                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-30-1997

Ryder v. Westinghouse Elec
Precedential or Non-Precedential:

Docket
96-3414




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997

Recommended Citation
"Ryder v. Westinghouse Elec" (1997). 1997 Decisions. Paper 235.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/235


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1997 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed September 30, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-3414

JOHN M. RYDER

v.

WESTINGHOUSE ELECTRIC CORPORATION,

       Appellant.

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. Civ. No. 93-cv-01945)

Argued April 14, 1997

Before: GREENBERG, ALITO and SEITZ, Circuit Judges.

Filed: September 30, 1997

       SAMUEL J. CORDES, ESQUIRE
        (Argued)
       ANDREW G. SYKES, ESQUIRE
       MARY R. ROMAN, ESQUIRE
       Ogg, Jones, Cordes & Ignelzi
       245 Fort Pitt Boulevard
       Pittsburgh, PA 15222

        Attorney for Appellee




       JEROME SHESTACK, ESQUIRE
        (Argued)
       JOSEPH C. CRAWFORD, ESQUIRE
       JONATHAN D. WETCHLER,
        ESQUIRE
       Wolf, Block, Schorr & Solis-Cohen
       S.E. Corner 15th & Chestnut Streets
       Packard Building, 12th Floor
       Philadelphia, PA 19102

       RICHARD J. ANTONELLI, ESQUIRE
       Buchanan Ingersoll Professional
        Corporation
       One Oxford Centre
       301 Grant Street
       20th Floor
       Pittsburgh, PA 15219-1410

        Attorneys for Appellant

       CATHY VENTRELL-MONSEES
       THOMAS W. OSBORNE
       MELVIN RADOWITZ
       American Association of Retired
        Persons
       601 E Street, N.W.
       Washington, D.C. 20049

        Attorneys for Amicus Curiae
       American Association of Retired
        Persons

OPINION OF THE COURT

SEITZ, Circuit Judge.

Defendant, Westinghouse Electric Corporation
("Westinghouse"), appeals from a judgment, entered on a
jury verdict, in favor of Plaintiff, John M. Ryder ("Ryder").
This action is based on the Age Discrimination in
Employment Act, 29 U.S.C. SS 621-634 (1994) ("ADEA"),

                                  2



and the Pennsylvania Human Relations Act, 43 Pa. Cons.
Stat. Ann. SS 951-963 ("PHRA").1

Ryder was employed as a staff assistant to the group
controller for Westinghouse's Power Systems Group from
1983 until April 6, 1993. Prior to assuming this position,
Ryder had been employed at Westinghouse in various other
capacities since January 7, 1963. On April 6, 1993, Lou
Facchini ("Facchini"), who had been the group controller for
the Power Systems Group since 1991 and who had
"inherited" Ryder from the previous controller, terminated
Ryder's employment under Westinghouse's permanent job
separation program.2 At the time of his termination, Ryder
was fifty-two years old.

Two days after leaving Westinghouse, Ryder filed a
complaint with the Equal Employment Opportunity
Commission ("EEOC"), alleging that Westinghouse wilfully
terminated him because of his age. After waiting for the
required time periods to elapse, Ryder filed his complaint in
the district court on November 11, 1993. A two-week jury
trial concluded with the jury's verdict in favor of Ryder, and
with an award in the amount of $241,909. Westinghouse
filed this timely appeal.

Westinghouse attacks the district court's management of
the trial in two separate respects, each of which,
Westinghouse submits, requires us to reverse the judgment
and remand this case for a new trial. We turn to those
issues.
_________________________________________________________________

1. The district court exercised subject matter jurisdiction over Ryder's
ADEA claim pursuant to 29 U.S.C. S 623(a), 626(c)(1) and 28 U.S.C.
S 1331, and based jurisdiction over Ryder's PHRA claim on 28 U.S.C.
S 1367. We have jurisdiction under 28 U.S.C. S 1291.

