Miller v. Cigna Corporation ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
6-24-1994
Miller v. Cigna Corporation
Precedential or Non-Precedential:
Docket 93-1773
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
N0. 93-1773
WILLIAM J. MILLER,
Appellant
v.
CIGNA CORPORATION;
THE INSURANCE COMPANY OF NORTH AMERICA
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civil Action No. 92-05751)
Argued March 28, 1994
BEFORE: STAPLETON, HUTCHINSON and ROTH, Circuit Judges
(Opinion Filed June 28, l994 )
Stephanie A. Middleton (Argued)
Gregory B. Tobin
One Liberty Place, 52nd Floor
1650 Market Street
P.O. Box 7716
Philadelphia, PA 19101
Attorneys for Appellees
CIGNA Corporation and
Insurance Company of North America
1
Alice W. Ballard (Argued)
Lynn Malmgren
Samuel & Ballard
225 South 15th Street
Suite 1700
Philadelphia, PA 19102
Attorneys for Appellant
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Defendant Insurance Company of North America ["INA"]
terminated plaintiff William J. Miller from his job after fifteen
years of employment.1 Miller alleges that he was discriminated
against on the basis of his age in violation of the Age
Discrimination in Employment Act ["ADEA"], 29 U.S.C. §§ 621-34
(1988).
At trial, the district judge instructed the jury that
it could return a verdict for Miller only if he proved that age
was "the sole cause" of INA's decision. After the jury returned
a verdict in INA's favor, Miller appealed, asserting that the
district court improperly charged the jury regarding his burden
of proof. We hold that in ADEA cases that do not qualify for a
burden shifting charge under Price Waterhouse v. Hopkins, 490
U.S. 228 (1989), district courts should instruct the jury that
1
At oral argument, the parties stipulated that INA was the
plaintiff's employer at all times relevant to this appeal. At
trial, however, both INA and CIGNA Corp. were defendants.
2
the plaintiff's 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. Since it is not necessary
for the plaintiff to prove that age was the sole cause of the
employer's decision, we conclude that Miller is entitled to a new
trial.
I.
Miller was hired in 1975 as an assistant to INA's Chief
Financial Officer. In that position, he directed INA's
reinsurance operations at the Newark Reinsurance Company, created
a financial processing service center, and directed the
production of summary financial documents. After serving as Vice
President and Director of INA's Special Risk Facility, Miller was
promoted to Senior Vice President, Field Operations. He created
a new organization, managed a $200 million budget, and supervised
over 8,000 employees. At this point in his career, Miller was
compensated at pay grade sixty-one and his superior consistently
evaluated his performance as exceeding expectations.
After his promotion to Senior Vice President, Miller
was asked to join a special team of other executives called
IMPACT. IMPACT's mission was to identify major strategic issues
and market strategies for INA's Property and Casualty Division.
Caleb Fowler, Chief Financial Officer of the Property and
Casualty Division, and Richard Hoag, Chief of Human Resources,
told Miller they would find him a permanent position at the
3
conclusion of the project. When IMPACT concluded in late 1984,
Miller was assigned to a special project on reinsurance
collection.
Upon completing the special project on reinsurance
collection, Miller was appointed to the position of Senior Vice
President of the Underwriting Division. In this position, Miller
managed four departments, handled complaints from agents and
regulatory agencies, prepared state filings and annual budgets,
and managed a $70 million annual budget.
In late 1988, Miller's supervisor, Jack Morrison,
advised Miller that he should search for another job, both inside
and outside the company, because his position might be
eliminated. In March of 1989, Miller's position was eliminated.
Miller's superior, Nord Bjorke, sent him to Richard Hoag to
receive a special assignment reducing real estate costs in the
Property and Casualty Division.
One year later, Hoag informed Miller that, despite his
success in reducing real estate costs, his position as "real
estate czar" was being terminated. Hoag advised Miller that he
could assist Robert O'Neil, head of Real Estate in the Corporate
Staff, with special projects. In November of 1990, Miller was
informed that this position was being eliminated and that he
would be terminated at the end of December. At the time he was
terminated, Miller was fifty-eight years old and had been
downgraded to pay grade fifty-nine. At no time during 1990 was
Miller informed about five vacancies at the company for which he
might have applied.
4
The first vacancy was for the position of Vice
President, Filing and Regulation. Defendant announced that
Darrell DeMoss, age forty-two, had been selected. Miller had not
known of the position and contends that he was qualified for it
because, as Senior Vice President, Finance and Administration, he
supervised the Filing and Regulation function. Defendant asserts
that Miller was not considered because the position required
legal analysis and Richard Franklin, the hiring manager for this
position, decided to hire an attorney. Miller notes, however,
that his name was not included on the list of nonlawyer
candidates who were considered but disqualified, and that the
previous Vice President, Filing and Regulation, was not a lawyer.
