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


6-28-1994

Hook v. Enrst & Young
Precedential or Non-Precedential:

Docket 92-3724




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                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                            ___________

                            No. 92-3724
                            ___________


                   DEBRA V. HOOK, an individual,
                                      Appellant

                                    v.

                   ERNST & YOUNG, a partnership,
                                      Appellee

                            ___________


          Appeal from the United States District Court
            for the Western District of Pennsylvania
                (D.C. Civil Action No. 92-00748)

                            ___________

                      Argued:   August 4, 1993

    PRESENT:    STAPLETON, HUTCHINSON and ROTH, Circuit Judges

                  (Opinion Filed:       June 28, 1994)

                            ____________


Louis M. Tarasi, Jr., Esquire
Joseph J. Hinchliffe, Esquire        (Argued)
Tarasi & Johnson
510 Third Avenue
Pittsburgh, PA     15219
               Attorney for Appellant

Paul A. Manion, Esquire
Mary-Jo Rebelo, Esquire
Manion, McDonough & Lucas
Suite 882
600 Grant Street
Pittsburgh, PA     15219

          and


                                    1
Kathryn A. Oberly, Esquire
  Associate General Counsel
Thomas L. Riesenberg, Esquire          (Argued)
  Assistant General Counsel
Ernst & Young
Suite 400
1200 19th Street, N.W.
Washington, D.C.     20036

          and

Elizabeth B. Healy, Esquire
  Associate General Counsel
Ernst & Young
380 Madison Avenue
New York, NY     10017
               Attorneys for Appellee


                             ____________

                      OPINION OF THE COURT
                          ____________


HUTCHINSON, Circuit Judge.



          Appellant, Debra Hook ("Hook"), appeals a judgment the

United States District Court for the Western District of

Pennsylvania entered on a jury verdict for her former employer
appellee Ernst & Young.   Hook claims Ernst & Young intentionally

discriminated against her on the basis of sex in violation of

Title VII of the Civil Rights Act of 1964 ("Title VII"), 42

U.S.C.A. §§ 2000e to 2000e-17 (West 1981 & Supp. 1993), when it

terminated her employment.    On appeal, she contends that she was

entitled to a mixed-motives burden shifting jury instruction

under the 1991 amendments to Title VII and Price Waterhouse v.
Hopkins, 490 U.S. 228 (1989), and therefore the court erred in

charging the jury that it was her burden to show that sex was a


                                  2
"determinative" rather than a "motivating" factor in the decision

to terminate her.

          More specifically, Hook argues section 107(a) of the

Civil Rights Act of 1991 ("the 1991 Act"), codified at 42

U.S.C.A. § 2000e-2(m) (West Supp. 1993), automatically entitles

Title VII plaintiffs who make out a prima facie case of illegal

discrimination on a pretext theory to a motivating factor mixed-

motives instruction.   If a mixed-motives instruction is not

required when a Title VII plaintiff's case depends on pretext,

Hook argues in the alternative that she was entitled to a mixed-

motives instruction because the evidence in this case showed the

discriminatory animus Price Waterhouse requires.

          We conclude that section 107 does not govern this case

because that section does not apply to conduct occurring prior to

its enactment in 1991.   We also conclude that Hook has not

produced the kind of evidence that would entitle her to a mixed

motives, burden shifting instruction under Price Waterhouse.

          Finally, we reject Hook's argument that a mixed-motives

instruction is required whenever there is circumstantial evidence

sufficient to establish a prima facie case under McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department

of Community Affairs v. Burdine, 450 U.S. 248 (1981).   We think a

holding to that effect would be in conflict with the teaching of

the United States Supreme Court in St. Mary's Honor Center v.

Hicks, 113 S. Ct. 2742, 2749 (1993).   That case holds that a

plaintiff who seeks to establish illegal discrimination on a

pretext theory must persuade the factfinder not only that illegal

                                3
discrimination or bias was present but also that it was a cause

of the act on which her Title VII claim is based.    In contrast, a

Price Waterhouse mixed-motives instruction, which requires

evidence sufficient to show discriminatory animus more directly,

implies cause and shifts to the employer the burden of persuading

the factfinder its bias had, in fact, no causal connection with

its act against the protected employee.     Thus, in a mixed-motives

case the employer must negate causation, i.e., persuade the

factfinder it would have acted as it did even if it were not

invidiously prejudiced.   Therefore, we will affirm the district

court's order entering judgment for Ernst & Young on the jury's

verdict against Hook.