2. Facchini testified that he terminated Ryder only after trying
unsuccessfully to place him elsewhere in the company. Westinghouse
explained that by eliminating Ryder's position, as opposed to terminating
him for cause or laying him off, it could offer Ryder a permanent job
separation. The parties stipulated that under this arrangement, Ryder
received, at the time of his termination, a lump-sum payment of his
vested pension benefit amounting to $172,000, along with a payment of
$391,027 in deferred compensation. By mutual agreement of the parties,
Ryder actually continued in his position until August 31, 1993.

                                3



I.

Admission of the "Chairman's Initiative
Memorandum"

Westinghouse first challenges the admission of the so-
called "Chairman's Initiative Memorandum," which was
authored by Michael Jordan, Westinghouse's CEO, and
which contained allegedly ageist comments made by
unidentified Westinghouse executives who were authorized
to make personnel decisions.3 These comments were made
at a series of meetings attended by Jordan, who became
CEO in June of 1993, approximately two months after
Ryder's "official termination." Also in attendance was Gary
Clark, who was acting as CEO when Ryder was terminated,
and who became president of the company after Jordan
was hired.

The controversial comments reflected in the
memorandum were made at a meeting held on July 6-7,
1994, the topic of which was "Employee Selection
Development Rewards and Costs." App. at 54. Jordan's
memorandum was distributed to "All Previous Attendees of
Chairman's Initiative," and included his introductory
comments that the summaries contained "some good ideas"
and were "long, but valuable." Id. at 45. Some of the
allegedly ageist comments included:

       Participant: In many of our businesses we have an
       older workforce. As a result, that
       workforce gets a higher salary.
       Additionally, our low growth businesses
       can strain opportunities for younger
       workers. Somehow we must provide those
       opportunities. We have to get the
_________________________________________________________________

3. Facchini, who attended some but not all of the meetings, testified at
trial that those in attendance were of the "general manager" level, who
"ma[d]e decisions as far as hiring andfiring people." App. at 426. Based
on this testimony, the district court noted that the attendees had "hiring
and firing responsibilities." Id. at 430.

                                4



       "blockers" out of the way.

       . . . .

       Participant: Westinghouse has been pretty
       paternalistic in the past and we've ended
       up with too much dead wood in the
       organization.

       Jordan: Yes, and that's a big issue because as
       you squeeze the infrastructure, you want
       your best talent to stay in the
       organization.

       . . . .

       Participant: We really haven't hired much over the
       last 10-15 years. As a result, we have a
       hole in terms of people development. We
       don't have enough people in the
       organization ages 30-40. Somehow we
       have to anticipate what our requirements
       are for people three years down the road
       and be willing to hire people for the
       future.

       Jordan: That's the issue at many business units.
       You have to have regeneration.

       . . . .

       Participant: Blockers are always an issue but they're
       less of an issue when you are in a growth
       mode. Removing blockers is very
       important when you're in a downsizing
       mode because you don't have the kinds of
       opportunities that growth provides you.

       Jordan: People down in the organization know
       who they are. . . . [W]e have to put
       ourselves in a position of getting high
       pots into more responsible jobs and move
       the blockers aside. That's hard to do, and
       no one likes to do it, but we're paying the
       price now for our inability to do it in the
       past.

       . . . .

                                5



       Jordan: What we need to do as the leadership of
       this organization, is force ourselves to
       those standards so that the best persons
       get into the right positions. An eager
       high-energy person will get more done in
       one month than someone who has retired
       in place will do in one year.

       . . . .

       Jordan: We seem to be missing the people in the
       middle of the age range who have talent,
       the willingness and the horsepower to
       take on risky change projects. We don't
       have those types pushing up from the
       bottom. We have a kind of regeneration
       gap here. We have to have those kinds of
       people. Not only are these individuals the
       leadership of tomorrow, these are the
       people that create ferment down in the
       ranks that pushes against the status quo
       in the system.

