which

resulted in her constructive discharge (Count III).

After discovery, the defendants moved for summary

judgment which the district court denied. The court held that

Sheridan had presented a prima facie case of discrimination and

sufficient evidence to permit a factfinder to believe that

DuPont's reasons for not promoting her, i.e., that she was not

qualified for the position of Manager of Restaurants and that she

had not applied for the position, were pretexts for

discrimination. App. at 57. The court further held that

Sheridan had presented adequate evidence to survive summary

judgment on her retaliation claim and to enable a factfinder to

reasonably believe that her supervisors had intentionally

fabricated evidence of poor job performance in order to remove

her from her position as Head Captain and offer her less

desirable, dead-end jobs. App. at 68. The court concluded that

"[i]f plaintiff's version of the facts were accepted by a trier

of fact, it would be reasonable for the trier of fact to conclude

that resignation was plaintiff's only option." Id.

Thereafter, the case proceeded to trial. The conduct

that was the subject of Sheridan's claims straddled the period

before and after November 21, 1991, the date of the enactment of

the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071

(1991), which granted a right to a jury trial on Title VII

intentional discrimination claims for which compensatory or

punitive damages are sought, id. § 1977A(c), 105 Stat. at 1073

(codified at 42 U.S.C. § 1981a(c)). The district court ruled

that the jury would serve as the finder of fact for Sheridan's

claims that were based on conduct that occurred after that date,

but that the jury would serve only in an advisory capacity for

claims based on events that occurred before that date. This

meant that the jury's verdicts on Count I (failure to promote)

and the alleged retaliatory acts in Count II that occurred before

November 21, 1991 were to be advisory, while the jury was to be

the finder of fact for the remaining alleged acts of retaliation

and with respect to Count III, Sheridan's claim of constructive

discharge.

The trial occupied six days. During the trial, the

district court dismissed the claims against Amblard on the ground

that an employee cannot be sued under Title VII.

After deliberating, the jury returned special

interrogatories. With respect to the promotion claim, the jury

found that Sheridan was not qualified for the job of Manager of

Restaurants and therefore found against her on her claim of

discriminatory failure to promote. With respect to retaliation,

the jury found that DuPont had not retaliated against Sheridan

for complaining of sex discrimination. In contrast, the jury did

find in Sheridan's favor on her claim of constructive discharge.

It awarded her $17,500 in compensatory damages, over and above

lost wages, but found that DuPont's actions were not taken "with

malice or reckless indifference" to her rights, App. at 33, thus

precluding Sheridan from receiving punitive damages. See 42

U.S.C. § 1981a (b) (1). Finally, the jury found that Sheridan

had failed to mitigate her damages by $33,000, that amount to be

deducted from the total amount of lost wages owed. Because the

court calculated Sheridan's lost wages to be $51,072, it awarded

her $18,072, in addition to six months of front pay totalling

$12,768. The district court adopted as its own the jury's

findings with respect to the conduct alleged in Counts I and II

that took place before November 21, 1991.

Both parties moved for judgment as a matter of law or

in the alternative for a new trial. The district court granted

judgment in DuPont's favor. The court recognized that DuPont had

proffered as one of the principal reasons for the disciplinary

actions it had taken against Sheridan her alleged unauthorized

"comping," i.e., giving away complimentary food and drinks in

violation of the hotel's policy that they should be registered,

and Sheridan offered evidence to the contrary, indeed, evidence

that she was elsewhere on some of the days that DuPont claimed

she was engaged in "comping" at the hotel.

In overturning the jury's verdict on the constructive

discharge claim in favor of Sheridan, the court stated that even

if the jury could have reasonably rejected the legitimacy of

DuPont's investigation of Sheridan's alleged "comping," and thus

its reasons for discharging her, "the Court is still left

searching the record for evidence that gender played a

determinative role in defendant's conduct. . . . The Court . . .

has failed to locate sufficient evidence from which the jury

could infer such a finding." Sheridan v. E.I. DuPont de Nemours

and Co., No. 93-46 (D. Del. July 14, 1994) at 9. The court

ruled that the evidence Sheridan presented which arguably related

to her gender, such as the facts that no woman had ever held the

position of Manager of Restaurants, that a man replaced Sheridan

as Head Captain of the Green Room morning shift, that Amblard had

told Sheridan he would watch her like a "hawk" and a "dog," and

Amblard's actions in ignoring her and speaking instead to one of

her male supervisors if one was present, was even in totality

insufficient to support a reasonable inference that gender was a

motivating factor in DuPont's actions. Id. at 9-10.

The court stated that "[i]n order to demonstrate that

gender was a motivating factor, plaintiff would have to point to

some evidence that was the motive of those in the decision making

process. No such evidence exists in the record." Id.

at 11-12. The district court accordingly granted DuPont's motion

for judgment as a matter of law, and ruled conditionally,

pursuant to Fed. R. Civ. P. 50(c), that if the judgment were

reversed on appeal, DuPont would be entitled to a new trial

"because the jury's verdict is contrary to the weight of the

evidence." Id. at 12 n.11. Sheridan appealed.

A panel of this court heard argument on May 4, 1995 and

issued an opinion that reversed the district court's order

granting judgment as a matter of law for DuPont on Sheridan's

constructive discharge claim but was divided as to the

alternative grant of a new trial, with two judges voting to

affirm the grant of a new trial and the third voting to remand

the issue whether a new trial was warranted for reconsideration

by the district court, using the correct legal principles. SeeSheridan v.

DuPont, No. 94-7509 (Jan. 31, 1996), vacated, 74 F.3d

1439 (3d Cir. 1996). The majority and dissenting opinions

differed in particular in their interpretation of the effect of

the Supreme Court's opinion in St. Mary's Honor Center v. Hicks,

509 U.S. 502 (1993), on the inferences that the finder of fact

may draw from its disbelief of the employer's proffered

justification for the disciplinary employment action taken

against Sheridan and the amount and type of evidence needed to

sustain a jury verdict.

Both DuPont and Sheridan petitioned for rehearing and

the court voted to hear the appeal en banc. As required by our

Internal Operating Procedures, the opinion of the panel issued

January 31, 1996 was withdrawn and the court held the en banc

argument on May 14, 1996.

II.

DISCUSSION

A.

Legal Issues

The parties disagree both as to the applicable law and

the weight of the evidence. DuPont argues that the district

court's decision in its favor should have been affirmed in all

respects. It apparently recognizes that the district court's

finding that Sheridan had not carried her burden of proving that

DuPont's decisions were based on gender discrimination was not

consistent with this court's prior decisions. Thus, DuPont

challenges and requests that we reconsider our prior decisions

with respect to the "recurring problem of the shifting burdens"

in employment discrimination cases, arguing that our decisions do

not fully incorporate the teaching of the Supreme Court in Hicks.

It singles out in particular the "underlying decision of the

Court in [Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994)]."

DuPont's Petition for Rehearing at 5.

Sheridan for her part argues that we have correctly

interpreted Hicks in our post-Hicks decisions with respect to the

evidence that would permit a plaintiff claiming employment

discrimination to prevail, and cites, inter alia, Fuentes, 32

F.3d 759; Sempier v. Johnson & Higgins, 45 F.3d 724 (3d Cir.),

cert. denied, 115 S.Ct. 2611 (1995); Waldron v. SL Industries, 56

F.3d 491 (3d Cir. 1995); and Brewer v. Quaker State Oil Refining

Corporation, 72 F.3d 326 (3d Cir. 1995).

We thus turn, this time en banc, to reexamine what

DuPont calls "this continuing and perplexing problem of

interpreting the shifting burden of Hicks."

By the time Hicks reached the Supreme Court, the

required components of a plaintiff's prima facie case of

employment discrimination had been established in McDonnell

Douglas Corporation v. Green, 411 U.S. 792, 802 (1973), and Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 253 &

n.6 (1981), as had been the requirement that the employer was

obliged to proffer a nondiscriminatory reason for its adverse

employment action, see McDonnell Douglas, 411 U.S. at 802;

Burdine, 450 U.S. at 254. Also established was the requirement

that the burden of persuasion remained at all times with the

plaintiff. See United States Postal Serv. Bd. of Governors v.

Aikens, 460 U.S. 711, 716 (1983); Burdine, 450 U.S. at 256.

Still open, however, and the subject of considerable dispute, was

the effect of the decision by the trier of fact that the reasons

given by the employer were not the real reasons for the adverse

employment action. As the Court noted in Hicks, there were cases

in the courts of appeals that held that a finding of pretext does

not mandate a finding of illegal discrimination, see, e.g., EEOC

v. Flasher Co., 986 F.2d 1312, 1321 (10th Cir. 1992); Galbraith

v. Northern Telecom, Inc., 944 F.2d 275, 283 (6th Cir. 1991),

cert. denied, 503 U.S. 945 (1992), and others that held that a

finding of illegal discrimination was mandated on a finding of

pretext, see, e.g., Hicks v. St. Mary's Honor Center, 970 F.2d

487, 492-93 (8th Cir. 1992), reversed, 509 U.S. 502 (1993); King

v. Palmer, 778 F.2d 878, 879 (D.C.Cir. 1985); Duffy v. Wheeling

Pittsburgh Steel Corp., 738 F.2d 1393, 1395-96 (3d Cir.), cert.

denied, 469 U.S. 1087 (1984).

In Hicks, a case in which the plaintiff had brought a

Title VII action alleging that he was demoted and discharged

because of his race, the court of appeals had concluded that

"[o]nce plaintiff proved all of [the employer's] proffered

reasons for the adverse employment actions to be pretextual,

plaintiff was entitled to judgment as a matter of law." 970 F.2d

at 492. It was this holding that was reversed by the Supreme

Court, which held that judgment for the plaintiff is not

compelled by the disbelief of the employer's reasons. 509 U.S.

at 511. On the other hand, the Court also explicitly stated that

a finding that the reasons proffered are pretextual permits the

factfinder to draw the inference that the defendant intentionally

discriminated against the plaintiff. Id.

In deciding the "ultimate question" of whether the

employer unlawfully discriminated, the Court stated in the

following oft-quoted passage that "[t]he factfinder's disbelief

of the reasons put forward by the defendant (particularly if

disbelief is accompanied by a suspicion of mendacity) may,

together with the elements of the prima facie case, suffice to

show intentional discrimination." Id. The Court explained that

"rejection of the defendant's proffered reasons, will permit the

trier of fact to infer the ultimate fact of intentional

discrimination," and continued: "the Court of Appeals was

correct when it noted that, upon such rejection, '[n]o additional

proof of discrimination is required.'" Id. (emphasis in

original) (quoting Hicks, 970 F.2d at 493).

