                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-24-1994

Miller v. Cigna Corporation
Precedential or Non-Precedential:

Docket 93-1773




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          UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                   N0. 93-1773


                WILLIAM J. MILLER,
                    Appellant

                        v.

              CIGNA CORPORATION;
    THE INSURANCE COMPANY OF NORTH AMERICA



On Appeal From the United States District Court
   For the Eastern District of Pennsylvania
        (D.C. Civil Action No. 92-05751)


              Argued March 28, 1994

BEFORE:    STAPLETON, HUTCHINSON and ROTH, Circuit Judges

          (Opinion Filed June 28, l994 )




                 Stephanie A. Middleton (Argued)
                 Gregory B. Tobin
                 One Liberty Place, 52nd Floor
                 1650 Market Street
                 P.O. Box 7716
                 Philadelphia, PA 19101




                 Attorneys for Appellees
                 CIGNA Corporation and
                 Insurance Company of North America




                        1
                           Alice W. Ballard (Argued)
                           Lynn Malmgren
                           Samuel & Ballard
                           225 South 15th Street
                           Suite 1700
                           Philadelphia, PA 19102

                           Attorneys for Appellant




                        OPINION OF THE COURT




STAPLETON, Circuit Judge:



            Defendant Insurance Company of North America ["INA"]

terminated plaintiff William J. Miller from his job after fifteen

years of employment.1   Miller alleges that he was discriminated

against on the basis of his age in violation of the Age

Discrimination in Employment Act ["ADEA"], 29 U.S.C. §§ 621-34

(1988).

            At trial, the district judge instructed the jury that

it could return a verdict for Miller only if he proved that age

was "the sole cause" of INA's decision.   After the jury returned

a verdict in INA's favor, Miller appealed, asserting that the

district court improperly charged the jury regarding his burden

of proof.   We hold that in ADEA cases that do not qualify for a

burden shifting charge under Price Waterhouse v. Hopkins, 490

U.S. 228 (1989), district courts should instruct the jury that

1
At oral argument, the parties stipulated that INA was the
plaintiff's employer at all times relevant to this appeal.   At
trial, however, both INA and CIGNA Corp. were defendants.


                                 2
the plaintiff's burden is to prove that age played a role in the

employer's decisionmaking process and that it had a determinative

effect on the outcome of that process.   Since it is not necessary

for the plaintiff to prove that age was the sole cause of the

employer's decision, we conclude that Miller is entitled to a new

trial.


                                I.



          Miller was hired in 1975 as an assistant to INA's Chief

Financial Officer.   In that position, he directed INA's

reinsurance operations at the Newark Reinsurance Company, created

a financial processing service center, and directed the

production of summary financial documents.   After serving as Vice

President and Director of INA's Special Risk Facility, Miller was

promoted to Senior Vice President, Field Operations.   He created

a new organization, managed a $200 million budget, and supervised

over 8,000 employees.   At this point in his career, Miller was

compensated at pay grade sixty-one and his superior consistently

evaluated his performance as exceeding expectations.

          After his promotion to Senior Vice President, Miller

was asked to join a special team of other executives called

IMPACT.   IMPACT's mission was to identify major strategic issues

and market strategies for INA's Property and Casualty Division.

Caleb Fowler, Chief Financial Officer of the Property and

Casualty Division, and Richard Hoag, Chief of Human Resources,

told Miller they would find him a permanent position at the


                                3
conclusion of the project.   When IMPACT concluded in late 1984,

Miller was assigned to a special project on reinsurance

collection.

          Upon completing the special project on reinsurance

collection, Miller was appointed to the position of Senior Vice

President of the Underwriting Division.    In this position, Miller

managed four departments, handled complaints from agents and

regulatory agencies, prepared state filings and annual budgets,

and managed a $70 million annual budget.

          In late 1988, Miller's supervisor, Jack Morrison,

advised Miller that he should search for another job, both inside

and outside the company, because his position might be

eliminated.   In March of 1989, Miller's position was eliminated.

Miller's superior, Nord Bjorke, sent him to Richard Hoag to

receive a special assignment reducing real estate costs in the

Property and Casualty Division.

          One year later, Hoag informed Miller that, despite his

success in reducing real estate costs, his position as "real

estate czar" was being terminated.    Hoag advised Miller that he

could assist Robert O'Neil, head of Real Estate in the Corporate

Staff, with special projects.   In November of 1990, Miller was

informed that this position was being eliminated and that he

would be terminated at the end of December.   At the time he was

terminated, Miller was fifty-eight years old and had been

downgraded to pay grade fifty-nine.   At no time during 1990 was

Miller informed about five vacancies at the company for which he

might have applied.


                                  4
            The first vacancy was for the position of Vice

President, Filing and Regulation.    Defendant announced that

Darrell DeMoss, age forty-two, had been selected.    Miller had not

known of the position and contends that he was qualified for it

because, as Senior Vice President, Finance and Administration, he

supervised the Filing and Regulation function.    Defendant asserts

that Miller was not considered because the position required

legal analysis and Richard Franklin, the hiring manager for this

position, decided to hire an attorney.    Miller notes, however,

that his name was not included on the list of nonlawyer

candidates who were considered but disqualified, and that the

previous Vice President, Filing and Regulation, was not a lawyer.