App. at 54-59.4

Westinghouse contends that any relevancy that this
document may have to Ryder's termination one year prior
to the chairman's initiative meeting is substantially
outweighed by its highly prejudicial nature. Westinghouse
also argues that the document constitutes inadmissible
hearsay. Ryder responds that the document was properly
admitted as circumstantial evidence of the corporate
culture existing when Ryder was terminated one year
earlier.

We review the district court's evidentiary rulings for
abuse of discretion. Sheridan v. E.I. DuPont de Nemours &
Co., 100 F.3d 1061, 1076 (3d Cir. 1996) (en banc), cert.
denied, 117 S. Ct. 2532 (1997). We will not disturb the
district court's application of a balancing test under Federal
Rule of Evidence 403 unless it is "arbitrary and irrational."
_________________________________________________________________

4. At trial, Facchini agreed with Ryder's counsel's characterization of a
"blocker" as "somebody who is preventing somebody younger from
getting through to another executive level...." App. at 482.

                                6



Abrams v. Lightolier Inc., 50 F.3d 1204, 1213 (3d Cir. 1995)
(internal quotations and citations omitted).5

We have recognized that a plaintiff may offer
circumstantial proof of intentional discrimination on the
basis of age in the form of a supervisor's statement relating
to formal or informal managerial attitudes held by
corporate executives. See, e.g., Brewer v. Quaker State Oil
Refining Corp., 72 F.3d 326, 333 (3d Cir. 1995); Lockhart v.
Westinghouse Credit Corp., 879 F.2d 43, 54 (3d Cir. 1989).
We have noted that it is often crucial to the jury's
assessment of whether the employer's reasons were
pretextual and the ultimate question whether the employer
intentionally discriminated against an employee. Antol v.
Perry, 82 F.3d 1291, 1302 (3d Cir. 1996). Its importance
seems to become ever more critical as sophisticated
discriminators render their actions increasingly more subtle
to circumvent adverse judicial precedent. See Sheridan, 100
F.3d at 1071; Aman v. Cort Furniture Rental Corp., 85 F.3d
1074, 1081-82 (3d Cir. 1996).

In resolving whether these comments were properly
admitted, we can take guidance from our decisions in
_________________________________________________________________

5. We decline Westinghouse's invitation to exercise plenary review of this
issue on the basis that the district court failed to make explicit its
Rule
403 balancing analysis.

Our review of the record indicates that Westinghouse raised its Rule
403 objection in its pre-trial pleading entitled,"Defendant's Opposition
to
Plaintiff's Second Supplemental Pretrial Statement and Offer of
`Chairman's Initiative' Exhibit." Supp. App. at 1341, 1348-49. The basis
for the objection was that the comments were not probative because they
post-dated the termination by approximately one year and did not
suggest a corporate culture aimed at eliminating older workers. The
comments were highly prejudicial because they would sway the jury's
focus from events at the time of Ryder's termination and invite the jury
to react irrationally given the negative public opinion of corporate
reorganizations.

Although not expressly citing Rule 403, the district court addressed
both concerns in ruling on the admissibility of the memorandum. App.
at 131-34, 467. Based on our review of the record, we think that the
district judge's analysis was sufficiently explicit here. See In re Paoli
R.R.
Yard PCB Litig., 113 F.3d 444, 457 n.8 (3d Cir. 1997); Sheridan, 100
F.3d at 1076 n.10.

                                7



Lockhart, 879 F.2d at 54, and Brewer, 72 F.3d at 333-34.
In Lockhart, we held that an ageist comment made by the
senior-most executive of one of the four Westinghouse
Credit Corporation divisions was relevant to the company's
atmosphere or culture when the plaintiff was terminated
approximately one year earlier. 879 F.2d at 54. Even
though this executive did not occupy his post at the time of
the plaintiff 's termination and did not comment specifically
about and was not involved in dismissing the plaintiff, we
reasoned that a jury could read his comment as reflecting
a "cumulative statement of managerial policies" that had
been effectuated by other high ranking company executives
for "a considerable time." Id. We concluded that an
executive of such stature in the organization was likely to
be aware of the prevailing atmosphere even if he did not
participate in a particular termination.