                I.    Factual & Procedural History

          Arthur Young & Co. ("Arthur Young"), a major accounting

firm, hired Hook in June of 1989 as a tax senior, its lowest

supervisory position.   Hook had a law degree and work experience

with another major accounting firm but was not a certified public

accountant ("CPA").   At her job interview, Hook inquired when she

might be eligible for promotion.     James Chemel ("Chemel"), the

director of the section which would employ Hook, stated that she

would be promoted to tax manager within six months.

          On October 1, 1989, Arthur Young merged with Ernst &

Whinney to become Ernst & Young.     After the merger, Chemel told

Hook that the merger prevented him from promoting her to tax

manager within the six months he had promised.     Ernst & Young

soon replaced Chemel with John McCann ("McCann").     He told Hook

                                 4
that Ernst & Young preferred CPA's for promotion to that

position.    A little later the staff in Ernst & Young's Pittsburgh

office received a memorandum.    It stated that any person who

sought promotion to tax manager had to pass the CPA examination.

This new policy had a grandfather clause excusing employees like

Hook from the CPA requirement.

            Ernst & Young rates its employees on a scale of one to

five.   Five indicates the employee "consistently excels" but one

indicates "unacceptable" performance.    As Hook continued at

Ernst & Young, her performance reviews started to go downhill. In

her first written evaluation in April of 1990 Hook received four

"2s," three "3s," and one "4."    At her next evaluation in April

of 1991 Hook received three "1s," two "2s," and one "3" from

Chemel.   She received equally low ratings from McCann, her

supervisor when she was terminated.

            During the 1990 economic down-turn, Ernst & Young

suffered a considerable loss of business and decided to reduce

its workforce.    Between March and June of 1990 it fired seven

members of its tax staff, six men and one woman.    In February

1991 Ernst & Young continued to contract its workforce and fired

two more professionals from its tax staff.

            In April 1991 McCann informed Hook she would be

terminated because her projects were subject to "time overruns"

and "she was the least good of those who were left."    Joint

Appendix ("Jt. App.") at 452A. Two other tax professionals, one

male and one female, were also fired at the same time.




                                 5
          Ernst & Young continued to cut back through early 1992

and many employees left the firm voluntarily.     Of the fifty-five

professionals Ernst & Young had employed in its Pittsburgh tax

department at the time of the merger in October 1989, only

twenty-two remained by November 1992.     Sixteen of the thirty-

three employees who were gone had been dismissed; four of the

sixteen were women.

          In December 1991 Hook sued Ernst & Young under

Title VII alleging it intentionally discriminated against her

because of sex when it terminated her.1    At trial, Hook testified

to three comments she found offensive.     From them she seeks to

infer that her supervisor, McCann, had a sexually discriminatory

animus.   She testified that on one occasion a client asked her

how she could get out of her blouse because it buttoned in the

back, to which McCann is said to have replied that he had

buttoned it for her that morning.     On a separate occasion, McCann

allegedly told Hook she should "get [her] legs and ass over" to

the client.   Jt. App. at 148A.   Hook testified McCann made one

other "demeaning" remark but she was unable to recall the exact

words, only the embarrassment it caused her.

          Hook testified her work was of high quality.     She also

testified that Peter Stipanovich, another tax manager who was

1
 Hook also alleged violations of the Fair Labor Standards Act as
amended by the Equal Pay Act, 29 U.S.C.A. §§ 201-219 (West 1965,
1978, 1985 & Supp. 1993), and the Pennsylvania Equal Pay Law,
Pa. Stat. Ann. tit. 43, §§ 336.1-336.10 (1992). Ernst & Young
removed the case to federal court. The district court entered
judgment as a matter of law in favor of Ernst & Young on these
claims at the close of Hook's case. Those orders are not
appealed.


