Miller v. Cigna

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
1-23-1995
Miller v Cigna
Precedential or Non-Precedential: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
Reargued in banc October 18, 1994
BEFORE: SLOVITER, Chief Judge, BECKER, STAPLETON
MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN,
NYGAARD, ALITO, ROTH, LEWIS and McKEE, Circuit Judges
(Opinion Filed: January 23, l995 )
Stephanie A. Middleton (Argued)
Gregory B. Tobin
CIGNA Corporation
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
Alice W. Ballard (Argued)
Lynn Malmgren
Samuel & Ballard
225 South 15th Street
Suite 1700
Philadelphia, PA 19102
Attorneys for Appellant
Robert J. Gregory
Room 7032
Equal Employment Opportunity
1801 L. Street N.W.
Washington, DC 20507
Attorney Amicus Appellant
OPINION OF THE COURT
STAPLETON, Circuit Judge:
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.1
Defendant Insurance Company of North America ("INA")
terminated plaintiff William J. Miller from his job after fifteen
1
. The Equal Employment Opportunity Commission participated on
rehearing as amicus curiae.
years of employment.2 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.
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
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. 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.
2
. The parties have stipulated that INA, a subsidiary of CIGNA
Corporation, was the plaintiff's employer at all times relevant
to this appeal.
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 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 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,
although Miller testified that when he expressed interest in the
position, Godorecci's superior told Miller he was "over
qualified." App. at 150.
The third vacancy was for the position of Senior Vice
President, Finance Systems and Administration, in the Claims
Department. Qualifications desired for the position included:
broad knowledge and experience in the property and casualty
business; knowledge of financial measures and objectives;
demonstrated 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, was not familiar
with loss control and statistical monitors, and lacked
credibility among the actuaries. 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. 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 decisionmaking 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 discrimination3 and cases that
qualify for a mixed motives, burden shifting instruction under
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). 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 asserted that plaintiff's
burden of proof 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.
* * *
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.
3
. 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).
* * *
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 [the
jury was] whether age was a determinative factor according to
[Hazen Paper Co. v. Biggins, 113 S. Ct. 1701 (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
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 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.4 Griffiths v. CIGNA Corp., 988 F.2d
457, 462 (3d Cir.) (citing Savarese v. Agriss, 883 F.2d 1194,
1202 (3d Cir. 1989)), cert. denied, 114 S. Ct. 186 (1993). "[W]e
will reverse if the instructions were capable of confusing and
thereby misleading the jury." Id. (citing Limbach Co. v. Sheet
Metal Workers Int'l Ass'n, 949 F.2d 1241, 1259 n.15 (3d Cir.
1991) (in banc)).5
4
. 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.
5
. 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, 114 S. Ct. 650 (1993).
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. § 2000e-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); 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 (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 (plurality
opinion); id. at 262-63 (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 (plurality opinion); id. at 284 (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.
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 240-41 (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, 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
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 (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. 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 (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) (quoting Village
of Arlington Heights, 429 U.S. at 265).
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 (quoting Mt.
Healthy, 429 U.S. at 285). 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). 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 "because of," did not mean "solely because of."
Even if we did not have this guidance, however, we would be
reluctant to attribute to Congress an intention that an employer
should be liable if a hiring or discharge decision is based
solely on an employee's age and not liable if the decision is
based primarily on the employee's age but also on the fact that
the employee's supervisor did not like the employee's
personality, hair color, or some other personal trait or
conduct.6
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.
6
. 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 (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 Honor
Center v. Hicks, 113 S. Ct. 2742 (1993), will have on the
standard enunciated by the Court of Appeals for the Eighth
Circuit.
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).7 They viewed those cases as "pretext" cases
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
7
. 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(internal quotation and citation omitted).
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 244-45, 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 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. (internal
quotation omitted). "[W]here a plaintiff has made this type of
strong showing of illicit motivation, the factfinder 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
semantic discussions on whether Mt. Healthy . . . creates an
affirmative defense." Price Waterhouse, 490 U.S. at 259. 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. Id. at 259-60.
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 (internal quotation omitted). Second, while the holding of
the Court fashioned a special rule reducing the plaintiff's
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 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. In Hazen Paper Co., 113 S. Ct. 1701 (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 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 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 there is a "but-for" causal connection between the
plaintiff's age and the employer's adverse action -- i.e., that
age "actually played a role in [the employer's decisionmaking]
process and had a determinative influence on the outcome" of that
process. Hazen Paper, 113 S. Ct. at 1706.
V.
We find further support for our holding in the Supreme
Court's decision in St. Mary's Honor Center v. Hicks, 113 S. Ct.
