William J. Miller v. Cigna Corporation the Insurance Company of North America

GREENBERG, Circuit Judge,

concurring in part and concurring in the judgment.

To put it succinctly, the question before us is the effect of Hazen Paper Co. v. Biggins, — U.S. -, 113 S.Ct. 1701 , 123 L.Ed.2d 338 (1993), and St. Mary’s Honor Center v. Hicks, — U.S. -, 113 S.Ct. 2742 , 125 L.Ed.2d 407 (1993), on our holding in Griffiths v. CIGNA Corp., 988 F.2d 457 (3d Cir.), cert. denied, — U.S.-, 114 S.Ct. 186 , 126 L.Ed.2d 145 (1993), that there are two types of cases under the ADEA — mixed motives cases and pretext cases — and that in the latter, the plaintiff must show that age was the determinative factor in the adverse employment decision. The majority correctly concludes that “in ADEA eases that do not qualify for a burden shifting charge under Price Waterhouse ... district courts should instruct the jury that the plaintiffs burden is to prove that age played a role in the employer’s decisionmaking process and that it had a determinative effect on the outcome of that process.” Opinion at 589. I thus join in the Introduction and Parts I, II, VI and VII of the majority Opinion. I write separately for three reasons: First, I cannot accept portions of the majority’s analysis in Parts III, IV and V. Second, the area of employment discrimination law is cursed with elusive terms like “mixed motives” and “pretext,” and with numerous presumptions, inferences and burden-shifting rules. Those terms and rules historically often have taken on lives of their own, independent of their connection to the underlying theories of liability that gave them birth. Thus, a “mixed motives” case is not about mixed motives, and a “pretext” case has little to do with pretext. I believe the time has come to clarify the current status of theories of ADEA liability, and to dispense with unhelpful monikers whenever possible. Thus, unlike the in banc majority, I would dispense altogether with the terms “pretext” and “mixed motives” and hold explicitly that the same standard applies to all disparate treatment eases. Finally, I believe that the entire debate over “but-for” causation makes something out of nothing, and that district courts should feel free to instruct juries in all ADEA eases that a plaintiff does not succeed unless but-for causation is shown.

I.

In McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973), the Supreme Court first set forth the order of proof in disparate treatment cases, and the Court elaborated upon and explained the framework in Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 , 101 S.Ct. 1089 , 67 L.Ed.2d 207 (1981). In the later case, the Court described the process as follows:

First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie ease of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant ‘to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.’ [McDonnell Douglas, 411 U.S.], at 802, 93 S.Ct. at 1824 . Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id. at 804 , 93 S.Ct., at 1825 .

Burdine, 450 U.S. at 252-53 , 101 S.Ct. at 1093 . Burdine repeatedly speaks about the employer’s “true” reason for the discharge, see id. at 256 , 101 S.Ct. at 1095 , and therefore, the opinion was cast in either-or terms. Post-Burdine cases reaffirmed this proposition. See, e.g., N.L.R.B. v. Transportation *600 Management Corp., 462 U.S. 393 , 400 n. 6, 103 S.Ct. 2469 , 2473 n. 5, 76 L.Ed.2d 667 (1983) (in Burdine, “[t]he Court discussed only the situation in which the issue is whether either illegal or legal motives, but not both, were the ‘true’ motives behind the decision”); United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 717, 718 , 103 S.Ct. 1478, 1483 , 75 L.Ed.2d 403 (1983) (“a plaintiff prevail[s] when at the third stage of a Title VII trial he demonstrates that the legitimate, nondiscriminatory reason given by the employer is in fact not the true reason for the employment decision”) (Blackmun, J., concurring). Thus, the pre-Price Water-house jurisprudence “assumed ... that a single impulse moves the employer who discriminates,” see Theodore Y. Blumoff & Harold S. Lewis, Jr., The Reagan Court and Title VII: A Common-Law Outlook on a Statutory Task, 69 N.C.L.Rev. 1, 47 (1990), and that all disparate treatment claims could be analyzed under Burdine’s either-or pretext framework. This did not mean that the Court foreclosed liability when more than one cause motivated the adverse employment decision, but only that the employment discrimination cases coming before the Court were argued under the Burdine pretext framework.