Reading these statements in the context of the Court's

opinion, we have understood Hicks to hold that the elements of

the prima facie case and disbelief of the defendant's proffered

reasons are the threshold findings, beyond which the jury is

permitted, but not required, to draw an inference leading it to

conclude that there was intentional discrimination. Accordingly,

in Fuentes we explained that "the factfinder may infer from the

combination of the plaintiff's prima facie case and its own

rejection of the employer's proffered non-discriminatory reasons

that the employer unlawfully discriminated against the plaintiff

and was merely trying to conceal its illegal act with the

articulated reasons." 32 F.3d at 764. It followed that a

plaintiff may survive summary judgment (or in this case judgment

as a matter of law) if the plaintiff produced sufficient evidence

to raise a genuine issue of fact as to whether the employer's

proffered reasons were not its true reasons for the challenged

employment action. Id. ("[T]o defeat summary judgment when the

defendant answers the plaintiff's prima facie case with

legitimate, non-discriminatory reasons for its action, the

plaintiff must point to some evidence, direct or circumstantial,

from which a factfinder could reasonably either (1) disbelieve

the employer's articulated legitimate reasons; or (2) believe

that an invidious discriminatory reason was more likely than not

a motivating or determinative cause of the employer's action.").

Although we ultimately decided in Fuentes that the

plaintiff had failed to submit evidence which cast sufficient

doubt on his employer's proffered reasons for failure to place

him in the position that he sought, application of the same

approach in some later cases led us to hold that the plaintiff

had satisfied his or her burden and raised an issue to be decided

by the trier of fact. Thus, in Sempier we reversed the district

court's grant of summary judgment for the employer in an Age

Discrimination in Employment Act (ADEA) action because Sempier,

an executive at an insurance brokerage and consulting firm, had

presented sufficient evidence to create a genuine issue of fact

as to whether the company's claim that he was forced to retire

for poor performance was a pretext for age discrimination. 45

F.3d at 732-33.

Shortly thereafter, in Waldron, another ADEA case, we

again held that summary judgment for the employer was improper

because the evidence raised a factual question as to whether the

employer's proffered explanations -- that it had discharged the

63-year-old plaintiff due to a company reorganization plan and

dissatisfaction with his work performance -- was an attempt to

conceal age discrimination. Waldron, 56 F.3d at 502-03. We

viewed the district court's holding as requiring plaintiffs to

bear the burden of demonstrating "pretext-plus," a burden we had

explicitly rejected in Fuentes. Id. at 495.

In Brewer, we again cited Fuentes for the proposition

that a plaintiff will survive summary judgment if s/he can

produce sufficient evidence that the employer's proffered

nondiscriminatory reason for its employment action was not the

true reason. 72 F.3d at 331. Finding the evidence in Brewer's

case sufficient to permit a jury to believe that the employer's

claim of poor performance by the 53-year-old salesman was

pretextual, we reversed the district court's entry of summary

judgment on Brewer's ADEA claim. Id.

The majority of other federal courts of appeals appear

to have interpreted Hicks in a similar manner to this court's

precedent. See, e.g., Shaw v. HCA Health Servs. of Midwest,

Inc., 79 F.3d 99, 100 (8th Cir. 1996) (where defendant did not

dispute that plaintiff made out a prima facie case and there was

evidence that defendant had altered performance evaluations of

plaintiff after firing him, "jury was entitled (although not

required) to conclude . . . that the reasons given by the

hospital for firing [plaintiff] were a pretext for age

discrimination"); Barbour v. Merrill, 48 F.3d 1270, 1277 (D.C.

Cir. 1995) ("As Hicks explained, a factfinder's rejection of the

employer's nondiscriminatory reasons, while not sufficient to

compel a finding of discrimination, nonetheless suffices to

permit such a finding."), cert. dismissed, 116 S. Ct. 1037

(1996); EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir.

1994) ("A finding of pretextuality allows a juror to reject a

defendant's proffered reasons for a challenged employment action

and thus permits the ultimate inference of discrimination.");

Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1083 (6th

Cir. 1994) ("Hicks clarified that the only effect of the

employer's nondiscriminatory explanation is to convert the

inference of discrimination based upon the plaintiff's prima

facie case from a mandatory one which the jury must draw, to a

permissive one the jury may draw, provided that the jury finds

the employer's explanation `unworthy' of belief."); Anderson v.

Baxter Healthcare Corp., 13 F.3d 1120, 1124 (7th Cir. 1994) (to

defeat summary judgment, Title VII plaintiff "must only `produce

evidence from which a rational factfinder could infer that the

company lied' about its proffered reasons for his dismissal"

(citation omitted)); Mitchell v. Data Gen. Corp., 12 F.3d 1310,

1316 (4th Cir. 1993) (plaintiff can defeat summary judgment by

"present[ing] evidence sufficient to establish a prima facie

case, and . . . show[ing] that there is a genuine dispute of

material fact about [the defendant's] proffered explanation" for

its action); Washington v. Garrett, 10 F.3d 1421, 1433 (9th Cir.

1993) ("[A]s St. Mary's recognizes, the factfinder in a Title VII

case is entitled to infer discrimination from plaintiff's proof

of a prima facie case and showing of pretext without anything

more . . . .").

The Equal Employment Opportunity Commission, the

government agency charged with enforcement of the employment

discrimination laws and an amicus curiae in this case, has also

taken the view "that a prima facie case, coupled with a non-

credible justification from the employer, is sufficient to

support a finding of discrimination." EEOC Enforcement Guidance

on St. Mary's Honor Center v. Hicks, EEOC Comp. Man. (BNA),

N:3361, 3363 n.3 (Apr. 12, 1994). "As an administrative

interpretation of the Act by the enforcing agency, these

Guidelines, while not controlling upon the courts by reason of

their authority, do constitute a body of experience and informed

judgment to which courts and litigants may properly resort for

guidance." Meritor Savings Bank v. Vinson, 477 U.S. 57, 65

(1986)(internal quotation marks and citations omitted).

The attack by DuPont and the dissent on the paradigm we

and these other courts have constructed in the wake of Hicks is

multi-faceted. DuPont suggests that there is an inconsistency

between this court's caselaw, as applied or articulated, and the

requirement that the ultimate burden of persuasion of intentional

discrimination must rest with the plaintiff. We find no such

inconsistency. More important, the Supreme Court itself in Hicksexpressly

stated that its various statements in that opinion as

to the burden that plaintiff must bear, i.e. "it is not enough

. . . to disbelieve the employer," 509 U.S. at 519, and the

plaintiff must show "both that the reason was false, and that

discrimination was the real reason," id. at 515, were not

inconsistent with the statement in the opinion that "rejection of

the defendant's proffered reasons will permit the trier of fact

to infer the ultimate fact of intentional discrimination," id. at

511. Hicks explained that the statement that "rejection of the

defendant's proffered reasons is enough at law to sustain a

finding of discrimination" was not inconsistent with its

placement of the burden of persuasion on the plaintiff because

"there must be a finding of discrimination." Id. at 511 n.4

(emphasis throughout discussion in original). Thus, the Supreme

Court has answered the very claim of inconsistency DuPont

purports to find in our interpretation of Hicks.

Similarly unpersuasive is the dissent's suggestion that

Fuentes impermissibly gives continuing weight to the presumption

of discrimination created by the prima facie case even after the

McDonnell Douglas presumption has dissipated or "burst." This

argument is based on the mistaken assumption that once the

presumption of discrimination created initially by the prima

facie case "drops from the case," Burdine, 450 U.S. at 255 n.10,

the underlying facts lose their probative value. However, the

Supreme Court specifically explained in Burdine that "[i]n saying

that the presumption [of discrimination] drops from the case, we

do not imply that the trier of fact no longer may consider

evidence previously introduced by the plaintiff to establish a

prima facie case. . . . [T]his evidence and inferences properly

drawn therefrom may be considered by the trier of fact on the

issue of whether the defendant's explanation is pretextual." Id.

As long as the jury must make a finding of intentional

discrimination, there is no reason why the evidence that

supported the prima facie case coupled with the jury's

determination that the employer's proffered explanations are

pretextual is not sufficient to support a verdict of

discrimination.

As Chief Justice, then Justice, Rehnquist earlier had

explained, the initial presumption of discrimination arises from

the plaintiff's prima facie case of discrimination "because we

presume these acts, if otherwise unexplained, are more likely

than not based on the consideration of impermissible factors."

Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978).

He continued:

[W]e are willing to presume this largely

because we know from our experience that more

often than not people do not act in a totally

arbitrary manner, without any underlying

reasons, especially in a business setting.

Thus, when all legitimate reasons for

rejecting an applicant have been eliminated

as possible reasons for the employer's

actions, it is more likely than not the

employer, who we generally assume acts only

with some reason, based his decision on an

impermissible consideration such as race.

Id.

This court has previously noted the probative

significance of the factfinder's disbelief in a proffered

explanation by a party, stating:

It has always been understood -- the

inference indeed is one of the simplest in

human experience -- that a party's falsehoodor other fraud in the

preparation and

presentation of his cause, his fabrication or

suppression of evidence by bribery or

spoliation, is receivable against him as an

indication of his consciousness that his case

is a weak or unfounded one; and from that

consciousness may be inferred the fact itself

of the cause's lack of truth and merit.

McQueeney v. Wilmington Trust Co., 779 F.2d 916, 921-22 (3d Cir.

1985) (quoting 2 Wigmore § 278(2) (Chadbourne Rev. 1979)). As

another court recently remarked in the context of an employment

discrimination case: "Resort to a pretextual explanation is,

like flight from the scene of a crime, evidence indicating

consciousness of guilt, which is, of course, evidence of illegal

conduct." Binder v. Long Island Lighting Co., 57 F.3d 193, 200

(2d Cir. 1995).

We presume that the same logic, albeit unarticulated,

was the basis for the Supreme Court's statement in Hicks that

disbelief of the employer's reason will permit the factfinder to

infer the ultimate fact of discrimination, 509 U.S. at 511, even

though the presumption of discrimination "drops from the case"

after the employer proffers a legitimate reason for its actions,

Burdine, 450 U.S. at 255 n.10.

We routinely expect that a party give honest testimony

in a court of law; there is no reason to expect less of an

employer charged with unlawful discrimination. If the employer

fails to come forth with the true and credible explanation and

instead keeps a hidden agenda, it does so at its own peril.

Under those circumstances, there is no policy to be served by

refusing to permit the jury to infer that the real motivation is

the one that the plaintiff has charged.

The dissent concedes that in the usual case after the

presumption created by the prima facie case has dissipated and

sufficient evidence of pretext has been adduced, there will be

sufficient evidence to support a verdict of discrimination. The

dissent is concerned that in the atypical case this may not be

so. It posits the situation of a plaintiff who claims multiple

grounds, all illegal, for the employment action. We see no

reason to engage in a dialogue of speculation as to how to treat

such a case, divorced from a factual record, particularly because

the situation presented by the dissent was not the case in Hicks,

where the plaintiff claimed race discrimination, was not the case

in Fuentes, where the plaintiff claimed national origin

discrimination, nor is it the case before us now, where Sheridan

claims only sex discrimination.

The other situation posited by the dissent for its

unwillingness to join the otherwise unanimous en banc court is

that created where an employer "may not wish to disclose his real

reasons for not promoting B over A." Dissenting Typescript Op.

at 22 n.8. The persistence in maintaining that the employment

action was taken because the plaintiff was unqualified or the

position was being eliminated due to a reduction in force when

the employer knows that the real reason is nepotism would violate

the spirit if not the language of Rule 11 of the Federal Rules of

Civil Procedure. The dissent gives no reason why a plaintiff

alleging discrimination is not entitled to the real reason for

the personnel decision, no matter how uncomfortable the truth may

be to the employer. Surely, the judicial system has little to

gain by the dissent's approach.