In Brewer, we confronted the admissibility of Quaker
State's CEO's description in a company newsletter of two
new executives as "two of our star young men in their mid-
40s. That age group is our future." 72 F.3d at 333. We held
that this comment was a "stray remark" because the CEO
played no role in the termination decision at issue and he
made the remark nearly two years prior to the plaintiff's
termination. Id. Nonetheless, we found it relevant as
probative of informal managerial attitudes. This was
particularly so because the remark was written by the CEO,
and thus, was "not an off-hand comment made by a low-
level supervisor." Id. at 334. We concluded that the
question whether the comment was entitled to any-- and
how much -- weight as circumstantial evidence of
discrimination was for the factfinder.

This is not to say that an ageist statement made by any
corporate executive is relevant as evidence of "corporate
culture," which would circumstantially prove a
discriminatory animus. Rather, the court must, as we did
in Lockhart and Brewer, evaluate factors pertaining to the
declarant's involvement in recognizing a formal or informal
managerial attitude, including the declarant's position in
the corporate hierarchy, the purpose and content of the
statement, and the temporal connection between the
statement and the challenged employment action.

                                8



In the case at bar, none of the comments contained in
the memorandum relate directly to Facchini's decision to
terminate Ryder. They were made approximately one year
after the fact by individuals not involved in the decision.
Neither of the foregoing facts renders the comments
irrelevant, however. The comments were made by either the
company CEO or by executives with authority to render
personnel decisions. Moreover, the comments were made in
reflection on past managerial viewpoints at Westinghouse
with an eye toward future change. If the jury were to believe
that these comments accurately reflected a then existing
managerial attitude toward older workers in April 1993,
this evidence would make the existence of an improper
motive for Ryder's termination more probable. Fed. R. Evid.
401; Brewer, 72 F.3d at 333-34; Abrams, 50 F.3d at 1214-
15; Lockhart, 879 F.2d at 54. See also Walden v. Georgia-
Pacific Corp., No. 96-7045, slip op. at 23-25 (3d Cir. Sep.
26, 1997) ("stray remarks" made by individuals outside the
employer's decision-making process may nevertheless
constitute admissible evidence of managerial atmosphere
and a possible discriminatory intent).

The remaining question, then, is whether the district
court acted arbitrarily and irrationally in concluding that
the relevancy of these comments is not substantially
outweighed by the dangers of unfair prejudice or misleading
the jury, given the statements' temporal remoteness and
the fact that the speakers were not involved in Ryder's
termination. Certainly, their relevancy is somewhat
diminished by the fact that they were not made by the
individuals who terminated Ryder. Cf. Abrams, 50 F.3d at
1215 (negative comments by a decision maker are often the
strongest circumstantial evidence of discrimination). Their
relevancy is conversely enhanced by the fact that many of
the statements (and seemingly the more controversial ones)
were made by the CEO himself. Brewer, 72 F.3d at 333-34.

In this regard, we agree with Westinghouse that a CEO's
comments are likely to be reviewed carefully by a jury; as
noted in Lockhart, "[w]hen a major company executive
speaks, `everybody listens' in the corporate hierarchy...."
879 F.2d at 54. Although he spoke approximately one year
after Facchini decided to terminate Ryder, Jordan had

                                9



served as CEO since July 1993, approximately one month
before Ryder left Westinghouse. He had a basis for
knowledge of the existing managerial viewpoints during the
relevant time period. As to the other participants, it is clear
that they were discussing past practices at Westinghouse.

