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


6-7-1994

Seman v. Coplay Cement Company
Precedential or Non-Precedential:

Docket 93-3544




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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                            ----------

                           No. 93-3544

                            ----------

                        CLARENCE C. SEMAN

                                v.

                     COPLAY CEMENT COMPANY
                             f/d/b/a
                  UNITED STATES CEMENT COMPANY

                       UNITED STATES CEMENT COMPANY,

                                     Appellant

                            ----------

       On Appeal from the United States District Court
          for the Western District of Pennsylvania
                  (D.C. Civil No. 90-01428)

                            ----------

                   Argued Monday, May 2, 1994

        BEFORE:    GREENBERG, and GARTH, Circuit Judges
                   and ROBRENO, District Judge0

                            ----------

                  (Opinion filed June 8, 1994)

                      Kathleen A. Gallagher (Argued)
                      PA I.D. No. 37950
                      Pittsburgh Food & Beverage
                      Company, Inc.
                      437 Grant Street
                      1200 Frick Building
                      Pittsburgh, Pennsylvania 15219


0
Honorable Eduardo C. Robreno, United States District Court for
the Eastern District of Pennsylvania, sitting by designation.
                        Attorney for Appellant

                        Joseph S. Hornack (Argued)
                        PA I.D. No. 35165
                        Constance G. Rankin
                        PA I.D. No. 65311
                        Healey, Davidson & Hornack
                        Fifth Floor
                        Law & Finance Building
                                    Pittsburgh, Pennsylvania   15219

                        Attorney for Appellee

                               ----------

                         OPINION OF THE COURT

                               ----------

GARTH, Circuit Judge:


      This appeal follows final judgment in favor of the appellee,

Clarence C. Seman, on his age discrimination claim against his

former employer, appellant United States Cement Company ("U.S.

Cement"), pursuant to the Age Discrimination in Employment Act

(ADEA), 29 U.S.C. § 623(a).0    The trial jury found that Seman's

age was a determining factor in U.S. Cement's decision to

terminate his employment; that Seman would have been employed by

U.S. Cement's successor company had Seman's age not been a factor

0
    29 U.S.C. § 623(a) in pertinent part provides:

           It shall be unlawful for an employer--
                (1) to fail or refuse to hire or to discharge any
                individual or otherwise discriminate against any
                individual with respect to his compensation,
                terms, conditions, or privileges of employment,
                because of such individual's age;
                (2) to limit, segregate, or classify his employees
                in any way which would deprive or tend to deprive
                any individual of employment opportunities or
                otherwise adversely affect his status as an
                employee, because of such individual's age . . ..
in the termination decision, and that Seman was entitled to

backpay amounting to $150,000 -- $10,000 more than Seman's

counsel had requested at trial.

     On appeal, U.S. Cement assigns six points of error: (1) the

district court erred in denying U.S. Cement's motion for judgment

as a matter of law pursuant to Fed. R. Civ. P. 50(a); (2) the

district court abused its discretion in denying U.S. Cement's

motion for a new trial on the ground that the jury verdict was

excessive and the result of passion, prejudice or caprice; (3)

the district court erred in not reducing the verdict to the

$140,000 amount requested by Seman in backpay; (4) the district

court erred in instructing the jury concerning the appropriate

burden of proof; (5) the district court erred in instructing the

jury that it could consider whether Seman's employment would have

continued with U.S. Cement's successor company in calculating

U.S. Cement's liability for Seman's back pay; and (6) the

district court erred in refusing U.S. Cement's request for

remitter of federal income taxes on Seman's backpay award.

     We have jurisdiction pursuant to 28 U.S.C. § 1291 to review

the final amended order of the district court entered on

September 23, 1993.   We hold that the district court did not err

in denying U.S. Cement's Rule 50(a) motion, and that the case was

properly submitted to the jury.   We also hold, however, that the

district court erred in its instruction to the jury.

     The need to consider the merits of U.S. Cement's remaining

arguments is therefore obviated by our determination that the

erroneous jury instruction requires reversal of the final amended
judgment entered by the district court on September 23, 1993 in

favor of Seman and against U.S. Cement in the amount of

$167,827.83, including prejudgment interest.    We thus leave the

remaining issues raised on this appeal by U.S. Cement for

determination in the first instance by the district court on

retrial.   Indeed, at oral argument counsel urged that we consider

issues relating to backpay only if we were not persuaded that the

erroneous jury instruction required reversal.