                                  6
retained, was less qualified than she was and said two Ernst &

Young partners had admitted she was better than Stipanovich.       Her

testimony that the Ernst & Young partners agreed with her about

Stipanovich's relative merit was uncorroborated, and the Ernst &

Young supervisors who testified all said Stipanovich was an able

professional with good credentials.     In particular, Adam S. Monks

("Monks"), an Ernst & Young partner, testified that Stipanovich

was "very knowledgable [sic] about and is considered one of the

most knowledgable [sic] in the office" on taxation of

partnerships.   Id. at 383A.    Similarly, Chemel testified that

Stipanovich was "above average" in competence, ability and work

performance.    Id. at 402A.   The record also shows Stipanovich was

a CPA with a degree from the University of Pennsylvania's Wharton

School of Business.

          After the close of all evidence, in conference with the

parties, the court proposed the following jury charge:
               The question for you, members of the
          jury, is whether plaintiff's sex was a
          determinative factor in the discharge of
          plaintiff. . . . Plaintiff need not prove
          that her sex was the sole factor motivating
          the defendant. However, plaintiff must prove
          that she would not have been discharged if
          the fact that she is a woman had not been
          taken into account.

               The issue you are to decide is whether
          plaintiff's sex was a determinative factor in
          the defendant's discharge of plaintiff. The
          issue is not whether the plaintiff was
          treated fairly or whether there was a
          personality conflict between the plaintiff
          and her superiors or whether she was treated
          differently than other employees or whether
          the defendant made sound management
          decisions.


                                   7
                 You are not to decide whether you agree
            or disagree with the defendant's actions. You
            are to decide whether plaintiff's sex was a
            determinative factor in defendant's discharge
            of plaintiff.

                 If you find that the defendant
            discharged plaintiff for reasons in which her
            sex was not a determinative factor, then you
            must return a verdict in favor of defendant.



Id. at 503A-05A (emphasis added).    Hook objected to this proposed

charge and argued that in all Title VII individual discrimination

cases, the prohibited consideration need only be a "motivating"

rather than a "determinative" factor under section 107(a) of the

1991 Act.   Hook requested a point for charge stating "[a]n

unlawful employment practice is established when the complaining

party establishes that sex was a motivating factor in the
decision to terminate that complaining party's employment even

though other factors motivated the practice."   Brief for

Appellant at 10 n.4 (emphasis added).    The district court stated

it was granting Hook's point "in other words," Jt. App. at 500A,

but denied her request to change the proposed charge.    The court

later observed that Ernst & Young defended the case solely on a

pretext theory and a "motivating factor" instruction was only

appropriate in a mixed-motives case.    Id. at 508A.
            During deliberations, the jury asked the court to

"define . . . the precise meaning of . . . determinative factor."

Id. at 552A.    In response, the district court repeated its charge

and then added "[t]he term 'determinative factor' as used in your

instructions, means a factor that is causally connected to the


                                 8
result; in this case, the discharge of plaintiff.    It need not be

the sole cause of the result, since multiple factors might cause

a particular result."    Id. at 553A (emphasis added).   The jury

returned a verdict in favor of Ernst & Young.    After her post-

trial motions including her motion for new trial were denied,

Hook filed a timely notice of appeal.



               II.   Jurisdiction & Standard of Review

           The district court had subject matter jurisdiction over

Hook's claim pursuant to 28 U.S.C.A. § 1331 (West 1993) and 42

U.S.C.A. § 2000e-5(f)(3).    We have appellate jurisdiction over

the appeal from the final order of the district court pursuant to

28 U.S.C.A. § 1291 (West 1993).

           Normally we review a district court's denial of a

motion for a new trial for abuse of discretion, but where the

denial of the motion was based on the application of legal

precepts we exercise plenary review.    Griffiths v. CIGNA Corp.,

988 F.2d 457, 462 (3d Cir.) (citing Rotondo v. Keene Corp., 956

F.2d 436, 438 (3d Cir. 1992)), cert. denied, 114 S. Ct. 186

(1993).   Similarly, while we ordinarily review a district court's

rulings on points for charge for abuse of discretion, Link v.
Mercedes-Benz of N. Am., Inc., 788 F.2d 918, 922 (3d Cir. 1986),

we exercise plenary review where the appellant contends that the

charge does not state the correct legal standard.    Griffiths, 988

F.2d at 462 (citing Savarese v. Agriss, 883 F.2d 1194, 1202 (3d

Cir. 1989)).   Where a jury charge is attacked for legal error we

must determine whether "the charge [taken] as a whole fairly and

                                  9
adequately submits the issues in the case to the jury."        Bennis

v. Gable, 823 F.2d 723, 727 (3d Cir. 1987).      We will reverse

"'only if the instruction was capable of confusing and thereby

misleading the jury.'"     Id. (citation omitted); see also

Griffiths, 988 F.2d at 462.



