Sheridan v. DuPont & Co.

Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit
1-31-1996
Sheridan v. DuPont & Co.
Precedential or Non-Precedential:
Docket 94-7509
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
94-7509
____________
BARBARA R. SHERIDAN
Appellant
v.
E. I. DUPONT de NEMOURS AND COMPANY;
JACQUES AMBLARD
____________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
(D.C. Civil No. 93-00046)
____________________
Argued: May 4, 1995
Before: SLOVITER, Chief Judge, and ALITO, Circuit Judge,
and SCHWARZER, Senior District Judge*
(Opinion Filed: January 31, 1996)
____________________
THOMAS S. NEUBERGER, ESQ. (Argued)
200 West Ninth Street,
Ninth Street Plaza
Wilmington, DE 19801-1646
Attorney for Appellant
RAYMOND M. RIPPLE, ESQ. (Argued)
DONNA L. GOODMAN, ESQ.
E.I. duPont de Nemours & Company
Legal Department
1007 Market Street, Dupont Building
Wilmington, DE 19880-0036
Attorneys for Appellee
1
* The Honorable William W Schwarzer, Senior United States
District Judge for the Northern District of California, sitting
by designation.
____________________
OPINION OF THE COURT
____________________
ALITO, Circuit Judge:
Barbara Sheridan filed this action against her former
employer, E.I. duPont de Nemours & Co., Inc. ("duPont"), and a
duPont supervisory employee, Jacques Amblard, under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e-l et seq. She
asserted several different claims for sex discrimination and
unlawful retaliation. Before trial, the district court granted
the defendants' motion in limine to exclude certain evidence.
During trial, the court dismissed the claims against Amblard on
the ground that an employee cannot be sued under Title VII. The
jury subsequently returned a verdict in favor of Sheridan and
against duPont on her constructive discharge claim, but the jury
found for duPont on Sheridan's remaining claims. The district
court then granted duPont's motion for judgment as a matter of
law (and in the alternative for a new trial) on the constructive
discharge claim.
Following the great weight of the federal appellate
decisions concerning employee liability under Title VII, the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and
the Americans with Disabilities Act, 42 U.S.C. § 12111 et seq.,
we affirm the dismissal of the claims against Amblard. Because
we are bound by our court's decision in Fuentes v. Perskie, 32
2
F.3d 759 (3d Cir. 1994), and subsequent decisions following
Fuentes, we reverse the entry of judgment as a matter of law on
the constructive discharge claim against duPont, but we affirm
the granting of a new trial. We also hold that the district
court did not err in its ruling on duPont's motion in limine.
I.
Barbara Sheridan began working for duPont in 1979 as a
part-time waitress in the Hotel duPont. Sheridan v. E.I. duPont
de Nemours and Co., No. 93-46 (D. Del. March 28, 1994) ("Sheridan
I") at 2. She was subsequently promoted to hostess in the Lobby
Lounge, group leader in the Lobby Lounge, and captain in the
Brandywine Room restaurant. Id. at 2-3. In May 1989, she was
transferred to the Green Room restaurant and was promoted to head
captain of the breakfast and lunch shifts. In this capacity, she
reported to Ed Barba, the Green Room restaurant manager. Barba,
in turn, reported to Nicholas Waller, who managed all the hotel's
restaurants. Id. at 3.
Initially, Sheridan received good employment reviews.
Her 1990 performance review rated her overall performance as
"very good," which was the second highest possible rating. App.
197. She received the highest possible rating in the categories
of interpersonal relationships, planning, and problem solving.
Id. Her lowest marks, in the categories of oral and written
communication and attendance, were respectively "good" and
"satisfactory." Id. The review summarized her strengths and
weaknesses as follows:
3
Very good guest relations, organized. As a
team player, strengthening is needed to
improve the overall relationship with the
rest of the operation. . . . Since May of
1989, Barbara's persistence has paid off by
guest loyalty, staff does not call off sick,
and overall very good morale from the support
team.
App. 198.
Sheridan also received several awards and merit
increases. In May 1990, she received a $948 yearly merit
increase. She also won a $1000 accomplishment award in December
of that year. App. 151. The letter that informed her of this
award stated:
[t]he enthusiasm you portray in greeting
customers and providing them service is
outstanding . . . . [Y]ou project an image
of quality, service and commitment. . . .
Your success in creating an environment in
which high quality customer service
flourishes is evident by the team spirit of
your staff. Again, congratulations for this
well-deserved award and thank you for being a
role model and a true ambassador for the
company.
Id. While other employees received awards for $200 to $500,
Sheridan was the only restaurant employee to receive a $1000
award. App. 287. The next month, she was chosen to appear in a
company video, and in February 1991 she received another merit
raise of $1188 per year. App. 733-34, 740-41.
DuPont claims that Sheridan's performance began to
deteriorate in early 1991. In February 1991, Ed Barba met with
4
Sheridan and discussed various corrective measures. App. 228.
Two of these measures were maintaining an accurate count sheet to
insure a fair distribution of "covers" (i.e., tips received from
the tables) and ending her use of the Green Room bar for grooming
and smoking. Id. Despite this meeting, Barba later saw Sheridan
putting on makeup and smoking in the Green Room bar. App. 229,
305h.
According to Nicholas Waller, he met with Sheridan in
the summer of 1991 to discuss "numerous complaints" about her
treatment of Green Room employees. App. 960. Waller testified
that employees had complained that Sheridan had asked them to
perform personal services, such as parking her car, giving her a
wake-up call, and taking personal mail to the post office. App.
963. These employees allegedly told Waller that those who helped
her with these personal tasks were favored with more "covers."
Id. Sheridan, however, disputed Waller's recollection of this
meeting. Sheridan points to Barba's testimony that he was
unaware of any employee complaints regarding "covers" between
February and September 1991. App. 298. She also observed that,
despite the alleged complaints, she received another promotion
and raise on October 1, 1991. App. 142.
During the summer and fall of 1991, the hotel
streamlined its operating structure. Sheridan I at 5. As part
of this reorganization, the hotel eliminated the managers of the
individual restaurants and hired a single new manager for all the
restaurants. Id. Sheridan applied for this new position, but
the hotel selected Jeff Maisel. Id. Sheridan felt that she was
5
qualified for this position and that she was not promoted because
of her sex. On at least three occasions, she complained about
this alleged discrimination to Jacques Amblard, the hotel general
manager. Id. at 5-6.
On October 17, 1991, Maisel met with Sheridan to
discuss her alleged unfairness in the distribution of "covers,"
her tardiness, and her continued disregard for the hotel's
grooming policy. App. 206, 885. Subsequent to this meeting,
duPont claims that the following infractions were recorded:
Oct. 20: Sheridan was 45 minutes late and
violated grooming policy.
Oct. 22: Sheridan was 25 minutes late.
Oct. 23: Sheridan was 20 minutes late.
Nov. 3: Sheridan was 17 minutes late and
violated grooming policy.
Nov. 3: During a staff meeting, Sheridan
left premises and was observed with
another employee in a company van.
Nov. 7. Sheridan was eating and smoking in
Green Room bar during service
hours.
App. 206.
Allegedly because of these continued infractions,
Maisel placed Sheridan on probation on November 10, 1991. Maisel
told her that in order to be taken off probation, she would have
to report to work on time, follow the hotel's grooming and
smoking policies, and stay in her assigned work area. App. 207.
Maisel informed her that further infractions or instances of poor
performance could result in termination. App. 208.
6
Other incidents allegedly took place while Sheridan was
on probation. When Joe Marshall, the room and service head
captain, attended her daily staff meeting one day in February
1992, Sheridan told him to "leave her meeting," App. 219, and
according to Maisel, who was present, Sheridan was quite rude.
Id. Later, Sheridan was asked to work on a Sunday, but she
initially refused. When told that she was required to report,
she agreed but stated that "after 13 years she deserved to work
Monday-Friday." App. 220.
In late February, the hotel began to investigate
Sheridan for giving complimentary drinks without ringing up
complimentary checks, as hotel policy required. App. 221. At
trial, duPont offered evidence that Sheridan had improperly given
away large quantities of complimentary drinks, as well as food.