Price Waterhouse v. Hopkins, 490 U.S. 228 , 109 S.Ct. 1775 , 104 L.Ed.2d 268 (1989), changed the employment discrimination liability landscape, but not in the way the in bane majority suggests. In my view, the majority confuses Price Waterhouse’s general holding that plaintiffs may obtain relief despite their inability to fit their proofs into Burdine’s pretext framework, with the standard for causation in cases that do proceed under Burdine . The majority correctly points out that “[a]ll members of the [Price Waterhouse ] Court agreed ... that ‘because of did not mean ‘solely because of.’ ” Opinion at 592. But the quotations from the Price Waterhouse opinions demonstrate only that in that case, all members of the Court agreed that plaintiffs were not without a remedy if their proofs did not fit into the classic Burdine mold. Rather, all members of the Court agreed that when there is no one true reason behind the discharge, the employer in certain circumstances still could be liable. The Price Waterhouse dissent suggested interpreting Burdine so that it could cover all claims of disparate treatment. But a majority of the Court chose to retain Burdine’s framework for pretext cases, and to provide a separate theory of liability, together with a separate order of proof, to apply in cases involving both legitimate and illegitimate reasons for the adverse employment action.

Thus, Price Waterhouse does not support the conclusion that in a pretext case, a plaintiff need not prove that age was the determinative factor in the employment decision. Quite the contrary, a majority of the justices explicitly reaffirmed Burdine’s assumption that in a pretext case, as opposed to a mixed motives case, the illicit reason must be the determinative cause. Crucial passages in the various opinions, that the in banc majority does not cite, demonstrate that a majority of the Price Waterhouse court viewed Bur-dine ’s “one or the other” description of pretext liability as still viable in eases proceeding under a pretext theory. Writing for himself as well as Justices Marshall, Black-mun and Stevens, Justice Brennan distinguished Burdine as follows:

Where a decision was the product of a mixture of legitimate and illegitimate motives ... it simply makes no sense to ask whether the legitimate reason was ‘the “true reason” ’ (Brief for Petitioner 20 (emphasis added)) for the decision — which is the question asked by Burdine. See Transportation Management, supra [462 U.S.], at 400, n. 5, 103 S.Ct., at 2473, n. 5. Oblivious to this last point, the dissent would insist that Burdine’s framework perform work that it was never intended to perform. It would require a plaintiff who challenges an adverse employment decision in which both legitimate and illegitimate considerations played a part to pretend that the decision, in fact, stemmed from a single source — for the premise of Burdine is that either a legitimate or an illegitimate set of considerations led to the challenged decision. To say that Burdine’s evidentia-ry scheme will not help us decide a ease admittedly involving both kinds of considerations is not to cast aspersions on the *601 utility of that scheme in the circumstances for which it was designed.

Price Waterhouse, 490 U.S. at 247 , 109 S.Ct. at 1788-89 (plurality opinion). Moreover, in discussing the standards for proving liability in a mixed motives ease, the plurality pointed out that “[i]f the plaintiff fails to satisfy the factfinder that it is more likely than not that a forbidden characteristic played a part in the employment decision, then she may prevail only if she proves, following Burdine , that the employer’s stated reason for its decision is pretextual.” Id. at 247 n. 12, 109 S.Ct. at 1789 n. 12 (plurality opinion). Justice White similarly drew this distinction:

The Court has made clear that ‘mixed-motives’ cases, such as the present one, are different from pretext cases such as McDonnell Douglas and Burdine . In pretext eases, ‘the issue is whether either illegal or legal motives, but not both, were the “true” motives behind the decision.’ NLRB v. Transportation Management Corp., 462 U.S. 393 , 400 n. 5, 103 S.Ct. 2469 , 2473 n. 5 [ 76 L.Ed.2d 667 ] (1983). In mixed-motives cases, however, there is no one ‘true’ motive behind the decision.

Id. at 260, 109 S.Ct. at 1796 (White, J., concurring).

In fact, the Price Waterhouse plurality’s theory of employment discrimination liability necessarily assumed that a plaintiff proceeding under a mixed motives theory could not succeed under a pretext theory. This is because of the following: In a pretext case, the defendant responds to the plaintiffs pri-ma facie case by offering legitimate nondiscriminatory reasons for the discharge. The plaintiff then must prove that those reasons are pretextual. If a plaintiff cannot prove that the proffered reasons for the discharge were not in fact real reasons, then by definition the plaintiff has failed to demonstrate pretext, and has failed the third prong of the Burdine test. Assume, however, that the district court is convinced that even though the defendant’s proof has gone unrebutted, the plaintiff nonetheless has proven that age played a role in the adverse employment decision. That is a scenario in which both legitimate and illegitimate factors played a role in the decision. Here, the Price Water-house scenario comes into play, and even though the claim fails under Burdine , the defendant would have the burden of disproving but-for causation.

