Ryder v. Westinghouse Elec

Opinions of the United

1997 Decisions States Court of Appeals

for the Third Circuit

9-30-1997

Ryder v. Westinghouse Elec

Precedential or Non-Precedential:

Docket

96-3414

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Filed September 30, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-3414

JOHN M. RYDER

v.

WESTINGHOUSE ELECTRIC CORPORATION,

Appellant.

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

(D.C. Civ. No. 93-cv-01945)

Argued April 14, 1997

Before: GREENBERG, ALITO and SEITZ, Circuit Judges.

Filed: September 30, 1997

SAMUEL J. CORDES, ESQUIRE

(Argued)

ANDREW G. SYKES, ESQUIRE

MARY R. ROMAN, ESQUIRE

Ogg, Jones, Cordes & Ignelzi

245 Fort Pitt Boulevard

Pittsburgh, PA 15222

Attorney for Appellee

JEROME SHESTACK, ESQUIRE

(Argued)

JOSEPH C. CRAWFORD, ESQUIRE

JONATHAN D. WETCHLER,

ESQUIRE

Wolf, Block, Schorr & Solis-Cohen

S.E. Corner 15th & Chestnut Streets

Packard Building, 12th Floor

Philadelphia, PA 19102

RICHARD J. ANTONELLI, ESQUIRE

Buchanan Ingersoll Professional

Corporation

One Oxford Centre

301 Grant Street

20th Floor

Pittsburgh, PA 15219-1410

Attorneys for Appellant

CATHY VENTRELL-MONSEES

THOMAS W. OSBORNE

MELVIN RADOWITZ

American Association of Retired

Persons

601 E Street, N.W.

Washington, D.C. 20049

Attorneys for Amicus Curiae

American Association of Retired

Persons

OPINION OF THE COURT

SEITZ, Circuit Judge.

Defendant, Westinghouse Electric Corporation

("Westinghouse"), appeals from a judgment, entered on a

jury verdict, in favor of Plaintiff, John M. Ryder ("Ryder").

This action is based on the Age Discrimination in

Employment Act, 29 U.S.C. SS 621-634 (1994) ("ADEA"),

2

and the Pennsylvania Human Relations Act, 43 Pa. Cons.

Stat. Ann. SS 951-963 ("PHRA").1

Ryder was employed as a staff assistant to the group

controller for Westinghouse's Power Systems Group from

1983 until April 6, 1993. Prior to assuming this position,

Ryder had been employed at Westinghouse in various other

capacities since January 7, 1963. On April 6, 1993, Lou

Facchini ("Facchini"), who had been the group controller for

the Power Systems Group since 1991 and who had

"inherited" Ryder from the previous controller, terminated

Ryder's employment under Westinghouse's permanent job

separation program.2 At the time of his termination, Ryder

was fifty-two years old.

Two days after leaving Westinghouse, Ryder filed a

complaint with the Equal Employment Opportunity

Commission ("EEOC"), alleging that Westinghouse wilfully

terminated him because of his age. After waiting for the

required time periods to elapse, Ryder filed his complaint in

the district court on November 11, 1993. A two-week jury

trial concluded with the jury's verdict in favor of Ryder, and

with an award in the amount of $241,909. Westinghouse

filed this timely appeal.

Westinghouse attacks the district court's management of

the trial in two separate respects, each of which,

Westinghouse submits, requires us to reverse the judgment

and remand this case for a new trial. We turn to those

issues.

_________________________________________________________________

1. The district court exercised subject matter jurisdiction over Ryder's

ADEA claim pursuant to 29 U.S.C. S 623(a), 626(c)(1) and 28 U.S.C.

S 1331, and based jurisdiction over Ryder's PHRA claim on 28 U.S.C.

S 1367. We have jurisdiction under 28 U.S.C. S 1291.