                                 III.

            Hook contends she was entitled to an instruction using

the words "motivating factor" based on section 107(a) of the 1991

Act.   The 1991 Act amended 42 U.S.C.A. § 2000e-2 by adding a new

subsection.    Section 107(a), codified at section 2000e-2(m),

provides:
            (m)   Motivations for practice

                 Except as otherwise provided in this
            subchapter, an unlawful employment practice
            is established when the complaining party
            demonstrates that . . . sex . . . was a
            motivating factor for any employment
            practice, even though other factors also
            motivated the practice.



42 U.S.C.A. § 2000e-2 (emphasis added).      Portions of the

legislative history indicate a purpose of this amendment was to

partially overrule that part of Price Waterhouse which exempted

employers from liability and precluded any Title VII remedy if

they could produce evidence and persuade a factfinder that an

adverse employment decision would have been made regardless of

the fact that a discriminatory motive was one of the factors

influencing the decision. Thus, as the House Report states:
               When Congress enacted the Civil Rights
          Act of 1964, it precluded all invidious


                                  10
consideration of a person's race, color,
religion, sex or national origin in
employment. The effectiveness of Title VII's
ban on discrimination on the basis of race,
color, religion, sex or national origin has
been severely undercut by the recent Supreme
Court decision in Price Waterhouse v.
Hopkins, 109 S.Ct. 1775 (1989). In that
case, the Supreme Court concluded that "when
a plaintiff . . . proves that her gender
played a motivating part in an employment
decision, the defendant may avoid a finding
of liability . . . by proving by a
preponderance of the evidence that it would
have made the same decision even if it had
not taken the plaintiff's gender into
account." Id. at 1795 (emphasis added).

                *    *    *

To establish liability under proposed
Subsection 703(1), the complaining party must
demonstrate that discrimination actually
contributed or was otherwise a factor in an
employment decision or action. Thus, in
providing liability for discrimination that
is a "contributing factor," the Committee
intends to restore the rule applied in many
federal circuits prior to the Price
Waterhouse decision that an employer may be
held liable for any discrimination that is
actually shown to play a role in a contested
employment decision.

      Section 203 of the bill also amends
Subsection 706(g) of Title VII to make clear
that where a violation is established under
Subsection 703(1), and where the employer
establishes that it would have taken the same
action in the absence of any discrimination,
a court may not order the employer to hire,
reinstate, promote or provide back pay to the
complainant. This provision is consistent
with the current text of Title VII, which
provides that "no order of the court shall
require the admission or reinstatement of an
individual . . . if such individual . . . was
refused employment . . . for any reason other
than discrimination." 42 U.S.C. § 2000e-
5(g).


                     11
                           *     *    *

           However, the presence of a contributing
           discriminatory factor would still establish a
           Title VII violation, and a court could order
           other appropriate relief, including
           injunctive or declaratory relief,
           compensatory and punitive damages where
           appropriate, and attorney's fees.



H.R. Rep. No. 102-40(I), 102d Cong., 1st Sess. 45, 48-49,

reprinted in, 1991 U.S.C.C.A.N. 549, 583, 586-87 (emphasis in

original) (footnotes omitted).

           Ernst & Young insists that Price Waterhouse and not
section 107 provides the rule of decision in this case because

that section is not to be applied in cases involving preenactment

conduct.   We agree.

           The Supreme Court recently spoke to the retroactivity

issue in the context of other portions of the 1991 amendments.

Landgraf v. USI Film Prods., 62 U.S.L.W. 4255 (Apr. 26, 1994)

(Section 102); Rivers v. Roadway Express Inc., 62 U.S.L.W. 4271

(Apr. 26, 1994) (Section 101).   Landgraf dealt with section 102
which for the first time imposes liability for compensatory and

punitive damages when a violation of Title VII has been shown.