The second vacancy was in the position of General
Manager of CIGNA Reinsurance Company, United Kingdom. Among the
desired qualifications were "[w]ork experience with either United
Kingdom accounting practices or reinsurance accounting practices
and principles . . . ." App. at 712. Miller asserts that this
position involved the same responsibilities he had when he
supervised the Newark Reinsurance Company. James Godorecci, who
was in charge of hiring for the position, acknowledged that he
wrote the job qualifications with Michael Durkin, age thirty-
five, in mind and that he never considered Miller for the
position. INA contends that Miller lacked the desired academic
credentials, work experience and knowledge of United Kingdom
accounting practices.
The third vacancy was for the position of Senior Vice
President, Finance Systems and Administration, in the Claims
5
Department. Qualifications desired for the position included:
broad knowledge and experience in the Property and Casualty
business; knowledge of financial measures and objectives;
credibility and the ability to work with other managers; skill in
influencing managers and implementing strategy; and effective
verbal and written skills. Miller contends he satisfied these
requirements because of his management experience. James Engle,
the hiring manager for this position, testified Miller was not
qualified because he did not have a strong math and statistical
background, and was not familiar with loss control and
statistical monitors. The company asserts that Victor DiFelice,
age thirty-eight, was better qualified for the job.
The fourth vacancy, for the position of Head of
Strategy Implementation, was filled by Ronald Peters, age forty-
nine. The company conceded that Miller was qualified for the
job, but maintained that Peters was better qualified.
The fifth vacancy was for the position of Vice
President, Property and Casualty Marketing. Hiring manager
Thomas Cobb appointed Cynthia Cole-Dougherty, age thirty-eight.
Job qualifications included an ability to conduct market studies,
market research, competitive analyses and segmentation studies.
INA asserts that, although Cynthia Cole-Dougherty did not have
insurance experience, one of the primary considerations in the
hiring decision was a desire to hire from outside both the
company and the industry.
During trial, the district judge asked counsel if
Miller's was a "pretext" or "mixed motives" case. This inquiry
6
made reference to the distinction between employment
discrimination cases in which the plaintiff seeks to carry his or
her burden by showing that the employer's tendered reason for the
challenged action is a pretext for discrimination2 and cases that
qualify for a mixed motives, burden shifting instruction under
Price Waterhouse v. Hopkins, 490 U.S. 228. Miller's counsel
advised the district court that this was a "pretext" case. The
district judge then "distribute[d] to counsel the questions [to
be used] to submit the case to the jury. . . ." App. at 610.
After reviewing those questions, Miller's counsel stated that she
had an objection. Counsel cited Hazen Paper Co. v. Biggins, 113
S. Ct. 1701 (1993), and asserted that plaintiff's burden of proof
under that case was to establish that age was "a determining
factor," i.e., that it "made a difference" in the employer's
decision. App. at 612.
Notwithstanding this objection, the district judge
instructed the jury as follows:
To recover under the pretext theory
which the plaintiff asserts in this case, the
plaintiff must establish by a preponderance
of the evidence that his age was the sole
cause of defendants' failure to hire him into
vacancies that became available and to
terminate his position as a real estate czar
in the last of those listings that I've put
on the page that you have; that he was
qualified and rejected for the positions in
question solely because of his age.
* * *
2
See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248
(1981); St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742 (1993).
7
If the defendants articulate a
legitimate non-discriminatory reason for his
rejection, the plaintiff at all times retains
the ultimate burden of persuading you that
the defendant intentionally discriminated
against him because of his age.
* * *
The plaintiff under the law must prove
that the discriminatory motive was the sole
cause of the employment action.
In order to prove pretext, the plaintiff
must show that the defendant's reasons were
false and that discrimination was the real
reason, however, if you disbelieve the
reasons put forth by the defendants to
justify their decision, you may but are not
required to find intentional discrimination.
* * *
The plaintiff doesn't have to prove that
the employer hated him . . . . He has to
prove that plaintiff's age was the sole
determinative factor in the particular
employment decision.
App. at 673-77 (emphasis added). At the conclusion of the
charge, Miller's counsel renewed her "objection to . . . the
verdict sheet. . . [and stated that] the question before them is
whether age was a determinative factor according to Biggins."
App. at 683 (emphasis added). The district court declined to
alter the charge.
During its deliberations, the jury sent the following
message to the district judge:
The jury requests clarification on the
meaning of defendants' employment decisions
in question # 2.
Is the question which we are addressing
(regarding discrimination based solely on the
8
plaintiff's age) focused on: a) Mr. Miller
not being actively considered -- on the
candidate slate, or b) Mr. Miller not being
selected as the person to get the job, for
each of the jobs a through e?