2742 (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, 114 S. Ct. 186(1993),8 it was possible to view all pretext cases as presenting
8
. 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
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.
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, 113 S. Ct. 2742, 2749 (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
(..continued)
employer's sole or exclusive consideration, but must prove that
age made a difference in the decision"), cert. dismissed, 483
U.S. 1052 (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 (1986). To the
extent language in Griffiths can be read to suggest that the
charge in this case was appropriate, it is hereby overruled.
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 plaintiff's race was
the real reason for plaintiff's 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., 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 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 discharge, 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 evidence may be such that the use of
"sole factor" or "sole cause" to describe the plaintiff's burden
would be harmless error. We perceive no reason, however, why a
trial court would choose to use those phrases in any case. 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 plaintiff's 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.9
9
. 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 category 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., May, 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 motive" 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
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 open positions, that the employer's
promotion and hiring decisionmaking process contained a bias in
favor of younger employees, and that Miller's credentials did not
sufficiently distinguish him from the competing candidates to
overcome this bias.
For example, with respect to the vacancy for general
manager with CIGNA Reinsurance Company, United Kingdom (the
"CIGNA 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.
(..continued)
process and that it had a determinative effect on the outcome of
that process.
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) ("[N]either 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.10 Since the district
court instructed that age must be shown to be the sole cause of
the 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.
Miller v. CIGNA Corporation; The
Insurance Company of North America, No. 93-1773
GREENBERG, Circuit Judge, concurring in part and concurring in
the judgment.
To put it succinctly, the question before us is the
effect of Hazen Paper Co. v. Biggins, ____ U.S. ____, 113 S.Ct.
1701 (1993), and St. Mary's Honor Center v. Hicks, ____ U.S.
____, 113 S.Ct. 2742 (1993), on our holding in Griffiths v. CIGNA
Corp., 988 F.2d 457 (3d Cir.), cert. denied, ____ U.S. ____, 114
S.Ct. 186 (1993), that there are two types of cases under the
10
. 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 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." The substantive provisions of the
1991 Act that amended Title VII did not amend the ADEA, and
Miller does not contend that section 107 is applicable to ADEA
cases.
ADEA -- mixed motives cases and pretext cases -- and that in the
latter, the plaintiff must show that age was the determinative
factor in the adverse employment decision. The majority
correctly concludes that "in ADEA cases that do not qualify for a
burden shifting charge under Price Waterhouse . . . district
courts should instruct the jury that 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." Typescript at 3. I thus join in the Introduction
and Parts I, II, VI and VII of the majority Opinion. I write
separately for three reasons: First, I cannot accept portions of
the majority's analysis in Parts III, IV and V. Second, the area
of employment discrimination law is cursed with elusive terms
like "mixed motives" and "pretext," and with numerous
presumptions, inferences and burden-shifting rules. Those terms
and rules historically often have taken on lives of their own,
independent of their connection to the underlying theories of
liability that gave them birth. Thus, a "mixed motives" case is
not about mixed motives, and a "pretext" case has little to do
with pretext. I believe the time has come to clarify the current
status of theories of ADEA liability, and to dispense with
unhelpful monikers whenever possible. Thus, unlike the in banc
majority, I would dispense altogether with the terms "pretext"
and "mixed motives" and hold explicitly that the same standard
applies to all disparate treatment cases. Finally, I believe
that the entire debate over "but-for" causation makes something
out of nothing, and that district courts should feel free to
instruct juries in all ADEA cases that a plaintiff does not
succeed unless but-for causation is shown.
I.
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S.Ct. 1817 (1973), the Supreme Court first set forth the order of
proof in disparate treatment cases, and the Court elaborated upon
and explained the framework in Texas Dep't of Community Affairs
v. Burdine, 450 U.S. 248, 101 S.Ct. 1089 (1981). In the later
case, the Court described the process as follows:
First, the plaintiff has the burden of
proving by the preponderance of the evidence
a prima facie case of discrimination.
Second, if the plaintiff succeeds in proving
the prima facie case, the burden shifts to
the defendant 'to articulate some legitimate,
nondiscriminatory reason for the employee's
rejection.' [McDonnell Douglas], at 802, 93
S.Ct. at 1824. Third, should the defendant
carry this burden, the plaintiff must then
have an opportunity to prove by a
preponderance of the evidence that the
legitimate reasons offered by the defendant
were not its true reasons, but were a pretext
for discrimination. Id. at 804, 93 S.Ct., at
1825.
Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093. Burdine
repeatedly speaks about the employer's "true" reason for the
discharge, see id. at 256, 101 S.Ct. at 1095, and therefore, the
opinion was cast in either-or terms. Post-Burdine cases
reaffirmed this proposition. See, e.g., N.L.R.B. v.