2. Facchini testified that he terminated Ryder only after trying

unsuccessfully to place him elsewhere in the company. Westinghouse

explained that by eliminating Ryder's position, as opposed to terminating

him for cause or laying him off, it could offer Ryder a permanent job

separation. The parties stipulated that under this arrangement, Ryder

received, at the time of his termination, a lump-sum payment of his

vested pension benefit amounting to $172,000, along with a payment of

$391,027 in deferred compensation. By mutual agreement of the parties,

Ryder actually continued in his position until August 31, 1993.

3

I.

Admission of the "Chairman's Initiative

Memorandum"

Westinghouse first challenges the admission of the so-

called "Chairman's Initiative Memorandum," which was

authored by Michael Jordan, Westinghouse's CEO, and

which contained allegedly ageist comments made by

unidentified Westinghouse executives who were authorized

to make personnel decisions.3 These comments were made

at a series of meetings attended by Jordan, who became

CEO in June of 1993, approximately two months after

Ryder's "official termination." Also in attendance was Gary

Clark, who was acting as CEO when Ryder was terminated,

and who became president of the company after Jordan

was hired.

The controversial comments reflected in the

memorandum were made at a meeting held on July 6-7,

1994, the topic of which was "Employee Selection

Development Rewards and Costs." App. at 54. Jordan's

memorandum was distributed to "All Previous Attendees of

Chairman's Initiative," and included his introductory

comments that the summaries contained "some good ideas"

and were "long, but valuable." Id. at 45. Some of the

allegedly ageist comments included:

Participant: In many of our businesses we have an

older workforce. As a result, that

workforce gets a higher salary.

Additionally, our low growth businesses

can strain opportunities for younger

workers. Somehow we must provide those

opportunities. We have to get the

_________________________________________________________________

3. Facchini, who attended some but not all of the meetings, testified at

trial that those in attendance were of the "general manager" level, who

"ma[d]e decisions as far as hiring andfiring people." App. at 426. Based

on this testimony, the district court noted that the attendees had "hiring

and firing responsibilities." Id. at 430.

4

"blockers" out of the way.

. . . .

Participant: Westinghouse has been pretty

paternalistic in the past and we've ended

up with too much dead wood in the

organization.

Jordan: Yes, and that's a big issue because as

you squeeze the infrastructure, you want

your best talent to stay in the

organization.

. . . .

Participant: We really haven't hired much over the

last 10-15 years. As a result, we have a

hole in terms of people development. We

don't have enough people in the

organization ages 30-40. Somehow we

have to anticipate what our requirements

are for people three years down the road

and be willing to hire people for the

future.

Jordan: That's the issue at many business units.

You have to have regeneration.

. . . .

Participant: Blockers are always an issue but they're

less of an issue when you are in a growth

mode. Removing blockers is very

important when you're in a downsizing

mode because you don't have the kinds of

opportunities that growth provides you.

Jordan: People down in the organization know

who they are. . . . [W]e have to put

ourselves in a position of getting high

pots into more responsible jobs and move

the blockers aside. That's hard to do, and

no one likes to do it, but we're paying the

price now for our inability to do it in the

past.

. . . .

5

Jordan: What we need to do as the leadership of

this organization, is force ourselves to

those standards so that the best persons

get into the right positions. An eager

high-energy person will get more done in

one month than someone who has retired

in place will do in one year.

. . . .

Jordan: We seem to be missing the people in the

middle of the age range who have talent,

the willingness and the horsepower to

take on risky change projects. We don't

have those types pushing up from the

bottom. We have a kind of regeneration

gap here. We have to have those kinds of

people. Not only are these individuals the

leadership of tomorrow, these are the

people that create ferment down in the

ranks that pushes against the status quo

in the system.

App. at 54-59.4

Westinghouse contends that any relevancy that this

document may have to Ryder's termination one year prior

to the chairman's initiative meeting is substantially

outweighed by its highly prejudicial nature. Westinghouse

also argues that the document constitutes inadmissible

hearsay. Ryder responds that the document was properly

admitted as circumstantial evidence of the corporate

culture existing when Ryder was terminated one year

earlier.