According to a supervisor who participated in the investigation,
the investigation received "rather consistent feedback from the
employees of the restaurant" that Sheridan "comped liquor and
[did] not properly record[] it." App. 1159. An internal duPont
document memorialized alleged statements by numerous co-workers,
male and female, to the effect that Sheridan "comped" beverages
and food without recording that this was being done. App. 222-
226. The most damaging evidence came from a bartender, James
Dougherty, who stated that he had kept a daily record of the
drinks that Sheridan had improperly "comped," and that the total
for the period from November 1, 1991, to February 18, 1992, was
$921.75. Dougherty testified that his dates were "about 98-
percent accurate." App. 688. There was evidence, however, that
7
Sheridan was on jury duty or was not scheduled to work on some of
the days in question.
After the investigation was completed, Maisel and
others met with Charles Beinkampen, the director of hospitality,
to determine what to do about Sheridan, and they decided to
reassign her to a non-supervisory position that did not involve
the handling of cash. App. 910, 1160. The hotel offered her the
positions of front desk representative, health spa attendant, or
banquet server. She was offered these positions without a
reduction in pay. App. 910. While the hotel also claimed that
she would be eligible for promotion and raises in any of these
positions, Sheridan offered conflicting evidence. Rather than
accepting reassignment, Sheridan resigned in April 1992.
Sheridan subsequently filed suit against duPont and
Amblard, asserting three violations of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Count I of her
complaint claimed that the hotel had refused to promote her to
manager of restaurants because of her sex. App. 82-83. Count II
charged that she had been placed on probation and that other
disciplinary actions had been taken against her in retaliation
for her complaints about the hotel's failure to promote her on
account of her sex. App. 83. Count III alleged that the hotel
had created intolerable working conditions that resulted in her
constructive discharge. App. 83-84.
The district court denied the defendants' motion for
summary judgment, holding, among other things, that the evidence
in the summary judgment record, if believed, was sufficient to
8
show that Sheridan had been constructively discharged. App. 68-
69. The court granted in part the defendants' motion in limine
to exclude certain testimony by Sheridan and two other witnesses.
The court also ruled that the jury would serve as the finder of
fact for the claims based on conduct that occurred after November
21, 1991, the date of the enactment of the Civil Rights Act of
1991, P.L. 102-166, 105 Stat. 1071 (1991), which granted a right
to a jury trial on Title VII intentional discrimination claims
for which compensatory or punitive damages are sought. The court
ruled that the jury would serve in an advisory capacity for the
claims based on events that occurred before that date. Thus, the
court ruled that the jury would return advisory verdicts with
respect to Count I (failure to promote) and those alleged
retaliatory acts (Count II) that occurred before November 21,
1991. The court ruled that the jury would serve as the finder of
fact with respect to the remaining alleged retaliatory acts and
with respect to Count III (constructive discharge). During
trial, the court dismissed the claims against Amblard, holding
that individual employees are not liable under Title VII.
The jury returned special interrogatories. With
respect to Count I (failure to promote), the jury found that
Sheridan was not qualified for the job of manager of restaurants.
App. 31. With respect to Count II (retaliation), the jury found
that the defendants' actions both before and after November 21
were not taken in retaliation for Sheridan's complaints about the
defendants' failure to promote her. App. 32. However, on Count
III (constructive discharge), the jury found in favor of Sheridan
9
and awarded her $17,500 in compensatory damages, exclusive of
lost wages.0 App. 33. The court adopted as its own the jury's
findings with respect to the conduct alleged in counts I and II
that took place before November 21.
Both parties then moved for judgment as a matter of law
or in the alternative for a new trial. The court granted
duPont's motion for judgment as a matter of law because it found
that the evidence was insufficient to allow a reasonable jury to
conclude that sex played a determinative role in Sheridan's
constructive discharge. Sheridan v. E.I. duPont de Nemours and
Co., No. 93-46 (D. Del. July 14, 1994) ("Sheridan II"). The
court did not dispute the fact that Sheridan had established a
prima facie case, and the court stated that it was "willing to
accept that the jury rejected the defense witnesses' claims that
the investigation into plaintiff's ``comping' activities was
legitimate." Sheridan II at 9. But the court added: "Having
accepted that proposition . . ., the Court is still left
searching the record for evidence that gender played a
determinative role0 in defendant's conduct." Id.
0
The court calculated Sheridan's lost wages to be $51,072.
Sheridan v. E.I. duPont de Nemours and Co., No. 93-46 (D. Del.
May 20, 1994). However, the jury found that Sheridan had failed
to mitigate these damages in the amount of $33,000. The court
thus awarded her the difference -- $18,072 -- in addition to six
months of front pay in the amount of $12,768. Id. at 8.
0
This case was tried prior to our decision in Miller v. CIGNA
Corp., 47 F.3d 586 (3d Cir. 1995) (in banc), in which we held
that a plaintiff in an Age Discrimination in Employment Act case
need show only that age was a determinative cause (as opposed to
the sole cause) of the challenged action. Relying on our prior
decision in Griffiths v. CIGNA, 988 F.2d 457 (3d Cir.), cert.
denied, 114 S. Ct. 186 (1993), the district court in this case
10
II.
A. 1. We first consider Sheridan's argument that the
district court erred in granting duPont's motion for judgment as
a matter of law. With respect to this question, we exercise
plenary review. Seman v. Coplay Cement Co., 26 F.3d 428, 431 (3d
Cir. 1994). "Such a motion should be granted only if, viewing
the evidence in the light most favorable to the nonmovant and
giving it the advantage of every fair and reasonable inference,
there is insufficient evidence from which a jury reasonably could
find liability." Lightning Lube, Inc. v. Witco Corp., 4 F.3d
1153, 1166 (3d Cir. 1993) (citation omitted). "Although judgment
as a matter of law should be granted sparingly, a scintilla of
evidence is not enough to sustain a verdict of liability. ``The
question is not whether there is literally no evidence supporting
the party against whom the motion is directed but whether there
is evidence upon which the jury could properly find a verdict for
that party.'" Id. (citation omitted) (quoting Patzig v. O'Neil,
577 F.2d 841, 846 (3d Cir. 1978)).
2. We begin by considering duPont's argument that the
evidence was insufficient to show that Sheridan was
constructively discharged. Although the district court did not
grant judgment as a matter of law on this basis, duPont argues in
instructed the jury that it had to find that Sheridan's gender
was the sole cause of her constructive discharge, and the jury
apparently found that this higher standard had been met. But in
granting duPont's motion for judgment as a matter of law the
district court held that the evidence of sex discrimination was
insufficient even under the lesser Miller standard.
11
effect that we should affirm the district court on this
alternative ground.
In Goss v. Exxon Office Systems Co., 747 F.2d 885, 887-
88 (3d Cir. 1984), our court recognized the concept of
"constructive discharge" for Title VII purposes. As we observed,
"[c]lassifying a termination as a constructive discharge rather
than a voluntary quit has significant ramifications with resect
to the scope of relief." Id. at 887. Noting that some courts of
appeals had apparently "required a finding that the
discrimination complained of amounted to an intentional course of
conduct calculated to force the victim's resignation," we
rejected this approach and adopted "an objective standard"
requiring a finding that "the employer knowingly permitted
conditions of discrimination in employment so intolerable that a
reasonable person subject to them would resign." Id. at 887-88.
We have applied this test in subsequent cases. See, e.g., Clowes
v. Allegheny Valley Hospital, 991 F.2d 1159 (3d Cir.), cert.
denied, 114 S. Ct. 441 (1993); Gray v. York Newspapers, Inc., 957
F.2d 1070 (3d Cir. 1992); Levendos v. Stern Entertainment, Inc.,
860 F.2d 1227 (3d Cir. 1988). We are bound to apply this
standard here.
Applying the Goss test and our subsequent precedents,
we agree with the district court that there was adequate evidence
to establish a constructive discharge in this case. Sheridan
offered evidence that, when viewed in the light most favorable to
her, would support a finding that Dougherty's evidence was
fabricated. Moreover, Sheridan's situation was aggravated by the
12
fact that most of her staff knew about the investigation and
might interpret her acceptance of a transfer as an acknowledgment
of guilt. Sheridan also presented evidence from which a
reasonable trier of fact could infer that the new positions
offered to her would have represented demotions and that she
would have effectively lost the opportunity for promotion or pay
raises. Taken as a whole, the evidence of constructive discharge
was sufficient.