The Court gave the following instructions, which are pertinent

here:
                When a case implicates a federal statute
           enacted after the events in suit, the court's
           first task is to determine whether Congress
           has expressly prescribed the statute's proper
           reach. If Congress has done so, of course,
           there is no need to resort to judicial
           default rules. When, however, the statute
           contains no such express command, the court


                                 12
          must determine whether the new statute would
          have retroactive effect, i.e., whether it
          would impair rights a party possessed when he
          acted, increase a party's liability for past
          conduct, or impose new duties with respect to
          transactions already completed. If the
          statute would operate retroactively, our
          traditional presumption teaches that it does
          not govern absent clear congressional intent
          favoring such a result.



Landgraf, 62 U.S.L.W. at 4265-66.

          Following this analysis, the Court in Landgraf first

concluded that neither the text of the amendments nor the

legislative history, with two exceptions not relevant, reflects

Congress's intent on the issue of retroactivity.   Id. at 4260-61.
"Instead, [the Court noted,] the history of the 1991 Act conveys

the impression that legislators agreed to disagree about whether

and to what extent the Act would apply to preenactment conduct."

Id. at 4261.

          Turning to section 102, the Court had no difficulty

concluding that Congress's imposition of punitive damages should

not be applied to preenactment conduct.   Id. at 4266.
Compensatory damages, however, posed a more difficult issue:
               The provision of § 102(a)(1) authorizing
          the recovery of compensatory damages is not
          easily classified. It does not make unlawful
          conduct that was lawful when it occurred; as
          we have noted, supra, at 6-8, § 102 only
          reaches discriminatory conduct already
          prohibited by Title VII.

                          *      *    *

              Nonetheless,    the new compensatory
         damages provision    would operate
         "retrospectively"    if it were applied to
         conduct occurring    before November 21, 1991.


                                 13
         Unlike certain other forms of relief,
         compensatory damages are quintessentially
         backward-looking. Compensatory damages may
         be intended less to sanction wrongdoers than
         to make victims whole, but they do so by a
         mechanism that affects the liabilities of
         defendants. They do not "compensate" by
         distributing funds from the public coffers,
         but by requiring particular employers to pay
         for harms they caused. The introduction of a
         right to compensatory damages is also the
         type of legal change that would have an
         impact on private parties' planning.

                          *    *    *

         Because Title VII previously authorized
         recovery of backpay in some cases, and
         because compensatory damages under §102(a)
         are in addition to any backpay recoverable,
         the new provision also resembles a statute
         increasing the amount of damages available
         under a preestablished cause of action. Even
         under that view, however, the provision
         would, if applied in cases arising before the
         Act's effective date, undoubtedly impose on
         employers found liable a "new disability" in
         respect to past events. See Society for
         Propagation of the Gospel, 22 F. Cas., at
         767. The extent of a party's liability, in
         the civil context as well as the criminal, is
         an important legal consequence that cannot be
         ignored.



Id. at 4266-67 (emphasis in original) (footnotes omitted).     The

new provision regarding compensation was, therefore, held to

apply only to conduct occurring after Congress passed the 1991

Amendments.

          In Rivers, the Court relied on Landgraf to conclude

that section 101, which amended 42 U.S.C.A. § 1981 by defining

the term "make and enforce contracts" broadly to embrace all

phases of the contractual relationship including discriminatory


                               14
contract terminations, enlarges the category of conduct subject

to section 1981 liability and therefore does not apply to cases

pending when it was enacted.    Rivers, 62 U.S.L.W. at 4272.   The

Court also rejected an argument that because Congress intended to

alter the rule of law established in Patterson v. McLean Credit

Union, 491 U.S. 164 (1989), the amendment was restorative and the

section should be applied retroactively.     Although restorative

intent is apparent, such intent does not reveal whether Congress

intended the amendment to apply retroactively.     Id. at 4272-75.

            The Court's holdings in Landgraf and Rivers do not

answer the question before us.    As the Court observed in

Landgraf, "there is no special reason to think that all the

diverse provisions of the Act must be treated uniformly for

[these] purposes. . . .   [C]ourts should evaluate each provision

of the Act in light of ordinary judicial principles concerning

the application of new rules to pending cases and pre-enactment

conduct."   Landgraf, 62 U.S.L.W. at 4266.    Landgraf and Rivers,

however, do provide a basis for confident prediction regarding

section 107.

