DocketNumber： 93-1773
Citation Numbers： 47 F.3d 586, 1995 U.S. App. LEXIS 1219, 66 Fair Empl. Prac. Cas. (BNA) 1377
Judges： Stapleton, Hutchinson, Roth, Sloviter, Becker, Mansmann, Greenberg, Scirica, Cowen, Nygaard, Alito, Lewis, McKee
Filed Date： 1/23/1995
Status： Precedential
Modified Date： 11/5/2024
OPINION OF THE COURT
This appeal is before the court for rehearing in banc to clarify the proper standard for a jury charge in a pretext case alleging age discrimination.
Defendant Insurance Company of North America (“INA”) terminated plaintiff William J. Miller from his job after fifteen years of employment.
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, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), district courts should instruct the jury that the plaintiffs burden is to prove that age played a role in the employer’s decisionmaking process and that it had a determinative effect on the outcome of that process. Because Miller should not have been required to prove that age was the sole cause of INA’s decision, we conclude that he is entitled to a new trial.
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 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, then Chief of Human Resources, indicated that they would find Miller a permanent position at the 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, Finance and Administration in 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 because his position might be eliminated. In March of 1989, Miller’s new superior, Nord Bjorke, informed Miller that his position was eliminated and 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 the Corporate Real Estate Department, 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 did company officials apprise Miller of five vacancies at the company for which he might have applied.
The first vacancy was for the position of Vice President, Filing and Regulation. The company 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. INA 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 nonlaw-yer 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 “[wjork 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, although Miller testified that when he expressed interest in the position, Godorecci’s superior told Miller he was “over qualified.” App. at 150.
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. Although it was a temporary assignment, when his work in this position was completed Peters was retained by the company.
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.
The evidence at trial also focused on the nature of INA’s hiring and promotion deci-sionmaking process. Human resource personnel testified about the company’s formal placement process available for positions above pay grade fifty-four (“the 54 + placement process”). A department manager using the 54 + placement process would receive assistance from an assigned human resource contact who would act as the manager’s agent within the- company, helping to locate, sort through, and evaluate potential candidates for the position. Open positions above grade fifty-four were not publicly posted and a candidate could only access information about these openings through direct management contact. The 54 + placement process was not mandatory, however, and many of the managers who testified at trial explained that they had in fact filled their management vacancy through an informal process by assessing their own needs, reflecting on the qualifications of their staff members, and initiating contact with potential candidates directly. Richard Morrissey, director of human resources for CIGNA’s property and casualty companies, also testified about the company’s annual organizational review process through which department managers assess the qualifications, potential, and development needs of their staff with an eye toward identifying and developing future high level managers.
During trial, the district judge asked counsel if Miller’s was a “pretext” or “mixed motives” case. This inquiry 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 discrimination
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.
* * * * * *
If the defendants articulate a legitimate nondiscriminatory 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.
* ❖ Hs * *
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.
# Hí ❖ %
The plaintiff doesn’t have to prove that the employer hated him.... He has to prove that plaintiffs 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 [the jury was] whether age was a determinative factor according to [Hazen Paper Co. v. Biggins, — U.S. -, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993) ].” 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 plaintiffs 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 responding to this inquiry, the district judge twice described the issues before the jury in terms of whether the relevant decision of INA had been “based solely on Mr. Miller’s age.’’ App. at 691-92 (emphasis added). After two days of deliberations, the jury returned a verdict in favor of INA.
II.
We conduct a plenary review when an appellant contends that the instructions to the jury, read as a whole, do not state the correct legal standard.
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. § 2000e-2(a)(l), 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, 105 S.Ct. 613, 621, 83 L.Ed.2d 523 (1985); Seman v. Coplay Cement Co., 26 F.3d 428, 432 n. 7 (3d Cir.1994). 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. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). 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, 109 S.Ct. at 1787 (plurality opinion); id. at 262-63, 109 S.Ct. at 1797 (O’Connor, J., concurring in the judgment). All members of the Court agreed, however, that “because of’ did not mean “solely because of.” See, e.g., id. at 241, 109 S.Ct. at 1785 (plurality opinion); id. at 284, 109 S.Ct. at 1808 (Kennedy, J., dissenting).