Transportation Management Corp., 462 U.S. 393, 400 n.5, 103 S.Ct.
2469, 2473 n.5 (1983) (in Burdine, "[t]he Court discussed only
the situation in which the issue is whether either illegal or
legal motives, but not both, were the 'true' motives behind the
decision"); United States Postal Service Bd. of Governors v.
Aikens, 460 U.S. 711, 717, 718, 103 S.Ct. 1478, 1483 (1983) ("a
plaintiff prevail[s] when at the third stage of a Title VII trial
he demonstrates that the legitimate, nondiscriminatory reason
given by the employer is in fact not the true reason for the
employment decision") (Blackmun, J., concurring). Thus, the pre-
Price Waterhouse jurisprudence "assumed . . . that a single
impulse moves the employer who discriminates," see Theodore Y.
Blumoff & Harold S. Lewis, Jr., The Reagan Court and Title VII:
A Common-Law Outlook on a Statutory Task, 69 N.C.L. Rev. 1, 47
(1990), and that all disparate treatment claims could be analyzed
under Burdine's either-or pretext framework. This did not mean
that the Court foreclosed liability when more than one cause
motivated the adverse employment decision, but only that the
employment discrimination cases coming before the Court were
argued under the Burdine pretext framework.
Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct.
1775 (1989), changed the employment discrimination liability
landscape, but not in the way the in banc majority suggests. In
my view, the majority confuses Price Waterhouse's general holding
that plaintiffs may obtain relief despite their inability to fit
their proofs into Burdine's pretext framework, with the standard
for causation in cases that do proceed under Burdine. The
majority correctly points out that "[a]ll members of the [Price
Waterhouse] Court agreed . . . that 'because of' did not mean
'solely because of.'" Typescript at 12. But the quotations from
the Price Waterhouse opinions demonstrate only that in that case,
all members of the Court agreed that plaintiffs were not without
a remedy if their proofs did not fit into the classic Burdine
mold. Rather, all members of the Court agreed that when there is
no one true reason behind the discharge, the employer in certain
circumstances still could be liable. The Price Waterhouse
dissent suggested interpreting Burdine so that it could cover all
claims of disparate treatment. But a majority of the Court chose
to retain Burdine's framework for pretext cases, and to provide a
separate theory of liability, together with a separate order of
proof, to apply in cases involving both legitimate and
illegitimate reasons for the adverse employment action.
Thus, Price Waterhouse does not support the conclusion
that in a pretext case, a plaintiff need not prove that age was
the determinative factor in the employment decision. Quite the
contrary, a majority of the justices explicitly reaffirmed
Burdine's assumption that in a pretext case, as opposed to a
mixed motives case, the illicit reason must be the determinative
cause. Crucial passages in the various opinions, that the in
banc majority does not cite, demonstrate that a majority of the
Price Waterhouse court viewed Burdine's "one or the other"
description of pretext liability as still viable in cases
proceeding under a pretext theory. Writing for himself as well
as Justices Marshall, Blackmun and Stevens, Justice Brennan
distinguished Burdine as follows:
Where a decision was the product of a mixture
of legitimate and illegitimate motives . . .
it simply makes no sense to ask whether the
legitimate reason was 'the "true reason"'
(Brief for Petitioner 20 (emphasis added))
for the decision -- which is the question
asked by Burdine. See Transportation
Management, supra, at 400, n.5, 103 S.Ct., at
2473, n.5. Oblivious to this last point, the
dissent would insist that Burdine's framework
perform work that it was never intended to
perform. It would require a plaintiff who
challenges an adverse employment decision in
which both legitimate and illegitimate
considerations played a part to pretend that
the decision, in fact, stemmed from a single
source -- for the premise of Burdine is that
either a legitimate or an illegitimate set of
considerations led to the challenged
decision. To say that Burdine's evidentiary
scheme will not help us decide a case
admittedly involving both kinds of
considerations is not to cast aspersions on
the utility of that scheme in the
circumstances for which it was designed.
Price Waterhouse, 490 U.S. at 247, 109 S.Ct. at 1788-89(plurality opinion). Moreover, in discussing the standards for
proving liability in a mixed motives case, the plurality pointed
out that "[i]f the plaintiff fails to satisfy the factfinder that
it is more likely than not that a forbidden characteristic played
a part in the employment decision, then she may prevail only if
she proves, following Burdine, that the employer's stated reason
for its decision is pretextual." Id. at 247, 109 S.Ct. at 1789
n.12 (plurality opinion). Justice White similarly drew this
distinction:
The Court has made clear that 'mixed-motives'
cases, such as the present one, are different
from pretext cases such as McDonnell Douglas
and Burdine. In pretext cases, 'the issue is
whether either illegal or legal motives, but
not both, were the "true" motives behind the
decision.' NLRB v. Transportation Management
Corp., 462 U.S. 393, 400 n.5, 103 S.Ct. 2469,
2473 n.5 (1983). In mixed-motives cases,
however, there is no one 'true' motive behind
the decision.