In any event, we conclude, as we did in Lockhart, that
these statements may have reflected a cumulative
managerial attitude that had been held for "a considerable
time." 879 F.2d at 54. Therefore, we cannot say that the
district court acted arbitrarily and irrationally in its finding
that any unfair prejudice did not outweigh the relevancy of
the comments based on their temporal remoteness or on
the fact that the speakers were not involved in Ryder's
termination.6

We also believe that the jury would not have been
confused by the fact that these comments were made one
year after Ryder's termination. They were expressly offered
to illustrate the pervasive ageist managerial attitude when
Ryder was terminated, and Westinghouse clarified this
temporal factor on cross examination. Consequently, we
conclude that the district court did not act arbitrarily and
irrationally in balancing these competing interests in favor
of admissibility.

We also reject Westinghouse's argument that these
statements constitute inadmissible hearsay. Ryder offered
these statements into evidence as circumstantial proof of
the managerial viewpoint on "blockers" that prevailed when
Ryder was terminated. Thus, we find that the statements
were not offered to prove the truth of the matters asserted.7
_________________________________________________________________

6. We think likewise as to any prejudice resulting from the allegedly
negative public perception of corporate reorganizations. Such a
generalized view is too speculative to support the conclusion that the
introduction of a document that Westinghouse contends in its brief
evinces no age animus was unfairly prejudicial because it would cause
the jury to act irrationally.

7. For instance, Jordan's statement that "[a]n eager, high energy person
will get more done in one month than someone who has retired in place
will do in one year" was not offered for its truth. Instead, it was
offered
to illustrate the CEO's state of mind on the issue of unproductive (and
seemingly older) individuals. Fed. R. Evid. 801(c); see also id. 803(3).
This reasoning applies to the other comments as well.

                                10



Even if the statements were offered to prove the truth of
the matters asserted, we nevertheless would conclude that
they were admissible as exceptions to the definition of
hearsay. First, the statements made by Jordan at the
meeting and summarized in the memorandum were
admissions by the agent of Westinghouse. Fed. R. Evid.
801(d)(2)(D). Jordan was speaking as the CEO of
Westinghouse to a group of Westinghouse executives about
personnel matters over which these executives exercised
authority. Thus, he spoke as Westinghouse's agent within
the scope of his employment. Carden v. Westinghouse Elec.
Corp., 850 F.2d 996, 1001-02 & n.6 (3d Cir. 1988).

Jordan's summarization of the statements made by the
unidentified participants presents a "double hearsay"
problem. For these comments to have been properly
admitted then, we must find each level of hearsay to fall
within some applicable exception. Fed. R. Evid. 805. As we
noted above, in summarizing these statements in a
memorandum sent to all meeting attendees, Jordan acted
within the scope of his employment as CEO of
Westinghouse. Thus, his recitation of the statements is an
admission by a party-opponent under Federal Rule of
Evidence 801(d)(2)(D). See Carden, 850 F.2d at 1001-02 &
n.6.

We find this exception to apply to the actual utterances
of these statements by the unidentified meeting
participants as well. The speakers, though unidentified by
name or specific title, were all Westinghouse executives who
had authority to make personnel decisions. They acted
within the scope of their employment in stating their views
on the state of their workforce at the request of the
company CEO. Thus, the sources of the statements are
identified sufficiently to establish that they were made by
agents of Westinghouse acting within the scope of and
during the existence of their employment relationship. See
Big Apple BMW, Inc. v. BMW of North America, Inc., 974
F.2d 1358, 1373 (3d Cir. 1992).8 Based on the foregoing
_________________________________________________________________

8. As to this level of hearsay, we find our decision in Carden to be
distinguishable. There, we held that a supervisor's statement to his
employee, who was terminated pursuant to a reduction in force, that

                                11
analysis, the comments contained in the memorandum
were properly admitted.

II.

The Jury Instructions

A.

Westinghouse next challenges the correctness of the
following jury instruction:

       In this area of the law, an explanation offered by an
       employer for its treatment of an employee that is not
       its real reason for such treatment is referred to as a
       pretext for illegal discrimination.

App. at 1235. Ryder first responds by asserting that
Westinghouse failed to preserve, and therefore has waived,
its objection to the jury instructions.