The Supreme Court has stated that an employer can meet

its burden of articulating the reason for its action only through

the introduction of admissible evidence. Burdine, 450 U.S. at

255 n.9. Burden-shifting is designed "to sharpen the inquiry

into the elusive factual question of intentional discrimination."

Id. at 255 n.8. It follows that the Burdine analysis is rooted

in the requirement that when the employer advances through

admissible evidence the reasons for its actions, those must be

its legitimate reasons.

The dissent argues that mere disbelief of the

employer's articulated reason is not enough to sustain a verdict.

Of course Hicks did not rely merely on the factfinder's disbelief

of the explanation proffered by the employer to uphold a verdict

for the employee. Instead, as we have noted, under Hicks it is

the combination of the disbelief in the employer's proffered

explanation, the evidence that supported finding a prima facie

case, and the jury's finding of intentional discrimination

following a proper instruction to that effect.

Although the dissent states at the outset that its

approach "does not mean that a plaintiff, in order to reach the

trier of fact, must always prove 'pretext plus,' i.e., that the

plaintiff must always produce some evidence in addition to what

is necessary to establish a prima facie case and to show that the

employer's explanation is pretextual," Dissenting Typescript Op.

at 2 (emphasis added), the dissent's approach would bring the

courts of this circuit back to the confusion and uncertainty

created by the "pretext plus" and "some evidence" language that

prompted this court to consider this case en banc.

In Sheridan's case, the district court had reviewed the

evidence presented in connection with DuPont's motion for summary

judgment and found that Sheridan had made out a prima facie case

for gender discrimination culminating in constructive discharge.

Also, the district court had carefully instructed the

jury on the need to find intentional discrimination before it

could return a verdict for Sheridan on any of her claims. Early

in its charge the court had advised the jury that this case

involves "allegations of intentional sexual discrimination, that

is, of intentionally treating some people less favorably than

others because of their gender." App. at 111. Again, in

connection with the constructive discharge count the court had

reminded the jury that Sheridan must prove "by a preponderance of

the evidence that 1) defendant intentionally made plaintiff's

working conditions so intolerable that a reasonable person would

feel forced to resign; 2) plaintiff's gender was the sole

motivating factor in the defendant's conduct; and 3) plaintiff,

in fact, resigned." App. at 123. The jury's verdict signifies

that it rejected DuPont's proffered reasons for its employment

action and believed that the real reason was discrimination.

In granting judgment as a matter of law for DuPont, the

district court stated that "plaintiff would have to point to some

evidence" that gender was the motive of those in the decision

making process. It is evident that the district court believed

that something more was required than was set forth in Hicks and

our cases. Not only was such a requirement of additional

evidence rejected in Fuentes where we stated that "if the

plaintiff has pointed to evidence sufficiently to discredit the

defendant's proffered reasons, to survive summary judgment the

plaintiff need not also come forward with additional evidence of

discrimination beyond his or her prima facie case," 32 F.3d at

764, but it is also inconsistent with the statement in Hicks that

upon rejection of the defendants' proffered reasons for the

action, "no additional proof of discrimination is required." 509

U.S. at 511 (internal quotation marks omitted).

As the Supreme Court has noted, "[t]here will seldom be

`eyewitness' testimony as to the employer's mental processes."

United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S.

711, 716 (1983). We have recognized that "[d]iscrimination

victims often come to the legal process without witnesses and

with little direct evidence indicating the precise nature of the

wrongs they have suffered." Jackson v. University of Pittsburgh,

826 F.2d 230, 236 (3d Cir. 1987), cert. denied, 484 U.S. 1020

(1988). Cases charging discrimination are uniquely difficult to

prove and often depend upon circumstantial evidence. See, e.g.,

Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081-82 (3d

Cir. 1996); Lockhart v. Westinghouse Credit Corp., 879 F.2d 43,

48 (3d Cir. 1989); Chipollini v. Spencer Gifts, Inc., 814 F.2d

893, 897 (3d Cir.) (en banc) cert. dismissed, 483 U.S. 1052

(1987); Dillon v. Coles, 746 F.2d 998, 1003 (3d Cir. 1984).

"This is true in part because . . . discrimination . . . is often

subtle." Chipollini, 814 F.2d at 899. "[A]n employer who

knowingly discriminates . . . may leave no written records

revealing the forbidden motive and may communicate it orally to

no one." Id. (quoting LaMontagne v. American Convenience Prods.,

750 F.2d 1405, 1410 (7th Cir. 1984)).

The distinct method of proof in employment

discrimination cases, relying on presumptions and shifting

burdens of articulation and production, arose out of the Supreme

Court's recognition that direct evidence of an employer's

motivation will often be unavailable or difficult to acquire.

See Price Waterhouse v. Hopkins, 490 U.S. 228, 271 (1989)

(O'Connor, J., concurring) ("[T]he entire purpose of the

McDonnell Douglas prima facie case is to compensate for the fact

that direct evidence of intentional discrimination is hard to

come by."); Trans World Airlines, Inc. v. Thurston, 469 U.S. 111,

121 (1985) ("The shifting burdens of proof set forth in McDonnell

Douglas are designed to assure that the plaintiff has his day in

court despite the unavailability of direct evidence." (internal

quotation marks omitted)); see also International Bhd. of

Teamsters v. United States, 431 U.S. 324, 359 n.45 (1977)

(recognizing that burden-shifting rules "are often created . . .

to conform with a party's superior access to the proof");

Chipollini, 814 F.2d at 897; Dillon, 746 F.2d at 1003.

Thus, it is not only disbelief in the employer's

proffered reason that would suffice to sustain the plaintiff's

case, as the dissent argues. It is the jury's determination that

the reason given was pretextual together with the evidence that

supported the prima facie case that will sustain a finding of

intentional discrimination made after a proper charge.

The role of determining whether the inference of

discrimination is warranted must remain within the province of

the jury, because a finding of discrimination is at bottom a

determination of intent. In making that finding, the jury must

perform its traditional function of assessing the weight of the

evidence, the credibility of the witnesses through observation of

both direct testimony and cross-examination at trial, and the

strength of the inferences that can be drawn from the elements of

the prima facie case and the evidence that undermines the

employer's proffered reasons for its actions. This is uniquely

the role of the factfinder, not the court. See Barber v. CSX

Distribution Servs., 68 F.3d 694, 700 (3d Cir. 1995)("Evaluation

of witness credibility is the exclusive function of the jury, and

where the only evidence of intent is oral testimony, a jury could

always choose to discredit it." (quoting Bhaya v. Westinghouse

Elec. Corp., 832 F.2d 258, 262 (3d Cir. 1987), cert. denied, 488

U.S. 1004 (1989))); see also Aikens, 460 U.S. at 716 ("It is true

that it is very difficult to prove what the state of a man's mind

at a particular time is, but if it can be ascertained it is as

much a fact as anything else." (quoting Edgington v. Fitzmaurice,

29 Ch. Div. 459, 483 (1885)); Chipollini, 814 F.2d at 899 ("The

issue of the defendant's intent at the time of the plaintiff's

discharge is clearly a factual question.").

This does not mean that the courts in discrimination

cases lose their traditional obligation, when faced with a motion

for judgment as a matter of law, to review the adequacy of the

showing presented to the factfinder. The district court must

determine whether the plaintiff has cast sufficient doubt upon

the employer's proffered reasons to permit a reasonable

factfinder to conclude that the reasons are incredible, and our

previous cases have explained in detail the plaintiff's burden in

this regard. See, e.g., Fuentes, 32 F.3d at 764-65 ("[T]he non-

moving plaintiff must demonstrate such weaknesses,

implausibilities, inconsistencies, incoherencies, or

contradictions in the employer's proffered legitimate reasons for

its action that a reasonable factfinder could rationally find

them `unworthy of credence . . . .'" (quoting Ezold v. Wolf,

Block, Schorr & Solis-Cohen, 983 F.2d 509, 531 (3d Cir. 1992),

cert. denied, 510 U.S. 826 (1993))). But once the court is

satisfied that the evidence meets this threshold requirement, it

may not pretermit the jury's ability to draw inferences from the

testimony, including the inference of intentional discrimination

drawn from an unbelievable reason proffered by the employer.

With these legal principles before us, we turn to the

district court's order granting judgment for DuPont as a matter

of law on Sheridan's jury verdict that she was constructively

discharged as a result of discrimination. We exercise plenary

review of the district court's order granting DuPont's motion for

judgment as a matter of law. Seman v. Coplay Cement Co., 26 F.3d

428, 431 (3d Cir. 1994).

B.

Factual Issues

We need not recount all of the evidence adduced at the

trial because we examine the record with the limited purpose of

ascertaining whether there was sufficient evidence to withstand

judgment as a matter of law. In doing so, we must look at the

evidence in the light most favorable to Sheridan, the verdict

winner, and draw all reasonable inferences in her favor. SeeHofkin v.

Provident Life & Accident Ins. Co., 81 F.3d 365, 369

(3d Cir. 1996).

At the time of the events that formed the basis of this

case, Sheridan was one of five head captains at the hotel,

occupying the position of Head Captain of the Green Room for the

breakfast and lunch shifts. Sheridan, who began working at the

hotel as a part-time waitress in 1979, reached that supervisory

position in 1989 following a series of steady promotions. In

addition to those promotions, Sheridan had received numerous

commendations for her job performance.

Focusing on the period immediately before that at

issue, there was evidence that in May 1989 Sheridan was nominated

by her peers and received an "Employee of the Quarter Award" for

"outstanding" work. She received merit raises in May 1990 and

February 1991. In July 1990 she received a "Way to Go" award

from the Personnel & Administrative Services Division for "going

beyond the call of duty." DuPont's October 29, 1990 performance

review, signed by two supervisors including defendant Jacques

Amblard, rated Sheridan overall "very good," the second highest

rating. She was rated "outstanding" for "Interpersonal

Relationships," "Planning/Organizing," and "Problem-Solving."

Although that report noted that "[a]s a team player,

strengthening is needed to improve the overall relationship with

the rest of the operation," the report listed one of her

strengths as "[v]ery good guest relations, organized." The

report stated that "Barbara's persistence has paid off by guest

loyalty, staff does not call off sick, and overall very good

morale from the support team." Even Sheridan's lowest mark,

given for "Attendance/Punctuality/Dependability," was

"Satisfactory." App. at 197-98.

In December 1990, Sheridan won a $1,000 accomplishment

award. The letter informing her of the award referred to her as

"a role model" and "a true ambassador for the company." App. at

151. Other restaurant employees received awards ranging from

$200-$500, but Sheridan was the only employee to receive an award

as high as $1000. App. at 287. In January 1991, Sheridan was

chosen as one of about 20 DuPont employees to appear in a company

video. App. at 734. On October 1, 1991, Sheridan received a

promotion and salary increase.

DuPont attempted to paint a different picture to the

jury. Notwithstanding the record evidence of promotions and

commendations, it contended that Sheridan's performance began to

deteriorate in early 1991. DuPont produced evidence that

supervisors met with Sheridan, expressed dissatisfactions, and

directed her to improve in various categories. For example, in

February 1991, Ed Barba, then the Green Room's Manager, listed

"corrective measures" that Sheridan should take, including

"maintaining an accurate cover count sheet" to insure that

"covers" (customers) were distributed fairly among the staff,

following the "grooming policy" which required that she report to

work on time and in full dress, and refraining from using the

Green Room as a break room and for smoking. App. at 228.