Thus, Price Waterhouse is important not because it said anything about the standard for showing pretext liability but because it constituted the first time the Supreme Court explicitly decided that Burdine liability, while alive and well, did not provide the only framework for imposing liability. I believe, then, that the in bane majority is wrong to suggest that the Price Waterhouse majority used “mixed motives” as a “term of art” that describes “only a small subset of all employment discrimination cases in which the employer may have had more than one motive.” Opinion at 597 n. 9. To be sure, there is language in the various Price Waterhouse opinions addressing the evidence the plaintiff must adduce to prove that the illicit criterion played a role in the decision. But, at least in Price Waterhouse, the nature of the evidence that can be used “to satisfy the factfinder that it is more likely than not that a forbidden characteristic played a part in the employment decision,” Price Waterhouse, 490 U.S. at 247 n. 12, 109 S.Ct. at 1789 n. 12, is a question separate and apart from how a plaintiff can proceed when he or she is unable to prove pretext. In fact, in the wake of Price Waterhouse, a number of courts have addressed the nature of the proofs required to shift the burden in an employment discrimination case, and have arrived at differing results. That is hardly surprising, since Price Waterhouse does not address that question. Compare White v. Federal Express Corp., 939 F.2d 157, 160 (4th Cir.1991) (“To show discrimination in a mixed motive case ... a plaintiff ... may carry its burden under ordinary principles of proof by any sufficiently probative direct or indirect evidence”) with Brown v. East Mississippi Elec. Power Ass’n, 989 F.2d 858, 861 (5th Cir.1993) (“[w]hen a plaintiff presents credible direct evidence that discriminatory animus in part motivated or was a substantial factor in the contested employment action, the burden of proof shifts to the employ-er_”) (emphasis added). For our part, we have held that “[a]t a bare minimum, a plaintiff seeking to advance a mixed motive *602 case will have to adduce circumstantial evidence ‘of conduct or statements by persons involved in the decision-making process that may be viewed as directly reflecting the alleged discriminatory attitude’.” Griffiths, 988 F.2d at 470 (quoting Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir.1992)).

In short, then, a majority of the justices in Price Waterhouse held that Title VII provides two theories of liability: (1) pretext, or Burdine analysis, under which an employee only wins by showing that the employer’s proffered reason for the adverse employment decision was pretextual and that, in fact, the decision was based solely on illegitimate factors; (2) mixed motives cases, in which the trier of fact concludes that both licit and illicit motives played a role in the employment decision, and where the burden shifts to the employer to prove that it would have made the same decision absent the illegitimate motive. This means that the in banc majority’s conclusion that “we would be reluctant to attribute to Congress an intention that an employer should be hable if a hiring or discharge decision is based solely on an employee’s age and not hable if the decision is based primarily on the employee’s age but also on the fact that the employee’s supervisor did not like the employee’s personahty, hair color, or some other personal trait or conduct,”- Opinion at 593, really states the obvious. Other than perhaps the appellant in Price Waterhouse, few contended or contend that a plaintiff would always lose under the ADEA if age was not the determinative factor. The question is how to analyze claims alleging both legitimate and illegitimate motives.

II.

The in bane majority’s description of Price Waterhouse derives not from the opinions in the Price Waterhouse majority, but from the Price Waterhouse dissent’s characterization of the Court’s holding. 1 Justice Kennedy’s dissent in Price Waterhouse sought to recast the Court’s analytical grounding away from the theory underlying the plaintiffs case and in terms of the type of evidence the plaintiff had adduced to prove disparate treatment. Writing for himself, the Chief Justice and Justice Sealia, Justice Kennedy began by describing his view of the court’s holding:

I read the opinions as establishing that in a limited number of cases Title VII plaintiffs, by presenting direct and substantial evidence of discriminatory animus, may shift the burden of persuasion to the defendant to show that an adverse employment decision would have been supported by legitimate reasons. The shift in the burden of persuasion occurs only where a plaintiff proves by direct evidence that an unlawful motive was a substantial factor actually relied upon in making the decision. ... In sum, the court alters the evidentiary framework of McDonnell Douglas and Burdine for a closely defined set of cases.

