Hook v. Enrst & Young ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
6-28-1994
Hook v. Enrst & Young
Precedential or Non-Precedential:
Docket 92-3724
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 92-3724
___________
DEBRA V. HOOK, an individual,
Appellant
v.
ERNST & YOUNG, a partnership,
Appellee
___________
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 92-00748)
___________
Argued: August 4, 1993
PRESENT: STAPLETON, HUTCHINSON and ROTH, Circuit Judges
(Opinion Filed: June 28, 1994)
____________
Louis M. Tarasi, Jr., Esquire
Joseph J. Hinchliffe, Esquire (Argued)
Tarasi & Johnson
510 Third Avenue
Pittsburgh, PA 15219
Attorney for Appellant
Paul A. Manion, Esquire
Mary-Jo Rebelo, Esquire
Manion, McDonough & Lucas
Suite 882
600 Grant Street
Pittsburgh, PA 15219
and
1
Kathryn A. Oberly, Esquire
Associate General Counsel
Thomas L. Riesenberg, Esquire (Argued)
Assistant General Counsel
Ernst & Young
Suite 400
1200 19th Street, N.W.
Washington, D.C. 20036
and
Elizabeth B. Healy, Esquire
Associate General Counsel
Ernst & Young
380 Madison Avenue
New York, NY 10017
Attorneys for Appellee
____________
OPINION OF THE COURT
____________
HUTCHINSON, Circuit Judge.
Appellant, Debra Hook ("Hook"), appeals a judgment the
United States District Court for the Western District of
Pennsylvania entered on a jury verdict for her former employer
appellee Ernst & Young. Hook claims Ernst & Young intentionally
discriminated against her on the basis of sex in violation of
Title VII of the Civil Rights Act of 1964 ("Title VII"), 42
U.S.C.A. §§ 2000e to 2000e-17 (West 1981 & Supp. 1993), when it
terminated her employment. On appeal, she contends that she was
entitled to a mixed-motives burden shifting jury instruction
under the 1991 amendments to Title VII and Price Waterhouse v.
Hopkins, 490 U.S. 228 (1989), and therefore the court erred in
charging the jury that it was her burden to show that sex was a
2
"determinative" rather than a "motivating" factor in the decision
to terminate her.
More specifically, Hook argues section 107(a) of the
Civil Rights Act of 1991 ("the 1991 Act"), codified at 42
U.S.C.A. § 2000e-2(m) (West Supp. 1993), automatically entitles
Title VII plaintiffs who make out a prima facie case of illegal
discrimination on a pretext theory to a motivating factor mixed-
motives instruction. If a mixed-motives instruction is not
required when a Title VII plaintiff's case depends on pretext,
Hook argues in the alternative that she was entitled to a mixed-
motives instruction because the evidence in this case showed the
discriminatory animus Price Waterhouse requires.
We conclude that section 107 does not govern this case
because that section does not apply to conduct occurring prior to
its enactment in 1991. We also conclude that Hook has not
produced the kind of evidence that would entitle her to a mixed
motives, burden shifting instruction under Price Waterhouse.
Finally, we reject Hook's argument that a mixed-motives
instruction is required whenever there is circumstantial evidence
sufficient to establish a prima facie case under McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department
of Community Affairs v. Burdine, 450 U.S. 248 (1981). We think a
holding to that effect would be in conflict with the teaching of
the United States Supreme Court in St. Mary's Honor Center v.
Hicks, 113 S. Ct. 2742, 2749 (1993). That case holds that a
plaintiff who seeks to establish illegal discrimination on a
pretext theory must persuade the factfinder not only that illegal
3
discrimination or bias was present but also that it was a cause
of the act on which her Title VII claim is based. In contrast, a
Price Waterhouse mixed-motives instruction, which requires
evidence sufficient to show discriminatory animus more directly,
implies cause and shifts to the employer the burden of persuading
the factfinder its bias had, in fact, no causal connection with
its act against the protected employee. Thus, in a mixed-motives
case the employer must negate causation, i.e., persuade the
factfinder it would have acted as it did even if it were not
invidiously prejudiced. Therefore, we will affirm the district
court's order entering judgment for Ernst & Young on the jury's
verdict against Hook.