Nicholas Waller testified that in the summer of 1991, as Manager

of Restaurants, he met with Sheridan to discuss alleged

complaints that Sheridan had asked Green Room employees to help

her with personal tasks, such as parking her car, giving her a

wake-up call, or taking her personal mail to the post office, and

that she had rewarded employees who complied by giving them

additional "covers" in the dining room. App. at 960-63.

On October 17, 1991, Jeff Maisel, by then the Manager

of Restaurants, met with Sheridan to discuss problems allegedly

perceived with her performance, including tardiness and

continuing disregard for the hotel's grooming policy. App. at

206, 885. On November 10, 1991, Maisel placed Sheridan on

probation, ostensibly on the ground that she had not corrected

her performance. Maisel warned Sheridan that her failure to

follow the hotel's policies could result in her termination.

App. at 208.

In support of its claim of Sheridan's inadequate

performance, DuPont introduced various notes and records that

DuPont had compiled of specific infractions by Sheridan.

Illustrative of DuPont's complaints is a memo by Barba to the

file that on one occasion he had observed Sheridan smoking in the

Green Room Bar and putting on makeup. A report meticulously

listed other details to support placing Sheridan on probation.

DuPont contended that even while Sheridan was on probation, she

continued her inadequate performance.

An important part of DuPont's defense for its

employment actions centered on its claim that Sheridan had

engaged in "comping," i.e., giving away complimentary food and

drinks without ringing up complimentary checks. The hotel began

investigating Sheridan for this activity in late February, 1992,

and its record of the investigation lists statements of numerous

co-workers. App. at 222-26. James Dougherty, a bartender who

was one of DuPont's principal witnesses on "comping," reported to

DuPont that due to his concerns about numerous "discrepancies"

and "cash handling problems" with Sheridan, he began to keep

track of the amount of free liquor Sheridan gave away. He

recorded that it totaled $921.75 from November 1, 1991 to

February 18, 1992, with $417.25 worth of drinks given away in

December alone. App. at 222. Dougherty testified at trial that

each time he saw Sheridan serve a free drink, he would record the

date and dollar amount of the drink, and claimed that his dates

were about "98-percent accurate." App. at 688.

Maisel testified that based on the hotel's internal

investigation, DuPont decided that Sheridan should be reassigned

to a non-supervisory position that would not require her to

handle cash. App. at 910. Sheridan was offered three options:

front desk receptionist, banquet server, or health club

attendant, with no diminution of salary. The hotel claimed that

she would be eligible for advancement in any of those positions,

although Sheridan offered evidence at trial that suggested

otherwise. See App. at 473-75, 776. After considering the offer

for some weeks, Sheridan resigned.

Sheridan's testimony at trial portrayed the events

differently than did DuPont. It was her position that the

alleged dissatisfaction with her performance stemmed from her

complaint of sex discrimination which she made in the fall of

1991, when the hotel reorganized its structure to eliminate the

individual restaurant managers and to place a new manager over

all of the restaurants in the hotel. The hotel did not advertise

the position, considered only five of its own employees for the

new post (all men), and selected Maisel. DuPont did not consider

Sheridan for the position, id., and Sheridan complained to

Amblard at least three times in the period of September and

October 1991 that she was not promoted due to gender

discrimination. App. at 51-52. She also testified that around

this time, Amblard told her repeatedly that he planned to watch

her "like a dog" and "like a hawk." App. at 748. Sheridan's

position was that the hotel's recordkeeping of details of her

daily activity was "nitpicking" in retaliation for her complaints

of sex discrimination. App. at 1337. She further sought to

portray Amblard as a sexist and testified that, when she was with

one of the other male supervisors, he would ignore her and

instead speak only to the man. App. at 748.

In addition to the affirmative evidence of her own

accomplishments, Sheridan presented evidence at trial that was

directed to impeaching the credibility of DuPont's witnesses,

particularly, but not limited to, Dougherty and Maisel. Sheridan

demonstrated that for two weeks in January 1992, during which

Dougherty listed three dates when she allegedly dispensed free

drinks, she had reported for jury duty at the Superior Court.

App. at 173-79, 540-43. Even a document handwritten by Maisel

showed that another head captain was scheduled to cover

Sheridan's shift on those days. App. at 167. Maisel's schedule

also indicated that Sheridan was not scheduled for work on

December 23 and 24, 1991, although Dougherty's list included

these dates among those when Sheridan allegedly required him to

deliver complimentary drinks. App. at 167, 227, 540. In fact,

Maisel's written work schedule could be viewed as contradicting

Dougherty's list as to seven separate dates.

In seeking to show the pretextual nature of DuPont's

articulated reasons, Sheridan noted, inter alia, the temporal

proximity of her complaints to Amblard of sex discrimination and

his statements that he would watch her like a "hawk" to the

subsequent surfacing of dissatisfaction with her performance, the

meticulous recordkeeping of the details of her daily activities,

and the hotel's investigations into her alleged "comping."

Thus, it is clear that the jury in this case was faced

with evidence on both sides of the issues raised by the parties.

The jury's verdict for Sheridan on her constructive discharge

claim shows that the jury accepted Sheridan's view on this claim

and rejected DuPont's explanation as pretextual.

We have previously cautioned that "[i]n determining

whether the evidence is sufficient to sustain liability, the

court may not weigh the evidence, determine the credibility of

witnesses, or substitute its version of the facts for the jury's

version." Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166

(3d Cir. 1993). A reasonable jury could have disbelieved

DuPont's proffered reasons for its actions based on Sheridan's

evidence and its rejection of the credibility of certain of

DuPont's principal witnesses, such as Dougherty and Maisel. We

find no paucity of evidence on which the jury could have based

its finding for Sheridan on her constructive discharge claim.

Under the applicable law, a plaintiff who voluntarily

resigned may maintain a case of constructive discharge when the

employer's allegedly discriminatory conduct creates an atmosphere

that is the constructive equivalent of a discharge. See Gray v.

York Newspapers, Inc., 957 F.2d 1070, 1079 (3d Cir. 1992). We

apply an objective test to determine whether "the employer

knowingly permitted conditions of discrimination in employment so

intolerable that a reasonable person subject to them would

resign." Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1084

(3d Cir. 1996) (quoting Goss v. Exxon Office Systems Co., 747

F.2d 885, 888 (3d Cir. 1984)).

In denying DuPont's motion for summary judgment, the

district court rejected DuPont's argument that there was no basis

on which a jury could find that the conditions to which Sheridan

claimed she was subjected could have reached the level that would

constitute a constructive discharge. Instead, the court held

that if Sheridan's version of the facts were accepted by a trier

of fact, it would be reasonable for the trier of fact to conclude

that resignation was Sheridan's only option. Thus, when the

court instructed the jury, it charged that for the jury to find

that DuPont constructively discharged Sheridan, she must have

proved by a preponderance of the evidence that DuPont

"intentionally made [her] working conditions so intolerable that

a reasonable person would feel forced to resign" and that

"[Sheridan's] gender was the sole motivating factor in the

defendant's conduct." App. at 1487.

The evidence of the series of investigative activities,

allegations of improprieties, placement on probation after more

than a decade of satisfactory performance, and the ultimate

removal of Sheridan from her supervisory position in the highly

reputed Green Room to one of three far less prestigious dead-end

positions, such as the health club attendant, could have been

viewed by the jury as meeting the criteria of a constructive

discharge. The jury returned an unqualified verdict finding that

DuPont had constructively discharged Sheridan and did so based on

her gender. We cannot hold that Sheridan failed to present

sufficient evidence to withstand DuPont's motion for judgment as

a matter of law, and therefore will reverse the district court's

order to that effect.

C.

Grant of a New Trial

Because the district court's ruling focused primarily

on its decision to grant DuPont's motion for judgment as a matter

of law, the court's explanation for its grant of a new trial was

brief. The court noted in a footnote that it was obliged under

Fed.R.Civ.P. 50(c) to make a conditional ruling on the

defendant's motion for a new trial. To comply with that

requirement, the court stated merely that it "would grant the

motion for a new trial because the jury's verdict is contrary to

the weight of the evidence." Sheridan (July 14, 1994) at 12

n.11.

We are unable to ascertain the extent to which this

ruling was affected by the court's misconception that direct

evidence of discriminatory intent was necessary to sustain the

jury's verdict, i.e., its understanding that "[i]n order to

demonstrate that gender was a motivating factor, plaintiff would

have to point to some evidence that that was the motive of those

in the decision-making process." D. Ct. Opinion at 11-12.

Because such evidence is not a prerequisite to a finding of

intentional discrimination, we believe the district court should

reconsider whether a new trial is warranted in light of the

correct legal principles.

It is also unclear whether the district court applied

the complete test for ruling on a new trial motion. In granting

that motion, the district court merely concluded that the jury's

verdict was contrary to the weight of the evidence. Although we

recognize that a new trial may be granted even if the evidence is

legally sufficient to support the verdict, Roebuck v. Drexel

Univ., 852 F.2d 715, 735-36 (3d Cir. 1988), we have nonetheless

cautioned that a district court should grant a new trial on the

basis that the verdict was contrary to the weight of the evidence

"only where a miscarriage of justice would result if the verdict

were to stand," Williamson v. Consolidated Rail Corp., 926 F.2d

1344, 1352 (3d Cir. 1991). We have explained that this stringent

standard is necessary "to ensure that a district court does not

substitute its `judgment of the facts and the credibility of the

witnesses for that of the jury. Such an action effects a

denigration of the jury system and to the extent that new trials

are granted the judge takes over, if he does not usurp, the prime

function of the jury as the trier of facts.'" Fineman v.

Armstrong World Indus., Inc., 980 F.2d 171, 211 (3d Cir. 1992)

(quoting Lind v. Schenley Indus. Inc., 278 F.2d 79, 90 (3d Cir.)

(en banc), cert denied, 364 U.S. 835 (1960)), cert. denied, 507

U.S. 921 (1993).

Therefore, before imposing on Sheridan the burden and

expense of a new trial, we will remand to require the district

court to determine whether, inasmuch as Sheridan was not obliged

to produce direct evidence of discriminatory intent, the jury's

verdict for Sheridan was against the great weight of the evidence

and would effect a miscarriage of justice.

We have previously remarked that the district court's

instruction to the jury placed on Sheridan a higher burden of

proof than our cases require. See note 2, supra. If there were

a new trial, Sheridan would not have to prove that discrimination

was the sole cause of DuPont's action but only that

discrimination was a motivating factor in its decision. SeeMiller v.

CIGNA Corp., 47 F.3d 586 (3d Cir. 1995) (en banc).

Sheridan has raised other trial errors to support her

motion for a new trial, but we need consider briefly only one.

Sheridan argues that the district court erred in excluding

testimony of a female co-worker that Amblard stated, after

watching a woman in a tight dress walk by, that he "would like to

grab that," App. at 699-700, 1520, and that on another occasion

Amblard rejected her offer to park cars at the hotel on the

ground that she could not park cars because she was a woman.