3. We thus turn to the question whether, as the
district could held, there was insufficient evidence under St.
Mary's Honor Center v. Hicks, 113 S. Ct. 2742 (1993), to show
that Sheridan's gender was a determinative cause of the
constructive discharge. As Sheridan argues, it appears that she
made out a prima facie case of gender discrimination by showing
(a) that she is a woman, (b) that she was qualified for the
position of head captain, (c) that she was constructively
discharged, and (d) that she was replaced by a man. See, e.g.,
Waldron v. SL Industries, Inc., 56 F.3d 491, 494 (3d Cir. 1995).
Under Hicks, Sheridan contends, "[t]hat prima facie showing,
coupled with the jury's ability to find that the reason offered
[by duPont] was a pretext, permitted the jury to find that sex
discrimination had occurred." Appellant's Br. at 27 (footnote
omitted).
In Hicks, the plaintiff claimed that he had been
demoted and discharged because of race. He established a prima
facie case, the employer offered legitimate reasons for the
demotion and discharge, and the district court, sitting as the
13
trier of fact, found the employer's reasons to be pretextual.
Hicks v. St. Mary's Honor Center, 756 F. Supp. 1244, 1251 (E.D.
Mo. 1991). The court noted, however, that the plaintiff bore the
ultimate burden of proving that race was a determinative factor.
Id. Finding that the plaintiff had failed to prove that the
employer's conduct was racially rather than personally motivated,
the court found in favor of the employer. Id. at 1252.
The court of appeals reversed, stating that "[o]nce
plaintiff proved all of defendants' proffered reasons for the
adverse employment actions to be pretextual, plaintiff was
entitled to judgment as a matter of law. . . . No additional
proof of discrimination is required." Hicks v. St. Mary's Honor
Center, 970 F.2d 487, 492-93 (8th Cir. 1992). Thus, the court of
appeals directed the district court to enter judgment in favor of
the plaintiff. Id. at 493.
The Supreme Court granted certiorari to determine
whether the factfinder's rejection of the employer's proffered
reasons mandated a finding for the plaintiff. Hicks, 113 S. Ct.
at 2745. The Court began its analysis with a review of the
burden-shifting scheme established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under this scheme, the establishment
of a prima facie case creates a presumption that the employer
unlawfully discriminated against the employee. Hicks, 113 S. Ct.
at 2747. To overcome this presumption, the employer must
"``clearly set forth, through the introduction of admissible
evidence,' reasons for its actions which, if believed by the
trier of fact, would support a finding that unlawful
14
discrimination was not the cause of the employment action." Id.
at 2747 (quoting Texas Dept. of Community Affairs v. Burdine, 450
U.S. 248, 254-55 & n.8 (1981)). Once the employer satisfies this
burden, the presumption raised by the prima facie case is
"rebutted" and "drops from the case." Id.
The Court emphasized that once the presumption was
rebutted, the plaintiff had to carry the ultimate burden of
proving intentional discrimination at trial. The Court wrote:
It is important to note . . . that although
the McDonnell Douglas presumption shifts the
burden of production to the defendant, "[t]he
ultimate burden of persuading the trier of
fact that the defendant intentionally
discriminated against the plaintiff remains
at all times with the plaintiff."
Hicks, 113 S. Ct. at 2747 (quoting Burdine, 450 U.S. at 253). The
Court continued:
The defendant's "production" (whatever its
persuasive effect) having been made, the
trier of fact proceeds to decide the ultimate
question: whether plaintiff has proven "that
the defendant intentionally discriminated
against [him]" because of his race.
Hicks, 113 S. Ct. at 2749 (quoting Burdine, 450 U.S. at 253). The
Court thus held that rejection of the defendant's proffered
reasons does not compel judgment for the plaintiff. Id.
Hicks' implications when the defendant moves for
summary judgment or judgment as a matter of law are less clear.
Some courts of appeals have held that under Hicks a plaintiff
will not necessarily survive summary judgment or judgment as a
matter of law simply because the evidence is sufficient to permit
a rational factfinder to disbelieve the employer's proffered
15
reasons. E.g., Rhodes v. Guiberson Oil Tools, 39 F.3d 537 (5th
Cir. 1994), reh'g in banc granted, 49 F.3d 127 (5th Cir. 1995);
Woods v. Friction Materials, Inc., 30 F.3d 255, 260-61 n.3 (1st
Cir. 1994); Nelson v. Boatmen's Bancshares, Inc., 26 F.3d 796,
801 (8th Cir. 1994); LeBlanc v. Great American Ins. Co., 6 F.3d
836, 842-43 (1st Cir. 1993), cert. denied, 114 S. Ct. 1398
(1994). However, other courts of appeals have disagreed. E.g.,
Collier v. The Budd Company, 66 F.3d 886, 893 n.11 (7th Cir.
1995); EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir.
1994); Washington v. Garrett, 10 F.3d 1421, 1433 (9th Cir. 1993).
Cf. Barbour v. Merrill, 48 F.3d 1270, 1277 (D.C. Cir. 1995),
cert. granted on other ground, --- S. Ct. ---, 64 U.S.L.W. 3068
(1/19/96); id. at 1281 (statement of Williams, J., concurring in
denial of rehearing in banc).
Our court is among those in the latter group. Relying
on the statement in Hicks that the "rejection of the defendant's
proffered reasons, will permit the trier of fact to infer the
ultimate fact of intentional discrimination," 113 S. Ct. 2749,
our court has taken the position that "``if the plaintiff has
pointed to evidence sufficient[] to discredit the defendant's
proffered reasons, to survive summary judgment the plaintiff need
not also come forward with additional evidence of discrimination
beyond his or her prima facie case.'" Waldron, 56 F.3d at 495;
(quoting Fuentes, 32 F.3d at 764) (brackets in Waldron). See
also Brewer v. Quaker State Oil Refining Corp., --- F.3d ---,
1995 WL 737890 (3d Cir. Dec. 14, 1995); Sempier v. Johnson &
16
Higgins, 45 F.3d 724, 731 (3d Cir.), cert. denied, 115 S. Ct.
2611 (1995). We are compelled to follow these precedents here.
Although these prior cases concerned motions for
summary judgment rather than motions for judgment as a matter of
law, we cannot distinguish them on that basis. The legal
standard applied to a motion for summary judgment mirrors that
applied to a judgment as a matter of law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250-51 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). It would make no sense to
allow a plaintiff to defeat summary judgment and proceed to trial
if the plaintiff's evidence could not sustain a judgment in his
or her favor.
In this case, as the district court recognized, a
rational trier of fact could have found that duPont's proffered
reasons for the constructive termination were pretextual. We are
therefore required under our court's precedents to reverse the
entry of judgment as a matter of law in favor of duPont.
B. While we are bound to follow our court's prior
interpretation of Hicks and while we acknowledge that that
interpretation finds support in language in the Hicks opinion,0we
0
Hicks stated:
The 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. Thus, rejection
of the defendant's proffered reasons, will
permit the trier of fact to infer the
ultimate fact of intentional discrimination,4
and the Court of Appeals was correct when it
17
question whether that interpretation is consistent with two of
the fundamental principles on which Hicks rests.
The first of these is that, under the McDonnell Douglas
scheme, the ultimate burden of persuasion rests at all times with
the plaintiff. See Hicks, 113 S. Ct. at 2747. The second is
that the "presumption" of discrimination that is created when the
plaintiff makes out the elements of a prima facie case is
governed by the "bursting bubble" theory. Under this theory,
a presumption disappears when sufficient
counterproof is offered. The trier may still
find the presumed fact, but only if the
natural probative force of the basic facts
that brought the presumption into play is
sufficient to support such a finding (or the
evidence as a whole supports it). Otherwise,
the presumed fact may not be found, and the
presumption does not protect this
possibility.
noted that, upon such rejection, "[n]o
additional proof of discrimination is
required."
____________________________________________
4. Contrary to the dissent's confusion-
producing analysis, post, at 2761-2762, there
is nothing whatever inconsistent between this
statement and our later statements that (1)
the plaintiff must show "both that the reason
was false, and that discrimination was the
real reason," infra, at 2752, and (2) "it is
not enough . . . to disbelieve the employer,"
infra, at 2754. Even though (as we say
here) rejection of the defendant's proffered
reasons is enough at law to sustain a finding
of discrimination, there must be a finding of
discrimination.