Id. at 260, 109 S.Ct. at 1796 (White, J., concurring).
In fact, the Price Waterhouse plurality's theory of
employment discrimination liability necessarily assumed that a
plaintiff proceeding under a mixed motives theory could not
succeed under a pretext theory. This is because of the
following: In a pretext case, the defendant responds to the
plaintiff's prima facie case by offering legitimate
nondiscriminatory reasons for the discharge. The plaintiff then
must prove that those reasons are pretextual. If a plaintiff
cannot prove that the proffered reasons for the discharge were
not in fact real reasons, then by definition the plaintiff has
failed to demonstrate pretext, and has failed the third prong of
the Burdine test. Assume, however, that the district court is
convinced that even though the defendant's proof has gone
unrebutted, the plaintiff nonetheless has proven that age played
a role in the adverse employment decision. That is a scenario in
which both legitimate and illegitimate factors played a role in
the decision. Here, the Price Waterhouse scenario comes into
play, and even though the claim fails under Burdine, the
defendant would have the burden of disproving but-for causation.
Thus, Price Waterhouse is important not because it said
anything about the standard for showing pretext liability but
because it constituted the first time the Supreme Court
explicitly decided that Burdine liability, while alive and well,
did not provide the only framework for imposing liability. I
believe, then, that the in banc majority is wrong to suggest that
the Price Waterhouse majority used "mixed motives" as a "term of
art" that describes "only a small subset of all employment
discrimination in which the employer may have had more than one
motive." Typescript at 26 n.9. To be sure, there is language in
the various Price Waterhouse opinions addressing the evidence the
plaintiff must adduce to prove that the illicit criterion played
a role in the decision. But, at least in Price Waterhouse, the
nature of the evidence that can be used "to satisfy the
factfinder that it is more likely than not that a forbidden
characteristic played a part in the employment decision," Price
Waterhouse, 490 U.S. at 247 n.12, 109 S.Ct. at 1789 n.12, is a
question separate and apart from how a plaintiff can proceed when
he or she is unable to prove pretext. In fact, in the wake of
Price Waterhouse, a number of courts have addressed the nature of
the proofs required to shift the burden in an employment
discrimination case, and have arrived at differing results. That
is hardly surprising, since Price Waterhouse does not address
that question. Compare White v. Federal Express Corp., 939 F.2d
157, 160 (4th Cir. 1991) ("To show discrimination in a mixed
motive case . . . a plaintiff . . . may carry its burden under
ordinary principles of proof by any sufficiently probative direct
or indirect evidence") with Brown v. East Mississippi Elec. Power
Ass'n, 989 F.2d 858, 861 (5th Cir. 1993) ("[w]hen a plaintiff
presents credible direct evidence that discriminatory animus in
part motivated or was a substantial factor in the contested
employment action, the burden of proof shifts to the employer . .
. .") (emphasis added). For our part, we have held that "[a]t a
bare minimum, a plaintiff seeking to advance a mixed motive case
will have to adduce circumstantial evidence 'of conduct or
statements by persons involved in the decision-making process
that may be viewed as directly reflecting the alleged
discriminatory attitude'." Griffiths, 988 F.2d at 470 (quoting
Ostrowski v. Atlantic Mut. Ins. Cas., 968 F.2d 171, 182 (2d Cir.
1992)).
In short, then, a majority of the justices in Price
Waterhouse held that Title VII provides two theories of
liability: (1) pretext, or Burdine analysis, under which an
employee only wins by showing that the employer's proffered
reason for the adverse employment decision was pretextual and
that, in fact, the decision was based solely on illegitimate
factors; (2) mixed motives cases, in which the trier of fact
concludes that both licit and illicit motives played a role in
the employment decision, and where the burden shifts to the
employer to prove that it would have made the same decision
absent the illegitimate motive. This means that the in banc
majority's conclusion that "we would be reluctant to attribute to
Congress an intention that an employer should be liable if a
hiring or discharge decision is based solely on an employee's age
and not liable if the decision is based primarily on the
employee's age but also on the fact that the employee's
supervisor did not like the employee's personality, hair color,
or some other personal trait or conduct," Typescript at 16,
really states the obvious. Other than perhaps the appellant in
Price Waterhouse, few contended or contend that a plaintiff would
always lose under the ADEA if age was not the determinative
factor. The question is how to analyze claims alleging both
legitimate and illegitimate motives.