App. at 1521. The district court excluded this testimony under

Federal Rules of Evidence 401 and 403, finding these statements

"prejudicial and irrelevant." App. at 44. We review a district

court's rulings concerning the admission of evidence for abuse of

discretion. Glass v. Philadelphia Elec. Co., 34 F.3d 188, 191

(3d Cir. 1994). Although Amblard's comments would be relevant

to determining whether he was biased against women generally and

therefore the district court took too narrow a view in holding

that they had no probative value, we cannot conclude that the

district court abused its discretion in deciding that Amblard's

statements were more prejudicial than probative of the ultimate

issue of whether DuPont's employment actions as to Sheridan were

caused by gender-based animus. We turn then to the final issue

before us, the court's dismissal of Amblard as a defendant.

D.

Individual Liability Under Title VII

Sheridan contends that the district court erred in

dismissing Jacques Amblard as a defendant on the ground that

individual employees may not be held liable under Title VII.

Title VII provides, in relevant part:

It shall be an unlawful employment practice

for an employer--

(1) to fail or refuse to hire or to

discharge any individual, or otherwise to

discriminate against any individual with

respect to his compensation, terms,

conditions, or privileges of employment,

because of such individual's race, color,

religion, sex, or national origin . . . .

42 U.S.C. § 2000e-2(a) (emphasis added). The statute defines

"employer" as "a person engaged in an industry affecting commerce

who has fifteen or more employees . . . and any agent of such a

person." Id. § 2000e(b).

Sheridan argues that there is no language in the

statute excluding individuals, and she looks to the law of agency

to support the proposition that agents can be held jointly liable

with employers for wrongs resulting from their tortious conduct.

She also contends that we should interpret the 1991 amendments,

which added to the remedies provided in Title VII a provision for

compensatory and punitive damages, as suggesting that Congress

intended to hold individual defendants liable because, unlike

equitable remedies such as reinstatement which are uniquely

available from an employer, these newly available monetary

remedies can be forthcoming from an employee.

These arguments are not without some force. However,

the clear majority of the courts of appeals that have considered

this question have held that individual employees cannot be held

liable under Title VII. See Williams v. Banning, 72 F.3d 552

(7th Cir. 1995); Tomka v. Seiler Corp., 66 F.3d 1295, 1313-17 (2d

Cir. 1995); Gary v. Long, 59 F.3d 1391, 1399 (D.C.Cir.), cert.

denied, 116 S.Ct. 569 (1995); Grant v. Lone Star Co., 21 F.3d 649

(5th Cir.), cert. denied, 115 S.Ct. 574 (1994); Miller v.

Maxwell's Int'l Inc., 991 F.2d 583, 587-88 (9th Cir. 1993), cert.

denied, 510 U.S. 1109 (1994). Others appear to lean in that

direction, see, e.g., Lenhardt v. Basic Inst. of Technology,

Inc., 55 F.3d 377 (8th Cir. 1995)(interpreting parallel state

statute to preclude employee liability); Birkbeck v. Marvel

Lighting Corp., 30 F.3d 507, 510-511 & n.1)(4th Cir.)(deciding

issue under ADEA as to "personnel decisions of a plainly

delegable character"), cert. denied, 115 S.Ct. 666 (1994), while

others have either permitted liability in an employee's official

capacity only, see Cross v. Alabama, 49 F.3d 1490, 1504 (11th

Cir. 1995); Garcia v. ELF Atochem North America, 28 F.3d 446, 451

n.2 (5th Cir. 1994), or left the issue an "open question," Ball

v. Renner, 54 F.3d 664, 668 (10th Cir. 1995).

In our independent examination of this issue, we find

most significant the fact that when Congress amended the statute

in 1991 to provide a detailed sliding scale of damages ranging

from $50,000 for an employer of more than 14 and fewer than 101

employees, to $300,000 for employers with more than 500

employees, 42 U.S.C. § 1981a(b)(3), it made no reference as to

the amount of damages, if any, that would be payable by

individuals. This strongly suggests that Congress did not

contemplate that such damages would be assessed against

individuals who are not themselves the employing entity. SeeTomka, 66

F.3d at 1315; Maxwell's, 991 F.2d at 587 n.2; Ascolese

v. Southeastern Pa. Transp. Auth., 902 F. Supp. 533, 540 (E.D.Pa.

1995), modified on other grounds, 925 F. Supp. 351 (1996).

Moreover, we note that Congress had previously

expressed its concern about the impact of Title VII litigation on

small businesses when it excluded businesses with fewer than

fifteen employees from the definition of an "employer." It is

reasonable to infer that Congress's concern in that regard

applies as well to individuals. See Williams, 72 F.3d at 553;

Tomka 66 F.3d at 1314 (citing remarks of legislators indicating

concern with burdens imposed upon small businesses forced to

defend against Title VII suits); Miller, 991 F.2d at 587.

For these reasons, as well as some of the others cited

by the other circuits, we are persuaded that Congress did not

intend to hold individual employees liable under Title VII.

III.

CONCLUSION

For the foregoing reasons, we will reverse the district

court's entry of judgment in DuPont's favor on the constructive

discharge claim, and remand to the district court to reconsider

DuPont's motion for a new trial.

Sheridan v. E.I. DuPont

No. 94-7509

ALITO, Circuit Judge, concurring in part and dissenting in part.

I join part IID of the opinion of the court. I also

agree with the court's disposition of the plaintiff's evidentiary

argument. See Maj. Op. 37-38. I dissent, however, from parts

IIA - C of the court's opinion.

I.

My primary disagreement with the majority concerns the

test for determining whether a defense motion for summary

judgment or judgment as a matter of law should be granted in an

employment discrimination case governed by the procedural scheme

sanctioned in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). Like several other courts of appeals, see Maj. Op. 15-

16, the majority here holds that when the plaintiff has made out

a prima facie case and has offered enough evidence to support a

finding that the explanation was pretextual, a defense motion for

summary judgment or judgment as a matter of law must always be

denied. However, there is strong contrary authority, which the

majority does not acknowledge. The in banc Fifth Circuit, by a

vote of 16 to 1, has rejected the majority's position. Rhodes v.

Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir. 1996) (in banc).

So have the First and Eleventh Circuits. Isenbergh v. Knight-

Ridder Newspaper Sales, Inc., 97 F.3d 436, 442-43 (11th Cir.

1996); Woods v. Friction Materials, Inc., 30 F.3d 255, 260-61 n.3

(1st Cir. 1994); LeBlanc v. Great American Ins. Co., 6 F.3d 836,

842-43 (1st Cir. 1993), cert. denied, 114 S.Ct. 1398 (1994). I

believe that these other courts have analyzed the question more

accurately than the majority has here.

If the majority had merely said that, under the

circumstances described above, a defense motion for summary

judgment or judgment as a matter of law must generally be denied,

I would agree. When a plaintiff makes out a prima facie case and

there is sufficient evidence in the record to permit a rational

trier of fact to find that the employer's explanation is untrue,

a defense motion for summary judgment or judgment as a matter of

law should usually be denied. But not always, as the majority

contends.

In my view, the correct test is the following: a

defense motion for summary judgment or judgment as a matter of

law should be granted when the evidence in the record could not

persuade a rational trier of fact that intentional discrimination

on the ground alleged by the plaintiff was a determinative cause

of the challenged employment action. This does not mean that a

plaintiff, in order to reach the trier of fact, must always prove

"pretext plus," i.e., that the plaintiff must always produce some

evidence in addition to what is necessary to establish a prima

facie case and to show that the employer's explanation is

pretextual. On the contrary, in most cases, such additional

proof is not needed. But I disagree with the majority that proof

of the elements of the prima facie case and proof of pretext are

always enough.

II.

A. The key to the question at issue lies in the nature

of the "presumption" of discrimination that arises when the

plaintiff establishes the elements of a prima facie case. In

Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254

(1981), the Court explained that the "[e]stablishment of the

prima facie case in effect creates a presumption that the

employer discriminated against the employee." This presumption

"places upon the defendant the burden of producing an explanation

to rebut the prima facie case -- i.e., the burden of producing

evidence that the adverse employment actions were taken `for a

legitimate nondiscriminatory reason.'" St. Mary's Honor Ctr. v.

Hicks, 509 U.S. 502, 506 (1993), (quoting Burdine, 450 U.S. at

254). But while this presumption shifts the burden of production

to the defendant, "`[t]he ultimate burden of persuading the trier

of fact that the defendant intentionally discriminated against

the plaintiff remains at all times with the plaintiff.'" Hicks,

509 U.S. at 507 (quoting Burdine, 450 U.S. at 253). "In this

regard," Hicks observed, "it operates like all presumptions, as

described in Federal Rule of Evidence 301." 509 U.S. at 507.

Critical for present purposes is what happens when the

defendant satisfies its production burden. Burdine addressed

this question in the following passage:

If the defendant carries this burden of production,

the presumption raised by the prima facie case is

rebutted, 10/ and the factual inquiry proceeds to a new

level of specificity.

10/ See generally J. Thayer, Preliminary Treatise on

Evidence 346 (1898). In saying that the presumption

drops from the case, we do not imply that the trier of

fact no longer may consider evidence previously

introduced by the plaintiff to establish a prima facie

case. A satisfactory explanation by the defendant

destroys the legally mandatory inference of

discrimination arising from the plaintiff's initial

evidence. Nonetheless, this evidence and inferences

properly drawn therefrom may be considered by the trier

of fact on the issue of whether the defendant's

explanation is pretextual . . . .

450 U.S. at 255 & n.10.

Hicks similarly explained that, if the defendant meets

its production burden, "the McDonnell Douglas framework -- with

its presumptions and burdens -- is no longer relevant" and should

not be "resurrect[ed.]" 509 U.S. at 510. "The presumption,

having fulfilled its role of forcing the defendant to come

forward with some response, simply drops out of the picture," and

"the trier of fact proceeds to decide the ultimate question:

whether plaintiff has proven that the defendant intentionally

discriminated against him [on the ground alleged.']" Hicks, 509

U.S. at 510-11 (quoting Burdine, 450 U.S. at 253).

B. I interpret these passages to mean that the

McDonnell Douglas presumption is governed by the "bursting

bubble" theory associated with Professor James Bradley Thayer.

See 2 McCormick on Evidence § 344 at 462 (4th ed. 1992). Under

this theory, "the only effect of a presumption is to shift the

burden of producing evidence with regard to the presumed fact.

If that evidence is produced by the adversary, the presumption is

spent and disappears." Id. The case then proceeds "as though

there had never been a presumption at all." 1 Weinstein's

Evidence ¶300[01] at 300-4 (1996)(footnote omitted).