We review the district court's evidentiary rulings for

abuse of discretion. Sheridan v. E.I. DuPont de Nemours &

Co., 100 F.3d 1061, 1076 (3d Cir. 1996) (en banc), cert.

denied, 117 S. Ct. 2532 (1997). We will not disturb the

district court's application of a balancing test under Federal

Rule of Evidence 403 unless it is "arbitrary and irrational."

_________________________________________________________________

4. At trial, Facchini agreed with Ryder's counsel's characterization of a

"blocker" as "somebody who is preventing somebody younger from

getting through to another executive level...." App. at 482.

6

Abrams v. Lightolier Inc., 50 F.3d 1204, 1213 (3d Cir. 1995)

(internal quotations and citations omitted).5

We have recognized that a plaintiff may offer

circumstantial proof of intentional discrimination on the

basis of age in the form of a supervisor's statement relating

to formal or informal managerial attitudes held by

corporate executives. See, e.g., Brewer v. Quaker State Oil

Refining Corp., 72 F.3d 326, 333 (3d Cir. 1995); Lockhart v.

Westinghouse Credit Corp., 879 F.2d 43, 54 (3d Cir. 1989).

We have noted that it is often crucial to the jury's

assessment of whether the employer's reasons were

pretextual and the ultimate question whether the employer

intentionally discriminated against an employee. Antol v.

Perry, 82 F.3d 1291, 1302 (3d Cir. 1996). Its importance

seems to become ever more critical as sophisticated

discriminators render their actions increasingly more subtle

to circumvent adverse judicial precedent. See Sheridan, 100

F.3d at 1071; Aman v. Cort Furniture Rental Corp., 85 F.3d

1074, 1081-82 (3d Cir. 1996).

In resolving whether these comments were properly

admitted, we can take guidance from our decisions in

_________________________________________________________________

5. We decline Westinghouse's invitation to exercise plenary review of this

issue on the basis that the district court failed to make explicit its

Rule

403 balancing analysis.

Our review of the record indicates that Westinghouse raised its Rule

403 objection in its pre-trial pleading entitled,"Defendant's Opposition

to

Plaintiff's Second Supplemental Pretrial Statement and Offer of

`Chairman's Initiative' Exhibit." Supp. App. at 1341, 1348-49. The basis

for the objection was that the comments were not probative because they

post-dated the termination by approximately one year and did not

suggest a corporate culture aimed at eliminating older workers. The

comments were highly prejudicial because they would sway the jury's

focus from events at the time of Ryder's termination and invite the jury

to react irrationally given the negative public opinion of corporate

reorganizations.

Although not expressly citing Rule 403, the district court addressed

both concerns in ruling on the admissibility of the memorandum. App.

at 131-34, 467. Based on our review of the record, we think that the

district judge's analysis was sufficiently explicit here. See In re Paoli

R.R.

Yard PCB Litig., 113 F.3d 444, 457 n.8 (3d Cir. 1997); Sheridan, 100

F.3d at 1076 n.10.

7

Lockhart, 879 F.2d at 54, and Brewer, 72 F.3d at 333-34.

In Lockhart, we held that an ageist comment made by the

senior-most executive of one of the four Westinghouse

Credit Corporation divisions was relevant to the company's

atmosphere or culture when the plaintiff was terminated

approximately one year earlier. 879 F.2d at 54. Even

though this executive did not occupy his post at the time of

the plaintiff 's termination and did not comment specifically

about and was not involved in dismissing the plaintiff, we

reasoned that a jury could read his comment as reflecting

a "cumulative statement of managerial policies" that had

been effectuated by other high ranking company executives

for "a considerable time." Id. We concluded that an

executive of such stature in the organization was likely to

be aware of the prevailing atmosphere even if he did not

participate in a particular termination.