App. at 691. In response the district judge stated:
[Y]ou must decide whether Mr. Miller's not
being selected to get the job of Vice
President of Filing and Regulation to take
"a" and that job going to another person was
a decision made by the defendants as a
pretext for discrimination based solely on
Mr. Miller's age.
"b" in the question sheet the question
you have to decide is whether to give that
job to the person who received it for the
CIGNA (UK) position was made as a pretext for
discrimination against Mr. Miller based
solely on Mr. Miller's age and so on with
regard to each of the other decisions in 2 a.
considered separately[.]
App. at 691-92 (emphasis added). After two days of
deliberations, the jury returned a verdict in favor of INA.
II.
We conduct plenary review when an appellant contends
that the instructions to the jury, read as a whole, do not state
the correct legal standard. Griffiths v. CIGNA Corp., 988 F.2d
457, 462 (3d Cir.), cert. denied, 114 S. Ct. 186 (1993) (citing
Savarese v. Agriss, 883 F.2d 1194, 1202 (3d Cir. 1989)). "[W]e
will reverse if the instructions were capable of confusing and
thereby misleading the jury." Id. (citing Limbach Co. v. Sheet
9
Metal Workers Int'l Ass'n, 949 F.2d 1241, 1259 n.15 (3d Cir.
1991) (in banc)).3
III.
Like Title VII which prohibits an employer from taking
adverse employment actions against an employee "because of such
individual's race, color, religion, sex or national origin," 42
U.S.C. § 2000 e-2(a)(1), the ADEA prohibits an employer from
taking adverse employment actions against an employee "because of
such individual's age." 29 U.S.C. § 623(a)(1). Not
surprisingly, the ADEA jurisprudence concerning this prohibition
has followed the Title VII jurisprudence interpreting the
analogous prohibition. Trans World Airlines, Inc. v. Thurston,
469 U.S. 111, 121 (1985). A district judge in a case under
either statute must, of course, instruct the jury in a manner
consistent with Congress' mandate that the adverse employment
action must have been taken "because of" the prohibited
consideration.
The nature of the causal connection mandated by the use
of the phrase "because of" in Title VII was a focus of the
Supreme Court's opinions in Price Waterhouse v. Hopkins, 490 U.S.
3
Defendant argues that Miller failed to preserve his objection to
the jury charge. We disagree. Miller's counsel objected, both
before and after the district court charged the jury, that
plaintiff's burden on the issue of causation was to show that age
was a determinative factor, not the sole cause of the employment
decision. See Fed. R. Civ. P. 51; Dunn v. Hovic, 1 F.3d 1371,
1379 (3d Cir. 1993) (in banc) (to preserve an objection to a jury
charge, appellant must provide the trial judge with an
opportunity to correct the erroneous charge).
10
228. The members of the Court differed as to whether "because
of" meant that the forbidden consideration must be a "but-for"
cause (i.e., one without which the adverse employment action
would not have been taken) or only that the impermissible
consideration must have "played a motivating part" in the
decision to take that action. See id. at 244. All members of
the Court agreed, however, that "because of" did not mean "solely
because of." See, e.g., id. at 241, 284.
Justice Brennan, writing for himself and Justices
Marshall, Blackmun and Stevens, took the position that "because
of" required only a finding that gender or some other prohibited
consideration played a part in the decision to take the
challenged action. He explained their position in part as
follows:
We take these words to mean that gender must
be irrelevant to employment decisions. To
construe the words "because of" as colloquial
shorthand for "but-for causation," as does
Price Waterhouse, is to misunderstand them.
* * *
The critical inquiry . . . is whether gender
was a factor in the employment decision at
the moment it was made. Moreover, since we
know that the words "because of" do not mean
"solely because of,"7 we also know that Title
VII meant to condemn even those decisions
based on a mixture of legitimate and
illegitimate considerations. When,
therefore, an employer considers both gender
and legitimate factors at the time of making
a decision, that decision was "because of"
sex and the other, legitimate considerations
-- even if we may say later, in the context
of litigation, that the decision would have
been the same if gender had not been taken
into account.
11
7Congress specifically rejected an
amendment that would have placed
the word "solely" in front of the
words "because of." 110 Cong.Rec.
2728, 13837 (1964).
Price Waterhouse, 490 U.S. at 240, 241 (emphasis added).
Justice Kennedy, writing in dissent for himself, the
Chief Justice, and Justice Scalia, concluded that "because of"
required "but-for" cause. In doing so, he likewise rejected the
suggestion that it was intended to mean "solely because of":
By any normal understanding, the phrase
"because of" conveys the idea that the motive
in question made a difference to the outcome.
We use the words this way in everyday speech.