That Burdine and Hicks regarded the McDonnell Douglaspresumption

as governed by this theory is suggested by the

following. First, Burdine states that the term "presumption"

properly "`refers only to a device for allocating the production

burden,'" 450 U.S. at 254 n.8 (emphasis added) (citation omitted)

-- the orthodox "bursting bubble" view. Second, both Burdine and

Hicks employ classic "bursting bubble" language to describe what

happens to a presumption if the defendant satisfies its

production burden: the presumption then "drops from the case,"

"drops out of the picture," is "no longer relevant," and

should not be "resurrect[ed]." Third, Burdine's footnote 10,

which was quoted above, appears to set out the pure "bursting

bubble" theory: once the presumption is burst, all that remains

is "the plaintiff's initial evidence" and "inferences properly

drawn therefrom." 450 U.S. at 255 n.10. In addition, this

footnote begins with a citation to Thayer, who stated that once

the opponent of a presumption offers sufficient counterproof,

"[all is then turned into an ordinary question of evidence, and

the two or three general facts presupposed in the rule of

presumption take their place with the rest, and operate, with

their own natural force, as a part of the total mass of probative

matter." James B. Thayer, Preliminary Treatise on Evidence 346

(1898). Finally, both Burdine and Hicks invoke Federal Rule of

Evidence 301, which has generally been interpreted as embodying

the "bursting bubble" theory. See e.g., McKenna v. Pacific Rail

Serv., 32 F.3d 820, 829-30 (3d Cir. 1994); id. at 841 (Mansmann,

J., dissenting); A.C. Aukerman Co. v. R.L. Chaides Constr., 960

F.2d 1020, 1037-1038 (Fed. Cir. 1992); In re Yoder Co., 758 F.2d

1114, 1120 & n.13 (6th Cir. 1985); Legille v. Dann, 544 F.2d 1,

5-7 (D.C. Cir. 1976); 10 Moore's Federal Practice § 301.04 [4.-1]

at III-22 (1995-96 Supp.); 1 Weinstein's Evidence 301-9; 9

Wigmore on Evidence § 2491(2) (3d ed. 1940).

In McKenna, supra, all of the panel members agreed that

the McDonnell Douglas presumption and Federal Rule of Evidence

301 embody the "bursting bubble" theory. Writing for the

majority, Judge Lewis concluded that the McDonnell Douglaspresumption is

governed by Federal Rule of Evidence 301 and that

under this rule "the introduction of evidence to rebut a

presumption destroys that presumption, leaving only that evidence

and its inferences to be judged against the competing evidence

and its inferences to determine the ultimate question at issue."

32 F.3d at 830. Judge Lewis then went on to hold that the same

rule applies under the New Jersey Law Against Discrimination.

Id. In dissent, Judge Mansmann agreed that the "bursting bubble"

theory applies to federal claims, but contended that the New

Jersey presumption has a more durable effect. Specifically, she

wrote that "the federal rule `bursts the bubble' of the

presumption, while the New Jersey rule creates an issue for the

jury." Id. at 841 (Mansmann, J., dissenting). With respect to

their analysis of federal law, I think that both the McKennamajority and

dissent were right.

C. The version of Rule 301 that was proposed by the

Advisory Committee and promulgated by the Supreme Court rejected

the "bursting bubble" theory in favor of the theory advocated by

Professor Edmund M. Morgan and others. Proposed Rule of

Evidence 301 and Advisory Committee Note, 56 F.R.D. 183, 208

(1973). Under this proposed rule, a presumption would have

shifted the burden of persuasion. Id.

Congress, however, rejected this proposal. The House

of Representatives instead adopted a rule that represented an

"intermediate position" between the "Thayer" and "Morgan"

theories. H.R. Rep. No. 93-650, 93d Cong., 1st Sess. 7 (1973),

reprinted in 1974 U.S.C.C.A.N. 7075, 7081. The House rule

provided that "a presumption imposes on the party against whom it

is directed the burden of going forward with the evidence, and,

even though met with contradicting evidence, is sufficient proof

of the fact presumed to be considered by the trier of fact." 120

Cong. Rec. 2370 (1974).

In the Senate, the Advisory Committee and the Judicial

Conference's Standing Committee on Practice and Procedure

advocated a return to the originally proposed version of Rule

301. Dismissing the House compromise as conceptually unsound,

the committee argued that "[t]he basic choice is between the so-

called `bursting bubble' theory and one shifting the burden of

persuasion." Reporter's Memorandum, for the Advisory Committee

on Evidence and the Standing Committee, to the Senate Judiciary

Committee, reprinted in 1 Weinstein's Evidence at 301-3. The

Senate rejected the House approach and passed the present version

of Rule 301. S. Rep. No. 93-1277, 93d Cong., 2d Sess. ,

reprinted in 1974 U.S.C.C.A.N. 7051, 7056; 120 Cong. Rec. 37,085

(1974).

The Advisory Committee and the Committee on Rules of

Practice and Procedure then turned to the Conference Committee

and again urged the adoption of the originally proposed version

of Rule 301, arguing once more that "[b]asically the choice to be

made in treating the effect to be given presumptions lies between

giving them only the effect of a `bursting bubble' and giving

them the greater effect of imposing a burden of disproof once

evidence has established the conditions that call the presumption

into operation." See 1 Weinstein's Evidence at 301-7. However,

the Conference Committee recommended adoption of the Senate

version, Conf. Rep. No. 93-1597, 93d Cong., 2d Sess. (1974),

reprinted in 1974 U.S.C.C.A.N. 7098, 7099, and this

recommendation was enacted. 120 Cong. Rec. 40,070, 40,897

(1974).

Rule 301 states:

In all civil actions and proceedings not otherwise

provided for by Act of Congress or by these rules, a

presumption imposes on the party against whom it is

directed the burden of going forward with evidence to

rebut or meet the presumption, but does not shift to

such party the burden of proof in the sense of the risk

of nonpersuasion, which remains throughout the trial

upon the party on whom it was originally cast.

Like the members of the McKenna panel and the other

previously mentioned authorities, I think that the most

reasonable interpretation of Rule 301 is that it incorporates the

"bursting bubble" theory. The text of the rule supports this

conclusion since it does not even hint that a presumption does

anything but shift the burden of production. If Congress had

intended for a presumption to have any further effect, such as

guaranteeing that the presumed fact would not be rejected at the

summary-judgment or judgment-as-a-matter-of-law stage, I think

that Congress would have said so in the text of the rule. I do

not think that Congress would have left it for the courts to

divine, without any clue in the language of the rule, that a

presumption should have such an important additional effect.

Furthermore, the legislative history suggests that

Congress, advised that it was compelled to choose between the

Thayer and Morgan approaches, adopted "the pure Thayer rule." 1

Weinstein's Evidence at 301-9. Professors Wright and Graham

disagree with this position based on a passage in the Conference

Report. See 21 Charles A. Wright and Kenneth W. Graham, Jr.,

Federal Practice and Procedure §§ 5120 at 547 & n.27, 5126 at

609-10 & nn.23-24 (1977). Discussing the consequences that

follow when the adverse party meets its production burden, the

Conference Report states:

If the adverse party does offer evidence contradicting

the presumed fact, the court cannot instruct the jury

that it may presume the existence of the presumed fact

from proof of the basic facts. The court may, however,

instruct the jury that it may infer the existence of

the presumed fact from proof of the basic facts.

Conf. Rep. 93-1597, supra, at , reprinted in 1974 U.S.C.C.A.N.

at 7099 (emphasis deleted; emphasis added). Because the

highlighted sentence discusses jury instructions, Professors

Wright and Graham view it as showing that the Conference

Committee contemplated that a presumption, even if met with

enough counterproof to satisfy the adverse party's production

burden, would nevertheless serve to take the factual question to

the jury. 21 Wright and Graham, supra, § 5126 at 610 n.23.

Like the Sixth Circuit, In re Yoder Co., 758 F.3d at

1119-20 n.13, I do not find this interpretation compelling. The

Sixth Circuit wrote:

The emphasized portion of this quotation is not

inconsistent with the bursting bubble theory. . . .

The statement that the jury may be instructed to

consider an inference is most naturally read as

permitting such an instruction when called for by the

existence of a logical inference.

Id. (emphasis in original). This reading is at least as

reasonable as the alternative offered by Professors Wright and

Graham, and I am therefore unwilling, based solely on the

statement in question, to conclude that Rule 301 was intended to

give presumptions an important effect not mentioned in the text

of the rule.

I must acknowledge that a passage in Hicks may be read

as supporting Professors Wright and Graham's argument, at least

with respect to the McDonnell Douglas presumptions. Hicksstated:

The factfinder's disbelief of the reasons put forward

by the defendant (particularly if disbelief is

accompanied by a suspicion of mendacity) may, together

with the elements of the prima facie case, suffice to

show intentional discrimination. Thus, rejection of

the defendant's proffered reasons will permit the trier

of fact to infer the ultimate fact of intentional

discrimination,4/ and the Court of Appeals was correct

when it noted that, upon such rejection, "[n]o

additional proof of discrimination is required."

4/ Contrary to the dissent's confusion-producing

analysis, post, at 535-536, there is nothing whatever

inconsistent between this statement and our later

statements that (1) the plaintiff must show "both that

the reason was false, and that discrimination was the

real reason," infra, at 515, and (2) "it is not enough

. . . to disbelieve the employer," infra, at 519. Even

though (as we say here) rejection of the defendant's

proffered reasons is enough at law to sustain a finding

of discrimination, there must be a finding of

discrimination.

509 U.S. at 511 (all emphases in original) (ellipsis in

original).

Read in isolation, this passage may seem to suggest

that the facts underlying the prima facie case plus the rejection

of the employer's explanation are always sufficient to take the

case to the jury. This is the interpretation adopted in Fuentes

v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994), and by the majority

here. See Maj. Op. 11-12. However, like the First, Fifth, and

Eleventh Circuits, I do not think that this reading is compelled.

See Isenbergh, 97 F.3d at 442-45; Rhodes, 75 F.3d at 993-95;

Woods, 30 F.3d at 260-61 n.3. Instead, I believe that this

passage can reasonably be interpreted as simply rejecting the

"pretext plus" approach that Justice Souter attributed to the

Court in his dissent (509 U.S. at 535 (Souter, J., dissenting))

to which the Court referred. 509 U.S. at 511 n.4. Under the

"pretext plus" approach, as summarized in the law review article

that Justice Souter cited, "the plaintiff must produce some

additional evidence other than the evidence supporting the prima

facie case and other than the fact of the defendant's deception."

Catherine J. Lanctot, The Defendant Lies and the Plaintiff Loses:

The Fallacy of the `Pretext-Plus' Rule in Employment

Discrimination Cases, 43 Hastings L.J. 57, 87-88 (1991). The

previously quoted passage from Hicks may be interpreted to mean

that such additional proof (i.e., the "plus" in "pretext plus")

is not always required. Accordingly, when the Court wrote (509

U.S. at 511) that "rejection of the defendant's proffered reasons

will permit the trier of fact to infer the ultimate fact of

intentional discrimination," what the Court may have meant is

that the trier of fact is permitted to draw such an inference --

in the sense that the trier of fact is not precluded by any legal

rule, such as "pretext plus," from doing so -- if such an

inference is factually warranted. The same interpretation may be

given to the Court's subsequent statement that "upon [the]

rejection [of the defendant's proffered reason] `[n]o additional

proof of discrimination is required,'" 509 U.S. at 511. "`No

additional proof is required'" in that there is no blanket legal

requirement of such proof, as there would be under the "pretext

plus" approach. Similarly, the "rejection of the defendant's

proffered reasons is enough at law to sustain a finding of

discrimination" (id. at 511 n.4) in the sense that no other

blanket legal requirement, such as proving the "plus," is needed.