In Brewer, we confronted the admissibility of Quaker

State's CEO's description in a company newsletter of two

new executives as "two of our star young men in their mid-

40s. That age group is our future." 72 F.3d at 333. We held

that this comment was a "stray remark" because the CEO

played no role in the termination decision at issue and he

made the remark nearly two years prior to the plaintiff's

termination. Id. Nonetheless, we found it relevant as

probative of informal managerial attitudes. This was

particularly so because the remark was written by the CEO,

and thus, was "not an off-hand comment made by a low-

level supervisor." Id. at 334. We concluded that the

question whether the comment was entitled to any-- and

how much -- weight as circumstantial evidence of

discrimination was for the factfinder.

This is not to say that an ageist statement made by any

corporate executive is relevant as evidence of "corporate

culture," which would circumstantially prove a

discriminatory animus. Rather, the court must, as we did

in Lockhart and Brewer, evaluate factors pertaining to the

declarant's involvement in recognizing a formal or informal

managerial attitude, including the declarant's position in

the corporate hierarchy, the purpose and content of the

statement, and the temporal connection between the

statement and the challenged employment action.

8

In the case at bar, none of the comments contained in

the memorandum relate directly to Facchini's decision to

terminate Ryder. They were made approximately one year

after the fact by individuals not involved in the decision.

Neither of the foregoing facts renders the comments

irrelevant, however. The comments were made by either the

company CEO or by executives with authority to render

personnel decisions. Moreover, the comments were made in

reflection on past managerial viewpoints at Westinghouse

with an eye toward future change. If the jury were to believe

that these comments accurately reflected a then existing

managerial attitude toward older workers in April 1993,

this evidence would make the existence of an improper

motive for Ryder's termination more probable. Fed. R. Evid.

401; Brewer, 72 F.3d at 333-34; Abrams, 50 F.3d at 1214-

15; Lockhart, 879 F.2d at 54. See also Walden v. Georgia-

Pacific Corp., No. 96-7045, slip op. at 23-25 (3d Cir. Sep.

26, 1997) ("stray remarks" made by individuals outside the

employer's decision-making process may nevertheless

constitute admissible evidence of managerial atmosphere

and a possible discriminatory intent).

The remaining question, then, is whether the district

court acted arbitrarily and irrationally in concluding that

the relevancy of these comments is not substantially

outweighed by the dangers of unfair prejudice or misleading

the jury, given the statements' temporal remoteness and

the fact that the speakers were not involved in Ryder's

termination. Certainly, their relevancy is somewhat

diminished by the fact that they were not made by the

individuals who terminated Ryder. Cf. Abrams, 50 F.3d at

1215 (negative comments by a decision maker are often the

strongest circumstantial evidence of discrimination). Their

relevancy is conversely enhanced by the fact that many of

the statements (and seemingly the more controversial ones)

were made by the CEO himself. Brewer, 72 F.3d at 333-34.

In this regard, we agree with Westinghouse that a CEO's

comments are likely to be reviewed carefully by a jury; as

noted in Lockhart, "[w]hen a major company executive

speaks, `everybody listens' in the corporate hierarchy...."

879 F.2d at 54. Although he spoke approximately one year

after Facchini decided to terminate Ryder, Jordan had

9

served as CEO since July 1993, approximately one month

before Ryder left Westinghouse. He had a basis for

knowledge of the existing managerial viewpoints during the

relevant time period. As to the other participants, it is clear

that they were discussing past practices at Westinghouse.

In any event, we conclude, as we did in Lockhart, that

these statements may have reflected a cumulative

managerial attitude that had been held for "a considerable

time." 879 F.2d at 54. Therefore, we cannot say that the

district court acted arbitrarily and irrationally in its finding

that any unfair prejudice did not outweigh the relevancy of

the comments based on their temporal remoteness or on

the fact that the speakers were not involved in Ryder's

termination.6

We also believe that the jury would not have been

confused by the fact that these comments were made one

year after Ryder's termination. They were expressly offered

to illustrate the pervasive ageist managerial attitude when

Ryder was terminated, and Westinghouse clarified this

temporal factor on cross examination. Consequently, we

conclude that the district court did not act arbitrarily and

irrationally in balancing these competing interests in favor

of admissibility.