     We, therefore, will reverse the September 23, 1993 final

amended judgment, and will remand for a new trial on Seman's ADEA

claim against U.S. Cement.



                                  I.

     Seman was hired by SME Bessemer Cement Company in April 1983

as a cement salesman.   He retained that position when SME

Bessemer was purchased in April 1987 by its wholly-owned

subsidiary, U.S. Cement.     Between April 1983 and January 1988,

Seman was assigned to handle primarily cement field sales in

southwestern Pennsylvania.    In January 1988, Seman was promoted

to the newly-created position of assistant sales manager for U.S.

Cement, and worked briefly out of an office at U.S. Cement's

plant office in Lowellville, Ohio.     Although U.S. Cement

executives later testified that the assistant sales manager

position was never intended to be a permanent position, no one

apparently mentioned that fact to Seman.

     Shortly after turning 65 on May 3, 1988, Seman was asked

about his plans for retirement by Arthur Edwards, U.S. Cement's
vice president of sales.     Seman informed Edwards that he did not

intend to retire for at least several years.    Within a month of

that discussion, Seman's position as assistant sales manager was

eliminated, and Seman was ordered back to the field without any

change in pay or benefits.    At that time, U.S. Cement had five

cement salesmen:    Seman; Robert McDonough, 54; Frank Long, 41;

Lee Lydic, 33; and Kurt Rosander, 31.    At 65, Seman was by far

the oldest member of the cement sales force.

       In September 1988, just a few months after being sent back

to the field, Seman was informed by Edwards that U.S. Cement was

reducing its sales force, and that the company had decided to lay

off Seman and McDonough.     Seman requested reconsideration of that

decision, and suggested to Edwards that U.S. Cement's selection

of its two oldest salesmen as casualties of the reduction in

force decision could be viewed as age discrimination.    Seman also

threatened to communicate with the Equal Employment Opportunities

Commission ("EEOC") concerning the threatened layoffs.

Ultimately, U.S. Cement decided to retain McDonough, and to

terminate Long, 41, along with Seman.

       Effective October 31, 1988, Seman and Long were laid off

from their positions as field salesmen.    Long was rehired that

same day by U.S. Cement and given another position at no loss of

pay.    Seman, however, was never offered reemployment in any

capacity by U.S. Cement.

       On August 29, 1990, Seman commenced this action in the

district court, alleging a violation of the ADEA.    At trial on

his claim against U.S. Cement, Seman introduced evidence showing
that, after being approached about his plans for retirement, he

was laid off from a job for which he was qualified while younger

and less-experienced salesmen were retained by U.S. Cement to

perform essentially the same duties he had performed before his

employment was terminated.    The evidence also showed that all of

U.S. Cement's sales people -- except for Lydic, who voluntarily

left to work for a competitor -- were retained after U.S. Cement

was acquired by ESSROC Materials, Inc. in August 1990.    For its

part, U.S. Cement presented evidence to support its position that

the decision to terminate Seman's employment was based solely on

legitimate nondiscriminatory business reasons, and was not in any

way motivated by Seman's age.

     Following the introduction of all of the evidence, U.S.

Cement moved for entry of judgment as a matter of law pursuant to

Fed. R. Civ. P. 50(a).0   That motion was denied by the district

court judge, who then submitted the case to the jury on special

interrogatories after instructing the panel on the law.   The jury

was asked to determine:
     (1) Do you find by a preponderance of the evidence that
     plaintiff's age was a determining factor in defendant's
     decision to terminate plaintiff's employment? [The jury
     answered,] Yes;

0
    Fed. R. Civ. P. 50(a)(1) provides:

               If during a trial by jury a party has been fully
          heard with respect to an issue and there is no legally
          sufficient evidentiary basis for a reasonable jury to
          have found for that party with respect to that issue,
          the court may grant a motion for judgment was a matter
          of law against that party on any claim, counterclaim,
          cross-claim, or third party claim that cannot under the
          controlling law be maintained without a favorable
          finding on that issue.
     (2) Do you find by a preponderance of the evidence that
     plaintiff would have been employed by ESSROC after it
     acquired, on February 27, 1990, United States Cement
     facility at which plaintiff was formerly employed if
     plaintiff's age had not been a factor in defendant's
     decision to terminate plaintiff's employment? [The jury
     answered,] Yes;

     (3) To what amount of back pay is plaintiff entitled?      [The
     jury answered,] $150,000.


App. 553.

     A judgment in favor of Seman and against U.S. Cement was

then entered in the amount of $150,000.    U.S. Cement filed this

appeal after its motion for a new trial was denied and the

district court entered a final order amending judgment in favor

of Seman to include prejudgment interest.0



                               II.