113 S. Ct. at 2749 & n.4.
18
1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal
Evidence, § 71 at 334 (1994); see also, e.g., 2 McCormick on
Evidence, § 344 at 462-63 (4th ed. 1992).0
From these principles, it seems to follow that once a
defendant satisfies its production burden and the McDonnell
Douglas presumption "bursts," a court should no longer accord
that framework or its elements any special significance but
should instead focus directly on the central issue in the case --
intentional discrimination. Thus, in deciding whether a
defendant is entitled to summary judgment or judgment as a matter
of law, the court should focus directly on the question whether
there is sufficient evidence in the record to persuade a
reasonable factfinder that intentional discrimination on the
0
That Hicks regards the McDonnell Douglas presumption as a
"bursting bubble" presumption is shown by the following passages:
"If the defendant carries this burden of
production, the presumption raised by the
prima facie case is rebutted," Burdine, 450
U.S. at 255, and "drops from the case," id.
at 255 n.10.
113 S. Ct. at 2747 (emphasis added).
If . . . the defendant has succeeded in
carrying its burden of production, the
McDonnell Douglas framework -- with its
presumptions and burdens -- is no longer
relevant. . . . The presumption, having
fulfilled its role of forcing the defendant
to come forward with some response, simply
drops out of the picture. [Burdine, 450
U.S.] at 255.
Id. at 2749 (emphasis added). See also McKenna v. Pacific Rail
Service, 32 F.3d 820, 829 (3d Cir. 1994); Gomez v. Allegheny
Health Services, Inc., 71 F.3d 1079 (3d Cir. 1995).
19
ground alleged by the plaintiff was a determinative cause of the
challenged employment action. This approach, which focuses
directly on the question of intentional discrimination, rather
than continuing to view the record through the lens of McDonnell
Douglas, appears to be what the Supreme Court had in mind when it
said in Hicks that after the defendant satisfies its burden of
production "the McDonnell Douglas framework -- with its
presumptions and burdens -- is no longer relevant" and should not
be "resurrect[ed]." 113 S. Ct. at 2749.
Our court, however, has outlined a different approach.
Instead of recognizing that the McDonnell Douglas framework is
"no longer relevant" once the defendant has met its production
burden, our approach continues to accord a special place to a
central element of that framework -- the defendant's proffered
explanation. According to our cases, a plaintiff at this stage
may defeat a summary judgment motion "by either (i) discrediting
the proffered reasons, either circumstantially or directly, or
(ii) adducing evidence, whether circumstantial or direct, that
discrimination was more likely than not a motivating or
determinative cause of the adverse employment action." Fuentes,
32 F.3d at 764 (emphasis in original). If the plaintiff relies
on the first method, our cases require the use of a complicated
standard for determining whether the plaintiff's reasons have
been sufficiently discredited. Under this standard, a plaintiff
cannot defeat summary judgment "simply by arguing that the
factfinder need not believe the defendant's proffered legitimate
explanations," but the plaintiff need not "adduce evidence
20
directly contradicting the defendant's proffered legitimate
explanations." Id. at 764. "Rather, the non-moving plaintiff
must demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the
employer's proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them ``unworthy of
credence.'" Id. at 765 (citation omitted). "[T]he plaintiff
cannot simply show that the employer's decision was wrong or
mistaken," but "[o]f course, a decision foolish, imprudent, or
incompetent by comparison to the employer's usual mode of
operation can render it implausible, inconsistent, contradictory,
or weak." Id. at 765 & n.8. Moreover, when the employer asserts
that the challenged action was taken for several reasons, the
evidence "must allow a factfinder reasonably to infer that each
of the employer's proffered nondiscriminatory reasons . . . was
either a post hoc fabrication or otherwise did not actually
motivate the employment action." Id. (citations omitted). But
"[i]f the defendant proffers a bagful of legitimate reasons, and
the plaintiff manages to cast substantial doubt on a fair number
of them, the plaintiff may not need to discredit the remainder."
Id. at 764 n.7.
Although elaborate, Fuentes' discussion of proof that
tends to discredit the defendant's reason(s) still does not fully
capture the relationship between such proof and the plaintiff's
ultimate burden of establishing intentional discrimination. As
we will try to show below, the degree to which evidence
discrediting an employer's explanation tends to show
21
discrimination on the ground alleged by the plaintiff depends on
a number of other factors that will vary from case to case.
Accordingly, we believe that, once the defendant in a McDonnell
Douglas case has shouldered the production burden, the court, in
ruling on a defense motion for summary judgment or judgment as a
matter of law, should inquire directly whether, based on all of
the evidence in the record when viewed in the light most
favorable to the plaintiff, a reasonable trier of fact could find
that discrimination on the ground alleged was, more likely than
not, a determinative cause of the action at issue. This inquiry
will require an assessment of four categories of evidence.
First, there is the inference of discrimination that
naturally arises from the elements of the prima facie case. The
strength of this inference, however, will vary from case to case.
In some cases, it will be substantial. (An example is the
McDonnell Douglas case itself, in which a black man had engaged
in a civil rights protest against the employer who denied him a
position in 1964 in favor of a white applicant.) In other cases,
however, the inference of discrimination that naturally arises
from the elements of the prima facie case will be weak. (An
example is the age discrimination case in which one middle-aged
person is hired, promoted, etc., instead of another somewhat
older middle-aged person. See, e.g., Barber v. CSX Distribution
Services, 68 F.3d 694 (3d Cir. 1995).) We think that it is clear
that the inference of discrimination naturally arising from the
elements of a prima facie case will not always be enough to take
a plaintiff to trial or to sustain a plaintiff's verdict.
22
Second, there is the inference of discrimination that
may often be drawn from the ruling out of the employer's
proffered reason(s). The degree to which such an inference is
justified, however, is inversely proportional to the degree to
which the record contains evidence of a third possible cause for
the challenged employment action. For example, if it is certain
that an employee was discharged for either reason "a" or reason
"b" and no other, and if reason "b" can be ruled out, then
obviously it may be inferred that the real reason for the
discharge was "a." But if an employee was discharged for either
reason "a," reason "b," or reason "c," then ruling out reason "b"
does not permit an inference that reason "a" was the real reason.
Cases in which the record contains strong evidence of a
third explanation for the challenged action are by no means
unknown. See generally Miller v. CIGNA Corp., 47 F.3d 586, 597
(3d Cir. 1995) (in banc) (trier of fact may conclude that adverse
employment action "was taken for a reason other than the reasons
urged by the parties"). Perhaps the clearest of these cases are
those in which the plaintiff challenges a single adverse
employment action based on two or more alternative grounds. For
example, an employee may claim that he or she did not get a
promotion (1) because of gender and (2) because of handicap. If
the record in such a case contains strong evidence of handicap
discrimination, rejection of the employer's proffered reason (let
us say inferior qualifications) will not by itself permit an
inference that the employer's true reason was gender
discrimination.
23
The degree to which a trier of fact can reasonably
conclude that there was discrimination on the ground claimed by
the plaintiff also depends upon the degree to which the trier of
fact can reasonably reject the employer's reason(s). (It is
important to bear in mind that acceptance or rejection of an
employer's reasons need not be an all-or-nothing proposition.)
The evidence in a particular case may be such as to justify only
a marginal or partial disbelief or belief of the employer's
reason(s). For example, a trier of fact might be justified in
believing that it is more probable than not (but barely so) that
the employer's explanation is false. Or, a trier of fact might
be justified in believing that it is more probable than not (but
barely so) that the employer's explanation is true. In addition,
a trier of fact might be justified in believing that the reason
asserted by the employer was not the sole cause but was a partial
cause (say a 20%, 40%, 60%, or 80% cause) for the challenged
action. See, e.g., id. Or, if the employer asserts multiple
reasons, the evidence might be such as to justify belief (to some
degree) of some reasons but not others. All other things being
equal, the more strongly and completely the trier of fact can
rationally rule out the employer's reason(s), the more justified
it is to conclude that there was discrimination on the ground
alleged -- and vice versa.