We also reject Westinghouse's argument that these

statements constitute inadmissible hearsay. Ryder offered

these statements into evidence as circumstantial proof of

the managerial viewpoint on "blockers" that prevailed when

Ryder was terminated. Thus, we find that the statements

were not offered to prove the truth of the matters asserted.7

_________________________________________________________________

6. We think likewise as to any prejudice resulting from the allegedly

negative public perception of corporate reorganizations. Such a

generalized view is too speculative to support the conclusion that the

introduction of a document that Westinghouse contends in its brief

evinces no age animus was unfairly prejudicial because it would cause

the jury to act irrationally.

7. For instance, Jordan's statement that "[a]n eager, high energy person

will get more done in one month than someone who has retired in place

will do in one year" was not offered for its truth. Instead, it was

offered

to illustrate the CEO's state of mind on the issue of unproductive (and

seemingly older) individuals. Fed. R. Evid. 801(c); see also id. 803(3).

This reasoning applies to the other comments as well.

10

Even if the statements were offered to prove the truth of

the matters asserted, we nevertheless would conclude that

they were admissible as exceptions to the definition of

hearsay. First, the statements made by Jordan at the

meeting and summarized in the memorandum were

admissions by the agent of Westinghouse. Fed. R. Evid.

801(d)(2)(D). Jordan was speaking as the CEO of

Westinghouse to a group of Westinghouse executives about

personnel matters over which these executives exercised

authority. Thus, he spoke as Westinghouse's agent within

the scope of his employment. Carden v. Westinghouse Elec.

Corp., 850 F.2d 996, 1001-02 & n.6 (3d Cir. 1988).

Jordan's summarization of the statements made by the

unidentified participants presents a "double hearsay"

problem. For these comments to have been properly

admitted then, we must find each level of hearsay to fall

within some applicable exception. Fed. R. Evid. 805. As we

noted above, in summarizing these statements in a

memorandum sent to all meeting attendees, Jordan acted

within the scope of his employment as CEO of

Westinghouse. Thus, his recitation of the statements is an

admission by a party-opponent under Federal Rule of

Evidence 801(d)(2)(D). See Carden, 850 F.2d at 1001-02 &

n.6.

We find this exception to apply to the actual utterances

of these statements by the unidentified meeting

participants as well. The speakers, though unidentified by

name or specific title, were all Westinghouse executives who

had authority to make personnel decisions. They acted

within the scope of their employment in stating their views

on the state of their workforce at the request of the

company CEO. Thus, the sources of the statements are

identified sufficiently to establish that they were made by

agents of Westinghouse acting within the scope of and

during the existence of their employment relationship. See

Big Apple BMW, Inc. v. BMW of North America, Inc., 974

F.2d 1358, 1373 (3d Cir. 1992).8 Based on the foregoing

_________________________________________________________________

8. As to this level of hearsay, we find our decision in Carden to be

distinguishable. There, we held that a supervisor's statement to his

employee, who was terminated pursuant to a reduction in force, that

11

analysis, the comments contained in the memorandum

were properly admitted.

II.

The Jury Instructions

A.

Westinghouse next challenges the correctness of the

following jury instruction:

In this area of the law, an explanation offered by an

employer for its treatment of an employee that is not

its real reason for such treatment is referred to as a

pretext for illegal discrimination.

App. at 1235. Ryder first responds by asserting that

Westinghouse failed to preserve, and therefore has waived,

its objection to the jury instructions.

If a timely objection preserved the issue for appeal, we

exercise plenary review to determine if the jury

instructions, as a whole, stated the correct legal standard.