            The second vacancy was in the position of General

Manager of CIGNA Reinsurance Company, United Kingdom.    Among the

desired qualifications were "[w]ork experience with either United

Kingdom accounting practices or reinsurance accounting practices

and principles . . . ."    App. at 712.   Miller asserts that this

position involved the same responsibilities he had when he

supervised the Newark Reinsurance Company.    James Godorecci, who

was in charge of hiring for the position, acknowledged that he

wrote the job qualifications with Michael Durkin, age thirty-

five, in mind and that he never considered Miller for the

position.    INA contends that Miller lacked the desired academic

credentials, work experience and knowledge of United Kingdom

accounting practices.

            The third vacancy was for the position of Senior Vice

President, Finance Systems and Administration, in the Claims


                                 5
Department.   Qualifications desired for the position included:

broad knowledge and experience in the Property and Casualty

business; knowledge of financial measures and objectives;

credibility and the ability to work with other managers; skill in

influencing managers and implementing strategy; and effective

verbal and written skills.   Miller contends he satisfied these

requirements because of his management experience.    James Engle,

the hiring manager for this position, testified Miller was not

qualified because he did not have a strong math and statistical

background, and was not familiar with loss control and

statistical monitors.   The company asserts that Victor DiFelice,

age thirty-eight, was better qualified for the job.

           The fourth vacancy, for the position of Head of

Strategy Implementation, was filled by Ronald Peters, age forty-

nine.   The company conceded that Miller was qualified for the

job, but maintained that Peters was better qualified.

           The fifth vacancy was for the position of Vice

President, Property and Casualty Marketing.   Hiring manager

Thomas Cobb appointed Cynthia Cole-Dougherty, age thirty-eight.

Job qualifications included an ability to conduct market studies,

market research, competitive analyses and segmentation studies.

INA asserts that, although Cynthia Cole-Dougherty did not have

insurance experience, one of the primary considerations in the

hiring decision was a desire to hire from outside both the

company and the industry.

           During trial, the district judge asked counsel if

Miller's was a "pretext" or "mixed motives" case.     This inquiry


                                6
made reference to the distinction between employment

discrimination cases in which the plaintiff seeks to carry his or

her burden by showing that the employer's tendered reason for the

challenged action is a pretext for discrimination2 and cases that

qualify for a mixed motives, burden shifting instruction under

Price Waterhouse v. Hopkins, 490 U.S. 228.   Miller's counsel

advised the district court that this was a "pretext" case. The

district judge then "distribute[d] to counsel the questions [to

be used] to submit the case to the jury. . . ."   App. at 610.

After reviewing those questions, Miller's counsel stated that she

had an objection.   Counsel cited Hazen Paper Co. v. Biggins, 113

S. Ct. 1701 (1993), and asserted that plaintiff's burden of proof

under that case was to establish that age was "a determining

factor," i.e., that it "made a difference" in the employer's

decision.    App. at 612.

            Notwithstanding this objection, the district judge

instructed the jury as follows:
               To recover under the pretext theory
          which the plaintiff asserts in this case, the
          plaintiff must establish by a preponderance
          of the evidence that his age was the sole
          cause of defendants' failure to hire him into
          vacancies that became available and to
          terminate his position as a real estate czar
          in the last of those listings that I've put
          on the page that you have; that he was
          qualified and rejected for the positions in
          question solely because of his age.

                                * * *


2
See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248
(1981); St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742 (1993).


                                 7
               If the defendants articulate a
          legitimate non-discriminatory reason for his
          rejection, the plaintiff at all times retains
          the ultimate burden of persuading you that
          the defendant intentionally discriminated
          against him because of his age.

                                * * *

               The plaintiff under the law must prove
          that the discriminatory motive was the sole
          cause of the employment action.

               In order to prove pretext, the plaintiff
          must show that the defendant's reasons were
          false and that discrimination was the real
          reason, however, if you disbelieve the
          reasons put forth by the defendants to
          justify their decision, you may but are not
          required to find intentional discrimination.

                                * * *

               The plaintiff doesn't have to prove that
          the employer hated him . . . . He has to
          prove that plaintiff's age was the sole
          determinative factor in the particular
          employment decision.


App. at 673-77 (emphasis added).     At the conclusion of the

charge, Miller's counsel renewed her "objection to . . . the
verdict sheet. . . [and stated that] the question before them is

whether age was a determinative factor according to Biggins."

App. at 683 (emphasis added).   The district court declined to

alter the charge.

          During its deliberations, the jury sent the following

message to the district judge:
               The jury requests clarification on the
          meaning of defendants' employment decisions
          in question # 2.

               Is the question which we are addressing
          (regarding discrimination based solely on the


                                 8
          plaintiff's age) focused on: a) Mr. Miller
          not being actively considered -- on the
          candidate slate, or b) Mr. Miller not being
          selected as the person to get the job, for
          each of the jobs a through e?