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.
Price Waterhouse, 490 U.S. at 240-41, 109 S.Ct. at 1785 (emphasis added and altered from original) (footnote omitted).
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,*593 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.
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We are told ... that but-for cause is not required, since the words “because of’ do not mean “solely because of.” Ante, at 241 [109 S.Ct. at 1785]. 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 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, ie., a but-for cause.
Price Waterhouse, 490 U.S. at 281-82, 284, 109 S.Ct. at 1807, 1808 (additional 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 be any legal consequences.” [100 Cong.Rec. 7254 (1964).]
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, 109 S.Ct. at 1797. In the course of her opinion, Justice O’Connor likened the relevant principles to those involved in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (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, 109 S.Ct. at 1800 (emphasis supplied) (quoting Village of Arlington Heights, 429 U.S. at 265, 97 S.Ct. at 563).
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, 97 S.Ct. 568, 50 L.Ed.2d 471 (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, 109 S.Ct. at 1795 (quoting Mt. Healthy, 429 U.S. at 285, 97 S.Ct. at 575). 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. (quoting Mt. Healthy, 429 U.S. at 287, 97 S.Ct. at 576). 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 [the employer’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
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 ease 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, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 460 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
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 244-45, 250, 109 S.Ct. at 1787-88, 1790. 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 illegitimate criterion was a substantial factor in the decision.” Id. at 276, 109 S.Ct. at 1804. In such cases, the
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 [an impermissible motive] played a part, ‘substantial’ or otherwise, in a decision.” 490 U.S. at 259, 109 S.Ct. at 1795 (internal quotation omitted). Second, while the holding of the Court fashioned a special rule reducing the plaintiffs burden of persuasion in a defined 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 eases 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. In Hazen Paper Co. v. Biggins, — U.S. -, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993), 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-, 113 S.Ct. at 1706.
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-, 113 S.Ct. 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 ease 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 there is a “but-for” causal connection between the plaintiffs age and the employer’s adverse action — i.e.,
Y.
We find further support for our holding in the Supreme Court’s decision in St. Mary’s Honor Center v. Hicks, — U.S. -, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). That decision makes clear that the trier of fact in a pretext case is not limited to a choice between finding 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 v. CIGNA Corp., 988 F.2d 457 (3d Cir.), cert. denied, — U.S.-, 114 S.Ct. 186, 126 L.Ed.2d 145 (1993),
St. Mary’s instructs 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, — U.S. — , — , 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993).
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 the plaintiff on a number of occasions had permitted his subordinates to break institutional rules, and on one occasion had threatened his superior. See Hicks v. St. Mary’s Honor Ctr., 756 F.Supp. 1244, 1246-48 (E.D.Mo.1991). 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 plaintiffs race was the real reason for plaintiffs demotion and discharge. Rather, the district court concluded that “although [the] plaintiff ha[d] proven the existence of a crusade to terminate him, he [had] not proven that the crusade was racially rather than personally motivated.” Id. at 1252.
The court of appeals, viewing pretext cases as bipolar, ruled that, once the 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. St. Mary’s Honor Ctr., — U.S. at-, 113 S.Ct. at 2749-51. 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 the district court concluded that the explanation advanced by the employer was a pretext, it could have further inferred that
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 plaintiffs record of absenteeism, the trier of fact may conclude that the plaintiffs absenteeism record played a part, but that the plaintiff would not have been fired if he or she were twenty years younger.
In some eases, the evidence may be such that the use of “sole factor” or “sole cause” to describe the plaintiffs burden would be harmless error. We perceive no reason, however, why a trial court would choose to use those phrases in any ease. Even in those rare cases where the evidence appears to present the jury with only a bipolar choice, such phrases misstate the law and hold a potential for creating a misunderstanding in the minds of the jury that may outlive their service in that particular case.