            As Justice Brennan in his plurality opinion in Price
Waterhouse states, "[t]he specification of the standard of

causation under Title VII is a decision about the kind of conduct

that violates that statute."    Price Waterhouse, 490 U.S. at 237.

Section 107, by changing the standard of causation under Price

Waterhouse, expands the types of conduct that violate the Act.

Prior to section 107, an employer did not violate the Act if it

considered an employee's protected trait when deciding to take an

                                 15
adverse employment action, so long as it also considered other

factors that would have caused it to make the same decision in

the absence of the unlawful consideration.      After the enactment

of section 107, an employer making exactly the same kind of

decision could violate the Act.     This would change "the kind of

conduct that violates th[e] statute."       Price Waterhouse, 490 U.S.

at 237.   Moreover, to the extent that section 107 is meant to be

restorative of pre-Price Waterhouse law, our examination of the

statutory language and the legislative history uncovers no

indication that Congress intended the amendment to apply

retroactively.

          "Elementary considerations of fairness dictate that

individuals should have an opportunity to know what the law is

and to conform their conduct accordingly; settled expectations

should not be lightly disrupted."       Landgraf, 62 U.S.L.W. at 4261

(footnote omitted).     If an amendment imposing liability for

compensatory damages for conduct already unlawful sufficiently

disrupts settled expectations to foreclose retroactive

application, so too does an amendment that renders previously

lawful conduct unlawful.     Accordingly, Landgraf and Rivers
preclude us from giving section 107 the retroactive application

that Hook desires.



                 IV.   Analysis under Price Waterhouse

          Although the 1991 Amendment does not apply

retroactively, we must still consider Hook's Price Waterhouse



                                   16
argument that the district court should have granted her request

for a mixed-motives burden-shifting charge.2

          Whether a pretext or a mixed-motives case has been

presented depends on the kind of circumstantial evidence the

employee produces in support of her claim of illegal

discrimination.   Not all evidence that is probative of

discrimination entitles an employee to a Price Waterhouse mixed-

motives charge.   See Ostrowski v. Atlantic Mut. Ins. Cos., 968

F.2d 171, 181 (2d Cir. 1992).   Thus, in Price Waterhouse, Justice

O'Connor stated in her concurrence that the employee has to show

the employer's mixed motives by "direct evidence that an

illegitimate criterion was a substantial factor in the decision."

Price Waterhouse, 490 U.S. at 276 (O'Connor, J., concurring).

Specifically,
          stray remarks in the workplace, while perhaps
          probative of sexual harassment, cannot
          justify requiring the employer to prove that
          its hiring or promotion decisions were based
          on legitimate criteria. Nor can statements
          by nondecisionmakers, or statements by
          decisionmakers unrelated to the decisional
          process itself, suffice to satisfy the

2
 Ernst & Young argues Hook waived this issue because she did not
raise it until supplemental points for charge were submitted. It
notes the district court specifically declined to give Hook's
mixed-motives instruction because mixed-motives was "not the
position that the defendant has taken in this case at all." Jt.
App. at 508A. A trial judge has discretion to decide what points
for charge are appropriate based on the evidence presented by the
parties during the trial. See, e.g., Hinds v. General Motor
Corp., 988 F.2d 1039, 1046 (10th Cir. 1993) (error for trial
court to give instruction on theory not supported by competent
evidence). In the district court Ernst & Young failed to object
to Hook's supplemental point for charge on the theory it now
raises; therefore, Ernst & Young's waiver argument may itself be
subject to waiver. Fleck v. KDI Sylvan Pools, Inc., 981 F.2d
107, 116 (3d Cir. 1992), cert. denied, 113 S. Ct. 1645 (1993).


                                17
           plaintiff's burden in this regard. . . . [I]n
           the context of this case, a mere reference to
           "a lady candidate" might show that gender
           "played a role" in the decision, but by no
           means could support a rational factfinder's
           inference that the decision was made "because
           of" sex.



Id. at 277 (O'Connor, J., concurring).     In Ostrowski the United

States Court of Appeals for the Second Circuit criticized the

phrase "'direct evidence'" as "'an unfortunate choice of

terminology for the sort of proof needed to establish a "mixed-

motives" case.'"   Ostrowski, 968 F.2d at 181 (quoting Tyler v.