     We exercise plenary review of an order granting or denying a

motion for judgment as a matter of law and apply the same

standard as the district court.   Lightning Lube, Inc. v. Witco

Corp., 4 F.3d 1153, 1166 (3d Cir. 1993).     In an ADEA disparate
treatment case, our standard requires consideration of whether or

not there is substantial evidence in the record to support an

0
   U.S. Cement had filed an earlier notice of appeal of the
district court's February 8, 1993 order denying U.S. Cement's
motion for a new trial. At that time, Seman's motion for award
of prejudgment interest was still pending before the district
court. This court on May 10, 1993 dismissed U.S. Cement's earlier
appeal without prejudice to U.S. Cement's ability to file a new
notice of appeal once the district court ruled on the prejudgment
interest motion. The district court's final order, entered on
September 23, 1993, awarded Seman $17,827.08 in prejudgment
interest and accordingly amended the judgment to $167,827.83
[sic]. App. 559.
employee's contention that "'but for' his age he would not have

been discharged."    Billet v. Cigna Corp., 940 F.2d 812, 815 (3d

Cir. 1991).

      The ADEA prohibits discrimination in employment against an

individual over age 40 because of that individual's age.   29

U.S.C. 623(a)(1).0   To recover in an ADEA action, a discharged

employee over the age of 40 must first establish by a

preponderance of the evidence a prima facie case of age

discrimination.   For employees such as Seman who are not replaced

because their jobs are eliminated, a prima facie case of age

discrimination requires only a showing that the discharged

employee was at least forty years of age when his employment was

terminated, and that he was laid off from a job for which he was

qualified while other workers not in the protected class were

retained.   Billet, 940 F.2d at 816 n.3; Turner v. Schering-Plough

Corp., 901 F.2d 335, 342 (3d Cir. 1990).

      At trial, Seman presented a prima facie case from which an

inference of age discrimination could be drawn.   The

uncontroverted evidence was that, shortly after turning 65 and

informing the company that he had no plans to retire, Seman was

laid off while younger employees were retained.   The evidence

also indicated that Seman was qualified for the position; that

U.S. Cement abandoned its original plan to lay off its two oldest

salesman (Seman, 65, and McDonough, 54) after Seman raised the

specter of an age discrimination complaint; and that the company


0
    See supra note 1.
instead laid off Long, 41, along with Seman, on October 31, 1988.

In addition, the parties stipulated that U.S. Cement rehired Long

on October 31, 1988 for a different position at no loss of pay,

and that all of the salesmen whose positions were not eliminated

as part of the purported reduction in force decision were far

younger than Seman.   In short, only the 65-year-old Seman lost

his job.

     U.S. Cement apparently does not dispute that Seman

established a prima facie case of age discrimination.     Rather,

U.S. Cement contends on appeal0 that Seman failed to meet his

burden of proving that U.S. Cement's proffered nondiscriminatory

business explanation for Seman's termination, a reduction in

force, was a mere pretext for discrimination and not worthy of

credence, and that the district court thus erred in not granting

judgment as a matter of law.



0
   The record reveals that U.S. Cement's motion for judgment
pursuant to Fed. R. Civ. P. 50(a) stated no more than the
following:

          MR. LUCIDI [Counsel for U.S. Cement]: For the record,
     I'd like to make a motion for judgment as a matter of law
     under Rule 50 (a) on the basis that plaintiff has failed to
     meet his ultimate burden to establish that age was the
     determinative factor in the decision to terminate
     plaintiff's employment.

          THE COURT: Well, I think that this is a jury question
     and I'm going to overrule the motion.

App. 504-05.
     In a pretext case such as this one,0 we follow the

evidentiary procedure set forth by the Supreme Court in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), subsequently refined

in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248

(1981), and recently clarified in St. Mary's Honor Center v.