App. at 691. In response the district judge stated:
          [Y]ou must decide whether Mr. Miller's not
          being selected to get the job of Vice
          President of Filing and Regulation to take
          "a" and that job going to another person was
          a decision made by the defendants as a
          pretext for discrimination based solely on
          Mr. Miller's age.

               "b" in the question sheet the question
          you have to decide is whether to give that
          job to the person who received it for the
          CIGNA (UK) position was made as a pretext for
          discrimination against Mr. Miller based
          solely on Mr. Miller's age and so on with
          regard to each of the other decisions in 2 a.
          considered separately[.]


App. at 691-92 (emphasis added).       After two days of

deliberations, the jury returned a verdict in favor of INA.


                                 II.



          We conduct plenary review when an appellant contends

that the instructions to the jury, read as a whole, do not state

the correct legal standard.     Griffiths v. CIGNA Corp., 988 F.2d
457, 462 (3d Cir.), cert. denied, 114 S. Ct. 186 (1993) (citing

Savarese v. Agriss, 883 F.2d 1194, 1202 (3d Cir. 1989)).     "[W]e

will reverse if the instructions were capable of confusing and

thereby misleading the jury."    Id. (citing Limbach Co. v. Sheet




                                  9
Metal Workers Int'l Ass'n, 949 F.2d 1241, 1259 n.15 (3d Cir.

1991) (in banc)).3


                                III.



          Like Title VII which prohibits an employer from taking

adverse employment actions against an employee "because of such

individual's race, color, religion, sex or national origin," 42

U.S.C. § 2000 e-2(a)(1), the ADEA prohibits an employer from

taking adverse employment actions against an employee "because of

such individual's age."   29 U.S.C. § 623(a)(1).   Not

surprisingly, the ADEA jurisprudence concerning this prohibition

has followed the Title VII jurisprudence interpreting the

analogous prohibition.    Trans World Airlines, Inc. v. Thurston,
469 U.S. 111, 121 (1985).   A district judge in a case under

either statute must, of course, instruct the jury in a manner

consistent with Congress' mandate that the adverse employment

action must have been taken "because of" the prohibited

consideration.

          The nature of the causal connection mandated by the use

of the phrase "because of" in Title VII was a focus of the

Supreme Court's opinions in Price Waterhouse v. Hopkins, 490 U.S.
3
Defendant argues that Miller failed to preserve his objection to
the jury charge. We disagree. Miller's counsel objected, both
before and after the district court charged the jury, that
plaintiff's burden on the issue of causation was to show that age
was a determinative factor, not the sole cause of the employment
decision. See Fed. R. Civ. P. 51; Dunn v. Hovic, 1 F.3d 1371,
1379 (3d Cir. 1993) (in banc) (to preserve an objection to a jury
charge, appellant must provide the trial judge with an
opportunity to correct the erroneous charge).


                                 10
228.   The members of the Court differed as to whether "because

of" meant that the forbidden consideration must be a "but-for"

cause (i.e., one without which the adverse employment action

would not have been taken) or only that the impermissible

consideration must have "played a motivating part" in the

decision to take that action.   See id. at 244.   All members of

the Court agreed, however, that "because of" did not mean "solely

because of."   See, e.g., id. at 241, 284.

           Justice Brennan, writing for himself and Justices

Marshall, Blackmun and Stevens, took the position that "because

of" required only a finding that gender or some other prohibited

consideration played a part in the decision to take the

challenged action.   He explained their position in part as

follows:
           We take these words to mean that gender must
           be irrelevant to employment decisions. To
           construe the words "because of" as colloquial
           shorthand for "but-for causation," as does
           Price Waterhouse, is to misunderstand them.

                                * * *

           The critical inquiry . . . is whether gender
           was a factor in the employment decision at
           the moment it was made. Moreover, since we
           know that the words "because of" do not mean
           "solely because of,"7 we also know that Title
           VII meant to condemn even those decisions
           based on a mixture of legitimate and
           illegitimate considerations. When,
           therefore, an employer considers both gender
           and legitimate factors at the time of making
           a decision, that decision was "because of"
           sex and the other, legitimate considerations
           -- even if we may say later, in the context
           of litigation, that the decision would have
           been the same if gender had not been taken
           into account.


                                 11
               7Congress specifically rejected an
               amendment that would have placed
               the word "solely" in front of the
               words "because of." 110 Cong.Rec.
               2728, 13837 (1964).

Price Waterhouse, 490 U.S. at 240, 241 (emphasis added).

          Justice Kennedy, writing in dissent for himself, the

Chief Justice, and Justice Scalia, concluded that "because of"

required "but-for" cause.   In doing so, he likewise rejected the

suggestion that it was intended to mean "solely because of":
               By any normal understanding, the phrase
          "because of" conveys the idea that the motive
          in question made a difference to the outcome.
          We use the words this way in everyday speech.
          And assuming, as the plurality does, that we
          ought to consider the interpretive memorandum
          prepared by the statute's drafters, we find
          that this is what the words meant to them as
          well. "To discriminate is to make a
          distinction, to make a difference in
          treatment or favor." 110 Cong.Rec. 7213
          (1964). Congress could not have chosen a
          clearer way to indicate that proof of
          liability under Title VII requires a showing
          that race, color, religion, sex, or national
          origin caused the decision at issue.