I. Factual & Procedural History
Arthur Young & Co. ("Arthur Young"), a major accounting
firm, hired Hook in June of 1989 as a tax senior, its lowest
supervisory position. Hook had a law degree and work experience
with another major accounting firm but was not a certified public
accountant ("CPA"). At her job interview, Hook inquired when she
might be eligible for promotion. James Chemel ("Chemel"), the
director of the section which would employ Hook, stated that she
would be promoted to tax manager within six months.
On October 1, 1989, Arthur Young merged with Ernst &
Whinney to become Ernst & Young. After the merger, Chemel told
Hook that the merger prevented him from promoting her to tax
manager within the six months he had promised. Ernst & Young
soon replaced Chemel with John McCann ("McCann"). He told Hook
4
that Ernst & Young preferred CPA's for promotion to that
position. A little later the staff in Ernst & Young's Pittsburgh
office received a memorandum. It stated that any person who
sought promotion to tax manager had to pass the CPA examination.
This new policy had a grandfather clause excusing employees like
Hook from the CPA requirement.
Ernst & Young rates its employees on a scale of one to
five. Five indicates the employee "consistently excels" but one
indicates "unacceptable" performance. As Hook continued at
Ernst & Young, her performance reviews started to go downhill. In
her first written evaluation in April of 1990 Hook received four
"2s," three "3s," and one "4." At her next evaluation in April
of 1991 Hook received three "1s," two "2s," and one "3" from
Chemel. She received equally low ratings from McCann, her
supervisor when she was terminated.
During the 1990 economic down-turn, Ernst & Young
suffered a considerable loss of business and decided to reduce
its workforce. Between March and June of 1990 it fired seven
members of its tax staff, six men and one woman. In February
1991 Ernst & Young continued to contract its workforce and fired
two more professionals from its tax staff.
In April 1991 McCann informed Hook she would be
terminated because her projects were subject to "time overruns"
and "she was the least good of those who were left." Joint
Appendix ("Jt. App.") at 452A. Two other tax professionals, one
male and one female, were also fired at the same time.
5
Ernst & Young continued to cut back through early 1992
and many employees left the firm voluntarily. Of the fifty-five
professionals Ernst & Young had employed in its Pittsburgh tax
department at the time of the merger in October 1989, only
twenty-two remained by November 1992. Sixteen of the thirty-
three employees who were gone had been dismissed; four of the
sixteen were women.
In December 1991 Hook sued Ernst & Young under
Title VII alleging it intentionally discriminated against her
because of sex when it terminated her.1 At trial, Hook testified
to three comments she found offensive. From them she seeks to
infer that her supervisor, McCann, had a sexually discriminatory
animus. She testified that on one occasion a client asked her
how she could get out of her blouse because it buttoned in the
back, to which McCann is said to have replied that he had
buttoned it for her that morning. On a separate occasion, McCann
allegedly told Hook she should "get [her] legs and ass over" to
the client. Jt. App. at 148A. Hook testified McCann made one
other "demeaning" remark but she was unable to recall the exact
words, only the embarrassment it caused her.
Hook testified her work was of high quality. She also
testified that Peter Stipanovich, another tax manager who was
1
Hook also alleged violations of the Fair Labor Standards Act as
amended by the Equal Pay Act, 29 U.S.C.A. §§ 201-219 (West 1965,
1978, 1985 & Supp. 1993), and the Pennsylvania Equal Pay Law,
Pa. Stat. Ann. tit. 43, §§ 336.1-336.10 (1992). Ernst & Young
removed the case to federal court. The district court entered
judgment as a matter of law in favor of Ernst & Young on these
claims at the close of Hook's case. Those orders are not
appealed.