And assuming, as the plurality does, that we
ought to consider the interpretive memorandum
prepared by the statute's drafters, we find
that this is what the words meant to them as
well. "To discriminate is to make a
distinction, to make a difference in
treatment or favor." 110 Cong.Rec. 7213
(1964). Congress could not have chosen a
clearer way to indicate that proof of
liability under Title VII requires a showing
that race, color, religion, sex, or national
origin caused the decision at issue.
Our decisions confirm that Title VII is
not concerned with the mere presence of
impermissible motives; it is directed to
employment decisions that result from those
motives. The verbal formulae we have used in
our precedents are synonymous with but-for
causation.
* * *
We are told . . . that but-for cause is
not required, since the words "because of" do
not mean "solely because of." Ante, at 241.
No one contends, however, that sex must be
the sole cause of a decision before there is
a Title VII violation. This is a separate
12
question from whether consideration of sex
must be a cause of the decision. Under the
accepted approach to causation that I have
discussed, sex is a cause for the employment
decision whenever, either by itself or in
combination with other factors, it made a
difference to the decision. Discrimination
need not be the sole cause in order for
liability to arise, but merely a necessary
element of the set of factors that caused the
decision, i.e., a but-for cause.
Price Waterhouse, 490 U.S. at 281-82, 284 (emphasis added).
Justice O'Connor, while concurring in the result
reached in Justice Brennan's plurality opinion, disagreed with
the plurality's reading of "because of" and agreed with that of
the dissent:
The legislative history of Title VII bears
out what its plain language suggests: a
substantive violation of the statute only
occurs when consideration of an illegitimate
criterion is the "but-for" cause of an
adverse employment action. The legislative
history makes it clear that Congress was
attempting to eradicate discriminatory
actions in the employment setting, not mere
discriminatory thoughts. . . . Senator Case,
whose views the plurality finds so persuasive
elsewhere, responded:
"The man must do or fail to do
something in regard to employment.
There must be some specific
external act, more than a mental
act. Only if he does the act
because of the grounds stated in
the bill would there by any legal
consequences." Ibid.
Thus, I disagree with the plurality's dictum
that the words "because of" do not mean "but-
for" causation; manifestly they do."
Price Waterhouse, 490 U.S. at 262-63. In the course of her
opinion, Justice O'Connor likened the relevant principles to
13
those involved in Village of Arlington Heights v. Metropolitan
Housing Development Corp., 429 U.S. 252 (1977), where the Court
held that "the plaintiff was not required to prove that the
challenged action rested solely on racially discriminatory
purposes." 490 U.S. at 268 (emphasis supplied).
Finally, Justice White, who also concurred in the
judgment of the Court, looked to Mt. Healthy City School District
Board of Education v. Doyle, 429 U.S. 274 (1977), for guidance in
interpreting "because of." In the context of a public employer's
decision not to rehire an employee in part because of his
exercise of First Amendment rights, the Court had there rejected
a rule of causation that focused "solely on whether protected
conduct played a part, 'substantial' or otherwise, in a decision
not to rehire." Price Waterhouse, 490 U.S. at 259. Under the
Mt. Healthy approach, the plaintiff was required to prove only
that "the unlawful motive was a substantial factor in the adverse
employment action," but there could be no liability if the
defendant showed that it "would have reached the same decision
. . . even in the absence of the protected conduct." Id. A
necessary corollary to this approach, according to Justice White,
was that a plaintiff does not have "to prove that the
illegitimate factor was the only, principal, or true reason for
petitioner's action." Id.
We find it clear from the opinions in Price Waterhouse,
and from the legislative history they cite, that Congress, by
using the phrase "because of," did not mean "solely because of."
Even if we did not have this guidance, however, we would be
14
reluctant to attribute to Congress an intention that an employer
should be liable if a discharge decision is based solely on an
employee's age and not liable if the discharge decision is based
primarily on the employee's age but also on the fact that the
employee's supervisor did not like his personality, hair color,
or some other personal trait or conduct.
Having concluded that "because of" does not mean
"solely because of," we now look to the governing precedents to
determine the proper jury instruction in an employment
discrimination case that does not qualify for a mixed motives,
burden shifting charge under Price Waterhouse.
IV.