II.
The in banc majority's description of Price Waterhouse
derives not from the opinions in the Price Waterhouse majority,
but from the Price Waterhouse dissent's characterization of the
Court's holding.11 Justice Kennedy's dissent in Price Waterhouse
11
. It is evident that we decided Griffiths correctly, as
Griffiths was after Price Waterhouse but before Hazen. Of
sought to recast the Court's analytical grounding away from the
theory underlying the plaintiff's case and in terms of the type
of evidence the plaintiff had adduced to prove disparate
treatment. Writing for himself, the Chief Justice and Justice
Scalia, Justice Kennedy began by describing his view of the
court's holding:
I read the opinions as establishing that in a
limited number of cases Title VII plaintiffs,
by presenting direct and substantial evidence
of discriminatory animus, may shift the
burden of persuasion to the defendant to show
that an adverse employment decision would
have been supported by legitimate reasons.
The shift in the burden of persuasion occurs
only where a plaintiff proves by direct
evidence that an unlawful motive was a
substantial factor actually relied upon in
making the decision. . . . In sum, the court
alters the evidentiary framework of McDonnell
Douglas and Burdine for a closely defined set
of cases.
Price Waterhouse, 490 U.S. at 280, 109 S.Ct. at 1806 (Kennedy,
J., dissenting). Thus, in the dissent's view, the court did not
draw a distinction between pretext cases and mixed motives cases
but rather between direct evidence cases and circumstantial
evidence cases.12 More than that, the dissent appeared to
(..continued)
course, Price Waterhouse constituted the first stage in a process
that ultimately saw the Supreme Court abandoning the notion that
there are different theories of disparate treatment liability.
12
. The dissent disagreed with this distinction as well: "Our
opinions make plain that Burdine applies to all individual
disparate-treatment cases, whether the plaintiff offers direct
proof that discrimination motivated the employer's actions or
chooses the indirect method of showing that the employer's
proffered justification is false, that is to say, a pretext. See
Aikens, supra, at 714 n.3, 103 S.Ct. at 1481 n.3 ('As in any
criticize the plurality opinion for the latter's assumption that
pretext analysis requires proof of sole cause:
The plurality tries to reconcile its approach
with Burdine by announcing that it applies
only to a 'pretext' case, which it defines as
a case in which the plaintiff attempts to
prove that the employer's proffered
explanation is itself false. . . . This
ignores the language of Burdine, which states
that a plaintiff may succeed in meeting her
ultimate burden of persuasion 'either
directly by persuading the court that a
discriminatory reason more likely motivated
the employer or indirectly by showing that
the employer's proffered explanation is
unworthy of credence.' 450 U.S., at 256, 101
S.Ct., at 1095 (emphasis added). Under the
first of these two alternative methods, a
plaintiff meets her burden if she can
'persuade the court that the employment
decision more likely than not was motivated
by a discriminatory reason.' United States
Postal Service Bd. of Governors v. Aikens,
460 U.S. 711, 717-18 (1983) (Blackmun, J.,
concurring).
Price Waterhouse, 490 U.S. at 287-88, 109 S.Ct. at 1810. The
dissent's view is totally compatible with the in banc majority's
(and my) conclusion that in all but a limited number of cases,
the holding of Price Waterhouse is irrelevant. See id. at 280,
109 S.Ct. at 1806 (Kennedy, J., dissenting) ("In sum, the Court
alters the evidentiary framework of McDonnell Douglas and Burdine
for a closely defined set of cases."). Indeed, I believe it is
(..continued)
lawsuit, the plaintiff may prove his case by direct or
circumstantial evidence.')". Price Waterhouse, 490 U.S. at 288,
109 S.Ct. at 1810 (Kennedy, J., dissenting).
impossible to square the Price Waterhouse majority's framework
with the language of subsequent Supreme Court cases.
The Price Waterhouse dissent explicitly criticized the
Court for unnecessarily complicating disparate treatment analysis
by dividing it into various theories. See Price Waterhouse, 490
U.S. at 279, 109 S.Ct. at 1806 (Kennedy, J., dissenting)
("Continued adherence to the evidentiary scheme established in
[McDonnell Douglas and Burdine] is a wiser course than creation
of more disarray in an area of the law already difficult for the
bench and bar."). Just four years later, that view became the
majority. In Hazen Paper Co. v. Biggins, ____ U.S. ____, 113
S.Ct. 1701 (1993), the Court clarified the standards for proving
disparate treatment under the ADEA. In no uncertain terms, the
Court held that:
Whatever the employer's decisionmaking
process, a disparate treatment claim cannot
succeed unless the employee's protected trait
actually played a role in that process and
had a determinative influence on the outcome.