6
retained, was less qualified than she was and said two Ernst &
Young partners had admitted she was better than Stipanovich. Her
testimony that the Ernst & Young partners agreed with her about
Stipanovich's relative merit was uncorroborated, and the Ernst &
Young supervisors who testified all said Stipanovich was an able
professional with good credentials. In particular, Adam S. Monks
("Monks"), an Ernst & Young partner, testified that Stipanovich
was "very knowledgable [sic] about and is considered one of the
most knowledgable [sic] in the office" on taxation of
partnerships. Id. at 383A. Similarly, Chemel testified that
Stipanovich was "above average" in competence, ability and work
performance. Id. at 402A. The record also shows Stipanovich was
a CPA with a degree from the University of Pennsylvania's Wharton
School of Business.
After the close of all evidence, in conference with the
parties, the court proposed the following jury charge:
The question for you, members of the
jury, is whether plaintiff's sex was a
determinative factor in the discharge of
plaintiff. . . . Plaintiff need not prove
that her sex was the sole factor motivating
the defendant. However, plaintiff must prove
that she would not have been discharged if
the fact that she is a woman had not been
taken into account.
The issue you are to decide is whether
plaintiff's sex was a determinative factor in
the defendant's discharge of plaintiff. The
issue is not whether the plaintiff was
treated fairly or whether there was a
personality conflict between the plaintiff
and her superiors or whether she was treated
differently than other employees or whether
the defendant made sound management
decisions.
7
You are not to decide whether you agree
or disagree with the defendant's actions. You
are to decide whether plaintiff's sex was a
determinative factor in defendant's discharge
of plaintiff.
If you find that the defendant
discharged plaintiff for reasons in which her
sex was not a determinative factor, then you
must return a verdict in favor of defendant.
Id. at 503A-05A (emphasis added). Hook objected to this proposed
charge and argued that in all Title VII individual discrimination
cases, the prohibited consideration need only be a "motivating"
rather than a "determinative" factor under section 107(a) of the
1991 Act. Hook requested a point for charge stating "[a]n
unlawful employment practice is established when the complaining
party establishes that sex was a motivating factor in the
decision to terminate that complaining party's employment even
though other factors motivated the practice." Brief for
Appellant at 10 n.4 (emphasis added). The district court stated
it was granting Hook's point "in other words," Jt. App. at 500A,
but denied her request to change the proposed charge. The court
later observed that Ernst & Young defended the case solely on a
pretext theory and a "motivating factor" instruction was only
appropriate in a mixed-motives case. Id. at 508A.
During deliberations, the jury asked the court to
"define . . . the precise meaning of . . . determinative factor."
Id. at 552A. In response, the district court repeated its charge
and then added "[t]he term 'determinative factor' as used in your
instructions, means a factor that is causally connected to the
8
result; in this case, the discharge of plaintiff. It need not be
the sole cause of the result, since multiple factors might cause
a particular result." Id. at 553A (emphasis added). The jury
returned a verdict in favor of Ernst & Young. After her post-
trial motions including her motion for new trial were denied,
Hook filed a timely notice of appeal.
II. Jurisdiction & Standard of Review
The district court had subject matter jurisdiction over
Hook's claim pursuant to 28 U.S.C.A. § 1331 (West 1993) and 42
U.S.C.A. § 2000e-5(f)(3). We have appellate jurisdiction over
the appeal from the final order of the district court pursuant to
28 U.S.C.A. § 1291 (West 1993).
Normally we review a district court's denial of a
motion for a new trial for abuse of discretion, but where the
denial of the motion was based on the application of legal
precepts we exercise plenary review. Griffiths v. CIGNA Corp.,
988 F.2d 457, 462 (3d Cir.) (citing Rotondo v. Keene Corp., 956
F.2d 436, 438 (3d Cir. 1992)), cert. denied, 114 S. Ct. 186
(1993). Similarly, while we ordinarily review a district court's
rulings on points for charge for abuse of discretion, Link v.
Mercedes-Benz of N. Am., Inc., 788 F.2d 918, 922 (3d Cir. 1986),
we exercise plenary review where the appellant contends that the
charge does not state the correct legal standard. Griffiths, 988
F.2d at 462 (citing Savarese v. Agriss, 883 F.2d 1194, 1202 (3d
Cir. 1989)). Where a jury charge is attacked for legal error we
must determine whether "the charge [taken] as a whole fairly and
9
adequately submits the issues in the case to the jury." Bennis
v. Gable, 823 F.2d 723, 727 (3d Cir. 1987). We will reverse
"'only if the instruction was capable of confusing and thereby
misleading the jury.'" Id. (citation omitted); see also
Griffiths, 988 F.2d at 462.
