C. Thomas RYTHER, Plaintiff-Appellee, v. KARE 11, an NBC Affiliate; Gannett Co., Inc., Defendants-Appellants

LOKEN, Circuit Judge,

dissenting.

I respectfully dissent. This appeal raises two important issues in applying St. Mary’s *848 Honor Center v. Hicks, 509 U.S. 502 , 118 S.Ct. 2742 , 125 L.Ed.2d 407 (1993): first, what is the proper standard for granting judgment as a matter of law (JAML) under Hicks; and second, whether jury instructions frequently given in ADEA cases, including this one, are inappropriate after Hicks. Though I agree with the court’s JAML standard, I conclude that KARE 11 is entitled to JAML on the facts of this case, and I further conclude that the district court’s jury instructions were reversible error under Hicks. Accordingly, I would reverse. A majority of the active circuit judges join in Part I.A, which is a partial separate concurrence, and in Parts II.A and II.B. of this opinion.

I. JAML Issues.

A. The Proper Standard.

Hicks resolved a conflict among the circuits by holding that a finding of pretext does not compel a finding that the employer was guilty of intentional age discrimination. 12 Focusing on the passage in Hicks quoted at page 7 and again in footnote 5 of the court’s opinion, some circuits have concluded, erroneously in my view, that submissible evidence of pretext will always defeat an employer’s motion for summary judgment or JAML. See Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1066-72 (3d Cir.1996) (en banc). Other circuits disagree. See Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir.1996) (en bane). Panel opinions of this court have consistently held that the district court may grant summary judgment or JAML for the employer even if plaintiff has some evidence of pretext if that evidence, for one reason or another, falls short of proving intentional discrimination. Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1335 (8th Cir.1996), succinctly stated this rule: “Intentional discrimination vel non is like any other ultimate question of fact: either the evidence is sufficient to support a finding that the fact has been proven, or it is not.”

The Supreme Court concluded its opinion in Hicks by stating that we should not “treat discrimination differently from other ultimate questions of fact.” 509 U.S. at 524 , 113 S.Ct. at 2756 , quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 , 103 S.Ct. 1478, 1482 , 75 L.Ed.2d 403 (1983). That is direct support for the rule in Roth-meier, because a factfinder’s finding of intentional discrimination is subject to meaningful judicial review. See Anderson v. Bessemer City, 470 U.S. 564, 573 , 105 S.Ct. 1504, 1511 , 84 L.Ed.2d 518 (1985); Fed.R.Civ.P. 50(a)(1), 52(a). Though an implausible interpretation of the passage quoted on page 7 of the court’s opinion could support a contrary view, the Court in Hicks explicitly warned us not “to dissect the sentences of the United States Reports as though they were the United States Code.” 509 U.S. at 515 , 113 S.Ct. at 2751 .

The final paragraph of Part II of the court’s opinion confirms that Rothmeier is the law of this circuit. In Part III of its opinion, the court then properly reviews Ryther’s pretext and other evidence in great detail before concluding, “there exists substantial evidence in the record to support the jury’s finding of intentional age discrimination.” Supra, at 849. Though I disagree with the result the court reaches in this case, I concur in the legal standard it has adopted and applied. 13 '

B. Applying the Standard in This Case.

My prior panel dissent discussed at length why I would hold that the district court erred in denying KARE ll’s motion for JAML. *849 See Ryther v. KARE 11, 84 F.3d 1074, 1090-92 (8th Cir.1996). To summarize briefly, ten years of professional market research suggested that Ryther as lead sportscaster did not attract Twin Cities viewers. In 1988 and 1989, the station brought in two new managers, Janet Mason and Linda Rios Brooks, who retained a different market research organization to survey Twin Cities viewers. When Gallup reported that Ryther had again fared poorly, Mason, Brooks, and the third decisionmaker, Richard Modig, made the rational decision not to rehire Ryther when his fourth three-year employment contract expired.