Hicks,     U.S.     , 113 S. Ct. 2742 (1993).0   As now explained

in Hicks,0 the McDonnell Douglas scheme provides that, once the

employee establishes a prima facie case creating a presumption of

unlawful discrimination, the burden of production shifts to the

employer to provide a legitimate nondiscriminatory explanation

for the employer's adverse employment action.    If the employer

meets this burden of production, then the presumption of

discriminatory intent created by the employee's prima facie case

is rebutted and the presumption simply "drops out of the

0
   In Griffiths v. CIGNA Corp., 988 F.2d 457 (3d Cir.), cert.
denied, 114 S. Ct. 186 (1993), we drew a distinction between
"pretext" cases (i.e., where the employee argues that the
facially legitimate reason asserted by the employer for its
employment decision was false) and "mixed motive" cases (i.e.,
where the employee does not contend that the nondiscriminatory
motives articulated by the employer did not motivate the
employment decision, but rather that additional, improper motives
played a role in causing that decision). Id. at 468-470.     Here,
Seman has challenged all of the nondiscriminatory reasons
articulated by U.S. Cement as pretextual, and has not presented
any direct evidence that can fairly be said to prove a mixed
motive case. This case therefore is properly characterized as a
pretext, and not a "mixed motive," case.
0
   McDonnell Douglas and Hicks (race discrimination) and Burdine
(gender discrimination) are Title VII cases. Although the ADEA
was enacted by Congress as a separate statute and is not part of
Title VII, we nevertheless apply the McDonnell Douglas procedural
framework within the ADEA context. See, e.g., Geary v.
Visitation of the Blessed Virgin Mary Parish School, 7 F.3d 324,
329 n.4 (3d Cir. 1993) (ADEA case).
0
   See discussion infra section III, B.
picture."    Hicks, 113 S.Ct. at 2749.   The employee "at all times

bears the 'ultimate burden of persuasion.'"     Id. (citations

omitted).

     In the instant case, Seman established a prima facie case

and U.S. Cement in response came forward with a nondiscriminatory

business reason for the company's decision to terminate Seman's

employment.    According to the testimony of U.S. Cement's chief

operating officer, Michael Carlow, and its vice president of

sales, Edwards, the company determined in 1988 that it was

necessary to reduce the sales force because of production

problems creating a shortage of cement to satisfy current

contracts.    Edwards and Carlow insisted that Seman was selected

for termination not because of his age, but because Seman lacked

broad sales experience and the flexibility necessary to handle

the type of future sales envisaged by U.S. Cement.

     Having proffered a legitimate nondiscriminatory explanation

for its decision, U.S. Cement satisfied its burden of production.

Consequently, the McDonnell Douglas framework -- with its

presumptions and shifting burdens -- was no longer relevant.

Hicks, 113 S. Ct. at 2749.    Hicks teaches, though, that rejection

of the employer's proffered nondiscriminatory reason will permit

the trier of fact to infer the ultimate fact of intentional

discrimination, so long as there is a finding of discrimination.0

0
   Rejection of the employer's proffered reasons, without a
finding of discrimination, is insufficient to warrant judgment
for the employee. The employee "at all times bears the 'ultimate
burden of persuasion,'" and any presumption created by the
employee's establishment of a prima facie case "does not shift
the burden of proof" to the employer. Hicks, 113 S.Ct. at 2749.
Id. at 2749 n.4.    In other words, "[t]he factfinder's disbelief

of the reasons put forward by the [employer] . . . may, together

with the elements of the [employee's] prima facie case, suffice

to show intentional discrimination."   Id.

     Here, Seman's proofs had cast doubt on U.S. Cement's

facially legitimate explanation for its adverse employment

decision.   That evidence indicated that the younger and less-

experienced salesmen retained by U.S. Cement were making calls at

house accounts and soliciting new business in Seman's former

sales territory after Seman was let go.   That evidence could have

led the jury to disbelieve the nondiscriminatory explanation

offered by U.S. Cement that layoffs were necessary because the

company was committed to selling what limited cement was

available to house accounts handled only by Edwards and Carlow,

and not by salesmen.

     Seman also introduced evidence indicating that he had more

experience in the cement industry than the younger salesmen

retained by U.S. Cement, and was more qualified than some of the

younger salesmen.   That evidence also could have been weighed by

the jury in rejecting U.S. Cement's explanation that it had

retained the other salesmen instead of Seman because they had

superior sales skills.   So, too, could the jury have weighed in

Seman's favor the testimony of Carlow and Edwards that they had

never criticized Seman's job performance.
     The jury could consider all of that evidence in evaluating

the merit, or lack thereof, of U.S. Cement's explanations for

Seman's termination.   That evidence created factual issues

requiring a credibility assessment by the trier of the fact

before a final determination could be made as to whether Seman

had proved his claim that U.S. Cement intentionally discriminated

against him on the basis of age, in violation of the ADEA.