III.
Hook contends she was entitled to an instruction using
the words "motivating factor" based on section 107(a) of the 1991
Act. The 1991 Act amended 42 U.S.C.A. § 2000e-2 by adding a new
subsection. Section 107(a), codified at section 2000e-2(m),
provides:
(m) Motivations for practice
Except as otherwise provided in this
subchapter, an unlawful employment practice
is established when the complaining party
demonstrates that . . . sex . . . was a
motivating factor for any employment
practice, even though other factors also
motivated the practice.
42 U.S.C.A. § 2000e-2 (emphasis added). Portions of the
legislative history indicate a purpose of this amendment was to
partially overrule that part of Price Waterhouse which exempted
employers from liability and precluded any Title VII remedy if
they could produce evidence and persuade a factfinder that an
adverse employment decision would have been made regardless of
the fact that a discriminatory motive was one of the factors
influencing the decision. Thus, as the House Report states:
When Congress enacted the Civil Rights
Act of 1964, it precluded all invidious
10
consideration of a person's race, color,
religion, sex or national origin in
employment. The effectiveness of Title VII's
ban on discrimination on the basis of race,
color, religion, sex or national origin has
been severely undercut by the recent Supreme
Court decision in Price Waterhouse v.
Hopkins, 109 S. Ct. 1775 (1989). In that
case, the Supreme Court concluded that "when
a plaintiff . . . proves that her gender
played a motivating part in an employment
decision, the defendant may avoid a finding
of liability . . . by proving by a
preponderance of the evidence that it would
have made the same decision even if it had
not taken the plaintiff's gender into
account." Id. at 1795 (emphasis added).
* * *
To establish liability under proposed
Subsection 703(1), the complaining party must
demonstrate that discrimination actually
contributed or was otherwise a factor in an
employment decision or action. Thus, in
providing liability for discrimination that
is a "contributing factor," the Committee
intends to restore the rule applied in many
federal circuits prior to the Price
Waterhouse decision that an employer may be
held liable for any discrimination that is
actually shown to play a role in a contested
employment decision.
Section 203 of the bill also amends
Subsection 706(g) of Title VII to make clear
that where a violation is established under
Subsection 703(1), and where the employer
establishes that it would have taken the same
action in the absence of any discrimination,
a court may not order the employer to hire,
reinstate, promote or provide back pay to the
complainant. This provision is consistent
with the current text of Title VII, which
provides that "no order of the court shall
require the admission or reinstatement of an
individual . . . if such individual . . . was
refused employment . . . for any reason other
than discrimination." 42 U.S.C. § 2000e-
5(g).
11
* * *
However, the presence of a contributing
discriminatory factor would still establish a
Title VII violation, and a court could order
other appropriate relief, including
injunctive or declaratory relief,
compensatory and punitive damages where
appropriate, and attorney's fees.
H.R. Rep. No. 102-40(I), 102d Cong., 1st Sess. 45, 48-49,
reprinted in, 1991 U.S.C.C.A.N. 549, 583, 586-87 (emphasis in
original) (footnotes omitted).
Ernst & Young insists that Price Waterhouse and not
section 107 provides the rule of decision in this case because
that section is not to be applied in cases involving preenactment
conduct. We agree.
The Supreme Court recently spoke to the retroactivity
issue in the context of other portions of the 1991 amendments.
Landgraf v. USI Film Prods., 62 U.S.L.W. 4255 (Apr. 26, 1994)
(Section 102); Rivers v. Roadway Express Inc., 62 U.S.L.W. 4271
(Apr. 26, 1994) (Section 101). Landgraf dealt with section 102
which for the first time imposes liability for compensatory and
punitive damages when a violation of Title VII has been shown.