At trial, all three decisionmakers testified that their decision was based upon the market research. There is no “suspicion of mendacity” here, not even a hint that this testimony was untruthful. Instead, the district court and this court labor mightily to demonstrate that the reason is not credible because Ryther was out of favor before the Gallup survey began (a true red herring), and because the market research was flawed. But evidence of an unsound decision is not probative of intentional age discrimination. To prove intentional discrimination, pretext evidence “must call into question the veracity of the defendant’s ultimate justification.” Isenbergh v. Knight-Ridder Newspaper Sales, Inc., 97 F.3d 436, 444 (11th Cir.1996). See also Woodman v. Haemonetics Corp., 51 F.3d 1087, 1092-94 (1st Cir.1995); Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1124 (7th Cir.1994) (plaintiff must “produce evidence from which a rational factfinder could infer that the company lied”). Here, Ryther’s weak prima facie case and unconvincing pretext evidence are insufficient for any reasonable factfinder to conclude that Ryther’s age was a determining factor in RARE ll’s refusal to renew his contract.

II. Instructional Error.

A.

Though jury instructions were not at issue in Hicks, the decision provides guidance on a troublesome instruction issue. The issue, broadly stated, is whether to involve the jury in the McDonnell Douglas paradigm that dominates judges’ review of the evidence in employment discrimination eases. Hicks clearly signals that the answer in most cases is no. If the employer has articulated a legitimate nondiseriminatory reason for its challenged adverse action:

[t]he defendant’s ‘production’ (whatever its persuasive effect) having been made, the trier of fact proceeds to decide the ultimate question: whether plaintiff has proven ‘that the defendant intentionally discriminated against [him]’ because of his [age].

509 U.S. at 511 , 113 S.Ct. at 2749 (quoting Burdine, 450 U.S. at 253, 101 S.Ct. at 1093-94). In other words, the jury need not make findings regarding the plaintiff’s prima facie case or whether the employer’s explanation is pretextual. Though judges when deciding summary judgment and JAML motions must filter evidence through the McDonnell Douglas paradigm, the jury need only decide the ultimate issue of intentional age discrimination. 14

Since Hicks, other circuits have held that instructions should normally be limited to the ultimate discrimination issue. See Woodhouse v. Magnolia Hosp., 92 F.3d 248, 257 (5th Cir.1996) (“it is improper to instruct the jury on the elements of the prima facie case”); Gehring v. Case Corp., 43 F.3d 340, 343 (7th Cir.1994) (“the only question the jury need answer — is whether the plaintiff is a victim of intentional discrimination”), cert. denied, - U.S. -, 115 S.Ct. 2612 , 132 L.Ed.2d 855 (1995). But in Kehoe v. Anheuser-Busch, Inc., 96 F.3d 1095, 1105 (8th Cir. 1996), our panel concluded that “the district courts in this circuit are constrained to instruct juries on the elements of the prima facie case” because a strong prima facie case plus evidence of pretext may be sufficient to infer intentional discrimination. I disagree with that conclusion. The instructions must tell the jury to resolve the ultimate issue of *850 intentional discrimination. Beyond that, although the district court has broad discretion in formulating instructions, it is not “constrained to” instruct how discrimination can be proved — that is the task of attorneys in closing argument. 15

B.

Since Hicks, one frequently used instruction treatise has proposed an instruction that is flatly contrary to Hicks. The proposal in Devitt, Blackmar & Wolff, Federal Jury Practice & Instructions § 106.04 (1996 supp.), first instructs the jury to consider the elements of plaintiff’s prima facie case and states that, if plaintiff has proved a prima facie case, “you may, but you need not, render a verdict” for plaintiff. Under Hicks, that portion of the instruction, standing alone, is clear error. Section 106.04 goes on to instruct that, if defendant has produced evidence of a reason other than age, “you must find for the defendant unless you find ... that plaintiff has proved that the reason given by the ■ defendant was not the true reason for the action.” That instruction, which divorces pretext from the ultimate issue of intentional discrimination, is squarely contrary to the holding in Hicks. In my view, use of § 106.04 in future cases will be reversible error.

In this case, the- district court based its Instruction 20 on the misguided Devitt, Blackmar & Wolff format. In first instruct^ ing the jury to find whether Ryther proved the elements of a prima facie case, the court modified the comparable language in § 106.04, but if anything it magnified the clear error:

In deciding whether plaintiffs age was a determining factor in defendants’ decision, you should first consider whether plaintiff has established the following facts by a preponderance of the evidence:

First: Plaintiff was within the protected age group, that is, he was 40 years of age or over;

Second: Plaintiffs job performance was satisfactory;

Third: Plaintiff was terminated from his job when his contract was not renewed; and

Fourth: A younger person with similar credentials replaced plaintiff.

If plaintiff has failed to prove one or more of these facts, you must find for the defendants. If plaintiff has proven these facts, he has offered evidence from which you could conclude that defendants discriminated against him because of his age.