Bethlehem Steel Corp., 958 F.2d 1176, 1185 (2d Cir.), cert.

denied, 113 S. Ct. 82 (1992)).3    According to Ostrowski, there is

typically no direct evidence because the decisionmaker is

unlikely to admit that he fired an employee because of age or

sex.   Id. at 181-82.   Ostrowski nevertheless recognizes that

circumstantial evidence "tied directly to the alleged

discriminatory animus" must be produced to justify a burden-

shifting instruction.    Id. at 182.   It described the
circumstantial evidence that shows mixed-motives in a way that




3
 Despite Judge Kearse's criticism in Ostrowski of Justice
O'Connor's use of the phrase "direct evidence" to distinguish the
evidence needed to present a mixed-motives as opposed to a
pretext case, it seems to us to be a convenient shorthand term.
Of course, it is, in a sense, circumstantial, but it is not
circumstantial in the same sense as the evidence that makes out a
pretext case. In a mixed-motives case the defendant condemns
himself of invidious discrimination out of his own mouth or by
his own overtly biased acts. In a pretext case he lies or masks
the reason for his act. He is, like the serpent in Eden, more
subtle.


                                  18
shows it is different from the kind of "circumstantial evidence"

that makes out a pretext case. It said:
          For example, purely statistical evidence
          would not warrant such a charge; nor would
          evidence merely of the plaintiff's
          qualification for and availability of a given
          position; nor would "stray" remarks in the
          workplace by persons who are not involved in
          the pertinent decisionmaking process. Those
          categories of evidence, though they may
          suffice to present a prima facie case under
          the framework set forth in [McDonnell
          Douglas] and [Burdine], and may indeed
          persuade the factfinder that the plaintiff
          has carried his or her ultimate burden of
          persuasion, would not suffice, even if
          credited, to warrant a Price Waterhouse
          charge. If, however, the plaintiff's
          nonstatistical evidence is directly tied to
          the forbidden animus, for example policy
          documents or statements of a person involved
          in the decisionmaking process that reflect a
          discriminatory or retaliatory animus of the
          type complained of in the suit, that
          plaintiff is entitled to a burden-shifting
          instruction.



Id. (citations omitted).

          Absent evidence that could "fairly be said to 'directly

reflect'" the alleged unlawful basis, the case should be treated

as a pretext case.   Griffiths, 988 F.2d at 470.
          It is clear, however, that "'[n]ot all evidence that is

probative of discrimination will entitle the plaintiff to [shift

the burden]' to the defendant under Price Waterhouse." Griffiths,

988 F.2d at 470 (quoting Ostrowski, 968 F.2d at 181). The burden

of persuasion shifts to the employer "only after the plaintiff

ha[s] proven that her employer acted unlawfully," and not merely

"on the basis of a prima facie showing."   Binder v. Long Island


                                19
Lighting Co., 933 F.2d 187, 192 n.1 (2d Cir. 1991); see also

Schleiniger v. Des Moines Water Works, 925 F.2d 1100, 1101 (8th

Cir. 1991) ("Simply because a discriminatory reason might be

inferred from a prima facie case does not mean that a mixed

motive case exists.").    Evidence establishing a prima facie case

is not always sufficient to require or permit a mixed-motives

burden shifting instruction.    Such a result would merge the two

different theories, mixed-motives and pretext, into one cause of

action.   Every pretext case would then require a mixed-motives

instruction and that instruction would shift to the employer the

production and persuasion burdens of negating any causal

connection between the employer's action and illegal

discrimination instead of requiring the employee to show pretext

and to persuade the factfinder that illegal discrimination was

the legal cause of the action against her.    See St. Mary's, 113

S. Ct. at 2749.     As we noted in Griffiths, 988 F.2d at 471-72,

the Supreme Court has taken great pains to differentiate between

the two theories.    See, e.g., Price Waterhouse, 490 U.S. at 245-

47.

           Therefore, to the extent Hook argues that production of

evidence sufficient to show a McDonnell Douglas/Burdine prima
facie case is evidence of discrimination sufficient to warrant a

mixed-motives instruction, we think she misstates the law.     See

Griffiths, 988 F.2d at 470; see also Binder, 933 F.2d at 192 n.1.