The Court gave the following instructions, which are pertinent
here:
When a case implicates a federal statute
enacted after the events in suit, the court's
first task is to determine whether Congress
has expressly prescribed the statute's proper
reach. If Congress has done so, of course,
there is no need to resort to judicial
default rules. When, however, the statute
contains no such express command, the court
12
must determine whether the new statute would
have retroactive effect, i.e., whether it
would impair rights a party possessed when he
acted, increase a party's liability for past
conduct, or impose new duties with respect to
transactions already completed. If the
statute would operate retroactively, our
traditional presumption teaches that it does
not govern absent clear congressional intent
favoring such a result.
Landgraf, 62 U.S.L.W. at 4265-66.
Following this analysis, the Court in Landgraf first
concluded that neither the text of the amendments nor the
legislative history, with two exceptions not relevant, reflects
Congress's intent on the issue of retroactivity. Id. at 4260-61.
"Instead, [the Court noted,] the history of the 1991 Act conveys
the impression that legislators agreed to disagree about whether
and to what extent the Act would apply to preenactment conduct."
Id. at 4261.
Turning to section 102, the Court had no difficulty
concluding that Congress's imposition of punitive damages should
not be applied to preenactment conduct. Id. at 4266.
Compensatory damages, however, posed a more difficult issue:
The provision of § 102(a)(1) authorizing
the recovery of compensatory damages is not
easily classified. It does not make unlawful
conduct that was lawful when it occurred; as
we have noted, supra, at 6-8, § 102 only
reaches discriminatory conduct already
prohibited by Title VII.
* * *
Nonetheless, the new compensatory
damages provision would operate
"retrospectively" if it were applied to
conduct occurring before November 21, 1991.
13
Unlike certain other forms of relief,
compensatory damages are quintessentially
backward-looking. Compensatory damages may
be intended less to sanction wrongdoers than
to make victims whole, but they do so by a
mechanism that affects the liabilities of
defendants. They do not "compensate" by
distributing funds from the public coffers,
but by requiring particular employers to pay
for harms they caused. The introduction of a
right to compensatory damages is also the
type of legal change that would have an
impact on private parties' planning.
* * *
Because Title VII previously authorized
recovery of backpay in some cases, and
because compensatory damages under §102(a)
are in addition to any backpay recoverable,
the new provision also resembles a statute
increasing the amount of damages available
under a preestablished cause of action. Even
under that view, however, the provision
would, if applied in cases arising before the
Act's effective date, undoubtedly impose on
employers found liable a "new disability" in
respect to past events. See Society for
Propagation of the Gospel, 22 F. Cas., at
767. The extent of a party's liability, in
the civil context as well as the criminal, is
an important legal consequence that cannot be
ignored.
Id. at 4266-67 (emphasis in original) (footnotes omitted). The
new provision regarding compensation was, therefore, held to
apply only to conduct occurring after Congress passed the 1991
Amendments.
In Rivers, the Court relied on Landgraf to conclude
that section 101, which amended 42 U.S.C.A. § 1981 by defining
the term "make and enforce contracts" broadly to embrace all
phases of the contractual relationship including discriminatory
14
contract terminations, enlarges the category of conduct subject
to section 1981 liability and therefore does not apply to cases
pending when it was enacted. Rivers, 62 U.S.L.W. at 4272. The
Court also rejected an argument that because Congress intended to
alter the rule of law established in Patterson v. McLean Credit
Union, 491 U.S. 164 (1989), the amendment was restorative and the
section should be applied retroactively. Although restorative
intent is apparent, such intent does not reveal whether Congress
intended the amendment to apply retroactively. Id. at 4272-75.
The Court's holdings in Landgraf and Rivers do not
answer the question before us. As the Court observed in
Landgraf, "there is no special reason to think that all the
diverse provisions of the Act must be treated uniformly for
[these] purposes. . . . [C]ourts should evaluate each provision
of the Act in light of ordinary judicial principles concerning
the application of new rules to pending cases and pre-enactment
conduct." Landgraf, 62 U.S.L.W. at 4266. Landgraf and Rivers,
however, do provide a basis for confident prediction regarding
section 107.