               Our decisions confirm that Title VII is
          not concerned with the mere presence of
          impermissible motives; it is directed to
          employment decisions that result from those
          motives. The verbal formulae we have used in
          our precedents are synonymous with but-for
          causation.

                              * * *

               We are told . . . that but-for cause is
          not required, since the words "because of" do
          not mean "solely because of." Ante, at 241.
          No one contends, however, that sex must be
          the sole cause of a decision before there is
          a Title VII violation. This is a separate


                                12
          question from whether consideration of sex
          must be a cause of the decision. Under the
          accepted approach to causation that I have
          discussed, sex is a cause for the employment
          decision whenever, either by itself or in
          combination with other factors, it made a
          difference to the decision. Discrimination
          need not be the sole cause in order for
          liability to arise, but merely a necessary
          element of the set of factors that caused the
          decision, i.e., a but-for cause.

Price Waterhouse, 490 U.S. at 281-82, 284 (emphasis added).

          Justice O'Connor, while concurring in the result

reached in Justice Brennan's plurality opinion, disagreed with

the plurality's reading of "because of" and agreed with that of

the dissent:
          The legislative history of Title VII bears
          out what its plain language suggests: a
          substantive violation of the statute only
          occurs when consideration of an illegitimate
          criterion is the "but-for" cause of an
          adverse employment action. The legislative
          history makes it clear that Congress was
          attempting to eradicate discriminatory
          actions in the employment setting, not mere
          discriminatory thoughts. . . . Senator Case,
          whose views the plurality finds so persuasive
          elsewhere, responded:

               "The man must do or fail to do
               something in regard to employment.
               There must be some specific
               external act, more than a mental
               act. Only if he does the act
               because of the grounds stated in
               the bill would there by any legal
               consequences." Ibid.

          Thus, I disagree with the plurality's dictum
          that the words "because of" do not mean "but-
          for" causation; manifestly they do."

Price Waterhouse, 490 U.S. at 262-63.   In the course of her

opinion, Justice O'Connor likened the relevant principles to



                               13
those involved in Village of Arlington Heights v. Metropolitan

Housing Development Corp., 429 U.S. 252 (1977), where the Court

held that "the plaintiff was not required to prove that the

challenged action rested solely on racially discriminatory

purposes."    490 U.S. at 268 (emphasis supplied).

             Finally, Justice White, who also concurred in the

judgment of the Court, looked to Mt. Healthy City School District

Board of Education v. Doyle, 429 U.S. 274 (1977), for guidance in

interpreting "because of."      In the context of a public employer's

decision not to rehire an employee in part because of his

exercise of First Amendment rights, the Court had there rejected

a rule of causation that focused "solely on whether protected

conduct played a part, 'substantial' or otherwise, in a decision

not to rehire."    Price Waterhouse, 490 U.S. at 259.    Under the

Mt. Healthy approach, the plaintiff was required to prove only

that "the unlawful motive was a substantial factor in the adverse

employment action," but there could be no liability if the

defendant showed that it "would have reached the same decision

. . . even in the absence of the protected conduct."     Id.   A

necessary corollary to this approach, according to Justice White,

was that a plaintiff does not have "to prove that the

illegitimate factor was the only, principal, or true reason for

petitioner's action."     Id.
             We find it clear from the opinions in Price Waterhouse,

and from the legislative history they cite, that Congress, by

using the phrase "because of," did not mean "solely because of."

Even if we did not have this guidance, however, we would be

                                   14
reluctant to attribute to Congress an intention that an employer

should be liable if a discharge decision is based solely on an

employee's age and not liable if the discharge decision is based

primarily on the employee's age but also on the fact that the

employee's supervisor did not like his personality, hair color,

or some other personal trait or conduct.

          Having concluded that "because of" does not mean

"solely because of," we now look to the governing precedents to

determine the proper jury instruction in an employment

discrimination case that does not qualify for a mixed motives,

burden shifting charge under Price Waterhouse.


                                IV.

          The Justices concurring in the judgment in Price

Waterhouse declined to apply to the situation before them the

familiar rules for allocating the burdens of production and

persuasion found in McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973), and Texas Department of Community Affairs v. Burdine,

450 U.S. 248 (1981).4   They viewed those cases as "pretext" cases
4
As summarized in Burdine, those rules are:

          [First] the plaintiff has the burden of
          proving by a preponderance of the evidence a
          prima facie case of discrimination. Second,
          if the plaintiff succeeds in proving the
          prima facie case, the burden [of production]
          shifts to the defendant to articulate some
          legitimate nondiscriminatory reason for the
          employee's rejection. Third, should the
          defendant carry this burden, the plaintiff
          must then have the opportunity to prove by a
          preponderance of the evidence that the
          legitimate reasons offered by the defendant


                                 15
and the case before them as a "mixed motives" case.   The Court

held that, in cases where the plaintiff offers "direct evidence"

of unlawful discrimination and the evidence as a whole permits a

conclusion that both permissible and impermissible considerations

played a role in the employer's decision, the plaintiff need only

show that the unlawful motive was a substantial motivating factor

in that decision.   If the finder of fact concludes that the

plaintiff has carried this burden, the burden of persuasion

shifts to the defendant to prove that the unlawful motive was not

a but-for cause, i.e., that the same action would have been

taken, because of legitimate considerations, in the absence of

the unlawful motive.