The Justices concurring in the judgment in Price
Waterhouse declined to apply to the situation before them the
familiar rules for allocating the burdens of production and
persuasion found in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), and Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981).4 They viewed those cases as "pretext" cases
4
As summarized in Burdine, those rules are:
[First] the plaintiff has the burden of
proving by a preponderance of the evidence a
prima facie case of discrimination. Second,
if the plaintiff succeeds in proving the
prima facie case, the burden [of production]
shifts to the defendant to articulate some
legitimate nondiscriminatory reason for the
employee's rejection. Third, should the
defendant carry this burden, the plaintiff
must then have the opportunity to prove by a
preponderance of the evidence that the
legitimate reasons offered by the defendant
15
and the case before them as a "mixed motives" case. The Court
held that, in cases where the plaintiff offers "direct evidence"
of unlawful discrimination and the evidence as a whole permits a
conclusion that both permissible and impermissible considerations
played a role in the employer's decision, the plaintiff need only
show that the unlawful motive was a substantial motivating factor
in that decision. If the finder of fact concludes that the
plaintiff has carried this burden, the burden of persuasion
shifts to the defendant to prove that the unlawful motive was not
a but-for cause, i.e., that the same action would have been
taken, because of legitimate considerations, in the absence of
the unlawful motive.
The members of the Court concurring in the judgment in
Price Waterhouse reached this result by different routes.
Justices Brennan, Marshall, Blackmun and Stevens read the statute
as imposing liability in any situation where the unlawful motive
was a "motivating" factor, but recognized an "affirmative
defense" where the employer shows that the same actions would
have been taken in the absence of the unlawful motive. Price
Waterhouse, 490 U.S. at 244, 250. Justice O'Connor agreed with
the three dissenters that the statute required but-for cause as a
predicate to liability, but favored a burden shifting rule for
cases in which the plaintiff "show[s] by direct evidence that an
were not its true reasons, but were a pretext
for discrimination.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53
(1981) (citations omitted).
16
illegitimate criterion was a substantial factor in the decision."
Id. at 276. In such cases, the burden shifts "to the employer to
justify its decision," -- "to show that the decision would have
been the same absent discrimination." Id. "[W]here a plaintiff
has made this type of strong showing of illicit motivation, the
fact finder is entitled to presume that the employer's
discriminatory animus made a difference in the outcome, absent
proof to the contrary from the employer." Id. Justice White
found it unnecessary "to get into a semantic discussion on
whether Mt. Healthy . . . creates an affirmative defense." He
agreed with Justice O'Connor, however, that the plaintiff in
Price Waterhouse had made the requisite showing that sex was a
substantial factor in the employer's decision and that the
"burden of persuasion then should have shifted to Price
Waterhouse to prove" the same decision would have been made
absent the unlawful motive.
For present purposes, there are two important things to
note about the several opinions in Price Waterhouse. First, a
majority of the members of the Court did not endorse the
plurality's view that Title VII imposed liability whenever a
prohibited factor played a motivating role in the challenged
decision. Justices O'Connor and White and the three dissenters
rejected, in the words of Justice White, "a rule of causation
that focused solely on whether protected conduct played a part,
substantial or otherwise, in a decision." 490 U.S. at 259.
Second, while the holding of the Court fashioned a special rule
reducing the plaintiff's burden of persuasion in a defined
17
category of Title VII individual discrimination cases, a majority
of the Court endorsed views of Title VII that would leave
plaintiffs in other individual discrimination cases with the
burden of showing but-for cause.
All members of the Court now seem to agree that a
showing of but-for causation by the plaintiff is required in ADEA
cases that do not call for special treatment under Price
Waterhouse.5 In Hazen Paper Co., 113 S. Ct. 1701, the plaintiff,
like the plaintiff here, claimed that he had been discharged
because of his age in violation of the ADEA. The Supreme Court
was called upon to address the relationship between the standard
of ordinary liability under the ADEA and the standard of
liability for liquidated damages under the provision of that Act
authorizing such damages for "willful" violations. With respect
to the former, Justice O'Connor, writing for a unanimous Court,
reviewed the case law applicable to disparate treatment (i.e.,
individual discrimination) cases and concluded as follows:
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 1706.
5
Section 107 of the 1991 Civil Rights Act, codified at 42 U.S.C.
§ 2000e-2(m), provides that "an unlawful employment practice is
established when the complaining party demonstrates that [a
prohibited consideration] was a motivating factor for any
employment practice, even though other factors also motivated the
practice." Miller does not contend that this provision is
applicable to ADEA cases. We have today held in Hook v. Ernst &
Young, ____ F.3d ____ (3d Cir. 1994) that section 107 does not
apply to any case in which the alleged conduct giving rise to the
claim occurred before the passage of the 1991 Act.
18
With respect to the standard of liability for
liquidated damages, the Court held:
We therefore reaffirm that the Thurston
definition of "willful" -- that the employer
either knew or showed reckless disregard for
the matter of whether its conduct was
prohibited by the statute -- applies to all
disparate treatment cases under the ADEA.
Once a "willful" violation has been shown,
the employee need not additionally . . .
prove that age was the predominant rather
than a determinative factor in the employment
decision.
Id. at 1710.
We find support in Hazen Paper for our earlier
conclusion that "because of" does not mean "solely because of."