           Hook also argues that she was entitled to a Price
Waterhouse charge because she produced the kind of evidence

needed to require such charge.    We reject this argument.


                                  20
            She relied on her own qualifications as well as

McCann's offensive remarks about her blouse and her body.      With

respect to qualifications, her performance reviews were largely

negative.    Moreover, it was Ernst & Young's policy not to promote

individuals like Hook who had failed to complete the CPA exam.

Only the grandfather clause permitted Hook to advance as far as

she did.

            Ernst & Young was in the process of reducing its

professional workforce in the tax field.     It dismissed sixteen

professional tax employees in the relevant time period, twenty-

five percent of whom were women.      According to McCann, Hook was

terminated simply because she was "the least good of those who

were left."    Jt. App. at 452; cf. Wilson v. Firestone Tire &

Rubber Co., 932 F.2d 510, 517 (6th Cir. 1991) ("a plaintiff whose

employment position is eliminated in a corporate reorganization

or work force reduction carries a heavier burden in supporting

charges of discrimination than does an employee discharged for

other reasons").

            As to the "sexual advances and indelicacies" allegedly

made by McCann, Brief for Appellant at 21, isolated remarks are

not enough under Price Waterhouse to warrant a mixed-motives
burden shifting instruction.    McCann's statements were stray

remarks.    Although they were made by a decisionmaker, there is no

evidence they were related to the decision process.      They were

temporally remote and they had nothing to do with Hook's job

performance.



                                 21
           Alternatively, Hook argues a mixed-motives charge was

warranted because the evidence she produced was enough to show a

male employee, Peter Stipanovich, was less qualified than she for

the job she lost but he was retained.   This evidence merely

supplies part of her McDonnell Douglas/Burdine prima facie case.

For the same reasons, it is not direct evidence of mixed motives.

           The evidence that showed a mixed-motives case in Price

Waterhouse is different.   There, comments in the performance

evaluations upon which the decisionmakers based their decision to

terminate the plaintiff included impermissible sexual

stereotypes,4 and they were an integral part of the decision

process directly relating to the employer's assessment of its

female employee's ability to interact with clients and perform

her job.   Price Waterhouse, 490 U.S. at 232-37.5   Similarly, in

Tyler, another mixed-motives age discrimination case, the

evidence presented included a statement by the defendant that its

sales force was "getting too old," that the plaintiff was

replaced by a younger employee and documentary evidence

4
 These comments included: (1) descriptions of Hopkins as
"'macho'"; (2) a "suggestion that she 'overcompensated for being
a woman'"; (3) advice "to take 'a course at charm school'"; and
(4) criticism of her use of profanity "'because it's a lady using
foul language.'" Price Waterhouse, 490 U.S. at 235. The
clincher for the plurality in Price Waterhouse was, however, the
fact that a decisionmaker, while explaining to Hopkins why she
was not given partnership, advised her that in the future she
should "'walk more femininely, talk more femininely, dress more
femininely, wear make-up, have her hair styled, and wear
jewelry.'" Id. (citation omitted).
5
 In Price Waterhouse the district court found that the employer
had never disavowed reliance on these comments in the evaluations
which plainly showed an illegal discriminatory animus against
women. Price Waterhouse, 490 U.S. at 236-37.


                                22
indicating the defendant maintained a group called the "Young

Tigers" from which the plaintiff was, by definition, excluded.

Tyler, 958 F.2d at 1186-87; see also Ostrowski, 968 F.2d at 183

(age discrimination case with "explicit evidence of . . . age-

based animus" such as decisionmakers' statements that "there is

no way [a 60 year old employee] can contribute," that two ADEA-

protected employees hired by plaintiff should not have been hired

and instead should have remained in retirement and that Ostrowski

should be fired because he hired older employees).

          McCann's remarks are insufficient to show that sexual

bias tainted any employment decision he made.   None of the

evidence concerning the termination of Hook nor the retention of

Stipanovich is sufficient to show that a discriminatory animus

against women existed at Ernst & Young when Hook was fired.

Accordingly, the district court did not err in refusing to give a

Price Waterhouse burden-shifting instruction in this case.



                               V.

          For the foregoing reasons, the order of the district

court will be affirmed.




                               23