Third, disbelief of the employer's proffered reason(s)
may also give rise to an inference that the employer was trying
to conceal discrimination on the ground that the plaintiff
claims. But the strength of this inference, too, will vary based
24
on the facts. Its strength will depend on whether there is
evidence in the record of some other possible explanation that
the employer might not want to disclose (e.g., in our prior
hypothetical, handicap discrimination). In addition, its
strength will obviously be proportional to the extent and
strength of the trier of fact's disbelief of the employer's
reason(s).
The fourth category of evidence that may remain after
the McDonnell Douglas presumption "bursts" consists of any other
relevant evidence of discrimination on the ground asserted.
"[S]tray remarks in the workplace" that are insufficient to make
out a Price Waterhouse case are an example. See Price Waterhouse
v. Hopkins, 490 U.S. 228, 277 (1989) (O'Connor, J., concurring).
Based on the two fundamental principles noted at the
outset -- i.e., that the plaintiff always bears the ultimate
burden of proving intentional discrimination on the ground
alleged and that the McDonnell Douglas presumption "bursts" -- it
appears that when the defendant satisfies its production burden
and the court must decide whether to grant summary judgment or
judgment as a matter of law for the defendant, the court should
decide whether in the particular case at hand the evidence in all
of these four categories taken together could persuade a
reasonable trier of fact by a preponderance of the evidence that
discrimination on the ground alleged was a determinative cause of
the challenged action.
If we were free in this case to apply this mode of
analysis, we would discuss the evidence in some detail. For
25
present purposes, however, we think that it suffices to say that
we are inclined to agree with the district court's evaluation of
the proof. However, since we are not free to employ this mode of
analysis, we are required, as previously noted, to reverse the
entry of judgment as a matter of law in duPont's favor.
III.
We must therefore consider whether the district court
also erred when it granted duPont's motion for a new trial. Such
a motion may be granted even if the evidence is legally
sufficient to support the verdict. Roebuck v. Drexel University,
852 F.2d 715, 735 (3d Cir. 1988). A new trial is appropriate so
long as the district court could "reasonably conclude[] that a
miscarriage of justice would occur if the jury's verdict were
left [to] stand." Klein v. Hollings, 992 F.2d 1285, 1290 (3d
Cir. 1993) (quoting Williamson v. Consolidated Rail Corp., 926
F.2d 1344, 1348 (3d Cir. 1991)) (citing Shanno v. Magee Indus.
Enters., Inc., 856 F.2d 562, 567 (3d Cir. 1988)). A trial
court's decision to grant a new trial based on the weakness of
the prevailing party's evidence is generally reviewed for an
abuse of discretion. Greate Bay Hotel & Casino v. Tose, 34 F.3d
1227, 1235 (3d Cir. 1994); 9A Wright & Miller, Federal Practice
and Procedure § 2540 at 378 (1995). The trial court deserves
this deference because it is better able to weigh the evidence
presented at trial. However, when it is argued that the district
court's order was based on the application of incorrect legal
precepts, we exercise plenary review with respect to that
26
contention. See generally Greate Bay Hotel, 34 F.3d at 1235;
Rotondo v. Keene Corp., 956 F.2d 436, 438 (3d Cir. 1992).
In this case, the district court applied the correct
legal standard when it granted duPont's motion. The court
recognized that "[a] new trial cannot be granted . . . merely
because the court would have weighed the evidence differently and
reached a different conclusion." Sheridan II at 12 (quoting
Markovich v. Bell Helicopter Textron, Inc., 805 F. Supp. 1231,
1235 (E.D. Pa.), aff'd, 977 F.2d 568 (3d Cir. 1992)). Instead,
the court stated, a new trial may be granted on the ground that
the verdict was against the weight of the evidence when the
failure to do so would result in injustice or shock the
conscience of the court. Moreover, in assessing the evidence,
the court recognized that disbelief of duPont's proffered reason
was evidence of discrimination. Accordingly, we hold that the
district court applied the correct legal precepts in ruling on
duPont's new trial motion, and we therefore review this decision
for an abuse of discretion.
Like the district court, we find little evidence of sex
discrimination. Although there is evidence that management may
have treated Sheridan unfairly, there is scant evidence that this
was because she was a woman. Sheridan's testimony that Amblard
would not address her in the company of her male supervisor and
that he told her he would watch her like a "hawk" indicates
little more than personal dislike. Although a man was promoted
to manager of restaurants and a man replaced Sheridan as head
captain of the Green Room, the record indicates that at all
27
relevant times, two of the other four head captain positions at
the hotel were filled by women. Sheridan II at 10. Based on
this evidence, we cannot find that the district court abused its
discretion in granting a new trial on the constructive discharge
claim.0
IV.
We next consider whether the district court erred in
dismissing the claims against Amblard, the hotel general manager,
on the ground that Title VII does not impose liability on
individual employees. App. 847-48. Title VII states that
[i]t shall be an unlawful employment practice
for an employer --
0
The dissenting opinion concludes that the district court's new
trial ruling was tainted by its decision on the motion for
judgment as a matter of law. We disagree. In ruling on the
motion for a new trial, the district court assumed that its order
granting judgment as a matter of law would be reversed and, in
the alternative, still granted the motion for a new trial.
Sheridan II at 12 & n.11. We therefore do not agree that the new
trial decision is undermined by our reversal of the order
granting judgment as a matter of law.
The dissenting opinion also suggests that the district
court may have failed to apply the complete test in ruling on the
motion for a new trial. The dissent apparently is concerned that
the district judge did not make an explicit finding that allowing
the verdict to stand would effect a miscarriage of justice.
Although such a finding would have been helpful for our review,
the district court did recognize that a motion for a new trial
should be granted on the ground that the verdict is against the
weight of the evidence only "``when the failure to do so would
result in injustice, or would shock the conscience of the
court.'" Id. at 12 (citation omitted). We do not see how this
statement differs in any material way from the test set forth in
the dissenting opinion, and we think that a finding that this
standard had been satisfied was certainly implicit in the court's
decision to grant the motion for a new trial. We therefore do
not agree that the court misapplied the test governing the motion
for a new trial.
28
(1) to fail or refuse to hire or to
discharge any individual, or otherwise to
discriminate against any individual with
respect to his compensation, terms,
conditions, or privileges of employment,
because of such individual's race, color,
religion, sex, or national origin . . . .
42 U.S.C. § 2000e-2(a)(1). The term "employer"
means a person engaged in an industry
affecting commerce who has fifteen or more
employees . . ., and any agent of such a
person . . . .
42 U.S.C. § 2000e(b).
Sheridan argues that these provisions permitted her to
assert claims against Amblard. She notes that § 2000e(b) defines
the term "employer" to include "any agent" of an employer, and
she contends that Amblard was an "agent" of duPont. She also
observes that under the Civil Rights Act of 1991, a Title VII
plaintiff may now obtain relief -- compensatory damages -- that a
defendant such as Amblard is in a position to provide. See 42
U.S.C. § 1981a(a)(1).
Arguments such as Sheridan's have been considered by
many of the other courts of appeals in cases under Title VII, as
well as the Age Discrimination in Employment Act ("ADEA") and the
Americans with Disabilities Act ("ADA"), which contain
definitions of an "employer," 29 U.S.C. § 630(b) and 42 U.S.C.
§12111(5), that mirror that of Title VII. Many of these courts
appear to have completely rejected the concept of employee
liability. See, e.g., Tomka v. Seiler Corp., 66 F.3d 1295, 1313-
17 (2d Cir. 1995) (Title VII); Gary v. Long, 59 F.3d 1391, 1399
(D.C. Cir.) (Title VII), cert. denied, 116 S. Ct. 569 (1995);
29
Equal Employment Opportunity Commission v. AIC Security
Investigations, LTD., 55 F.3d 1276, 1279-82 (7th Cir. 1995)
(ADA); Cross v. State of Alabama, 49 F.3d 1490, 1504 (11th Cir.
1995) (Title VII) (citing Busby v. City of Orlando, 931 F.2d 764,
772 (11th Cir. 1991) (Title VII)); Smith v. Lomax, 45 F.3d 402,
403 n.4 (11th Cir. 1995) (Title VII and ADEA); Grant v. Lone Star
Co., 21 F.3d 649, 653 (5th Cir.) (Title VII),0 cert. denied, 115
S. Ct. 574 (1994); Miller v. Maxwell's Int'l Inc., 991 F.2d 583,
587 (9th Cir. 1993) (Title VII and ADEA), cert. denied, 114 S.