If a timely objection preserved the issue for appeal, we
exercise plenary review to determine if the jury
instructions, as a whole, stated the correct legal standard.
Otherwise, we may exercise our discretion to reverse the
judgment only for plain error contained in the instructions.
Seman v. Coplay Cement Co., 26 F.3d 428, 435 (3d Cir.
1994).

Federal Rule of Civil Procedure 51 provides, in pertinent
part:

       No party may assign as error the giving or the failure
       to give an instruction unless that party objects thereto
       before the jury retires to consider its verdict, stating
       distinctly the matter objected to and the grounds for the
       objection.
_________________________________________________________________

"they wanted a younger person" constituted inadmissible double
hearsay. 850 F.2d at 1002. At the heart of our conclusion there was the
fact that "they" were not identified anywhere in the record. Thus, we
were unable to determine if "they" acted within the scope of their
employment in making the statement at issue. Id.; see also United States
v. Cruz, 910 F.2d 1072, 1081 n.10 (3d Cir. 1990).

                                12



Fed. R. Civ. P. 51 (emphasis added). We have interpreted
this rule explicitly to require that any objections to the jury
charge be made at the close of the charge. Seman, 26 F.3d
at 436. It is clear from the record that while it objected to
a separate portion of the court's instruction after the jury
was charged, Westinghouse did not object to the sentence
attacked on appeal. App. at 1244-45.9

We find inapplicable the exception to Rule 51 that no
objection at the close of the charge is needed where the
_________________________________________________________________

9. Rule 51 also requires that a party identify the objectionable matter
"with sufficient clarity to give the trial judge notice of a possible
error in
the instruction." Chemical Leaman Tank Lines, Inc. v. Aenta Cas. & Sur.
Co., 89 F.3d 976, 993 (3d Cir.), cert. denied sub nom., Jackson v.
Chemical Leaman Tank Lines, Inc., 117 S. Ct. 485 (1996).

Our independent review of the record here shows that Westinghouse
never objected specifically to the instruction challenged on appeal. At
the
charge conference, Westinghouse objected to the inferential proof
instruction, which read:

       You may infer that Mr. Ryder has met his burden of proof if you
find
       that the four facts set forth above have been proven by a
       preponderance of the evidence and if you further disbelieve
       defendant's explanation for why plaintiff's employment was
       terminated.

App. at 1234-35. On appeal, Westinghouse identifies as the erroneous
instruction a sentence found in the paragraph immediately succeeding
the instruction attacked at the charge conference:

       In this area of the law, an explanation offered by an employer for
its
       treatment of an employee that is not its real reason for such
       treatment is referred to as a pretext for illegal discrimination.

App. at 1235 (emphasis added).

We conclude that Westinghouse's objection at the conference would
not have alerted the district judge to the alleged error advanced on
appeal. The former objection pertained to whether the inferential proof
instruction would mislead the jury into believing that a finding of
discrimination could be based solely on the prima facie case, in
contravention of our holding in Seman, 26 F.3d at 435. Westinghouse
contends that the instruction now challenged equated the disbelief of
Westinghouse's reason with a finding that the reason was a pretext for
discrimination, in contravention of the holding in St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 511 (1993).

                                 13
district court expressly permits the parties "to incorporate
by reference objections made during the charge
conference." Seman, 26 F.3d at 436. Westinghouse argues
that the district judge granted such express permission
toward the end of the charge conference, in responding to
Westinghouse's objection to the use of the word
"performance" on page eight of the proposed instructions.
The court stated that "[a]ll those are noted.. . . And they
are preserved every time it is done." App. at 1224.

Our review of this colloquy in context, however, leads us
to conclude that the judge was not granting the parties
express permission to dispense with objections to the final,
altered version of the jury instructions that were actually
given to the jury. First, the reference to "performance" can
be traced to an earlier Westinghouse objection, on pages six
and seven, to the inclusion of "performance" in the
instructions as "add[ing] an element to the case that really
isn't in the case." App. at 1215. When Westinghouse
objected to its inclusion again on page eight, the judge
responded by noting that the issue was preserved. Second,
Westinghouse's claim is belied by the district judge's
invitation and acceptance of Westinghouse's objections after
the charge was given. Id. at 1243-44.