In most age discrimination cases that get to the jury, the record will support an inference that both a legitimate and an illegitimate reason played a role in the employer’s decision and the charge must provide for the possibility that the jury 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 plaintiffs burden is to show that the prohibited consideration played a role in the decisionmaking process and that it had a determinative influence on the outcome of that process.
VI.
In this case, the district court’s repeated reference to “sole cause” and “sole factor” was not harmless error. 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 his employer offered evidence to show that Miller was not qualified or that he was less qualified than the candidate ultimately selected. Based on the evidence presented at trial, a jury could well have concluded that both Miller’s and the employer’s explanations were accurate — that Miller was qualified for one or more of the
For example, with.respect to the vacancy for general manager with CIGNA Reinsurance Company, United Kingdom (the “CIG-NA UK position”), the manager responsible for filling that position testified that he wrote the job description with Michael Durkin, the successful candidate, in mind; that Durkin had most of the qualities needed for that position; and that Durkin had more experience than Miller in reinsurance and accounting work. A jury who credited the employer’s evidence could therefore conclude that Durkin’s promotion was a legitimate hiring decision. However, Miller testified that he had extensive reinsurance experience as well as substantially more management experience and skills than Durkin. — one of the qualifications for the position. Durkin had managed a staff of only twenty employees, while Miller had managed much larger groups. Miller also testified that when he expressed interest in the CIGNA UK position the president of that division told him he was “overqualified.” Miller also offered evidence that Durkin had obtained his reinsurance experience in part through his manager’s desire to cross-train and develop him for this type of managerial promotion. Miller additionally points out that many of the INA managers responsible for the hiring decisions at issue, including the manager who filled the CIGNA UK position, testified that they eschewed the company’s formal inter-departmental placement process available for positions above grade fifty-four for an informal and personal decisionmaking process. This testimony lends credence to Miller’s theory that the promotion and hiring decisions for upper level management positions were susceptible to age-animus. Accordingly, a jury crediting Miller’s evidence could infer that the decision not to consider or select him for the CIGNA UK position was based on age.
Because INA’s and Miller’s explanations were not inherently contradictory, however, it would have been possible for the jury to find that the company considered both Miller’s qualifications and his age, and that both factored into the relevant hiring decisions. Thus, the jury could have reasonably concluded that Miller was less than ideally qualified for a particular position and that this was a factor in INA’s decisionmaking process. At the same time, it could reasonably have concluded that INA’s decisionmakers were biased in favor of younger workers and a younger person with Miller’s credentials would have been assigned to the post.
The ADEA’s protection against age discrimination is not limited to perfectly qualified employees. As the court observed in Shager v. Upjohn Co., 913 F.2d 398, 403 (7th Cir.1990): “The statute does not protect merely the older worker who is perfect from the standpoint of his employer; such a worker needs no protection except from irrational employers, and they are rare. It protects, as a practical matter, the imperfect older worker from being treated worse than the imperfect younger one.” Cf. Mardell v. Harleysville Life Ins. Co., 31 F.3d 1221, 1233 (3d Cir.1994) (“[NJeither Title VII nor ADEA strips a wrongdoing employee of his or her entitlement to protection against unlawful discrimination.”). Despite his imperfect credentials, 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.
VII.
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 had a determinative effect on the outcome of that process.
. The Equal Employment Opportunily Commission participated on rehearing as amicus curiae.
. The parties have stipulated that INA, a subsidiary of CIGNA Corporation, was the plaintiff’s employer at all times relevant to this appeal.
. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); St. Mary's Honor Ctr. v. Hicks, - U.S. -, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).
. The district court had jurisdiction over this matter pursuant to 29 U.S.C. §§ 623(a), 626(c)(1) and 28 U.S.C. § 1331. We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.
. INA 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, and 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) (holding that the purpose of Rule 51 is served when objections to the jury charge give the trial judge an opportunity to correct the erroneous charge), cert. denied, - U.S.-, 114 S.Ct. 650, 126 L.Ed.2d 608 (1993).