          The members of the Court concurring in the judgment in

Price Waterhouse reached this result by different routes.

Justices Brennan, Marshall, Blackmun and Stevens read the statute

as imposing liability in any situation where the unlawful motive

was a "motivating" factor, but recognized an "affirmative

defense" where the employer shows that the same actions would

have been taken in the absence of the unlawful motive.    Price
Waterhouse, 490 U.S. at 244, 250.    Justice O'Connor agreed with

the three dissenters that the statute required but-for cause as a

predicate to liability, but favored a burden shifting rule for

cases in which the plaintiff "show[s] by direct evidence that an


          were not its true reasons, but were a pretext
          for discrimination.

Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53
(1981) (citations omitted).


                                16
illegitimate criterion was a substantial factor in the decision."

Id. at 276.    In such cases, the burden shifts "to the employer to

justify its decision," -- "to show that the decision would have

been the same absent discrimination."    Id.   "[W]here a plaintiff

has made this type of strong showing of illicit motivation, the

fact finder is entitled to presume that the employer's

discriminatory animus made a difference in the outcome, absent

proof to the contrary from the employer."      Id.   Justice White

found it unnecessary "to get into a semantic discussion on

whether Mt. Healthy . . . creates an affirmative defense."        He

agreed with Justice O'Connor, however, that the plaintiff in

Price Waterhouse had made the requisite showing that sex was a

substantial factor in the employer's decision and that the

"burden of persuasion then should have shifted to Price

Waterhouse to prove" the same decision would have been made

absent the unlawful motive.

            For present purposes, there are two important things to

note about the several opinions in Price Waterhouse.       First, a

majority of the members of the Court did not endorse the

plurality's view that Title VII imposed liability whenever a

prohibited factor played a motivating role in the challenged

decision.   Justices O'Connor and White and the three dissenters

rejected, in the words of Justice White, "a rule of causation

that focused solely on whether protected conduct played a part,

substantial or otherwise, in a decision."      490 U.S. at 259.

Second, while the holding of the Court fashioned a special rule

reducing the plaintiff's burden of persuasion in a defined

                                 17
category of Title VII individual discrimination cases, a majority

of the Court endorsed views of Title VII that would leave

plaintiffs in other individual discrimination cases with the

burden of showing but-for cause.

          All members of the Court now seem to agree that a

showing of but-for causation by the plaintiff is required in ADEA

cases that do not call for special treatment under Price

Waterhouse.5   In Hazen Paper Co., 113 S. Ct. 1701, the plaintiff,

like the plaintiff here, claimed that he had been discharged

because of his age in violation of the ADEA.   The Supreme Court

was called upon to address the relationship between the standard

of ordinary liability under the ADEA and the standard of

liability for liquidated damages under the provision of that Act

authorizing such damages for "willful" violations.   With respect

to the former, Justice O'Connor, writing for a unanimous Court,

reviewed the case law applicable to disparate treatment (i.e.,

individual discrimination) cases and concluded as follows:
          Whatever the employer's decisionmaking
          process, a disparate treatment claim cannot
          succeed unless the employee's protected trait
          actually played a role in that process and
          had a determinative influence on the outcome.

Id. at 1706.

5
Section 107 of the 1991 Civil Rights Act, codified at 42 U.S.C.
§ 2000e-2(m), provides that "an unlawful employment practice is
established when the complaining party demonstrates that [a
prohibited consideration] was a motivating factor for any
employment practice, even though other factors also motivated the
practice." Miller does not contend that this provision is
applicable to ADEA cases. We have today held in Hook v. Ernst &
Young, ____ F.3d ____ (3d Cir. 1994) that section 107 does not
apply to any case in which the alleged conduct giving rise to the
claim occurred before the passage of the 1991 Act.


                                 18
          With respect to the standard of liability for

liquidated damages, the Court held:
          We therefore reaffirm that the Thurston
          definition of "willful" -- that the employer
          either knew or showed reckless disregard for
          the matter of whether its conduct was
          prohibited by the statute -- applies to all
          disparate treatment cases under the ADEA.
          Once a "willful" violation has been shown,
          the employee need not additionally . . .
          prove that age was the predominant rather
          than a determinative factor in the employment
          decision.

Id. at 1710.

          We find support in Hazen Paper for our earlier

conclusion that "because of" does not mean "solely because of."