As Justice Brennan in his plurality opinion in Price
Waterhouse states, "[t]he specification of the standard of
causation under Title VII is a decision about the kind of conduct
that violates that statute." Price Waterhouse, 490 U.S. at 237.
Section 107, by changing the standard of causation under Price
Waterhouse, expands the types of conduct that violate the Act.
Prior to section 107, an employer did not violate the Act if it
considered an employee's protected trait when deciding to take an
15
adverse employment action, so long as it also considered other
factors that would have caused it to make the same decision in
the absence of the unlawful consideration. After the enactment
of section 107, an employer making exactly the same kind of
decision could violate the Act. This would change "the kind of
conduct that violates th[e] statute." Price Waterhouse, 490 U.S.
at 237. Moreover, to the extent that section 107 is meant to be
restorative of pre-Price Waterhouse law, our examination of the
statutory language and the legislative history uncovers no
indication that Congress intended the amendment to apply
retroactively.
"Elementary considerations of fairness dictate that
individuals should have an opportunity to know what the law is
and to conform their conduct accordingly; settled expectations
should not be lightly disrupted." Landgraf, 62 U.S.L.W. at 4261
(footnote omitted). If an amendment imposing liability for
compensatory damages for conduct already unlawful sufficiently
disrupts settled expectations to foreclose retroactive
application, so too does an amendment that renders previously
lawful conduct unlawful. Accordingly, Landgraf and Rivers
preclude us from giving section 107 the retroactive application
that Hook desires.
IV. Analysis under Price Waterhouse
Although the 1991 Amendment does not apply
retroactively, we must still consider Hook's Price Waterhouse
16
argument that the district court should have granted her request
for a mixed-motives burden-shifting charge.2
Whether a pretext or a mixed-motives case has been
presented depends on the kind of circumstantial evidence the
employee produces in support of her claim of illegal
discrimination. Not all evidence that is probative of
discrimination entitles an employee to a Price Waterhouse mixed-
motives charge. See Ostrowski v. Atlantic Mut. Ins. Cos., 968
F.2d 171, 181 (2d Cir. 1992). Thus, in Price Waterhouse, Justice
O'Connor stated in her concurrence that the employee has to show
the employer's mixed motives by "direct evidence that an
illegitimate criterion was a substantial factor in the decision."
Price Waterhouse, 490 U.S. at 276 (O'Connor, J., concurring).
Specifically,
stray remarks in the workplace, while perhaps
probative of sexual harassment, cannot
justify requiring the employer to prove that
its hiring or promotion decisions were based
on legitimate criteria. Nor can statements
by nondecisionmakers, or statements by
decisionmakers unrelated to the decisional
process itself, suffice to satisfy the
2
Ernst & Young argues Hook waived this issue because she did not
raise it until supplemental points for charge were submitted. It
notes the district court specifically declined to give Hook's
mixed-motives instruction because mixed-motives was "not the
position that the defendant has taken in this case at all." Jt.
App. at 508A. A trial judge has discretion to decide what points
for charge are appropriate based on the evidence presented by the
parties during the trial. See, e.g., Hinds v. General Motor
Corp., 988 F.2d 1039, 1046 (10th Cir. 1993) (error for trial
court to give instruction on theory not supported by competent
evidence). In the district court Ernst & Young failed to object
to Hook's supplemental point for charge on the theory it now
raises; therefore, Ernst & Young's waiver argument may itself be
subject to waiver. Fleck v. KDI Sylvan Pools, Inc., 981 F.2d
107, 116 (3d Cir. 1992), cert. denied, 113 S. Ct. 1645 (1993).
17
plaintiff's burden in this regard. . . . [I]n
the context of this case, a mere reference to
"a lady candidate" might show that gender
"played a role" in the decision, but by no
means could support a rational factfinder's
inference that the decision was made "because
of" sex.
Id. at 277 (O'Connor, J., concurring). In Ostrowski the United
States Court of Appeals for the Second Circuit criticized the
phrase "'direct evidence'" as "'an unfortunate choice of
terminology for the sort of proof needed to establish a "mixed-
motives" case.'" Ostrowski, 968 F.2d at 181 (quoting Tyler v.