Price Waterhouse, 490 U.S. at 280 , 109 S.Ct. at 1806 (Kennedy, J.,'dissenting). Thus, in the dissent’s view, the court did not draw a distinction between pretext cases and mixed motives cases but rather between direct evidence cases and circumstantial evidence cases. 2 More than that, the dissent appeared to criticize the plurality opinion for the latter’s assumption that pretext analysis requires proof of sole cause:

The plurality tries to reconcile its approach with Burdine by announcing that it applies only to a ‘pretext’ case, which it defines as a case in which the plaintiff attempts to *603 prove that the employer’s proffered emanation is itself false.... This ignores the language of Burdine , which states that a plaintiff may succeed in meeting her ultimate burden of persuasion ‘either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.’ 450 U.S., at 256 , 101 S.Ct., at 1095 (emphasis added). Under the first of these two alternative methods, a plaintiff meets her burden if she can ‘persuade the court that the employment decision more likely than not was motivated by a discriminatory reason.’ United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 717-18 [ 103 S.Ct. 1478, 1483 , 75 L.Ed.2d 403 ] (1983) (Blackmun, J., concurring).

Price Waterhouse, 490 U.S. at 287-88 , 109 S.Ct. at 1810 . The dissent’s view is totally compatible with the in banc majority’s (and my) conclusion that in all but a limited number of cases, the holding of Price Waterhouse is irrelevant. See id. at 280 , 109 S.Ct. at 1806 (Kennedy, J., dissenting) (“In sum, the Court alters the evidentiary framework of McDonnell Douglas and Burdine for a closely defined set of cases.”). Indeed, I believe it is impossible to square the Price Waterhouse majority’s framework with the language of subsequent Supreme Court cases.

The Price Waterhouse dissent explicitly criticized the Court for unnecessarily complicating disparate treatment analysis by dividing it into various theories. See Price Waterhouse, 490 U.S. at 279 , 109 S.Ct. at 1806 (Kennedy, J., dissenting) (“Continued adherence to the evidentiary scheme established in [McDonnell Douglas and Burdine ] is a wiser course than creation of more disarray in an area of the law already difficult for the bench and bar.”). Just four years later, that view became the majority. In Hazen Paper Co. v. Biggins, — U.S.-, 113 S.Ct. 1701 , 123 L.Ed.2d 338 (1993), the Court clarified the standards for proving disparate treatment under the ADEA. In no uncertain terms, the Court held that:

Whatever the employer’s decisionmaking process, a disparate treatment claim cannot succeed unless the employee’s protected trait actually played a role in that process and had a determinative influence on the outcome.

Id. at-, 113 S.Ct. at 1706. One thing is clear from this language: In no disparate treatment case must a plaintiff prove that the illicit motive was the determinative factor. It necessarily follows that the Court’s distinction in Price Waterhouse between pretext cases and mixed motives cases no longer proves a viable rationale for the Price Water-house’s burden-shifting approach. This is because in light of Hazen, a plaintiff need not prove that age was the determinative factor to prove liability in a pretext case — rather, under the language of Hazen, a plaintiff could succeed under Burdine without proving that the employer’s reasons are wholly pretextual. And, if the reasons are not wholly pretextual, some of them must be true. Further still, if some of the employer’s reasons are true, pretext cases sometimes involve mixed motives. Thus, after Hazen, the burden-shifting approach of Price Water-house — if it survives at all — must rest not on the distinction between cases involving mixed motives and eases involving pretexts for discrimination, but rather on the distinction between circumstantial evidence cases and direct evidence cases — the distinction drawn by Justice Kennedy in his Price Waterhouse dissent. Thus, in my view, this court should not continue to refer to the term “mixed motives” and then define it as meaning something other than mixed motives. See Opinion at 597 n. 9. Instead, we simply should abandon the term altogether.