Judgment as a matter of law in favor of U.S. Cement was

inappropriate because Seman had established a prima facie case of

age discrimination and had presented substantial evidence

creating a factual dispute concerning U.S. Cement's facially

legitimate business reasons.0

     We hold therefore that the district court did not err in

denying U.S. Cement's Rule 50(a)(1) motion.   See Hicks, 113 S.

Ct. at 2748.




0
   Our reading of the record satisfies us that, had the teachings
of St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742, 2749
(rejection of employer's proffered reasons, without finding of
discrimination, is insufficient to warrant judgment for the
employee), been known to counsel and the court at the time that
U.S. Cement made its Rule 50(a) motion for judgment as a matter
of law, the evidence adduced at trial would have still compelled
the district court to submit the case to the jury.
                              III.

     Even though we affirm the Rule 50(a) decision of the

district court, the charge then given by the district court to

the jury was incorrect in that it effectively limited the jurors'

finding to one aspect of the case -- Seman's prima facie case. In

relevant part, the jury was instructed:
          Plaintiff in this case claims that defendant used age
     as a determining factor in making the decision to terminate
     his employment.

          When a plaintiff brings suit under the Act, the burden
     of proof is on the plaintiff to prove his claim against the
     defendant. In order to prevail on his claim, a plaintiff
     must prove each of the following facts by the preponderance
     of the evidence:

          First, plaintiff must prove that he was within the
     protected age group; that is, over the age of 40. I charge
     you as a matter of law that plaintiff was within the
     protected age group.

          Second, plaintiff must prove that defendant took action
     that adversely affected plaintiff's employment situation,
     specifically that he was terminated from his employment with
     defendant on October 30, 1988. Excuse me, October 31, 1988.

          It is not disputed that plaintiff's employment was
     terminated on October 31, 1988.

          Third, plaintiff must prove that he was qualified for
     the job from which he was terminated.

          Fourth, plaintiff must prove that his age was a
     determining factor in the actions taken by defendant.

          To meet his burden of proof of proving that his age was
     a determining factor, plaintiff must prove that he would not
     have been denied the employment opportunities but for his
     age. But for does not require that plaintiff prove that his
     age was the sole or exclusive factor motivating defendant,
     only that age made a difference in the employer's decision.
     He must prove that defendant would not have terminated his
     employment if plaintiff's age had not been taken into
     account in deciding this matter.
     The Act requires that an employer reach employment
decisions without regard to age, but it does not place an
affirmative duty upon an employer to accord special
treatment to members of the protected group.

     You must remember that the issue you are to decide is
whether age is the determining factor in the defendant's
decision. The issue is not whether defendant's reasons for
plaintiff's termination were based on good cause or sound
management decisions. You are not to judge whether
defendant's decision was right or wrong from a business
standpoint. Rather, you are to decide whether age was a
determining factor underlying defendant's decision. In
short, you are not to decide whether you agree or disagree
with defendant's actions, only whether age was a determining
factor.

     In summary, to prevail on a claim of violation of the
Act, plaintiff has the burden of persuading you by the fair
preponderance of the evidence that he was more than 40 years
old, that he was qualified, and that age was a determining
factor in the decision of defendant's to terminate his
employment. Age is a determining factor if plaintiff would
not have received the same treatment but for his age.

     Concerning the claim made by plaintiff under the Act,
defendant denies that age was a determining factor in its
decision to terminate his employment. Defendant states that
this decision was made for legitimate, nondiscriminatory
business reasons unrelated to his age.

     If you find defendant's decision with respect to
plaintiff was made for business reasons among which age was
not a determining factor, there can be no violation of the
Age Discrimination in Employment Act, and you must return a
verdict for the defendant. However, if you find that
plaintiff's age was a determining factor in the decision to
terminate plaintiff's employment, you must return a verdict
for plaintiff, and you will award damages for that
discrimination as I will instruct you.

     In connection with plaintiff's age discrimination
claim, there was testimony that plaintiff's position was
eliminated for economic reasons as part of a reduction of
force -- in force.

     One method by which an employee in a reduction in force
case can prove that age was a determining factor in his
discharge is to show that younger employees were treated
more favorably in the reduction in force. Such proof may
     consist of evidence that younger employees were not
     terminated whereas the older employees were terminated, or
     that work, which was formerly performed by the older
     employees was not reassigned or delegated to younger
     employees who were not terminated. In these circumstances,
     you may find age to have been a determining factor in the
     decision to terminate such an older employee.

          It is not necessary that the younger employees
     themselves be outside the protected age class under the Act;
     that is, it is not necessary that the younger employees be
     less than 40 years old. The law requires only that the age
     difference between the terminated employees and the younger
     employees, together with other evidence of discriminatory
     intent, be sufficient to prove to you, by a preponderance of
     the evidence, that age was a determining factor in the
     discharge of such an employee.