Ct. 1049 (1994).0
0
An earlier Fifth Circuit case that seemed to reach a contrary
result, Hamilton v. Rodgers, 791 F.2d 439 (5th Cir. 1986), has
been held to be "nonauthoritative." Harvey v. Blake, 913 F.2d
226, 228 n.1 (5th Cir. 1990).
0
In addition, the Fourth Circuit has rejected such claims against
employees based on "personnel decisions of a plainly delegable
character." Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510-
11 & n.1 (4th Cir.), cert. denied, 115 S. Ct. 666 (1994); see
also Paroline v. Unisys Corp., 879 F.2d 100, 104 (4th Cir. 1989)
(employee may be individually liable for sexual harassment),
vacated in part on other grounds, 900 F.2d 27 (4th Cir. 1990) (in
banc). The law in the Sixth and Tenth Circuits is less clear.
For the Sixth Circuit, see, e.g., Jones v. Continental Corp., 789
F.2d 1225, 1231 (6th Cir. 1986) (statement, in discussion of
award of attorney's fees, that Title VII claims may be asserted
against employees); Romain v. Kurek, 772 F.2d 281 (6th Cir.
1985); York v. Tennessee Crushed Stone Ass'n, 684 F.2d 360 (6th
Cir. 1982); see generally Winston v. Hardee's Food Systems, Inc.,
903 F. Supp. 1151 (W.D. Ky. 1995) (noting absence of controlling
Sixth Circuit authority, collecting cases, and holding no
employee liability under Title VII); Johnson v. University
Surgical Group, 871 F. Supp. 979, 981-86 (S.D. Ohio 1994) (noting
absence of controlling Sixth Circuit authority, collecting cases,
and holding employee may be liable under Title VII). For the
Tenth Circuit, see, e.g., Ball v. Renner, 54 F.3d 664, 668-69
(10th Cir. 1995) (holding employee not individually liable at
least where he or she does not exercise employer-like functions);
Lankford v. City of Hobart, 27 F.3d 477, 480 (10th Cir. 1994) (no
employee liability); Brownlee v. Lear Siegler Management Services
Corp., 15 F.3d 976, 978 (10th Cir.) (dictum that employees may be
liable under ADEA), cert. denied, 114 S. Ct. 2743 (1994); Sauers
30
Among other things, the decisions rejecting employee
liability note that Title VII's definition of an "employer"
predates the Civil Rights Act of 1991; that before the passage of
that Act, Title VII did not permit compensatory or punitive
damages; and that the equitable remedies, including back pay,
that were then available were directed against the employer. AIC
Security Investigations, LTD., 55 F.3d at 1281; Miller, 991 F.2d
at 587 n.2; Grant, 21 F.3d at 652-53. From these facts, it has
been inferred that prior to 1991, an employee could not be sued,
and it has been noted that Congress did not indicate any desire
to change this rule when it passed the 1991 Act. Id. On the
contrary, it has been argued that the statutory scheme of the
1991 Act affirmatively indicates that Congress assumed that
employees would not be sued under Title VII. In passing the 1991
Act, Congress limited damages available based upon the size of
the defendant. Under § 1981a(b)(3),
v. Salt Lake County, 1 F.3d 1122, 1124-25 (10th Cir. 1993)
(holding that claim against employee must be deemed to be in
official capacity). The First and Eighth Circuits have not yet
addressed the issue. See Lenhardt v. Basic Institute of
Technology, Inc., 55 F.3d 377, 380 (8th Cir. 1995) (not reaching
issue of employee liability under Title VII, but interpreting
similar state statute to preclude employee liability); Weeks v.
State of Maine, 871 F. Supp. 515, 516 (D. Me. 1994) (noting lack
of First Circuit precedent). Also, numerous district court
decisions from this circuit have reached the same conclusion and
found no employee liability, see, e.g., Ascolese v. SEPTA, 902 F.
Supp. 533 (E.D. Pa. 1995); Clark v. Commonwealth of Pennsylvania,
885 F. Supp. 694 (E.D. Pa. 1995); Caplan v. Fellheimer Eichen
Braverman & Kaskey, 882 F. Supp. 1529 (E.D. Pa. 1995); Verde v.
City of Philadelphia, 862 F. Supp. 1329 (E.D. Pa. 1994), although
several other courts have reached the opposite result, see, e.g.,
Doe v. William Shapiro, Esq., P.C., 852 F. Supp. 1246 (E.D. Pa.
1994); Dreisbach v. Cummins Diesel Engines, Inc., 848 F. Supp.
593 (E.D. Pa. 1994).
31
[t]he sum of the amount of compensatory
damages awarded . . . shall not exceed . . .
(A) in the case of a respondent who has
more than 14 and fewer than 101
employees . . . $50,000;
(B) in the case of a respondent who has
more than 100 and fewer than 201
employees . . . $100,000;
(C) in the case of a respondent who has
more than 200 and fewer than 501
employees . . . $200,000; and
(D) in the case of a respondent who has
more than 500 employees . . . $300,000.
42 U.S.C. § 1981a(b)(3). This section, it has been argued,
suggests that Congress did not contemplate a respondent who was
not an employer. See AIC Security, 55 F.3d at 1281; Miller, 991
F.2d at 587 n.2; see also Ascolese v. SEPTA, 902 F. Supp. at 540-
41. While reasonable arguments in favor of the contrary position
can be made, see Miller, 991 F.2d at 588-90 (Fletcher, J.,
dissenting); Tomka, 66 F.3d at 1318-24 (Parker, J., dissenting),
we follow the great weight of authority from other courts of
appeals and hold that an employee cannot be sued. We therefore
affirm the dismissal of Sheridan's claims against Amblard.
V.
We next consider whether the district court erred in
granting in part duPont's motion in limine to preclude certain
evidence. Sheridan had sought to introduce testimony by co-
worker Mary Deptula regarding a suggestive remark that was
allegedly made by Amblard when he saw a woman in a tight dress.
Deptula would also have testified that one day when she
32
volunteered to park cars, Amblard told her that she could not do
so because she was a woman. App. 1520-21. The district court
found these statements to be "prejudicial and irrelevant" and
granted the defendants' motion in limine to exclude testimony
concerning them under Federal Rules of Evidence 401 and 403. App.
44.
We generally review district court rulings concerning
Rule 403 for an abuse of discretion. Glass v. Philadelphia
Electric Co., 34 F.3d 188, 191 (3d Cir. 1994). However, when the
district court "failed to explain its grounds for [deciding] a
Rule 403 [motion] and its reasons for doing so are not otherwise
apparent from the record, . . . we may undertake to examine the
record and perform the required balancing ourselves." United
States v. Himelwright, 42 F.3d 777, 781 (3d Cir. 1994) (citations
omitted).
In this case, we need not decide the appropriate
standard of review because we conclude that under either standard
the district court properly excluded the testimony under Rule
403. Amblard's comments had little probative value as to whether
he had a gender-based animus against Sheridan and whether this
animus was a determinative factor in any of the actions taken.
See Hook v. Ernst & Young, 28 F.3d 366, 369, 376 (3d Cir. 1994).
On the other hand, these comments raise a substantial danger of
unfair prejudice. Thus, we hold that the district court properly
excluded Deptula's testimony under Rule 403.
Sheridan also sought to admit testimony by co-worker
April Akers that Amblard complimented many of the men on the
33
staff but never complimented Sheridan or the other women. App.
1515; see also Pl.'s Br. at 38-39. The defendants, however,
claim that Sheridan never sought to admit this portion of Akers's
deposition testimony into evidence. Defs.' Br. at 28 n. 6.
Sheridan has not provided a record citation showing that she
attempted to introduce this evidence. Sheridan's only reference
is to a court order precluding Akers from testifying as to (1)
Sheridan's qualifications and job performance and (2) rumors that
Sheridan was stealing from the hotel. App. 43. In this order,
the court did not address the testimony by Akers that Sheridan
now seeks to admit. Thus, we do not believe that Sheridan raised
this claim at trial, and in any event she has not properly
presented this argument on appeal. See Third Circuit Local
Appellate Rule 28.1(a)(i)(1).