Along with abandoning the notion of an independent category of “mixed motives” eases, Hazen is important for another reason as well — it signalled discomfort with the Bur-dine scheme of apportioning burdens and presumptions, and consequently, with the entire notion of “pretext” liability. In this regard, the Court foreshadowed its decision in St. Mary’s by pointing out that “inferring age-motivation from the implausibility of the employer’s explanation may be problematic in cases where other unsavory motives, such as pension interference, were present.” Id. at-, 113 S.Ct. at 1708. Hence, the Court expressed wariness about the “one or the *604 other” approach of the pretext cases. The Court supported this critique by pointing to language in pretext eases tending to show that liability could be imposed under the ADEA even when age was not a motivating factor:

Although some language in our prior decisions might be read to mean that an employer violates the ADEA whenever its reason for firing an employee is improper in any respect, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 , 93 S.Ct. 1817, 1824 [ 36 L.Ed.2d 668 ] (1973) (creating proof framework applicable to ADEA) (employer must have ‘legitimate, nondiscriminatory reason’ for action against employee), this reading is obviously incorrect. For example, it cannot be true that an employer who fires an older black worker because the worker is black thereby violates the ADEA. The employee’s race is an improper reason, but it is improper under Title VII, not the ADEA.

Hazen, — U.S. at-, 113 S.Ct. at 1707. Thus, with the criticism of Burdine generally, and with the Court’s holding that in all disparate treatment cases the plaintiff need only prove that the illicit factor had a determinative effect on the outcome, the Court strongly signalled the end of pretext liability as a distinct theory of disparate treatment liability.

St Mary’s made the point even more explicit, and abandoned the notion of pretext liability altogether. In that case, the Supreme Court rejected the view that when a plaintiff proves an employer’s proffered reasons for the adverse employment action is pretextual, the plaintiff automatically wins. Rather, in a disparate treatment case, the plaintiff must prove intentional discrimination, and the concept of affirmative proof is analytically distinct from proving other explanations wrong. St Mary’s qualified this by saying 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., — U.S. at-, 113 S.Ct. at 2749. And, as the in banc majority recognizes, “[a] finding that the employer’s nondiscriminatory explanation is a pretext permits, but does not require, the trier of fact to conclude that the employer discriminated against the plaintiff based on the ground alleged.” Opinion at 596. But by focusing on what St Mary’s says about “sole cause,” the majority misses the real significance of St Mary’s, and may perpetuate misreadings of the case both in our own case law and in the commentary.

If we interpret St Mary’s purely within the pretext paradigm, as the in banc majority appears to do, 3 the case can be read to say that in all disparate treatment cases proceeding within the Burdine framework, the plaintiff must, at a minimum, prove pretext. After all, that is how Burdine described the three-pronged test. And, we recently held in Armbruster v. Unisys Corp., 32 F.3d 768, 782 (3d Cir.1994), that in a post-St Mary’s pretext case “a plaintiff who claims invidious discrimination but lacks overt evidence of discriminatory animus must point to evidence tending to show the defendant’s explanation is pretextual.” (Emphasis added). If that is true, however, we very nearly are back at sole cause again. This is because the plaintiff is being forced not only to make an affirmative showing but also affirmatively to disprove facts. See Armbruster, 32 F.3d at 783 (“After St Mary’s, it seems clear ... that the trier of fact cannot find for the plaintiff merely because it disbelieves the defendant’s proffered explanation; it must also be persuaded that the employment decision was the result of the bias that can be inferred from the falsity of the defendant’s explanation.”) (emphasis added); id. (“an ultimate finding of illegal discrimination in a pretext case requires evidence showing a pri-ma facie case and evidence showing pretext”) (second alteration added); see also Michael A. Zubrensky, Despite the Smoke, There Is No Gun: Direct Evidence Requirements in Mixed-Motives Employment Law After Price Waterhouse v. Hopkins, 46 Stan. L.Rev. 959, 964 (1994) (“plaintiffs [must] dis *605 prove unstated reasons for the employment decision”). But, as Hazen makes clear, in no disparate treatment case must a plaintiff prove that the illicit factor was the sole or determinative cause of the adverse employment action. Therefore, to read St. Mary’s as requiring a plaintiff to prove pretext is to misread the case.