Bethlehem Steel Corp., 958 F.2d 1176, 1185 (2d Cir.), cert.
denied, 113 S. Ct. 82 (1992)).3 According to Ostrowski, there is
typically no direct evidence because the decisionmaker is
unlikely to admit that he fired an employee because of age or
sex. Id. at 181-82. Ostrowski nevertheless recognizes that
circumstantial evidence "tied directly to the alleged
discriminatory animus" must be produced to justify a burden-
shifting instruction. Id. at 182. It described the
circumstantial evidence that shows mixed-motives in a way that
3
Despite Judge Kearse's criticism in Ostrowski of Justice
O'Connor's use of the phrase "direct evidence" to distinguish the
evidence needed to present a mixed-motives as opposed to a
pretext case, it seems to us to be a convenient shorthand term.
Of course, it is, in a sense, circumstantial, but it is not
circumstantial in the same sense as the evidence that makes out a
pretext case. In a mixed-motives case the defendant condemns
himself of invidious discrimination out of his own mouth or by
his own overtly biased acts. In a pretext case he lies or masks
the reason for his act. He is, like the serpent in Eden, more
subtle.
18
shows it is different from the kind of "circumstantial evidence"
that makes out a pretext case. It said:
For example, purely statistical evidence
would not warrant such a charge; nor would
evidence merely of the plaintiff's
qualification for and availability of a given
position; nor would "stray" remarks in the
workplace by persons who are not involved in
the pertinent decisionmaking process. Those
categories of evidence, though they may
suffice to present a prima facie case under
the framework set forth in [McDonnell
Douglas] and [Burdine], and may indeed
persuade the factfinder that the plaintiff
has carried his or her ultimate burden of
persuasion, would not suffice, even if
credited, to warrant a Price Waterhouse
charge. If, however, the plaintiff's
nonstatistical evidence is directly tied to
the forbidden animus, for example policy
documents or statements of a person involved
in the decisionmaking process that reflect a
discriminatory or retaliatory animus of the
type complained of in the suit, that
plaintiff is entitled to a burden-shifting
instruction.
Id. (citations omitted).
Absent evidence that could "fairly be said to 'directly
reflect'" the alleged unlawful basis, the case should be treated
as a pretext case. Griffiths, 988 F.2d at 470.
It is clear, however, that "'[n]ot all evidence that is
probative of discrimination will entitle the plaintiff to [shift
the burden]' to the defendant under Price Waterhouse." Griffiths,
988 F.2d at 470 (quoting Ostrowski, 968 F.2d at 181). The burden
of persuasion shifts to the employer "only after the plaintiff
ha[s] proven that her employer acted unlawfully," and not merely
"on the basis of a prima facie showing." Binder v. Long Island
19
Lighting Co., 933 F.2d 187, 192 n.1 (2d Cir. 1991); see also
Schleiniger v. Des Moines Water Works, 925 F.2d 1100, 1101 (8th
Cir. 1991) ("Simply because a discriminatory reason might be
inferred from a prima facie case does not mean that a mixed
motive case exists."). Evidence establishing a prima facie case
is not always sufficient to require or permit a mixed-motives
burden shifting instruction. Such a result would merge the two
different theories, mixed-motives and pretext, into one cause of
action. Every pretext case would then require a mixed-motives
instruction and that instruction would shift to the employer the
production and persuasion burdens of negating any causal
connection between the employer's action and illegal
discrimination instead of requiring the employee to show pretext
and to persuade the factfinder that illegal discrimination was
the legal cause of the action against her. See St. Mary's, 113
S. Ct. at 2749. As we noted in Griffiths, 988 F.2d at 471-72,
the Supreme Court has taken great pains to differentiate between
the two theories. See, e.g., Price Waterhouse, 490 U.S. at 245-
47.
Therefore, to the extent Hook argues that production of
evidence sufficient to show a McDonnell Douglas/Burdine prima
facie case is evidence of discrimination sufficient to warrant a
mixed-motives instruction, we think she misstates the law. See
Griffiths, 988 F.2d at 470; see also Binder, 933 F.2d at 192 n.1.