Otherwise, we may exercise our discretion to reverse the

judgment only for plain error contained in the instructions.

Seman v. Coplay Cement Co., 26 F.3d 428, 435 (3d Cir.

1994).

Federal Rule of Civil Procedure 51 provides, in pertinent

part:

No party may assign as error the giving or the failure

to give an instruction unless that party objects thereto

before the jury retires to consider its verdict, stating

distinctly the matter objected to and the grounds for the

objection.

_________________________________________________________________

"they wanted a younger person" constituted inadmissible double

hearsay. 850 F.2d at 1002. At the heart of our conclusion there was the

fact that "they" were not identified anywhere in the record. Thus, we

were unable to determine if "they" acted within the scope of their

employment in making the statement at issue. Id.; see also United States

v. Cruz, 910 F.2d 1072, 1081 n.10 (3d Cir. 1990).

12

Fed. R. Civ. P. 51 (emphasis added). We have interpreted

this rule explicitly to require that any objections to the jury

charge be made at the close of the charge. Seman, 26 F.3d

at 436. It is clear from the record that while it objected to

a separate portion of the court's instruction after the jury

was charged, Westinghouse did not object to the sentence

attacked on appeal. App. at 1244-45.9

We find inapplicable the exception to Rule 51 that no

objection at the close of the charge is needed where the

_________________________________________________________________

9. Rule 51 also requires that a party identify the objectionable matter

"with sufficient clarity to give the trial judge notice of a possible

error in

the instruction." Chemical Leaman Tank Lines, Inc. v. Aenta Cas. & Sur.

Co., 89 F.3d 976, 993 (3d Cir.), cert. denied sub nom., Jackson v.

Chemical Leaman Tank Lines, Inc., 117 S. Ct. 485 (1996).

Our independent review of the record here shows that Westinghouse

never objected specifically to the instruction challenged on appeal. At

the

charge conference, Westinghouse objected to the inferential proof

instruction, which read:

You may infer that Mr. Ryder has met his burden of proof if you

find

that the four facts set forth above have been proven by a

preponderance of the evidence and if you further disbelieve

defendant's explanation for why plaintiff's employment was

terminated.

App. at 1234-35. On appeal, Westinghouse identifies as the erroneous

instruction a sentence found in the paragraph immediately succeeding

the instruction attacked at the charge conference:

In this area of the law, an explanation offered by an employer for

its

treatment of an employee that is not its real reason for such

treatment is referred to as a pretext for illegal discrimination.

App. at 1235 (emphasis added).

We conclude that Westinghouse's objection at the conference would

not have alerted the district judge to the alleged error advanced on

appeal. The former objection pertained to whether the inferential proof

instruction would mislead the jury into believing that a finding of

discrimination could be based solely on the prima facie case, in

contravention of our holding in Seman, 26 F.3d at 435. Westinghouse

contends that the instruction now challenged equated the disbelief of

Westinghouse's reason with a finding that the reason was a pretext for

discrimination, in contravention of the holding in St. Mary's Honor

Center v. Hicks, 509 U.S. 502, 511 (1993).

13

district court expressly permits the parties "to incorporate

by reference objections made during the charge

conference." Seman, 26 F.3d at 436. Westinghouse argues

that the district judge granted such express permission

toward the end of the charge conference, in responding to

Westinghouse's objection to the use of the word

"performance" on page eight of the proposed instructions.

The court stated that "[a]ll those are noted.. . . And they

are preserved every time it is done." App. at 1224.

Our review of this colloquy in context, however, leads us

to conclude that the judge was not granting the parties

express permission to dispense with objections to the final,

altered version of the jury instructions that were actually

given to the jury. First, the reference to "performance" can

be traced to an earlier Westinghouse objection, on pages six

and seven, to the inclusion of "performance" in the

instructions as "add[ing] an element to the case that really

isn't in the case." App. at 1215. When Westinghouse

objected to its inclusion again on page eight, the judge

responded by noting that the issue was preserved. Second,

Westinghouse's claim is belied by the district judge's

invitation and acceptance of Westinghouse's objections after

the charge was given. Id. at 1243-44.