If an ADEA plaintiff need not show that age was "the predominant

factor" in order to establish liability for liquidated damages,

surely such a plaintiff does not have to show that age was the

sole cause of the challenged decision in order to establish a

right to normal forms of relief.     We also believe Hazen Paper

provides an authoritative answer to our second inquiry.     A

plaintiff in an ADEA case who does not qualify for a burden

shifting instruction under Price Waterhouse has the burden of

persuading the trier of fact by a preponderance of the evidence

that age "actually played a role in [the employer's

decisionmaking] process and had a determinative influence on the

outcome" of that process.   Id. at 1706.


                                V.

          Contrary to INA's insistence, the foregoing conclusions

are not inconsistent with our holding in Griffiths v. CIGNA


                                19
Corp., 988 F.2d 457.   Griffiths was a Title VII case in which the

plaintiff, a Jamaican immigrant, had been denied a promotion and

had filed a complaint with the Equal Employment Opportunity

Commission asserting that CIGNA's decision was based on his

national origin.   In the six months prior to the filing of this

complaint, CIGNA had experienced a series of thefts and had

conducted an investigation.    The report resulting from this

investigation, issued shortly after Griffiths' EEOC complaint,

implicated Griffith in the thefts.    He was terminated for the

stated reason that he had failed to cooperate with the

investigation.   Griffiths filed suit alleging that he was

discharged in retaliation for his EEOC complaint.

            Following a trial at which Griffiths introduced

evidence tending to show that CIGNA falsely had accused him of

the thefts and that the stated reason for his discharge was a

pretext to cover a retaliatory motive, the trial judge charged

the jury that CIGNA would be liable "if retaliation was 'a

motivating factor' or 'one of the reasons' for Griffiths'

discharge."   988 F.2d at 468.   On appeal, we held that it was

error for the district court to require Griffiths to show that

the unlawful motivation played only a role in the challenged

decision.

            Our opinion in Griffiths recognized that, under Price

Waterhouse, the correct wording of a causation instruction to a

jury differs depending on whether the case before the court is a

"mixed motives" or a "pretext" case.    Only in a "mixed motives"

case is the plaintiff entitled to an instruction that he or she

                                 20
need show only that the forbidden motive played a role, i.e., was

"a motivating factor."    Even in such cases, we noted that such an

instruction must be followed by an explanation that the defendant

may escape liability by showing that the challenged action would

have been taken in the absence of the forbidden motive.

          We first concluded that Griffiths had "failed to submit

any evidence that [could] fairly be said to 'directly reflect'

the alleged retaliatory motive for his termination."    Id. at 470.

Accordingly, he was not entitled to a burden shifting instruction

under Price Waterhouse.   We next concluded that all Title VII

individual discrimination cases which do not qualify for a Price

Waterhouse instruction are governed by "the Burdine pretext

standard."  Id. at 470 n.13. Our holding was as follows:
          As this case properly is characterized as a
          pretext case, the court should not have
          charged the jury that retaliation could be
          only "a motivating factor" or "one of the
          reasons" for Griffiths' discharge.

Id. at 472.   We reaffirm this holding today.


          In the course of our opinion, we went on to discuss

"the Burdine pretext standard."    We found "some inconsistency

within this circuit" with respect to the language used to

describe the required causation in a pretext case.    We noted that

in Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir.),

cert. dismissed, 483 U.S. 1052 (1987), an in banc decision of

this court, we held that an ADEA plaintiff "need not prove that

age was the employer's sole or exclusive consideration, but must

prove that age made a difference in the decision."    Id. at 897.



                                  21
We further noted that a long line of panel decisions of this

court followed this "but for" approach and required a showing

that the prohibited motive was "a determinative" factor.       See,

e.g., Gray v. York Newspapers, Inc., 957 F.2d 1070, 1079 (3d Cir.

1992); Billett v. CIGNA Corp., 940 F.2d 812, 816 (3d Cir. 1991);

Bruno v. W.B. Saunders Co., 882 F.2d 760, 764 (3d Cir. 1989),

cert. denied sub nom. CBS, Inc. v. Bruno, 493 U.S. 1062 (1990);

Roebuck v. Drexel Univ., 852 F.2d 715, 726 (3d. Cir. 1988); Blum

v. Witco Chemical Corp., 829 F.2d 367, 373 (3d Cir. 1987); and

Lewis v. University of Pittsburgh, 725 F.2d 910 (3d Cir. 1983),

cert. denied, 469 U.S. 892 (1984).   On the other hand, we noted

that our decision in Bellissimo v. Westinghouse Electric Corp.,

764 F.2d at 175 (3d Cir. 1985), cert. denied, 475 U.S. 1035

(1986), spoke of the concept of but-for cause as being

inconsistent with a charge using the phrase "the determinative

factor."   Id. at 176, n. 1 (emphasis in original).     Even

Bellissimo, however, was consistent with the proposition that the

plaintiff in a pretext case need not prove that the prohibited

motive was the sole cause of for the adverse employment action.