VI.
Sheridan's final two arguments do not require extended
discussion. Sheridan contends that defense counsel's use of a
peremptory challenge based on the age of a member of the venire
violated equal protection. For the reasons explained in our
opinion in Pemberthy v. Beyer, 19 F.3d 857, 870 & n.18 (3d Cir.),
cert. denied, 115 S. Ct. 439 (1994), we hold that this strike was
permissible.
Sheridan also maintains that defense counsel improperly
vouched for the credibility of certain witnesses during summation
and that the district court should have instructed the jury to
disregard those statements. However, assuming for the sake of
34
argument that defense counsel's remarks were objectionable, we
hold that a new trial on Sheridan's denial-of-promotion and
retaliation claims is not warranted.
VII.
For the reasons stated, we reverse the district court's
entry of judgment in favor of duPont on the constructive
discharge claim, but we affirm the court's decision to grant
duPont's motion for a new trial on that claim. We affirm the
judgment against Sheridan on her claims against Amblard and her
denial-of-promotion and retaliation claims. We also hold that
the district court properly granted duPont's in limine motion to
exclude evidence, and we remand this case to the district court
for further proceedings consistent with this opinion.
35
Sheridan v. E.I. duPont de Nemours & Co., No. 94-7509
SLOVITER, Chief Judge, concurring in the judgment reversing the
entry of judgment as a matter of law and dissenting from the
judgment affirming the grant of a new trial.
I.
Although I join in the majority's conclusion that the
judgment as a matter of law on Sheridan's constructive discharge
claim should be reversed, I cannot join in much of its language
in doing so, particularly its suggestion that this court has
taken a wrong path in its series of opinions interpreting the
Supreme Court's opinion in St. Mary's Honor Center v. Hicks, 113
S. Ct. 2742 (1993).
In Hicks, the Court was faced with a holding of a court
of appeals that a factfinder's rejection of the defendant's
proffered reason for its adverse employment action compels a
judgment for the plaintiff. In concluding that it does not, the
Court also explicitly stated that such a finding permits the
factfinder to draw the inference that the defendant intentionally
discriminated against the plaintiff. Thus, we have read Hicks to
establish that the disbelief of the defendant's proffered reasons
is the threshold finding, beyond which the jury is permitted but
not required to draw the inference of intentional discrimination.
See 113 S. Ct. at 2749. In Fuentes v. Perskie, 32 F.3d 759, 764
(3d Cir. 1994), from which the majority seeks to disassociate, we
stated that a plaintiff survives summary judgment by producing
36
sufficient evidence to raise a genuine issue of fact as to
whether the employer's proffered reasons were not its true
reasons for the challenged employment action.
As the majority recognizes, numerous other courts have
likewise interpreted the Supreme Court's decision in Hicks. See
e.g., Barbour v. Merrill, 48 F.3d 1270, 1277 (D.C. Cir. 1995)
("According to Hicks, a plaintiff need only establish a prima
facie case and introduce evidence sufficient to discredit the
defendant's proffered nondiscriminatory reasons; at that point,
the factfinder, if so persuaded, may infer discrimination."),
petition for cert. filed, 64 U.S.L.W. 3068 (U.S. Jul. 3, 1995)
(No. 95-27); EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir.
1994) ("A finding of pretextuality allows a juror to reject a
defendant's proffered reasons for a challenged employment action
and thus permits the ultimate inference of discrimination.");
Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1083 (6th
Cir. 1994) ("Hicks clarified that the only effect of the
employer's nondiscriminatory explanation is to convert the
inference of discrimination based upon the plaintiff's prima
facie case from a mandatory one which the jury must draw, to a
permissive one the jury may draw, provided that the jury finds
the employer's explanation ``unworthy' of belief."); Anderson v.
Baxter Healthcare Corp., 13 F.3d 1120, 1123-24 (7th Cir. 1994)
("The Court [in Hicks] explicitly states that the plaintiff may
prevail in a discrimination case by establishing a prima facie
case and by showing that the employer's proffered non-
discriminatory reasons for her demotion or discharge are
37
factually false."); Washington v. Garrett, 10 F.3d 1421, 1433
(9th Cir. 1993) ("[A]s St. Mary's recognizes, the factfinder in a
Title VII case is entitled to infer discrimination from
plaintiff's proof of a prima facie case and showing of pretext
without anything more . . . .").
Instead of following this precedent, the majority would
require, at least in some cases, evidence beyond that
establishing the prima facie case and supporting the factfinder's
rejection of the defendant employer's proffered reasons in order
to find that plaintiff has met his or her burden of showing
intentional discrimination. The majority offers no guidance as
to what specific additional evidence would be required, but
rather would allow the district court to base its determination
on its own evaluation of the following four considerations: 1)
the strength of the inference of discrimination arising from the
elements of the prima facie case; 2) the degree to which an
inference of discrimination drawn from the rejection of the
employer's proffered reasons is justified; 3) the strength of the
inference "that the employer was trying to conceal
discrimination," and 4) any other evidence of discrimination on
the ground asserted.
However, the imposition of such an additional
evidentiary requirement is directly contrary to the Supreme
Court's statement in Hicks that "rejection of the defendant's
proffered reasons, will permit the trier of fact to infer the
ultimate fact of intentional discrimination, and . . . upon such
rejection, ``[n]o additional proof of discrimination is
38
required.'" 113 S. Ct. at 2749 (emphasis in original) (citation
omitted). Although the majority sees a conflict between this
statement and the requirement that the plaintiff must prove
intentional discrimination, the Court in Hicks believed
otherwise, stating that "there is nothing whatever inconsistent
between this statement and our later statements that (1) the
plaintiff must show 'both that the reason was false, and that
discrimination was the real reason,' and (2) 'it is not enough
. . . to disbelieve the employer'." Id. at 2749 n.4 (citations
omitted) (emphasis in original). The Court explained that "even
though . . . rejection of the defendant's proffered reasons is
enough at law to sustain a finding of discrimination, there must
be a finding of discrimination." Id. (emphasis in original).
The reasons why the factfinder should be entitled to
infer intentional discrimination from this evidence appear from
the relevant caselaw. We have repeatedly acknowledged the
difficulty of proving intentional discrimination in Title VII
cases. See, e.g., Chipollini v. Spencer Gifts, Inc., 814 F.2d
893, 897 (3d Cir.)(in banc), cert. dismissed, 483 U.S. 1052
(1987); Dillon v. Coles, 746 F.2d 998, 1003 (3d Cir. 1984). "This
is true in part because . . . discrimination . . . is often
subtle." Chipollini, 814 F.2d at 899. As the Supreme Court has
recognized, "[t]here will seldom be ``eyewitness' testimony as to
the employer's mental processes." United States Postal Serv. Bd.
of Govs. v. Aikens, 460 U.S. 711, 716 (1983). We have tied the
Supreme Court's establishment of a distinct method of proof in
employment discrimination cases, that relies on presumptions and
39
shifting burdens of production, to the Court's recognition that
direct evidence of an employer's motivation will often be
unavailable or difficult to acquire. See Chipollini, 814 F.2d at
897; Dillon, 746 F.2d at 1003.
The initial presumption of discrimination arises from
the plaintiff's prima facie case of discrimination "because we
presume these acts, if otherwise unexplained, are more likely
than not based on the consideration of impermissible factors."
Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978). I
assume that the same logic, albeit unarticulated, was the basis
for the Supreme Court's statement in Hicks that disbelief of the
employer's reason will permit the factfinder to infer the
ultimate fact of discrimination, see Hicks, 113 S. Ct. at 2749,
even though the presumption "drops from the case" after the
defendant proffers a legitimate reason. Texas Dept. of Community
Affs. v. Burdine, 450 U.S. 248, 255 & n.10 (1981).
The fact that the issue arises here in the context of a
motion for judgment as a matter of law rather than for summary
judgment should make no difference. Because a finding of
intentional discrimination generally depends heavily on
assessments of the credibility of witnesses and those credibility
assessments are traditionally left to the jury, it follows that
the jury must be permitted to draw the inference of intentional
discrimination from its negative credibility finding. See Barber
v. CSX Distribution Servs., 68 F.3d 694, 700 (3d Cir. 1995)
("Evaluation of witness credibility is the exclusive function of
the jury, and where the only evidence of intent is oral
40
testimony, a jury could always choose to discredit it." (quoting
Bhaya v. Westinghouse Elec. Corp., 832 F.2d 258, 262 (3d Cir.