Having concluded that Westinghouse did not preserve its

objection to the jury instruction that it claims is erroneous,

we will review the instruction only for plain error. Chemical

Leaman Tank Lines, 89 F.3d at 993; Seman, 26 F.3d at

435. We will reverse and remand for a new trial only if the

alleged error is fundamental and highly prejudicial, such

that the instructions failed to provide the jury with

adequate guidance and our refusal to consider the issue

would result in a miscarriage of justice. Brereda v. Pickering

Creek Indus. Park, Inc., 865 F.2d 49, 53 (3d Cir. 1989).

B.

It is helpful to review briefly the evidentiary framework

that applies in age discrimination cases based on a

"pretext" theory. The plaintiff first must establish, by a

preponderance of the evidence, a prima facie case of age

discrimination by proving that he: (1) is over forty years of

14

age; (2) is qualified for the position in question; (3) suffered

an adverse employment action; and (4) was replaced by a

sufficiently younger person to permit an inference of age

discrimination. Brewer v. Quaker State Refining Corp., 72

F.3d 326, 330 (3d Cir. 1995).

The defendant then must rebut this presumption by

articulating a legitimate, nondiscriminatory reason for the

adverse employment action. Hicks, 509 U.S. at 506-07

(1993); Brewer, 72 F.3d at 330. Finally, the plaintiff must

satisfy his ultimate burden of proving, by a preponderance

of the evidence, that the defendant's proffered reason is not

the "true reason" for the decision, but instead is merely a

pretext for age discrimination. Hicks, 509 U.S. at 511; Bray

v. Marriott Hotels, 110 F.3d 986, 990 (3d Cir. 1997).

The plaintiff can meet this ultimate burden by proving,

by circumstantial evidence, that the defendant's reason is

"unworthy of credence." Armbruster v. Unisys Corp, 32 F.3d

768, 783 (3d Cir. 1994).10 To establish such circumstantial

proof, the plaintiff first must present evidence that each of

the defendant's reasons is pretextual, viz, each reason was

"a post hoc fabrication or otherwise did not actually

motivate the employment action." Fuentes v. Perskie, 32

F.3d 759, 765 (3d Cir. 1994). This proof of pretext then

may be combined by the factfinder with the evidence used

to support the plaintiff's prima facie case of age

discrimination, and from this union, the factfinder may

reasonably infer that the defendant discriminated against

the plaintiff because of his age. Hicks, 509 U.S. at 511.11

Westinghouse contends that the district court instruction

as to the final portion of the required proof was legally

_________________________________________________________________

10. The plaintiff also may prove, by direct evidence, that a

discriminatory

reason more likely than not motivated the defendant, Armbruster 32 F.3d

at 782-83, or that age played a role in and had a determinative effect on

the outcome of the defendant's decisionmaking process. Miller v. CIGNA

Corp., 47 F.3d 586, 588 (3d Cir. 1995) (en banc).

11. Of course, such an inference is by no means compelled as a matter

of law. Hicks, 509 U.S. at 511. We have stated that the factfinder in a

pretext case "is not limited to a choice betweenfinding that the alleged

discriminatory motive or the employer's nondiscriminatory explanation

was the sole cause of the employment action." Miller, 47 F.3d at 596.

15

erroneous. In its proper context, the pertinent portion of

the instruction reads:

You may infer that Mr. Ryder has met his burden of

proof if you find that the four facts set forth above have

been proven by a preponderance of the evidence and --

note that I say "and" -- if you further disbelieve

defendant's explanation for why plaintiff's employment

was terminated.