Id. at ____, 113 S.Ct. at 1706. One thing is clear from this
language: In no disparate treatment case must a plaintiff prove
that the illicit motive was the determinative factor. It
necessarily follows that the Court's distinction in Price
Waterhouse between pretext cases and mixed motives cases no
longer proves a viable rationale for the Price Waterhouse's
burden-shifting approach. This is because in light of Hazen, a
plaintiff need not prove that age was the determinative factor to
prove liability in a pretext case -- rather, under the language
of Hazen, a plaintiff could succeed under Burdine without proving
that the employer's reasons are wholly pretextual. And, if the
reasons are not wholly pretextual, some of them must be true.
Further still, if some of the employer's reasons are true,
pretext cases sometimes involve mixed motives. Thus, after
Hazen, the burden-shifting approach of Price Waterhouse -- if it
survives at all -- must rest not on the distinction between cases
involving mixed motives and cases involving pretexts for
discrimination, but rather on the distinction between
circumstantial evidence cases and direct evidence cases -- the
distinction drawn by Justice Kennedy in his Price Waterhouse
dissent. Thus, in my view, this court should not continue to
refer to the term "mixed motives" and then define it as meaning
something other than mixed motives. See Typescript at 26 n.9.
Instead, we simply should abandon the term altogether.
Along with abandoning the notion of an independent
category of "mixed motives" cases, Hazen is important for another
reason as well -- it signalled discomfort with the Burdine scheme
of apportioning burdens and presumptions, and consequently, with
the entire notion of "pretext" liability. In this regard, the
Court foreshadowed its decision in St. Mary's by pointing out
that "inferring age-motivation from the implausibility of the
employer's explanation may be problematic in cases where other
unsavory motives, such as pension interference, were present."
Id. at ____, 113 S.Ct. at 1708. Hence, the Court expressed
wariness about the "one or the other" approach of the pretext
cases. The Court supported this critique by pointing to language
in pretext cases tending to show that liability could be imposed
under the ADEA even when age was not a motivating factor:
Although some language in our prior decisions
might be read to mean that an employer
violates the ADEA whenever its reason for
firing an employee is improper in any
respect, see McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824
(1973) (creating proof framework applicable
to ADEA) (employer must have 'legitimate,
nondiscriminatory reason' for action against
employee), this reading is obviously
incorrect. For example, it cannot be true
that an employer who fires an older black
worker because the worker is black thereby
violates the ADEA. The employee's race is an
improper reason, but it is improper under
Title VII, not the ADEA.
Hazen, ____ U.S. at ____, 113 S.Ct. at 1707. Thus, with the
criticism of Burdine generally, and with the Court's holding that
in all disparate treatment cases the plaintiff need only prove
that the illicit factor had a determinative effect on the
outcome, the Court strongly signalled the end of pretext
liability as a distinct theory of disparate treatment liability.
St. Mary's made the point even more explicit, and
abandoned the notion of pretext liability altogether. In that
case, the Supreme Court rejected the view that when a plaintiff
proves an employer's proffered reasons for the adverse employment
action is pretextual, the plaintiff automatically wins. Rather,
in a disparate treatment case, the plaintiff must prove
intentional discrimination, and the concept of affirmative proof
is analytically distinct from proving other explanations wrong.
St. Mary's qualified this by saying that "[t]he factfinder's
disbelief of the reasons put forward by the defendant
(particularly if disbelief is accompanied by a suspicion of
mendacity) may, together with the elements of the prima facie
case, suffice to show intentional discrimination." Id. at ____,
113 S.Ct. at 2749. And, as the in banc majority recognizes, "[a]
finding that the employer's nondiscriminatory explanation is a
pretext permits, but does not require, the trier of fact to
conclude that the employer discriminated against the plaintiff
based on the ground alleged." Typescript at 23. But by focusing
on what St. Mary's says about "sole cause," the majority misses
the real significance of St. Mary's, and may perpetuate
misreadings of the case both in our own case law and in the
commentary.
If we interpret St. Mary's purely within the pretext
paradigm, as the in banc majority appears to do,13 the case can
be read to say that in all disparate treatment cases proceeding
within the Burdine framework, the plaintiff must, at a minimum,
prove pretext. After all, that is how Burdine described the
13
. See typescript at 24 ("We think it clear from the Supreme
Court's opinion in St. Mary's that the trier of fact in a pretext
case where the record will support it, may choose not to accept
either party's litigating position as reflecting the whole
truth.") (emphasis added).
three-pronged test. And, we recently held in Armbruster v.
Unisys Corp., 32 F.3d 768, 782 (3d Cir. 1994), that in a post-St.