The point of St. Mary’s was not to place a dual burden on plaintiffs, but rather to treat disparate treatment discrimination eases— after the plaintiff has established a prima facie case and after the defendant has met its burden of production — -just like any other case where the plaintiff bears the burden of proof. See also Gehring v. Case Corp., 43 F.3d 340, 343 (7th Cir.1994) (“Once the judge finds that the plaintiff has made the minimum necessary demonstration (the ‘prima facie case’) and that the defendant has produced an age neutral explanation ... the only remaining question ... the jury need answer is whether the plaintiff is a victim of intentional discrimination.”) After the plaintiff and the defendant have met their initial burdens, the entire Burdine procedure no longer is of any relevance (apart from the fact that the procedure provided a mechanism to get evidence before the court). Id. To be sure, the plaintiff may attempt to prove intentional discrimination solely by focusing on the falsity of the defendant’s explanations, see St. Mary’s, — U.S. at-n. 4, 113 S.Ct. at 2749 n. 4, but that only means that if a jury disbelieves the defendant’s argument, it may believe the opposite. Nothing in that proposition is peculiar to age discrimination claims. In other words, the plaintiff certainly is not required to rebut the defendant’s proffered reasons completely, if he or she nonetheless is able to establish that the illicit motive was a but-for cause of the adverse employment decision. See St. Mary’s, -U.S. at-n. 4, 113 S.Ct. at 2749 n. 4 (“there must be a finding of discrimination”); id. at-, 113 S.Ct. at 2751 (employee must prove “that the employer has unlawfully discriminated”); id. at --•, 113 S.Ct. at 2752 (“proving the employer’s reason false becomes part of (and often considerably assists) the greater enterprise of proving that the real reason was intentional discrimination”); id. at-, 113 S.Ct. at 2753-54 (“[Ojnce the defendant has responded to the plaintiffs prima facie case, ‘the district court has before it all the evidence it needs to decide’ not (as the dissent would have it) whether the defendant’s response is credible, but ‘whether the defendant intentionally discriminated against the plaintiff.’ ”) (citation omitted).

The problem probably arose with St. Mary’s assumption that proving pretext is easier than affirmatively proving intentional discrimination. St. Mary’s assumed that when the factfinder is focussed purely on whether the defendant’s proffered reasons are true, the plaintiff is somehow getting off the hook. In some cases that may be true. But that assumption certainly is incorrect as a general proposition. Rather, it may be much more difficult to disprove an employer’s explanation than to point to evidence tending to show that even if the employer’s explanation is partly correct, the illicit motive also caused the action.

But putting that incorrect assumption aside, the real point of St. Mary’s was to focus the factfinder in all disparate treatment cases away from the question of pretext and instead on the question of whether intentional discrimination took place. St. Mary’s is important because it tells district courts to dispense with abstract pretext analysis altogether except insofar as it sheds light on whether intentional discrimination took place. As in all eases, there must be evidence in the record to support a finding in favor of the plaintiff on the ultimate question. As Hazen makes clear, when the plaintiff is not required to prove sole cause, it should not matter at all that a legitimate reason played a role in the process. Thus, once the defendant has met its proffer, the jury should be instructed that it should consider evidence of the prima facie case, evidence of legitimate explanations, evidence bearing on the credibility of those explanations, and all other relevant evidence in the case to determine whether the employer discriminated against the plaintiff.

By abandoning sole cause as the basis for pretext liability, Hazen makes clear that there is no separate category of mixed mo *606 tives cases. By turning the focus in “pretext” cases away from evidence of pretext, St Mary’s makes clear that there is no separate category of pretext cases. What we are left with is one broad category of disparate treatment eases that, except for the limited category of Price Waterhouse eases, should be treated alike. 4

III.