I favor this interpretation because it is consistent with my

conclusion, discussed above, that Rule 301 presumptions in

general and the McDonnell Douglas presumption in particular are

governed by the "bursting bubble" theory.

D. If it is true, as I believe, that the McDonnell

Douglas presumption is governed by the pure "bursting bubble"

theory, it follows that the majority's blanket rule barring

summary judgment or judgment as a matter of law in favor of the

defendant is unsound. It is well recognized that under the pure

"bursting bubble" theory, once a presumption is destroyed, the

proponent of the presumption has no guarantee that its case will

go to the trier of fact. One treatise states that the previously

presumed fact may then be found "only if the natural probative

force of the basic facts that brought the presumption into play

is sufficient to support such a finding (or the evidence as a

whole supports it). Otherwise, the presumed fact may not be

found, and the presumption does not protect this possibility." 1

Christopher B. Mueller and Laird C. Kirkpatrick, Federal Evidence§ 70 at

332 (1994) (emphasis added). Another observes: "The

opponent of the presumption may still not be entitled to a

directed verdict, but if its motion is denied, the ruling will

have nothing to do with the existence of a presumption." 2

McCormick on Evidence, § 344 at 462. See also 21 Wright and

Graham, Federal Practice § 5122 at 564. In Thayer's words, after

the presumption is spent, "[a]ll is then turned into an ordinary

question of evidence." Thayer, Preliminary Treatise at 346.

III.

Once it is recognized that the McDonnell Douglaspresumption

disappears in the face of sufficient counterproof,

the test to be applied in ruling on a defense motion for summary

judgment or judgment as a matter of law is clear: the motion

should be granted if all of the evidence in the record and the

inferences that may be drawn from that evidence could not

persuade a rational trier of fact that intentional discrimination

on the ground alleged by the plaintiff was a determinative cause

of the challenged action. This test follows from the following

three rules:

1. In a McDonnell Douglas case, "[t]he ultimate burden

of persuading the trier of fact that the defendant intentionally

discriminated against the plaintiff remains at all times with the

plaintiff." Burdine, 450 U.S. at 253; see also Hicks, 509 U.S.

at 507.

2. This burden requires proof that discrimination on

the ground alleged was a determinative cause of the challenged

action. Miller v. CIGNA Corp., 47 F.3d 586 (3d Cir. 1995) (in

banc).

3. Summary judgment and judgment as a matter of law

are proper where a trier of fact could not rationally return a

verdict in favor of the opposing party. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250-51 (1986); Celotex Corp. v.

Catrett, 477 U.S. 317, 322-323 (1986).

Putting these rules together, it is apparent that a

defense motion for summary judgment or judgment as a matter of

law should be granted where a trier of fact could not rationally

find based on the record (and giving no further consideration to

the presumption as such) that discrimination on the ground

alleged was a determinative cause of the challenged action.

The majority, however, takes the position that such a

motion must be denied whenever there is enough evidence to

support a finding that the explanation offered by the employer is

untrue. See Maj. Op. 13. This position can be correct only if

proof that is sufficient to justify disbelief of the employer's

explanation (the majority's test) will always be enough to

justify a finding by a rational trier of fact that discrimination

on the ground alleged was a determinative cause of the challenged

action. Unless this relationship invariably holds true -- and I

will show below that it does not (see part VI, infra) -- the

majority's blanket rule is wrong.

V.

Before turning directly to that question, however, it

is helpful to examine the types of evidence of discrimination

that may exist in the record of a discriminatory-treatment case

after the McDonnell Douglas presumption is burst and sufficient

evidence to show pretext is offered. This evidence may be

grouped into four categories.

A. First, there are the facts that the plaintiff

proved to make out the prima facie case and the inferences to

which those facts naturally give rise. In some cases, the

"natural probative force" of these facts is substantial, but in

others it is relatively weak. "The burden of establishing a

prima facie case of disparate treatment is not onerous," Burdine,

450 U.S. at 253, and "evidence sufficient to make out a prima

facie case is not always sufficient to support the ultimate

finding of intentional discrimination. . . . Where the evidence

behind the prima facie showing is strong, it may, standing alone,

justify a finding of intentional discrimination. . . . But where

the prima facie case is based on minimal evidence, it cannot."

United States v. Redondo-Lemos, 27 F.3d 439, 442 (9th Cir. 1994).

An example which the prima facie case gives rise to

only a weak inference of discrimination is the age discrimination

case in which a somewhat younger person is hired, promoted,

retained, etc. instead of a slightly older person. Under our

cases, a plaintiff in an age discrimination suit can make out a

prima facie case by showing that he or she (1) was over 40 years

of age at the time in question, (2) applied for and was minimally

qualified for the job, (3) but was rejected (4) in favor of a

person who was "`sufficiently younger to permit an inference of

age discrimination.'" Barber v. CSX Distribution Services, 68

F.3d 694, 698 (3d Cir. 1995), quoting Fowle v. C & C Cola, 868

F.2d 59, 61 (3d Cir. 1989). With respect to the final element of

this formulation, we have held that an eight-year gap is enough

and have suggested that a five-year difference may suffice.

Barber, 68 F.3d at 695. Thus, I believe that a plaintiff

claiming that he or she was denied a promotion due to age

discrimination could make out a prima facie case under our

circuit law by showing, for example, that he or she (1) was 43

years old at the time in question, (2) had the minimum requisite

qualifications, (3) and applied for the job, but that (4) the

employer instead chose a 35-year old.

I agree that these facts permit an inference of age

discrimination, but I do not think that a reasonable person could

give these facts, standing alone, much weight. A way to test

this hypothesis is to ask: if you knew nothing more about this

promotion decision, how much would you bet that, when all the

facts were revealed, the reason for the decision would turn out

to be age discrimination? I think that few people would be

willing to wager much on this bet -- precisely because the

natural probative force of the few facts needed to establish the

prima facie case is slight.

A similar situation can arise in cases of alleged

national origin or religious discrimination. In order to make

out a prima facie case of discrimination on these grounds, a

plaintiff must show that he or she (1) is a member of a national

origin group or adherent of a religion, (2) applied or was

considered for the position or benefit, and (3) was at least

minimally qualified, but (4) the position or benefit went to a

person of another national origin or religion. See, e.g., Vitug

v. Multistate Tax Comm'n, 88 F.3d 506, 515 (7th Cir. 1996)

(plaintiff established a prima facie case by showing that he was

a qualified Filipino Catholic and that promotion went to "a non-

Filipino and born-again Christian"). How strong an inference of

national origin or religious discrimination naturally arises from

such a bare showing?

Suppose that all that you knew about an employment

decision was that the employer rejected an applicant who traced

his or her national origin to one country and instead chose

another person who did not trace his or her national origin to

that particular country. How confident would you be that the

reason for the decision, when all the facts were revealed, would

turn out to be national origin discrimination?

Or suppose that all that you knew about an employment

decision was that the employer rejected a minimally qualified

Protestant, Catholic, Jew, Muslim, or adherent of another

religion in favor of another employee of a different religion.

How confident would you be that the reason for the decision, when

all the facts were revealed, would be intentional discrimination

on the basis of religion? In my view, most rational people,

without knowing more, would have little confidence that the real

reason would turn out to be national origin or religious

discrimination, and I therefore submit that these bare facts

naturally give rise to only a slight inference of discrimination.

And, although I will not belabor the point by posing further

examples, I think that the natural probative force of the prima

facie case is sometimes weak in race and gender cases as well.

In short, I submit that the natural probative force of the facts

underlying the prima facie case varies from case to case and that

in some cases that force will be too weak on its own to sustain a

finding of discrimination.

B. Second, there is the inference of discrimination

that may often be drawn from the ruling out of the employer's

explanation. The degree to which such an inference is justified,

however, is inversely proportional to the degree to which the

record contains evidence of a third possible explanation for the

challenged employment action. For example, if it is certain that

an employee was discharged for either reason "a" or reason "b"

and no other, and if reason "b" can be ruled out, then obviously

it may be inferred that the real reason for the discharge was

"a." But if an employee was discharged for either reason "a,"

reason "b," or reason "c," then ruling out reason "b" does not

necessarily permit a strong inference that reason "a" was the

real reason.

Cases in which the record contains strong evidence of a

third explanation for the challenged action are by no means

unknown. See Miller v. CIGNA Corp., 47 F.3d 586, 597 (3d Cir.

1995). Perhaps the clearest examples are cases in which the

plaintiff challenges a single adverse employment action based on

two or more alternative grounds, a rather common tactic. See,

e.g., Roxas v. Presentation College, 90 F.3d 310 (8th Cir. 1996)

(plaintiff alleged race, national origin, gender, and age

discrimination); Lawrence v. Nat'l Westminster Bank of N.J., 1996

WL 589189, No. 95-5603 (3d Cir. Oct. 15, 1996); Rabinovitz v.

Pena, 89 F.3d 482 (7th Cir. 1996) (age, religion, and

retaliation); Ford v. Bernard Finesan Dev. Ctr., 81 F.3d 304 (2d

Cir. 1996) (race, age, and gender); Hartsel v. Keys, 87 F.3d 795

(6th Cir. 1996) petition for cert. filed, 65 U.S.L.W. 3267 (U.S.

Sept. 24, 1996) (No. 96-486) (age, gender, and retaliation);

Evans v. Technologies Applications & Ser. Co., 80 F.3d 954 (4th

Cir. 1996), (age and gender); Austin v. Owens-Brockway Glass

Container, Inc., 78 F.3d 875 (4th Cir. 1996), petition for cert.

filed, 65 U.S.L.W. 3181 (U.S. Aug. 28, 1996) (No. 96-337) (gender

and disability); Americanos v. Carter, 74 F.3d 138 (7th Cir.

1996), cert. denied, 116 S.Ct. 1853 (1996) (age, gender, and

national origin); Castillo v. Frank, 70 F.3d 382 (5th Cir. 1995)

(age, gender, and national origin); Meinecke v.

H & R Block, 66 F.3d 77 (5th Cir. 1995) (age and gender); Johnson

v. Office of Senate Fair Employment Practices, 35 F.3d 1566 (Fed.

Cir. 1994) (gender and religion); Dashnaw v. Pena, 12 F.3d 1112,

1114 (D.C. Cir. 1994), cert. denied, 115 S.Ct. 417 (1994) (age,

national origin, religion, and race); Sarsha v. Sears, Roebuck &

Co., 3 F.3d 1035 (7th Cir. 1993) (age and gender).

To take one of the many possible combinations of

claims, an employee might contend that he or she did not get a

promotion (1) because of gender and (2) because of disability.

If the record in such a case contains strong evidence of

disability discrimination, rejection of the employer's

explanation (let us say, inferior qualifications) will not by

itself permit a strong inference that the employer's true reason

was gender discrimination.

The degree to which a trier of fact can reasonably

conclude that there was discrimination on the ground claimed by

the plaintiff also depends upon the degree to which the trier of

fact can reasonably reject the employer's reason(s). (It is

important to bear in mind that acceptance or rejection of an

employer's reasons need not be an all-or-nothing proposition.)