1987))). See also Aikens, 460 U.S. at 716 ("It is true that it
is very difficult to prove what the state of a man's mind at a
particular time is, but if it can be ascertained it is as much a
fact as anything else." (quoting Edgington v. Fitzmaurice, 29 Ch.
Div. 459, 483 (1885))); Chipollini, 814 F.2d at 899 ("The issue
of the defendant's intent at the time of the plaintiff's
discharge is clearly a factual question.").
The majority seems to believe that this court's focus
on the credibility of the defendant's proffered explanation
impermissibly gives continuing weight to the presumption of
discrimination created by the prima facie case even after the
McDonnell-Douglas presumption "bursts." However, I see nothing
that undermines the "bursting" of the presumption. The
McDonnell-Douglas prima facie case is used only to move the
plaintiff's case past the pleadings stage. Once defendant has
satisfied its burden under Burdine to articulate a
nondiscriminatory reason for the employment decision, and
plaintiff has cast doubt on that reason, the case then moves from
the summary judgment stage to the factfinder. It is at that
stage that the credibility of the defendant's proffered
explanation may play a significant - even a determinative - role.
As the Court stated in Hicks, "[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
41
case, suffice to show intentional discrimination." 113 S. Ct. at
2749. Fuentes and our later cases have reasonably concluded from
this statement that a plaintiff who has made out a prima facie
case may defeat an adverse judgment by the court by producing
evidence from which a factfinder might discredit the defendant's
proffered reasons.
The majority is mistaken in its view that basing a
finding of intentional discrimination on the jury's rejection of
the employer's explanation together with the facts supporting the
prima facie case is inconsistent with the bursting of the
presumption. In Burdine itself, the Supreme Court made clear
that "[i]n saying that the presumption drops from the case, we do
not imply that the trier of fact no longer may consider evidence
previously introduced by the plaintiff to establish a prima facie
case. . . . [T]his evidence and inferences properly drawn
therefrom may be considered by the trier of fact on the issue of
whether the defendant's explanation is pretextual." Burdine, 450
U.S. at 255 n.10.
Much of the majority's discussion is predicated on its
concern that an employer may proffer a false reason for its
actions, not to conceal the discrimination alleged but rather to
conceal a different form of discrimination or some other unlawful
conduct. The courts should not base their decisions on such a
hypothesis. We routinely expect a party to give honest testimony
in a court of law; there is no reason to expect less of a
defendant charged with unlawful discrimination. If a defendant
fails to come forward with the true and credible explanation,
42
there is no policy to be served by refusing to permit the jury to
infer that the real motivation is the one that the plaintiff has
charged.
In sum, I continue to believe that this court's
interpretation of Hicks, as stated in Fuentes, Waldron v. SL
Indus., Inc., 56 F.3d 491 (3d Cir. 1995), Sempier v. Johnson &
Higgins, 45 F.3d 724 (3d Cir.), cert. denied, 115 S. Ct. 2611
(1995), and most recently in Brewer v. Quaker State Oil Ref.
Corp., No. 95-3101, 1995 WL 737890 (3d Cir. Dec. 19, 1995), is
true to the language and holding of Hicks and the principles upon
which it rests.
This does not mean that the courts in discrimination
cases lose their traditional obligation to review the sufficiency
of the showing on which summary judgment may be based or, if the
issue is judgment as a matter of law, the adequacy of the showing
plaintiff made to the factfinder. In both such instances, the
district court must determine whether the plaintiff has cast
sufficient doubt upon the employer's proffered reasons to permit
a reasonable factfinder to conclude that the reasons are
incredible. See, e.g., Fuentes, 32 F.3d at 764-765; Ezold v.
Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 523, 531, 533
(3d Cir. 1992), cert. denied, 114 S. Ct. 88 (1993). But once the
court is satisfied that the evidence meets this threshold
requirement, it may not pretermit the jury's ability to draw
inferences from the testimony, including the inference of
intentional discrimination drawn from an unbelievable reason
43
proffered by the employer. For these reasons, I agree that the
judgment for duPont as a matter of law must be reversed.0
II.
However, I respectfully disagree that we should affirm
the order granting a new trial and instead would remand so that
the district court can reconsider that issue. The district
court's explanation for its grant of a new trial was brief,
inasmuch as its ruling focused primarily on its decision to grant
defendant's motion for judgment as a matter of law. The court
noted in a footnote that it was obliged under Rule 50(c) to make
a conditional ruling on the defendant's motion for a new trial.
To comply with that requirement, the court stated merely that it
"would grant the motion for a new trial because the jury's
verdict is contrary to the weight of the evidence." D. Ct.
Opinion at 12 n.11.
The majority would affirm the grant of a new trial,
noting that the court "applied the correct legal precepts."
Majority Opinion at 28. I am less confident than the majority
that this is so. If the majority is suggesting that the district
0
As to the dismissal of the claims against Amblard on the ground
that Title VII does not impose personal liability on individual
employees, although I find the reasoning of Judge Fletcher and
Judge Parker convincing, see Miller v. Maxwell's Int'l Inc., 991
F.2d 583, 588-90 (9th Cir. 1993) (Fletcher, J., dissenting);
Tomka v. Seiler Corp., 66 F.3d 1295, 1318-24 (2d Cir. 1995)
(Parker, J., dissenting), the majority correctly notes that the
great weight of authority from other courts of appeals is
otherwise, and I see no purpose to dissent from the court's
judgment on this issue.
44
court made no error of law in its post-trial rulings, this
statement would be inconsistent with our ruling that the district
court made a substantial error of law in its understanding of the
quantum of evidence that is needed to uphold a jury's verdict.
The district court based its grant of judgment as a matter of law
on its understanding that "[i]n order to demonstrate that gender
was a motivating factor, plaintiff would have to point to some
evidence that that was the motive of those in the decision-making
process. No such evidence exists in the record." D. Ct. Opinion
at 11-12. This substantial legal error is the basis for our
decision today to reverse the district court's grant of judgment
as a matter of law.
The district court was clearly operating under the
misconception that direct evidence of discriminatory intent was
necessary to sustain the jury's verdict. It seems likely that
the court's conclusion that specific evidence of gender
discrimination was necessary led ineluctably to its conditional
new trial ruling. However, because such evidence is not a
prerequisite to a finding of discrimination, I believe the
district court should be given the opportunity to reconsider
whether a new trial is warranted in light of the correct legal
principles.
I believe it is also unclear whether the district court
applied the complete test for ruling on a new trial motion. In
granting that motion, the district court merely concluded that
the jury's verdict was contrary to the weight of the evidence. I
recognize that a new trial may be granted even if the evidence is
45
legally sufficient to support the verdict. Roebuck v. Drexel
Univ., 852 F.2d 715, 735 (3d Cir. 1988). However, we have
cautioned that a district court should grant a new trial on the
basis that the verdict was contrary to the weight of the evidence
"only where a miscarriage of justice would result if the verdict
were to stand." Williamson v. Consol. Rail Corp., 926 F.2d 1344,
1352 (3d Cir. 1991). We have explained that this stringent
standard is necessary to ensure that a district court "does not
substitute its ``judgment of the facts and the credibility of the
witnesses for that of the jury.'" Fineman v. Armstrong World
Indus., Inc., 980 F.2d 171, 211 (3d Cir. 1992) (quoting Lind v.
Schenley Indus. Inc., 278 F.2d 79, 90 (3d Cir. 1960)), cert.
denied, 113 S. Ct. 1285 (1993). "Such an action effects a
denigration of the jury system and to the extent that new trials
are granted the judge takes over, if he does not usurp, the prime
function of the jury as the trier of facts." Id.
Therefore, before imposing on Sheridan the burden and
expense of a new trial, I would remand to require the district
court to determine whether, inasmuch as Sheridan was not obliged
to produce direct evidence of discriminatory intent, the jury's
verdict for Sheridan was against the great weight of the evidence
and would effect a miscarriage of justice.
46
47