Having concluded that Westinghouse did not preserve its
objection to the jury instruction that it claims is erroneous,
we will review the instruction only for plain error. Chemical
Leaman Tank Lines, 89 F.3d at 993; Seman, 26 F.3d at
435. We will reverse and remand for a new trial only if the
alleged error is fundamental and highly prejudicial, such
that the instructions failed to provide the jury with
adequate guidance and our refusal to consider the issue
would result in a miscarriage of justice. Brereda v. Pickering
Creek Indus. Park, Inc., 865 F.2d 49, 53 (3d Cir. 1989).

B.

It is helpful to review briefly the evidentiary framework
that applies in age discrimination cases based on a
"pretext" theory. The plaintiff first must establish, by a
preponderance of the evidence, a prima facie case of age
discrimination by proving that he: (1) is over forty years of

                                14



age; (2) is qualified for the position in question; (3) suffered
an adverse employment action; and (4) was replaced by a
sufficiently younger person to permit an inference of age
discrimination. Brewer v. Quaker State Refining Corp., 72
F.3d 326, 330 (3d Cir. 1995).
The defendant then must rebut this presumption by
articulating a legitimate, nondiscriminatory reason for the
adverse employment action. Hicks, 509 U.S. at 506-07
(1993); Brewer, 72 F.3d at 330. Finally, the plaintiff must
satisfy his ultimate burden of proving, by a preponderance
of the evidence, that the defendant's proffered reason is not
the "true reason" for the decision, but instead is merely a
pretext for age discrimination. Hicks, 509 U.S. at 511; Bray
v. Marriott Hotels, 110 F.3d 986, 990 (3d Cir. 1997).

The plaintiff can meet this ultimate burden by proving,
by circumstantial evidence, that the defendant's reason is
"unworthy of credence." Armbruster v. Unisys Corp, 32 F.3d
768, 783 (3d Cir. 1994).10 To establish such circumstantial
proof, the plaintiff first must present evidence that each of
the defendant's reasons is pretextual, viz, each reason was
"a post hoc fabrication or otherwise did not actually
motivate the employment action." Fuentes v. Perskie, 32
F.3d 759, 765 (3d Cir. 1994). This proof of pretext then
may be combined by the factfinder with the evidence used
to support the plaintiff's prima facie case of age
discrimination, and from this union, the factfinder may
reasonably infer that the defendant discriminated against
the plaintiff because of his age. Hicks, 509 U.S. at 511.11

Westinghouse contends that the district court instruction
as to the final portion of the required proof was legally
_________________________________________________________________

10. The plaintiff also may prove, by direct evidence, that a
discriminatory
reason more likely than not motivated the defendant, Armbruster 32 F.3d
at 782-83, or that age played a role in and had a determinative effect on
the outcome of the defendant's decisionmaking process. Miller v. CIGNA
Corp., 47 F.3d 586, 588 (3d Cir. 1995) (en banc).

11. Of course, such an inference is by no means compelled as a matter
of law. Hicks, 509 U.S. at 511. We have stated that the factfinder in a
pretext case "is not limited to a choice betweenfinding that the alleged
discriminatory motive or the employer's nondiscriminatory explanation
was the sole cause of the employment action." Miller, 47 F.3d at 596.

                                15



erroneous. In its proper context, the pertinent portion of
the instruction reads:

        You may infer that Mr. Ryder has met his burden of
       proof if you find that the four facts set forth above have
       been proven by a preponderance of the evidence and --
       note that I say "and" -- if you further disbelieve
       defendant's explanation for why plaintiff's employment
       was terminated.