Hook also argues that she was entitled to a Price
Waterhouse charge because she produced the kind of evidence
needed to require such charge. We reject this argument.
20
She relied on her own qualifications as well as
McCann's offensive remarks about her blouse and her body. With
respect to qualifications, her performance reviews were largely
negative. Moreover, it was Ernst & Young's policy not to promote
individuals like Hook who had failed to complete the CPA exam.
Only the grandfather clause permitted Hook to advance as far as
she did.
Ernst & Young was in the process of reducing its
professional workforce in the tax field. It dismissed sixteen
professional tax employees in the relevant time period, twenty-
five percent of whom were women. According to McCann, Hook was
terminated simply because she was "the least good of those who
were left." Jt. App. at 452; cf. Wilson v. Firestone Tire &
Rubber Co., 932 F.2d 510, 517 (6th Cir. 1991) ("a plaintiff whose
employment position is eliminated in a corporate reorganization
or work force reduction carries a heavier burden in supporting
charges of discrimination than does an employee discharged for
other reasons").
As to the "sexual advances and indelicacies" allegedly
made by McCann, Brief for Appellant at 21, isolated remarks are
not enough under Price Waterhouse to warrant a mixed-motives
burden shifting instruction. McCann's statements were stray
remarks. Although they were made by a decisionmaker, there is no
evidence they were related to the decision process. They were
temporally remote and they had nothing to do with Hook's job
performance.
21
Alternatively, Hook argues a mixed-motives charge was
warranted because the evidence she produced was enough to show a
male employee, Peter Stipanovich, was less qualified than she for
the job she lost but he was retained. This evidence merely
supplies part of her McDonnell Douglas/Burdine prima facie case.
For the same reasons, it is not direct evidence of mixed motives.
The evidence that showed a mixed-motives case in Price
Waterhouse is different. There, comments in the performance
evaluations upon which the decisionmakers based their decision to
terminate the plaintiff included impermissible sexual
stereotypes,4 and they were an integral part of the decision
process directly relating to the employer's assessment of its
female employee's ability to interact with clients and perform
her job. Price Waterhouse, 490 U.S. at 232-37.5 Similarly, in
Tyler, another mixed-motives age discrimination case, the
evidence presented included a statement by the defendant that its
sales force was "getting too old," that the plaintiff was
replaced by a younger employee and documentary evidence
4
These comments included: (1) descriptions of Hopkins as
"'macho'"; (2) a "suggestion that she 'overcompensated for being
a woman'"; (3) advice "to take 'a course at charm school'"; and
(4) criticism of her use of profanity "'because it's a lady using
foul language.'" Price Waterhouse, 490 U.S. at 235. The
clincher for the plurality in Price Waterhouse was, however, the
fact that a decisionmaker, while explaining to Hopkins why she
was not given partnership, advised her that in the future she
should "'walk more femininely, talk more femininely, dress more
femininely, wear make-up, have her hair styled, and wear
jewelry.'" Id. (citation omitted).
5
In Price Waterhouse the district court found that the employer
had never disavowed reliance on these comments in the evaluations
which plainly showed an illegal discriminatory animus against
women. Price Waterhouse, 490 U.S. at 236-37.
22
indicating the defendant maintained a group called the "Young
Tigers" from which the plaintiff was, by definition, excluded.
Tyler, 958 F.2d at 1186-87; see also Ostrowski, 968 F.2d at 183
(age discrimination case with "explicit evidence of . . . age-
based animus" such as decisionmakers' statements that "there is
no way [a 60 year old employee] can contribute," that two ADEA-
protected employees hired by plaintiff should not have been hired
and instead should have remained in retirement and that Ostrowski
should be fired because he hired older employees).
McCann's remarks are insufficient to show that sexual
bias tainted any employment decision he made. None of the
evidence concerning the termination of Hook nor the retention of
Stipanovich is sufficient to show that a discriminatory animus
against women existed at Ernst & Young when Hook was fired.
Accordingly, the district court did not err in refusing to give a
Price Waterhouse burden-shifting instruction in this case.
V.
For the foregoing reasons, the order of the district
court will be affirmed.
23