This brings me to the question of causation. The majority goes to great lengths to show that plaintiffs must prove but-for causation in order to prevail, but the ultimate test it announces neglects all mention of but-for causation. See Opinion at 596-97, Opinion at 598. Contrary to the majority’s intimations, all the justices in Price Waterhouse itself agreed on this point. I believe that the majority is incorrect when it states that in Price Waterhouse, “Justices Brennan, Marshall, Blackmun, and Stevens read the statute as imposing liability in any situation where the unlawful motive was a ‘motivating’ factor.” Opinion at 594-95. While the Price Waterhouse plurality pointed out that “Hopkins argues that once she made this showing [that the unlawful motive was a motivating factor] she was entitled to a finding that Price Waterhouse had discriminated against her on the basis of sex,” it quickly rejected that argument. Price Waterhouse, 490 U.S. at 244 n. 10, 109 S.Ct. at 1787 n. 10. Justice Brennan really was concerned with burdens and presumptions; his point was that if the defendant could not prove its affirmative defense, the trier of fact could presume that but-for causation had been proven. See id. at 246 n. 11, 109 S.Ct. at 1788 n. 11 (“ [W]here an employer is unable to prove its claim that it would have made the same decision in the absence of discrimination, we are entitled to conclude that gender did make a difference to the outcome.”) (plurality opinion); see also id. at 249 , 109 S.Ct. at 1790 (“A court that finds for a plaintiff under this standard has effectively concluded that an illegitimate motive was a ‘but-for’ cause of the employment decision.”) (plurality opinion); id. at 281 , 109 S.Ct. at 1807 (“The theory of Title VH liability the plurality adopts ... essentially incorporates the but-for standard.”) (Kennedy, J., dissenting). In other words, all the justices always have agreed that a plaintiff cannot win in an age discrimination suit if but-for causation is not proved; the disagreement in Price Water-house involves the much different question of who bears the burden of proof and what can be inferred when those burdens are not met. Id. at 281 , 109 S.Ct. at 1807 (“The importance of today’s decision is not the standard of causation it employs, but its shift to the defendant of the burden of proof.”) (Kennedy, J., dissenting).

The in banc majority’s belief that “but-for” causation is surrounded in controversy has induced it to shy away from the concept in articulating a jury charge — even though the majority opinion at one point explicitly recognizes that the Hazen test translates into but-for causation, see Opinion at 595-96 (“A plaintiff in an ADEA case ... has the burden of persuading the trier of fact ... that there is a ‘but-for’ causal connection between the plaintiff’s age and the employer’s adverse action....” I believe this unnecessarily complicates matters. Cf. Gehring, 43 F.3d at 344 (“‘determining factor’ is not a term in common usage, and it therefore does not illuminate the essential concepts. Putting unusual terms in jury instructions does little beyond confusing the jurors”). Thus, while it is true that in all non-Price Waterhouse cases, the test is whether the “plaintiff [has proven] by a preponderance of the evidence that age played a role in the employer’s decisionmaking process and that it had a determinative effect on the outcome of that process,” Opinion at 598-99, the jury also may be instructed that this technically worded test translates into but-for causation. Gehring, 43 F.3d at 344 (“one attractive formulation” is that the jury should be instruct *607 ed to decide “whether the employer would have fired [demoted, laid off] the employee if the employee had been younger than 40 and everything else had remained the same”) (alteration in original). In Price Waterhouse cases, as defined in note 9 of the in banc majority’s opinion, the jury should be instructed that if the defendant fails to meet its burden of showing that it would have made the same decision in the absence of the illicit motive, it must conclude that the plaintiff has 'proven but-for causation.

. It is evident that we decided Griffiths correctly, as Griffiths was after Price Waterhouse but before Hazen. Of course, Price Waterhouse constituted the first stage in a process that ultimately saw the Supreme Court abandoning the notion that there are different theories of disparate treatment liability.

. The dissent disagreed with this distinction as well: "Our opinions make plain that Burdine applies to all individual disparate-treatment cases, whether the plaintiff offers direct proof that discrimination motivated the employer’s actions or chooses the indirect method of showing that the employer's proffered justification is false, that is to say, a pretext. See Aikens, supra, 460 U.S. at 714 n. 3, 103 S.Ct. at 1481 n. 3 ('As in any lawsuit, the plaintiff may prove his case by direct or circumstantial evidence.')”. Price Waterhouse, 490 U.S. at 288 , 109 S.Ct. at 1810 (Kennedy, J., dissenting).

. See Opinion at 597 ("We think it clear from the Supreme Court's opinion in St. Mary’s that the trier of fact in a pretext case, where the record will support it, may choose not to accept either party's litigating position as reflecting the whole truth.”) (emphasis added).

. In light of Hazen and St. Mary's, I agree with the majority's conclusion that Price Waterhouse cases are "cases not only where the record would support a conclusion that both legitimate and illegitimate factors played a role in the employer’s decision, but where the plaintiff’s evidence of discrimination is sufficiently ’direct’ to shift the burden of proof to the employer on the issue of whether the same decision would have been made in the absence of the discriminatory animus." Opinion at 597 n. 9.