Congress specifically rejected an amendment that would have placed the word “solely” in front of the words “because of." 110 Cong.Rec. 2728, 13837 (1964).
. We note that a majority of the Courts of Appeals have rejected the "sole cause” or "sole factor” formulation in pretext cases. See, e.g., Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419, 1425 & n. 3 (10th Cir.1993); Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir.1993); Purcell v. Seguin State Bank & Trust Co., 999 F.2d 950, 955 (5th Cir.1993); Montana v. First Fed. Savs. & Loan Assoc., 869 F.2d 100, 105 (2d Cir.1989); Cassino v. Reichhold Chems., Inc., 817 F.2d 1338, 1343-44 (9th Cir.1987), cert. denied, 484 U.S. 1047, 108 S.Ct. 785, 98 L.Ed.2d 870 (1988); Blackwell v. Sun Elec. Corp., 696 F.2d 1176, 1181-82 (6th Cir.1983); Loeb v. Textron, Inc., 600 F.2d 1003, 1019 (1st Cir.1979). But see Foster v. University of Arkansas, 938 F.2d 111, 115-16 (8th Cir.1991) (upholding a jury instruction that required plaintiff to prove the protected characteristic was "the determining” and "sole” factor and rejecting the formulation of "a determining factor” as improperly eliminating the distinction between "pretext" and "mixed motives” cases). We think it unclear what effect, if any, the Supreme Court's decision in St. Mary’s Hon- or Center v. Hicks, — U.S.-, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), will have on the standard enunciated by the Court of Appeals for the Eighth Circuit.
. 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 an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. at 252-53, 101 S.Ct. at 109 (internal quotation and citation omitted).
. INA insists that our decision in Griffiths mandated the "sole cause” instructions given by the district court in this case. INA's reading of Griffiths would be inconsistent with a long line of decisions of this court, including our in banc decision in Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir.) (holding 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”), cert. dismissed, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987); see also Bellissimo v. Westinghouse Elec. Corp., 764 F.2d 175, 179 n. 1 (3d Cir.1985) (finding the requirement of proving that the improper motive was " ‘the determinative factor’ [to be] inconsistent with the 'but-for' causation test”), cert. denied, 475 U.S. 1035, 106 S.Ct. 1244, 89 L.Ed.2d 353 (1986). To the extent language in Griffiths can he read to suggest that the charge in this case was appropriate, it is hereby overruled.
. We are here, of course, describing cases in which the challenged action of the employer may be the product of two or more motives. It is important to understand, however, that these cases do not fall within the legal categoty of "mixed motives” cases reserved for special treatment under Price Waterhouse. As we explained more fully in Griffiths, 988 F.2d at 470, and Hook v. Ernst & Young, 28 F.3d 366, 373-76 (3d Cir.1994), "mixed motives” cases are cases not only where the record would support a conclusion that both legitimate and illegitimate factors played a role in the employer's decision, but where the plaintiff's evidence of discrimination is sufficiently "direct” to shift the burden of proof to the employer on the issue of whether the same decision would have been made in the absence of the discriminatory animus. The term of art "mixed motives" is thus misleading because it describes only a small subset of all employment discrimination cases in which the employer may have had more than one motive. 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 as those categories are defined in that case. Only in a "mixed motives” ADEA case is the plaintiff entitled to an instruction that he or she need show only that the forbidden motive played a role, i.e., was "a motivating factor.” Even then, the 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. See Griffiths v. CIGNA Corp., 988 F.2d at 472. In all other ADEA disparate treatment cases, the jury should be instructed that the plaintiff may meet his or her burden only by showing that age played a role in the employer's decisionmaking process and that it had a determinative effect on the outcome of that process.
. 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 of 1991 followed parallel courses. Section 107 of the 1991 Civil Rights Act, codified at 42 U.S.C. § 2000e-2(m), provides