The evidence in a particular case may be such as to justify only

a marginal or partial disbelief or belief of the employer's

reason(s). For example, a trier of fact might be justified in

believing that it is more probable than not (but barely so) that

the employer's explanation is false. Or, a trier of fact might

be justified in believing that it is more probable than not (but

barely so) that the employer's explanation is true. In addition,

a trier of fact might be justified in believing that the reason

asserted by the employer was not the sole cause but was a partial

cause (say a 20%, 40%, 60%, or 80% cause) for the challenged

action. Or, if the employer asserts multiple reasons, the

evidence might be such as to justify belief (to some degree) of

some reasons but not others. All other things being equal, the

more strongly and completely the trier of fact can rationally

rule out the employer's reason(s), the more justified it is to

conclude that there was discrimination on the ground alleged --

and vice versa.

C. Third, disbelief of the employer's explanation may

also give rise to an inference that the employer was trying to

conceal discrimination on the ground that the plaintiff claims.

But the strength of this inference, too, will vary based on the

facts. Its strength will depend on whether there is evidence in

the record of some other possible explanation that the employer

might not want to disclose (e.g., in my prior hypothetical,

disability discrimination). In addition, its strength will

obviously be proportional to the extent and strength of the trier

of fact's disbelief of the employer's reason(s).

D. The fourth category consists of any other relevant

evidence of discrimination on the ground asserted. "[S]tray

remarks in the workplace" that are insufficient to make out a

Price Waterhouse case are an example. See Price Waterhouse v.

Hopkins, 490 U.S. 228, 277 (1989) (O'Connor, J., concurring).

When evidence falling into this category is present, it should

always be taken into account in determining whether a defense

motion for summary judgment or judgment as a matter of law should

be granted -- something that the Fuentes test does not

accomplish, as I will show below. See infra at 28-29. But of

course, many McDonnell Douglas cases lack evidence of this sort.

VI.

Having surveyed the types of evidence of discrimination

that are relevant for present purposes, I return to the question

whether there will always be enough evidence to support a verdict

of discrimination on the ground alleged by the plaintiff after

the McDonnell Douglas presumption has burst and sufficient

evidence of pretext has been adduced. To ensure that I am not

misunderstood, I emphasize again that I think that under these

circumstances there will usually be sufficient evidence -- but

not always. Specifically, where the natural probative force of

the facts offered to prove the prima facie case is weak, where

there is strong evidence in the record that the challenged

employment action was attributable to some factor other than the

discriminatory ground alleged by the plaintiff or the explanation

offered by the employer, and where there is no other evidence

that the action was due to discrimination on the ground alleged,

the evidence of discrimination on that ground may be insufficient

to sustain a verdict and thus insufficient to defeat summary

judgment or judgment as a matter of law.

Here is an example. A man with a disability applies

for a promotion, but the promotion is given to a woman without a

disability. See, e.g., Antol v. Perry, 82 F.3d 1291 (3d Cir.

1996)(man who was denied promotion sued for gender and disability

discrimination). The plaintiff establishes a prima facie case of

gender discrimination by showing that he is a man, he was

qualified for the job, he applied, but it was given to a woman.

There is no other evidence of gender discrimination against men;

indeed, there is evidence that the decisionmaker was a man and

that the great majority of the employees in the job category at

issue were men. The employer says that the woman was chosen

because her qualifications were better, but the plaintiff shows

that this explanation is full of holes. In addition and most

important, there is strong, direct evidence that the

decisionmaker was biased against the plaintiff because of his

disability. Among other things, there is testimony that, when

the decisionmaker learned that the plaintiff had applied for the

promotion, the decisionmaker made insulting and derogatory

remarks about the plaintiff's disability.

Is there enough evidence in this case to convince a

rational trier of fact that the promotion decision was based on

gender discrimination? I think not, and if I am right, then the

majority's blanket test is disproven. Consider the evidence in

each of the four categories that I previously described. The

facts underlying the prima facie case of gender discrimination --

basically that the plaintiff was qualified but a woman was given

the job instead -- have little natural probative force for the

purpose of showing gender discrimination; a qualified man might

be rejected in favor of a woman for many other reasons. As for

the evidence that the employer's explanation (the woman's

supposedly better qualifications) was untrue, ruling out the

employer's explanation still leaves both gender and disability

discrimination as possible explanations, and in light of the

strong evidence of disability discrimination, does little to show

gender discrimination. Likewise, while the employer's conduct in

proffering a false explanation permits an inference that the

employer's real reason was one that it wished to hide, that

inference does little to show that the employer's real reason was

gender discrimination because there is strong evidence of another

explanation (disability discrimination) that the employer would

also have a motive to conceal. Therefore, I submit that the

evidence in this hypothetical case is insufficient to support a

reasonable finding of gender discrimination and that that theory

should be weeded from the case before the plaintiff's claim of

disability discrimination is sent to the trier of fact.

The majority's test, however, would require that the

gender discrimination claim be sent to the trier of fact as well.

Indeed, if the plaintiff had added claims of age, race, national

origin, and religious discrimination and was able to do the

minimum necessary to establish a prima facie case on all of those

grounds, all of those claims would have to be sent to the trier

of fact as well. I do not think that such results can be squared

with the cardinal rules that the plaintiff in a discriminatory

treatment case must prove intentional discrimination on each

ground alleged and that summary judgment or judgment as a matter

of law must be granted if the record does not rationally support

a judgment for the non-moving part on each such ground. See,

e.g., Deborah C. Malamud, The Last Minuet: Disparate Treatment

After Hicks, 93 Mich. L. Rev. 2229, 2306-2311 (1995).

VII.

Recognition of what I believe is the correct test would

clarify the analysis of discriminatory-treatment cases and would

avoid analytical difficulties that the majority's test creates.

I will discuss two of these difficulties here.

A. The first concerns cases in which the employer

offers a multi-part explanation for the challenged action. The

Fuentes opinion, which the majority follows, first states that,

when an employer asserts that the challenged action was taken for

several reasons, the evidence "must allow a factfinder reasonably

to infer that each of the employer's proffered nondiscriminatory

reasons . . . was either a post hoc fabrication or otherwise did

not actually motivate the employment action . . . ." 32 F.3d at

764 (emphasis in original) (citations omitted). However, Fuentesqualifies

this statement by adding that "[i]f the defendant

proffers a bagful of legitimate reasons, and the plaintiff

manages to cast substantial doubt on a fair number of them, the

plaintiff may not need to discredit the remainder." Id. at 764

n.7 (emphasis added).

I am not sure what these rules mean. What is the

difference between "several reasons" and "a bagful"? What is a

"fair number" of a "bagful"? If the employer offers three

reasons, each of which, it says, was equally important in the

challenged decision, how many must the plaintiff knock down? All

of them? Or will two suffice? (I assume that one would not be a

"fair number.") What if the employer says that reason one was

the most important, counting for, say, 40%, and that reasons two

and three each counted for 30%? Would it be enough for the

plaintiff to refute reason one? If so, would refuting reason two

by itself also suffice? Why? I don't know, and I don't think

that it is possible to provide a satisfactory answer to questions

of this sort within the framework of the majority's test.

By contrast, these problems disappear if what I contend

is the correct test is used. No matter how many reasons the

employer offers and no matter what combination of reasons the

plaintiff succeeds in knocking down, the dispositive question

remains the same: taking into account all of the evidence in the

record, including whatever inferences and deductions can

rationally be drawn from the rejection of some (or all) of the

employer's proffered reasons, is there enough proof to permit a

rational trier of fact to find that intentional discrimination on

the ground alleged was a determinative cause of the challenged

action?

B. The second analytical difficulty concerns the

ability of a plaintiff to survive summary judgment or judgment as

a matter of law by combining the evidence that necessarily

remains after the McDonnell Douglas presumption has burst and

sufficient evidence of pretext has been offered (the facts

underlying the prima facie case and the inferences that logically

flow from the rejection of the employer's explanation) with any

other direct and circumstantial evidence of discrimination that

the plaintiff may be able to find. Under Fuentes, a plaintiff

may defeat summary judgment or judgment as a matter of law by

"either (i) discrediting the proffered reasons, either

circumstantially or directly, or (ii) adducing evidence, whether

circumstantial or direct, that discrimination was more likely

than not a motivating or determinative cause of the adverse

employment action." Fuentes, 32 F.3d at 764 (emphasis in

original).

Why can't a plaintiff potentially satisfy his or her

burden by combining some evidence from each of these categories?

For example, if a plaintiff can almost, but not quite, show

enough "weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer's proffered

legitimate reasons" to come within the first part of this test,

id. at 765, why can't the plaintiff make it over the hump by

adding a bit of evidence from the second part, i.e., other direct

or circumstantial evidence of discrimination? Fuentes doesn't

explain, and I don't think that any good explanation is possible.

In sum, I submit that the majority's

test is both wrong and unwieldy and that the correct test is

simply whether a rational trier of fact could find, based on the

record, that discrimination on the ground alleged was a

determinative cause of the challenged employment action.

VIII.

Applying this test, I agree with the district judge's

analysis of the record. The record shows great personal friction

between the plaintiff and her supervisors regarding matters such

as grooming, smoking, tardiness, and giving away free food and

beverages, but the district judge saw little if any evidence of

any kind that could reasonably link this personal animosity to

the plaintiff's gender. The district judge wrote that she was

"left searching the record for evidence that gender played a

determinative role in defendant's conduct."

In reaching the opposite conclusion, the majority

apparently relies on the following: (a) "no woman had ever held

the position of Manager of Restaurants," (b) "a man replaced

Sheridan as Head Captain of the Green Room morning shift," (c)

"Amblard had told Sheridan he would watch her like a `hawk' and a

`dog'," and (d) Amblard "ignor[ed] her and [spoke] instead to one

of her male supervisors if one was present." Maj. Op. 7. But

factor (a) gives rise to only a weak inference of gender

discrimination because the plaintiff was found to be unqualified

for the position of Manager of Restaurants. Factor (b) likewise

gives rise to only a weak inference since two of the other four

head captains were women. Factor (c) does not provide a link to

gender; nor does factor (d). Is all of this evidence taken

together enough to persuade a rational factfinder that the reason

for the animosity between the plaintiff and her supervisors was

gender rather than sheer personal antipathy? The district judge

concluded that it was not, and I am inclined to agree with her

analysis.

I also agree with the district judge's conditional

grant of a new trial. The district judge applied the correct

legal standard. She recognized that "[a] new trial cannot be

granted . . . merely because the court would have weighed the

evidence differently and reached a different conclusion."

Sheridan II at 12 (quoting Markovich v. Bell Helicopter Textron,Inc., 805

F. Supp. 1231, 1235 (E.D. Pa.), aff'd, 977 F.2d 568 (3d

Cir. 1992)). Instead, the court stated, a new trial may be

granted on the ground that the verdict was against the weight of

the evidence only when the failure to do so would result in

injustice or shock the conscience of the court. Id. Moreover,

in assessing the evidence, the court recognized that disbelief of

defendant's proffered reason was evidence of discrimination.

Accordingly, I believe that the district judge applied the

correct legal precepts in ruling on defendant's new trial motion,

and because I do not think that she abused her discretion in

granting the motion, I would affirm.