. . . . If you find that Westinghouse articulated

legitimate, nondiscriminatory reasons for eliminating

plaintiffs [sic] job, then you must determine whether

the plaintiff, John Ryder, has proven by a

preponderance of evidence that the reason or

explanation given by the defendant was not the real or

true reason behind Westinghouse's action in

terminating Mr. Ryder's employment.

In this area of the law, an explanation offered by an

employer for its treatment of an employee that is not its

real reason for such treatment is referred to as a pretext

for illegal discrimination. If you find that Mr. Ryder has

proven by a preponderance of the evidence that the

defendant, Westinghouse Electric Corporation, used

the elimination of plaintiff's job as an excuse or pretext

for discriminating against him on the basis of his age,

then your verdict will be for Mr. Ryder, the plaintiff.

On the other hand, if you find that the explanation

offered by Westinghouse Electric Corporation . . . were

[sic] legitimate reasons for plaintiff's termination, and

that plaintiff has not proven by a preponderance of

evidence that age was a determining factor in the

termination of his employment, then your verdict will

be for the defendant, Westinghouse Electric

Corporation.

In making this determination, you should be aware

of the following: The burden of proving discrimination

always remains with the plaintiff, John Ryder, to prove

that he was a victim of age discrimination. . . . Your job

is to determine whether Westinghouse discriminated

against Mr. Ryder on the basis of his age.

16

App. at 1235-36 (emphasis added).

Westinghouse asserts that this highlighted sentence

equated any disbelief of its proffered reasons with the

finding that the reasons were necessarily pretexts for age

discrimination. Westinghouse states that the jury should

have been instructed that under Hicks, a jury may infer the

ultimate fact of discrimination from its disbelief of the

employer's reason and its belief of the evidence used to

establish a prima facie case, but the jury is not required to

do so.12

We agree that this statement was erroneous. We have

stated that the factfinder in a pretext case is free to accept

either or neither of the parties litigating positions as

reflecting the whole truth. Miller, 47 F.3d at 597. That is

why in Miller, we held that it was reversible error for the

court to instruct the jury repeatedly that it had tofind that

age was the "sole cause" of the adverse employment action

for the plaintiff to prevail on his ADEA claim. Id. In the case

at bar, the jury may have believed that Westinghouse's

reasons were pretextual, without necessarily believing that

age discrimination was the real reason.

Despite this isolated error, we must read the jury

instructions as a whole. Lockhart v. Westinghouse Credit

Corp., 879 F.2d 43, 56 n.13 (3d Cir. 1989). Much like the

case presented in Lockhart, we find this solitary

misstatement of the law to be offset by the court's repeated

correct explanation of Ryder's burden of proof.

For instance, in the sentence immediately following the

erroneous sentence, the court clearly instructed that a

verdict for Ryder was proper if the jury found that

Westinghouse used the elimination of his job "as an excuse

or pretext for discriminating against him on the basis of his

age." App. at 1235.13 Then, in the next paragraph, the court

instructed the jury that if it believed Westinghouse's

reasons and concluded that Ryder did not prove that "age

_________________________________________________________________

12. We note that Westinghouse requested no such instruction in its

proposed jury instructions.

13. This is nearly the exact language that Westinghouse requested the

court to use. App. at 83-84.

17

was a determining factor in the termination of his

employment," then its verdict would be for Westinghouse.

Id. at 1235-36. Finally, the court again admonished the

jury that "you should be aware of the following: The burden

of proving discrimination always remains with [Ryder] to

prove that he was the victim of age discrimination." Id. at

1236.

Based on our review of the instructions, we conclude that

the multiplicity of correct statements negates the effect of

the solitary erroneous utterance. Thus, we find that the

court's instructions, as a whole, provided the jury with

adequate guidance on the parties' respective evidentiary

burdens, and we perceive of no miscarriage of justice that

could have resulted.

Conclusion

For the foregoing reasons, we will affirm the order of the

district court entering judgment for Ryder on the jury's

verdict in his favor.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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