This was apparent from the following segment of that case which

we quoted in Griffiths:


           Interpreting Title VII to require proof of

           "the determinative factor" is inconsistent

           with the "but-for" causation test, insofar as

           plaintiff would be required to show that the

           discriminatory motive was the sole reason for

                                22
          the action taken.   More than one "but for"

          cause can contribute to an employment

          decision, and if any one of those

          determinative factors is discriminatory,

          Title VII has been violated.    See Lewis v.

          University of Pittsburgh, 725 F.2d at 917 n.

          8.

988 F.2d at 471 (emphasis in original).

          Immediately following this review of our case law, our

opinion in Griffiths includes the following, admittedly cryptic,

observation upon which the district court here relied in giving

its "sole cause" instruction:
          [W]hile we recognize that in our pretext
          cases we have stated in passing, without
          focusing on the matter, that the
          discriminatory motive need not be the sole
          factor causing the employment decision . . .
          it is clear that in pretext cases the claim
          is that the discriminatory motive was the
          sole cause of the employment action and
          therefore it is inappropriate to state that
          the plaintiff only need show that the
          discrimination played "a motivating" or "a
          substantial" role.

988 F.2d at 472 (emphasis in original).

          For several reasons, we do not understand this sentence

in Griffiths to mandate a charge in this case requiring the
plaintiff to show that the impermissible factor was the sole

cause of the adverse employment action.   First, while the term

"sole cause" is used, the purpose of this sentence in the opinion

is to make the point that our prior cases refusing to require a

showing that the discriminatory motive was the sole cause are not



                                23
inconsistent with our holding that "it is inappropriate to state

[in a pretext case] that the plaintiff only need show that the

discrimination played 'a motivating' or 'a substantial' role."

          Second, to read this sentence as the district court

here did would make the panel's decision in Griffiths

inconsistent with Hazen Paper as well as with our in banc

decision in Chipollini.   A panel of this court is not free to

ignore an in banc decision of this court.    See Siegel v. Alpha

Wire Corp., 894 F.2d 50, 53 n.2 (3d Cir.), cert. denied, 496 U.S.

906 (1990) ("The defendants argue that we should overrule

Chipollini.   Of course we do not have the power to do so -- a

panel of this court may not overrule a decision of another panel.

In addition, Chipollini was decided by this court sitting in

banc, which makes doubly frivolous this invitation to overrule

it."); Halderman v. Pennhurst State Sch. & Hosp., 707 F.2d 702,

720 (3d Cir. 1983) (Sloviter, J., dissenting) ("Even if the

Master had relied upon the presumption in favor of

deinstitutionalization, it was one mandated by in banc decisions

of this court, which a panel is not free to disregard."); cf.

Third Circuit I.O.P. 9.1 (only the court in banc may overrule the

published decision of a previous panel).    Moreover, a decision of

this court that conflicts with a subsequent decision of the

Supreme Court does not remain binding precedent in this court.

See, e.g., Nationwide Ins. Co. v. Patterson, 953 F.2d 44, 46 (3d
Cir. 1991) ("Ordinarily, a panel of this court is bound to follow

the holdings of published opinions of prior panels of this court

unless overruled by the court in banc or the holding is

                                24
undermined by a subsequent Supreme Court case."); Frangos v.

Doering Equip. Corp., 860 F.2d 70, 72 (3d Cir. 1988) ("Although a

cogent argument could have previously been waged based on past

precedent within this circuit, the Supreme Court has recently

rendered a decision making the Appellee's position untenable.").

           Finally, it is no longer necessarily true, even if one

thought it to be so at the time of Griffiths, that the trier of

fact in a pretext case is limited to a choice between findings

that the alleged discriminatory motive or the employer's

nondiscriminatory explanation was the sole cause of the

employment action.   At the time we decided Griffiths, it was

permissible to view all pretext cases as presenting only two

possibilities: the fact finder could conclude either that the

plaintiff had succeeded in proving that the employer's

explanation was a pretext for discrimination, or that the

plaintiff had failed to so prove.    Under this view, if the

plaintiff proved the employer's proffered reason was pretextual,

the trier of fact presumed, as a matter of law, that the

impermissible cause alleged by plaintiff was the sole cause of

the employer's decision.

           The Supreme Court recently has instructed that this

bipolar view of pretext cases is inaccurate.    A finding that the

employer's nondiscriminatory explanation is a pretext permits,

but does not require, the trier of fact to conclude that the

employer discriminated against the plaintiff based on the ground

alleged.   St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742 (1993).



                                25
          In St. Mary's, the plaintiff, an African-American, had

been demoted and ultimately discharged by his employer.     He

brought suit under Title VII, asserting that the employer's

actions were the result of racial animus.    The employer insisted

it took these actions because plaintiff threatened his superior

and permitted his subordinates to break institutional rules.       The

district court, as the trier of fact, found that the threatening

conduct and rules violations had occurred, but concluded that

neither these events nor the plaintiff's race were the real

reason for plaintiff's demotion and discharge.    Rather, the

district court concluded that "although [the plaintiff had]

proven the existence of a crusade to terminate him, he [had] not

proven that the crusade was racially rather than personally

motivated."   Hicks v. St. Mary's Honor Ctr., 756 F. Supp. 1244,

1252 (E.D. Mo. 1991).