If an ADEA plaintiff need not show that age was "the predominant
factor" in order to establish liability for liquidated damages,
surely such a plaintiff does not have to show that age was the
sole cause of the challenged decision in order to establish a
right to normal forms of relief. We also believe Hazen Paper
provides an authoritative answer to our second inquiry. A
plaintiff in an ADEA case who does not qualify for a burden
shifting instruction under Price Waterhouse has the burden of
persuading the trier of fact by a preponderance of the evidence
that age "actually played a role in [the employer's
decisionmaking] process and had a determinative influence on the
outcome" of that process. Id. at 1706.
V.
Contrary to INA's insistence, the foregoing conclusions
are not inconsistent with our holding in Griffiths v. CIGNA
19
Corp., 988 F.2d 457. Griffiths was a Title VII case in which the
plaintiff, a Jamaican immigrant, had been denied a promotion and
had filed a complaint with the Equal Employment Opportunity
Commission asserting that CIGNA's decision was based on his
national origin. In the six months prior to the filing of this
complaint, CIGNA had experienced a series of thefts and had
conducted an investigation. The report resulting from this
investigation, issued shortly after Griffiths' EEOC complaint,
implicated Griffith in the thefts. He was terminated for the
stated reason that he had failed to cooperate with the
investigation. Griffiths filed suit alleging that he was
discharged in retaliation for his EEOC complaint.
Following a trial at which Griffiths introduced
evidence tending to show that CIGNA falsely had accused him of
the thefts and that the stated reason for his discharge was a
pretext to cover a retaliatory motive, the trial judge charged
the jury that CIGNA would be liable "if retaliation was 'a
motivating factor' or 'one of the reasons' for Griffiths'
discharge." 988 F.2d at 468. On appeal, we held that it was
error for the district court to require Griffiths to show that
the unlawful motivation played only a role in the challenged
decision.
Our opinion in Griffiths recognized that, under Price
Waterhouse, the correct wording of a causation instruction to a
jury differs depending on whether the case before the court is a
"mixed motives" or a "pretext" case. Only in a "mixed motives"
case is the plaintiff entitled to an instruction that he or she
20
need show only that the forbidden motive played a role, i.e., was
"a motivating factor." Even in such cases, we noted that such an
instruction must be followed by an explanation that the defendant
may escape liability by showing that the challenged action would
have been taken in the absence of the forbidden motive.
We first concluded that Griffiths had "failed to submit
any evidence that [could] fairly be said to 'directly reflect'
the alleged retaliatory motive for his termination." Id. at 470.
Accordingly, he was not entitled to a burden shifting instruction
under Price Waterhouse. We next concluded that all Title VII
individual discrimination cases which do not qualify for a Price
Waterhouse instruction are governed by "the Burdine pretext
standard." Id. at 470 n.13. Our holding was as follows:
As this case properly is characterized as a
pretext case, the court should not have
charged the jury that retaliation could be
only "a motivating factor" or "one of the
reasons" for Griffiths' discharge.
Id. at 472. We reaffirm this holding today.
In the course of our opinion, we went on to discuss
"the Burdine pretext standard." We found "some inconsistency
within this circuit" with respect to the language used to
describe the required causation in a pretext case. We noted that
in Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir.),
cert. dismissed, 483 U.S. 1052 (1987), an in banc decision of
this court, we held that an ADEA plaintiff "need not prove that
age was the employer's sole or exclusive consideration, but must
prove that age made a difference in the decision." Id. at 897.
21
We further noted that a long line of panel decisions of this
court followed this "but for" approach and required a showing
that the prohibited motive was "a determinative" factor. See,
e.g., Gray v. York Newspapers, Inc., 957 F.2d 1070, 1079 (3d Cir.
1992); Billett v. CIGNA Corp., 940 F.2d 812, 816 (3d Cir. 1991);
Bruno v. W.B. Saunders Co., 882 F.2d 760, 764 (3d Cir. 1989),
cert. denied sub nom. CBS, Inc. v. Bruno, 493 U.S. 1062 (1990);
Roebuck v. Drexel Univ., 852 F.2d 715, 726 (3d. Cir. 1988); Blum
v. Witco Chemical Corp., 829 F.2d 367, 373 (3d Cir. 1987); and
Lewis v. University of Pittsburgh, 725 F.2d 910 (3d Cir. 1983),
cert. denied, 469 U.S. 892 (1984). On the other hand, we noted
that our decision in Bellissimo v. Westinghouse Electric Corp.,
764 F.2d at 175 (3d Cir. 1985), cert. denied, 475 U.S. 1035
(1986), spoke of the concept of but-for cause as being
inconsistent with a charge using the phrase "the determinative
factor." Id. at 176, n. 1 (emphasis in original). Even
Bellissimo, however, was consistent with the proposition that the
plaintiff in a pretext case need not prove that the prohibited
motive was the sole cause of for the adverse employment action.