Mary's pretext case "a plaintiff who claims invidious
discrimination but lacks overt evidence of discriminatory animus
must point to evidence tending to show the defendant's
explanation is pretextual." (Emphasis added). If that is true,
however, we very nearly are back at sole cause again. This is
because the plaintiff is being forced not only to make an
affirmative showing but also affirmatively to disprove facts.
See Armbruster, 32 F.3d at 783 ("After St. Mary's, it seems clear
. . . that the trier of fact cannot find for the plaintiff merely
because it disbelieves the defendant's proffered explanation; it
must also be persuaded that the employment decision was the
result of the bias that can be inferred from the falsity of the
defendant's explanation.") (emphasis added); id. ("an ultimate
finding of illegal discrimination in a pretext case requires
evidence showing a prima facie case and evidence showing
pretext") (second alteration added); see also Michael A.
Zubrensky, Despite the Smoke, There Is No Gun: Direct Evidence
Requirements in Mixed-Motives Employment Law After Price
Waterhouse v. Hopkins, 46 Stan. L. Rev. 959, 964 (1994)
("plaintiffs [must] disprove unstated reasons for the employment
decision"). But, as Hazen makes clear, in no disparate treatment
case must a plaintiff prove that the illicit factor was the sole
or determinative cause of the adverse employment action.
Therefore, to read St. Mary's as requiring a plaintiff to prove
pretext is to misread the case.
The point of St. Mary's was not to place a dual
burden on plaintiffs, but rather to treat disparate treatment
discrimination cases -- after the plaintiff has established a
prima facie case and after the defendant has met its burden of
production -- just like any other case where the plaintiff bears
the burden of proof. See also Gehring v. Case Corp., No. 94-1371,
1994 WL 715285 at *1 (7th Cir. Dec. 18, 1994) ("Once the judge
finds that the plaintiff has made the minimum necessary
demonstration (the 'prima facie case') and that the defendant has
produced an age neutral explanation . . . the only remaining
question . . . the jury need answer is whether the plaintiff is a
victim of intentional discrimination.") After the plaintiff and
the defendant have met their initial burdens, the entire Burdine
procedure no longer is of any relevance (apart from the fact that
the procedure provided a mechanism to get evidence before the
court). Id. To be sure, the plaintiff may attempt to prove
intentional discrimination solely by focusing on the falsity of
the defendant's explanations, see St. Mary's, U.S. at ____
n.4, 113 S.Ct. at 2749 n.4, but that only means that if a jury
disbelieves the defendant's argument, it may believe the
opposite. Nothing in that proposition is peculiar to age
discrimination claims. In other words, the plaintiff certainly
is not required to rebut the defendant's proffered reasons
completely, if he or she nonetheless is able to establish that
the illicit motive was a but-for cause of the adverse employment
decision. See St. Mary's, ____ U.S. at ____, 113 S.Ct. at 2749
n.4 ("there must be a finding of discrimination"); id. at ____,
113 S.Ct. at 2751 (employee must prove "that the employer has
unlawfully discriminated"); id. at ____, 113 S.Ct. at 2752
("proving the employer's reason false becomes part of (and often
considerably assists) the greater enterprise of proving that the
real reason was intentional discrimination"); id. at ____, 113
S.Ct. at 2753-54 ("[O]nce the defendant has responded to the
plaintiff's prima facie case, 'the district court has before it
all the evidence it needs to decide' not (as the dissent would
have it) whether the defendant's response is credible, but
'whether the defendant intentionally discriminated against the
plaintiff.'") (citation omitted).
The problem probably arose with St. Mary's assumption
that proving pretext is easier than affirmatively proving
intentional discrimination. St. Mary's assumed that when the
factfinder is focussed purely on whether the defendant's
proffered reasons are true, the plaintiff is somehow getting off
the hook. In some cases that may be true. But that assumption
certainly is incorrect as a general proposition. Rather, it may
be much more difficult to disprove an employer's explanation than
to point to evidence tending to show that even if the employer's
explanation is partly correct, the illicit motive also caused the
action.
But putting that incorrect assumption aside, the real
point of St. Mary's was to focus the factfinder in all disparate
treatment cases away from the question of pretext and instead on
the question of whether intentional discrimination took place.
St. Mary's is important because it tells district courts to
dispense with abstract pretext analysis altogether except insofar
as it sheds light on whether intentional discrimination took
place. As in all cases, there must be evidence in the record to
support a finding in favor of the plaintiff on the ultimate
question. As Hazen makes clear, when the plaintiff is not
required to prove sole cause, it should not matter at all that a
legitimate reason played a role in the process. Thus, once the
defendant has met its proffer, the jury should be instructed that
it should consider evidence of the prima facie case, evidence of
legitimate explanations, evidence bearing on the credibility of
those explanations, and all other relevant evidence in the case
to determine whether the employer discriminated against the
plaintiff.