       . . . . If you find that Westinghouse articulated
       legitimate, nondiscriminatory reasons for eliminating
       plaintiffs [sic] job, then you must determine whether
       the plaintiff, John Ryder, has proven by a
       preponderance of evidence that the reason or
       explanation given by the defendant was not the real or
       true reason behind Westinghouse's action in
       terminating Mr. Ryder's employment.

        In this area of the law, an explanation offered by an
       employer for its treatment of an employee that is not its
       real reason for such treatment is referred to as a pretext
       for illegal discrimination. If you find that Mr. Ryder has
       proven by a preponderance of the evidence that the
       defendant, Westinghouse Electric Corporation, used
       the elimination of plaintiff's job as an excuse or pretext
       for discriminating against him on the basis of his age,
       then your verdict will be for Mr. Ryder, the plaintiff.

        On the other hand, if you find that the explanation
       offered by Westinghouse Electric Corporation . . . were
       [sic] legitimate reasons for plaintiff's termination, and
       that plaintiff has not proven by a preponderance of
       evidence that age was a determining factor in the
       termination of his employment, then your verdict will
       be for the defendant, Westinghouse Electric
       Corporation.

        In making this determination, you should be aware
       of the following: The burden of proving discrimination
       always remains with the plaintiff, John Ryder, to prove
       that he was a victim of age discrimination. . . . Your job
       is to determine whether Westinghouse discriminated
       against Mr. Ryder on the basis of his age.

                                16



App. at 1235-36 (emphasis added).

Westinghouse asserts that this highlighted sentence
equated any disbelief of its proffered reasons with the
finding that the reasons were necessarily pretexts for age
discrimination. Westinghouse states that the jury should
have been instructed that under Hicks, a jury may infer the
ultimate fact of discrimination from its disbelief of the
employer's reason and its belief of the evidence used to
establish a prima facie case, but the jury is not required to
do so.12
We agree that this statement was erroneous. We have
stated that the factfinder in a pretext case is free to accept
either or neither of the parties litigating positions as
reflecting the whole truth. Miller, 47 F.3d at 597. That is
why in Miller, we held that it was reversible error for the
court to instruct the jury repeatedly that it had tofind that
age was the "sole cause" of the adverse employment action
for the plaintiff to prevail on his ADEA claim. Id. In the case
at bar, the jury may have believed that Westinghouse's
reasons were pretextual, without necessarily believing that
age discrimination was the real reason.

Despite this isolated error, we must read the jury
instructions as a whole. Lockhart v. Westinghouse Credit
Corp., 879 F.2d 43, 56 n.13 (3d Cir. 1989). Much like the
case presented in Lockhart, we find this solitary
misstatement of the law to be offset by the court's repeated
correct explanation of Ryder's burden of proof.

For instance, in the sentence immediately following the
erroneous sentence, the court clearly instructed that a
verdict for Ryder was proper if the jury found that
Westinghouse used the elimination of his job "as an excuse
or pretext for discriminating against him on the basis of his
age." App. at 1235.13 Then, in the next paragraph, the court
instructed the jury that if it believed Westinghouse's
reasons and concluded that Ryder did not prove that "age
_________________________________________________________________

12. We note that Westinghouse requested no such instruction in its
proposed jury instructions.

13. This is nearly the exact language that Westinghouse requested the
court to use. App. at 83-84.

                                17



was a determining factor in the termination of his
employment," then its verdict would be for Westinghouse.
Id. at 1235-36. Finally, the court again admonished the
jury that "you should be aware of the following: The burden
of proving discrimination always remains with [Ryder] to
prove that he was the victim of age discrimination." Id. at
1236.

Based on our review of the instructions, we conclude that
the multiplicity of correct statements negates the effect of
the solitary erroneous utterance. Thus, we find that the
court's instructions, as a whole, provided the jury with
adequate guidance on the parties' respective evidentiary
burdens, and we perceive of no miscarriage of justice that
could have resulted.
Conclusion

For the foregoing reasons, we will affirm the order of the
district court entering judgment for Ryder on the jury's
verdict in his favor.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                18