This was apparent from the following segment of that case which
we quoted in Griffiths:
Interpreting Title VII to require proof of
"the determinative factor" is inconsistent
with the "but-for" causation test, insofar as
plaintiff would be required to show that the
discriminatory motive was the sole reason for
22
the action taken. More than one "but for"
cause can contribute to an employment
decision, and if any one of those
determinative factors is discriminatory,
Title VII has been violated. See Lewis v.
University of Pittsburgh, 725 F.2d at 917 n.
8.
988 F.2d at 471 (emphasis in original).
Immediately following this review of our case law, our
opinion in Griffiths includes the following, admittedly cryptic,
observation upon which the district court here relied in giving
its "sole cause" instruction:
[W]hile we recognize that in our pretext
cases we have stated in passing, without
focusing on the matter, that the
discriminatory motive need not be the sole
factor causing the employment decision . . .
it is clear that in pretext cases the claim
is that the discriminatory motive was the
sole cause of the employment action and
therefore it is inappropriate to state that
the plaintiff only need show that the
discrimination played "a motivating" or "a
substantial" role.
988 F.2d at 472 (emphasis in original).
For several reasons, we do not understand this sentence
in Griffiths to mandate a charge in this case requiring the
plaintiff to show that the impermissible factor was the sole
cause of the adverse employment action. First, while the term
"sole cause" is used, the purpose of this sentence in the opinion
is to make the point that our prior cases refusing to require a
showing that the discriminatory motive was the sole cause are not
23
inconsistent with our holding that "it is inappropriate to state
[in a pretext case] that the plaintiff only need show that the
discrimination played 'a motivating' or 'a substantial' role."
Second, to read this sentence as the district court
here did would make the panel's decision in Griffiths
inconsistent with Hazen Paper as well as with our in banc
decision in Chipollini. A panel of this court is not free to
ignore an in banc decision of this court. See Siegel v. Alpha
Wire Corp., 894 F.2d 50, 53 n.2 (3d Cir.), cert. denied, 496 U.S.
906 (1990) ("The defendants argue that we should overrule
Chipollini. Of course we do not have the power to do so -- a
panel of this court may not overrule a decision of another panel.
In addition, Chipollini was decided by this court sitting in
banc, which makes doubly frivolous this invitation to overrule
it."); Halderman v. Pennhurst State Sch. & Hosp., 707 F.2d 702,
720 (3d Cir. 1983) (Sloviter, J., dissenting) ("Even if the
Master had relied upon the presumption in favor of
deinstitutionalization, it was one mandated by in banc decisions
of this court, which a panel is not free to disregard."); cf.
Third Circuit I.O.P. 9.1 (only the court in banc may overrule the
published decision of a previous panel). Moreover, a decision of
this court that conflicts with a subsequent decision of the
Supreme Court does not remain binding precedent in this court.
See, e.g., Nationwide Ins. Co. v. Patterson, 953 F.2d 44, 46 (3d
Cir. 1991) ("Ordinarily, a panel of this court is bound to follow
the holdings of published opinions of prior panels of this court
unless overruled by the court in banc or the holding is
24
undermined by a subsequent Supreme Court case."); Frangos v.
Doering Equip. Corp., 860 F.2d 70, 72 (3d Cir. 1988) ("Although a
cogent argument could have previously been waged based on past
precedent within this circuit, the Supreme Court has recently
rendered a decision making the Appellee's position untenable.").
Finally, it is no longer necessarily true, even if one
thought it to be so at the time of Griffiths, that the trier of
fact in a pretext case is limited to a choice between findings
that the alleged discriminatory motive or the employer's
nondiscriminatory explanation was the sole cause of the
employment action. At the time we decided Griffiths, it was
permissible to view all pretext cases as presenting only two
possibilities: the fact finder could conclude either that the
plaintiff had succeeded in proving that the employer's
explanation was a pretext for discrimination, or that the
plaintiff had failed to so prove. Under this view, if the
plaintiff proved the employer's proffered reason was pretextual,
the trier of fact presumed, as a matter of law, that the
impermissible cause alleged by plaintiff was the sole cause of
the employer's decision.
The Supreme Court recently has instructed that this
bipolar view of pretext cases is inaccurate. 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. St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742 (1993).
25
In St. Mary's, the plaintiff, an African-American, had
been demoted and ultimately discharged by his employer. He
brought suit under Title VII, asserting that the employer's
actions were the result of racial animus. The employer insisted
it took these actions because plaintiff threatened his superior
and permitted his subordinates to break institutional rules. The
district court, as the trier of fact, found that the threatening
conduct and rules violations had occurred, but concluded that
neither these events nor the plaintiff's race were the real
reason for plaintiff's demotion and discharge. Rather, the
district court concluded that "although [the plaintiff had]
proven the existence of a crusade to terminate him, he [had] not
proven that the crusade was racially rather than personally
motivated." Hicks v. St. Mary's Honor Ctr., 756 F. Supp. 1244,
1252 (E.D. Mo. 1991).