By abandoning sole cause as the basis for pretext
liability, Hazen makes clear that there is no separate category
of mixed motives cases. By turning the focus in "pretext" cases
away from evidence of pretext, St. Mary's makes clear that there
is no separate category of pretext cases. What we are left with
is one broad category of disparate treatment cases that, except
for the limited category of Price Waterhouse cases, should be
treated alike.14
III.
This brings me to the question of causation. The
majority goes to great lengths to show that plaintiffs must prove
but-for causation in order to prevail, but the ultimate test it
announces neglects all mention of but-for causation. See
Typescript at 25-26, Typescript at 29. Contrary to the
majority's intimations, all the justices in Price Waterhouse
itself agreed on this point. I believe that the majority is
incorrect when it states that in Price Waterhouse, "Justices
Brennan, Marshall, Blackmun, and Stevens read the statute as
imposing liability in any situation where the unlawful motive was
a 'motivating' factor." Typescript at 18. While the Price
Waterhouse plurality pointed out that "Hopkins argues that once
she made this showing [that the unlawful motive was a motivating
factor] she was entitled to a finding that Price Waterhouse had
discriminated against her on the basis of sex," it quickly
14
. In light of Hazen and St. Mary's, I agree with the
majority's conclusion that Price Waterhouse cases are "cases not
only where the record would support a conclusion that both
legitimate and illegitimate factors played a role in the
employer's decision, but where the plaintiff's evidence of
discrimination is sufficiently 'direct' to shift the burden of
proof to the employer on the issue of whether the same decision
would have been made in the absence of the discriminatory
animus." Typescript at 26 n.9.
rejected that argument. Price Waterhouse, 490 U.S. at 244 n.10,
109 S.Ct. at 1787 n.10. Justice Brennan really was concerned
with burdens and presumptions; his point was that if the
defendant could not prove its affirmative defense, the trier of
fact could presume that but-for causation had been proven. See
id. at 246 n.11, 109 S.Ct. at 1788 n.11 ("[W]here an employer is
unable to prove its claim that it would have made the same
decision in the absence of discrimination, we are entitled to
conclude that gender did make a difference to the outcome.")
(plurality opinion); see also id. at 249, 109 S.Ct. at 1790 ("A
court that finds for a plaintiff under this standard has
effectively concluded that an illegitimate motive was a 'but-for'
cause of the employment decision.") (plurality opinion); id. at
281, 109 S.Ct. at 1807 ("The theory of Title VII liability the
plurality adopts . . . essentially incorporates the but-for
standard.") (Kennedy, J., dissenting). In other words, all the
justices always have agreed that a plaintiff cannot win in an age
discrimination suit if but-for causation is not proved; the
disagreement in Price Waterhouse involves the much different
question of who bears the burden of proof and what can be
inferred when those burdens are not met. Id. at 281, 109 S.Ct.
at 1807 ("The importance of today's decision is not the standard
of causation it employs, but its shift to the defendant of the
burden of proof.") (Kennedy, J., dissenting).
The in banc majority's belief that "but-for" causation
is surrounded in controversy has induced it to shy away from the
concept in articulating a jury charge -- even though the majority
opinion at one point explicitly recognizes that the Hazen test
translates into but-for causation, see Typescript at 21 ("A
plaintiff in an ADEA case . . . has the burden of persuading the
trier of fact . . . that there is a 'but-for' causal connection
between the plaintiff's age and the employer's adverse action . .
. ." I believe this unnecessarily complicates matters. Cf.
Gehring, 1994 WL 715285 at * 2 ("'determining factor' is not a
term in common usage, and it therefore does not illuminate the
essential concepts. Putting unusual terms in jury instructions
does little beyond confusing the jurors"). Thus, while it is
true that in all non-Price Waterhouse cases, the test is whether
the "plaintiff [has proven] by a preponderance of the evidence
that age played a role in the employer's decisionmaking process
and that it had a determinative effect on the outcome of that
process," Typescript at 29, the jury also may be instructed that
this technically worded test translates into but-for causation.
Gehring, 1994 WL 715285 at * 3 ("one attractive formulation" is
that the jury should be instructed to decide "whether the
employer would have fired [demoted, laid off] the employee if the
employee had been younger than 40 and everything else had
remained the same") (alteration in original). In Price
Waterhouse cases, as defined in note 10 of the in banc majority's
opinion, the jury should be instructed that if the defendant
fails to meet its burden of showing that it would have made the
same decision in the absence of the illicit motive, it must
conclude that the plaintiff has proven but-for causation.