          The court of appeals, viewing pretext cases as bipolar,

ruled that, once plaintiff proved the employer's proffered

reasons were pretextual, he was entitled to judgment as a matter

of law.   Hicks v. St. Mary's Honor Ctr., 970 F.2d 487, 492 (8th

Cir. 1992).   The Supreme Court reversed, concluding that the

trier of fact's rejection of the employer's proffered reason for

its action did not compel the conclusion that race was the sole

cause of the employment decision.    Rather, the record evidence

supported three possible causes: race, threats and violations of

the employer's rules, and personal animosity.    The Supreme Court

ruled that the trier of fact was entitled to draw from the record

evidence whatever inferences that evidence would support.        Since

                                26
the district court concluded that the explanation advanced by the

employer was a pretext, it could have further inferred that there

was an impermissible motive to hide.   It was not required to do

so, however.   If the district court inferred that personal

animosity was the cause of the demotion and discharage, that,

too, was permissible.

           We think it clear from the Supreme Court's opinion in

St. Mary's that the trier of fact in a pretext case, where the

record will support it, may choose not to accept either party's

litigating position as reflecting the whole truth.   This may, as

in St. Mary's, take the form of a conclusion that the adverse

action was taken for a reason other than the reasons urged by the

parties.   It may also take the form of a conclusion that the

alleged discrimination and the employer's nondiscriminatory

explanation both played a role in the employer's decision.      If

the plaintiff, for example, argues that he or she was discharged

because of age and the employer insists that it was because of

the plaintiff's record of absenteeism, the trier of fact may

conclude that the plaintiff's absenteeism record played a part,

but that the plaintiff would not have been fired if he or she

were twenty years younger.

           In some cases, the nondiscriminatory reason advanced by

the employer may involve such turpitude that the only rational

choices for the trier of fact are the plaintiff's explanation or

the defendant's.   If the plaintiff alleges age discrimination and

the employer asserts that the plaintiff embezzled $100,000, for

example, it would clearly not be reversible error to give an

                                27
instruction giving the jury the choice between age as the sole

cause and embezzlement as the sole cause.   A rational trier of

fact could not believe that the plaintiff embezzled $100,000 and

at the same time conclude that the plaintiff would not have been

discharged but for his or her age.   In other cases, however,

where the record will support an inference that both a legitimate

and an illegitimate reason played a role in the employer's

decision, the charge to the jury must provide for the possibility

that it will find the employer's decision to be the product of

more than one consideration.   In those cases, the court must

charge, in accordance with Hazen Paper, that the plaintiff's

burden is to show that the prohibited consideration played a role

in the decisionmaking process and that it was a determinative

factor in the outcome of that process.6

          In this case, Miller alleged that, because of his age,

he was not selected for various open high level management

positions for which he was qualified, and that thereafter he was

terminated.   For each of the open positions, Miller's employer

asserted either that Miller was not qualified or was less

6
We are here, of course, describing cases that involve mixed
motives decisionmaking. It is important to understand, however,
that these cases do not fall within the legal category of "mixed
motives" cases reserved for special treatment under Price
Waterhouse. As we explain more fully in Griffiths and Hook v.
Ernst & Young, ___F.3d ___ (3d Cir., May, 1994), "mixed motives"
cases in Price Waterhouse terms are cases not only where the
record would support a conclusion that both legitimate and
illegitimate factors played a role in the employer's decision,
but where the plaintiff's evidence of discrimination is
sufficiently strong to shift the burden of proof to the employer
on the issue of whether the same decision would have been made in
the absence of the discriminatory animus.

                                28
qualified than the person hired.     Based on the evidence presented

at trial, the jury could well have concluded that the employer

took both qualifications and age into account.     It might have

found, for example, that Miller was qualified for one or more of

the open positions, but that his credentials did not sufficiently

distinguish him from the competing managers to overcome the

employer's bias favoring younger executives.     Even though age was

not the sole cause of the decision and Miller would have gotten

one of the positions if he had been better qualified, Miller

should have prevailed if he would not have been passed over but

for his age.   The district court's "sole cause" charge did not

permit the jury to find in Miller's favor on this basis.     It

follows that Miller is entitled to a new trial.


                               VI.

          We hold that in an ADEA case which does not qualify for

a burden shifting instruction under Price Waterhouse, a district

court should instruct the jury that the plaintiff must prove by a

preponderance of the evidence that age played a role in the

employer's decisionmaking process and that it was a determinative

factor in the outcome of that process.7    Since the district court

instructed that age must be shown to be the sole cause of the


7
In the course of this opinion, we have relied on Title VII cases
because the development of the relevant case law under the two
statutes prior to the Civil Rights Act Amendments of 1991
followed parallel courses. It should be noted, however, that the
1991 Act amended Title VII but did not amend the ADEA.




                                29
employer's decision and since the record would support a

conclusion that, while other factors played a role, age was a

determinative factor, we will reverse and remand for a new trial.




                               30