The court of appeals, viewing pretext cases as bipolar,
ruled that, once plaintiff proved the employer's proffered
reasons were pretextual, he was entitled to judgment as a matter
of law. Hicks v. St. Mary's Honor Ctr., 970 F.2d 487, 492 (8th
Cir. 1992). The Supreme Court reversed, concluding that the
trier of fact's rejection of the employer's proffered reason for
its action did not compel the conclusion that race was the sole
cause of the employment decision. Rather, the record evidence
supported three possible causes: race, threats and violations of
the employer's rules, and personal animosity. The Supreme Court
ruled that the trier of fact was entitled to draw from the record
evidence whatever inferences that evidence would support. Since
26
the district court concluded that the explanation advanced by the
employer was a pretext, it could have further inferred that there
was an impermissible motive to hide. It was not required to do
so, however. If the district court inferred that personal
animosity was the cause of the demotion and discharage, that,
too, was permissible.
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. This may, as
in St. Mary's, take the form of a conclusion that the adverse
action was taken for a reason other than the reasons urged by the
parties. It may also take the form of a conclusion that the
alleged discrimination and the employer's nondiscriminatory
explanation both played a role in the employer's decision. If
the plaintiff, for example, argues that he or she was discharged
because of age and the employer insists that it was because of
the plaintiff's record of absenteeism, the trier of fact may
conclude that the plaintiff's absenteeism record played a part,
but that the plaintiff would not have been fired if he or she
were twenty years younger.
In some cases, the nondiscriminatory reason advanced by
the employer may involve such turpitude that the only rational
choices for the trier of fact are the plaintiff's explanation or
the defendant's. If the plaintiff alleges age discrimination and
the employer asserts that the plaintiff embezzled $100,000, for
example, it would clearly not be reversible error to give an
27
instruction giving the jury the choice between age as the sole
cause and embezzlement as the sole cause. A rational trier of
fact could not believe that the plaintiff embezzled $100,000 and
at the same time conclude that the plaintiff would not have been
discharged but for his or her age. In other cases, however,
where the record will support an inference that both a legitimate
and an illegitimate reason played a role in the employer's
decision, the charge to the jury must provide for the possibility
that it will find the employer's decision to be the product of
more than one consideration. In those cases, the court must
charge, in accordance with Hazen Paper, that the plaintiff's
burden is to show that the prohibited consideration played a role
in the decisionmaking process and that it was a determinative
factor in the outcome of that process.6
In this case, Miller alleged that, because of his age,
he was not selected for various open high level management
positions for which he was qualified, and that thereafter he was
terminated. For each of the open positions, Miller's employer
asserted either that Miller was not qualified or was less
6
We are here, of course, describing cases that involve mixed
motives decisionmaking. It is important to understand, however,
that these cases do not fall within the legal category of "mixed
motives" cases reserved for special treatment under Price
Waterhouse. As we explain more fully in Griffiths and Hook v.
Ernst & Young, ___F.3d ___ (3d Cir., May, 1994), "mixed motives"
cases in Price Waterhouse terms 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 strong 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.
28
qualified than the person hired. Based on the evidence presented
at trial, the jury could well have concluded that the employer
took both qualifications and age into account. It might have
found, for example, that Miller was qualified for one or more of
the open positions, but that his credentials did not sufficiently
distinguish him from the competing managers to overcome the
employer's bias favoring younger executives. Even though age was
not the sole cause of the decision and Miller would have gotten
one of the positions if he had been better qualified, Miller
should have prevailed if he would not have been passed over but
for his age. The district court's "sole cause" charge did not
permit the jury to find in Miller's favor on this basis. It
follows that Miller is entitled to a new trial.
VI.
We hold that in an ADEA case which does not qualify for
a burden shifting instruction under Price Waterhouse, a district
court should instruct the jury that the plaintiff must prove by a
preponderance of the evidence that age played a role in the
employer's decisionmaking process and that it was a determinative
factor in the outcome of that process.7 Since the district court
instructed that age must be shown to be the sole cause of the
7
In the course of this opinion, we have relied on Title VII cases
because the development of the relevant case law under the two
statutes prior to the Civil Rights Act Amendments of 1991
followed parallel courses. It should be noted, however, that the
1991 Act amended Title VII but did not amend the ADEA.
29
employer's decision and since the record would support a
conclusion that, while other factors played a role, age was a
determinative factor, we will reverse and remand for a new trial.
30