(Emphasis added.) In other words, the court instructed that the jury could find for Ryther if he proved the elements of a prima facie case. That is wrong under Hicks, and the error is clearly prejudicial because “the burden of establishing a prima facie case of disparate treatment is not onerous.” Burdine, 450 U.S. at 253, 101 S.Ct. at 1094. RARE 11 preserved the issue by objecting to this aspect of Instruction 20 and proposing alternative instructions.

C.

We review jury instructions to determine whether as a whole they adequately and sufficiently state the applicable law. In an ADEA ease, the main, issue is whether, “[rjeading the instructions as a whole, it is evident that the jury’s consideration was directed to whether age was the determining factor in [the employer’s adverse action].” Slathar v. Sather Trucking Corp., 78 F.3d 415, 418 (8th Cir.), cert. denied, - U.S. -, 117 S.Ct. 179 , 136 L.Ed.2d 118 (1996).

Here, Instruction 20 contains a clear error of law in the middle of a lengthy, complex instruction. (The entire Instruction 20 is quoted at pages 32-33 of the court’s opinion.) No other instruction dealt with this issue, so any “cure” must be found in the remainder of Instruction 20. Following the above-highlighted error, the jury was told:

*851 If you find that plaintiff has proven these facts, you must consider whether defendants have produced evidence of a reason other than age for not renewing plaintiffs contract.

Defendants have offered evidence of legitimate, nondiscriminatory reasons for their actions, therefore, plaintiff must prove by a preponderance of the evidence that the reasons offered by defendants are merely a pretext or cover-up for intentional age discrimination.

Standing alone, this portion of the instruction was permissible (though as I have explained, ill-advised). The question is, did it cure the prior error. In Smalley v. Duluth, W. & Pac. Ry., 940 F.2d 296, 298 (8th Cir.1991), cert. denied, 502 U.S. 1060 , 112 S.Ct. 940 , 117 L.Ed.2d 110 (1992), we faced this exact issue and reversed, based upon “the general proposition that if two or more conflicting statements of law are suggested, it cannot be presumed that the jury followed the proper rule.” In my view, Smalley was correctly decided and is controlling here.

The jury was erroneously instructed that it could find for Ryther if he proved the elements of a prima facie case. It was later instructed that Ryther must prove pretext for intentional discrimination. The earlier error was not explicitly corrected, and the relationship between the two conflicting instructions was not explained. As the prima facie case is easy to prove, the first instruction invited the jury to render a verdict for Ryther if it concluded KARE 11 had treated him unfairly. The second instruction limited the jury to its proper role under ADEA. Because the issue is critical to the scope of the federal statute, because the evidence of intentional age discrimination in this case was weak at best, and because we cannot know which instruction the jury obeyed, KARE 11 is entitled to a new trial.

. In O'Connor v. Consolidated Coin Caterers Corp., - U.S. -,-, 116 S.Ct. 1307, 1310 , 134 L.Ed.2d 433 (1996), the Court noted that it has never held that the McDonnell Douglas paradigm applies to ADEA cases. But the Court continues to use that analysis in age cases, and so do we. See Roxas v. Presentation College, 90 F.3d 310 , 315 (8th Cir.1996).

. To summarize, under this standard, while plaintiff may rely on the same evidence to prove both pretext and discrimination, that evidence must be sufficient to prove that the employer is guilly of intentional discrimination. Therefore, a trial judge may decide on a motion for summary judgment or JAML that the evidence is insufficient for a reasonable trier of fact to infer unlawful discrimination, even if plaintiff has presented some evidence of pretext. We review rulings on such motions under our traditional summary judgment and JAML standards.

. Conversely, in the rare case when the employer has not articulated a legitimate nondiscriminatory reason, the jury must decide any disputed elements of the prima facie case and is instructed to render a verdict for plaintiff if those elements are proved. 509 U.S. at 509 -10 & n. 3, 113 S.Ct. at 2748 & n. 3.

. We have previously observed that instructions incorporating the McDonnell Douglas paradigm “add little to the juror’s understanding of the case and, even worse, may lead jurors to abandon their own judgment and to seize upon poorly understood legalisms to decide the ultimate question of discrimination." Grebin v. Sioux Falls Indep. Sch. Dist. No. 49-5, 779 F.2d 18, 20 (8th Cir.1985) (quotation omitted).