App. 534-538 (emphasis added).


     U.S. Cement assigns error to the above-highlighted portion

of the jury instruction.   Specifically, U.S. Cement contends that

the district court's language relating to the prima facie case in

a reduction in force case could have misled jurors to believe

that they were required to return a verdict in favor of Seman and

against U.S. Cement solely because younger employees were not

terminated.


                                 A.

     Seman contended before us at oral argument that U.S. Cement,

by not raising a timely objection at the trial level, had waived

its right to appellate review of this issue.   Under Federal Rule

of Civil Procedure 51,
     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 of the objection.
     The question of whether U.S. Cement timely and specifically

objected to the jury charge is critical to our determination of

the appropriate standard of review.   See United States v. Simon,

995 F.2d 1236, 1242 n. 8 (3d Cir. 1993); United States v. Gibbs,

739 F.2d 838, 849 (3d Cir. 1984) (en banc) (holding that this

court will not entertain arguments on appeal based on objections

not timely raised below unless they constitute plain error),

cert. denied, 469 U.S. 1106 (1985).   If a timely objection did

preserve the issue for appeal, our standard of review on the

issue of whether the jury charge as a whole stated the correct

legal standard would be plenary.   Griffiths v. CIGNA Corp., 988

F.2d 457, 462 (3d Cir.), cert. denied, 114 S. Ct. 186 (1993).     If

the issue had not been preserved through a timely objection at

trial, the "plain error" standard would apply.   Gibbs, 739 F.2d

at 850 n.25.

     We have reviewed the record and conclude that U.S. Cement

timely preserved the specific issue it raises on appeal.    It did

so when it excepted to the instruction that the jury could find

that age was a determining factor in Seman's discharge merely by

finding "that younger employees were treated more favorably in

the reduction in force."

     At a conference in the district court judge's chambers the

day before the disputed instruction was given, the parties were

asked to state their exceptions to the draft jury charge.   U.S.

Cement at that time raised essentially the same objection that it

now raises on appeal.   U.S. Cement stated:
     My concern is that the jury not be confused into thinking
     that if they find that younger employees were not terminated
     in the reduction of force they must find that age was a
     determining factor.
                              * * *
          My main concern is you have first a discussion
      . . . of the prima facie case, then there is a discussion
     of the employer's business reasons for the decision, then
     there is a discussion of the reduction in force, and my
     concern is that the jurors are going to forget that the
     employer may have a reason for what it did.


App. at 478-79.

     The district court decided not to modify the "reduction in

force" portion of the charge to reflect the concerns expressed by

U.S. Cement's counsel at the in camera conference.      Seman

contends that because U.S. Cement did not renew that objection

after the jury was charged, it has waived the issue for appellate

review.   We disagree.

     U.S. Cement did not have to renew its objection because the

district court at the in camera charging conference explicitly

advised counsel:   "[A]nything that I don't take out that you want

taken out, or that I don't put in that you want put in, I'll

grant you an exception and you don't need to raise it again at
the end of -- at the end of the charge."    App. 477.

     As written, Federal Rule of Civil Procedure 51 explicitly

requires that any objections to the court's charge, to be

preserved for appeal, must be taken at the close of the charge,

"before the jury retires to consider its verdict, stating

distinctly the matter objected to and the grounds of the

objection."   Fed. R. Civ. P. 51.   The purpose of the rule is

well-settled -- the trial judge is afforded an opportunity to
correct any error that may have been made in the charge before

the jury begins its deliberations.   See 9 Charles A. Wright &

Arthur R. Miller, Federal Practice and Procedure:    Civil § 2551

(1971).   There is an exception to the rule, however, where the

district court judge gives explicit instructions to the parties

to proceed otherwise.   As the manager of a case, the lower court

is in the best position to exercise its discretion in determining

the most effective and efficient way of proceeding, given the

myriad number of ways of conducting a charge conference.    As we

noted in United States v. Agnes, 753 F.2d 293 (3d Cir. 1985), the

failure to follow rigorously the requirements of Rule 51 does not

preclude appellate review when there is "express permission by

the district court for counsel to incorporate by reference

objections made during the charge conference."0    Id. at 301 n.11

(emphasis added); see also Bowley v. Stotler & Co., 751 F.2d 641,

647 (3d Cir. 1985) (finding preservation where district court

granted counsel "automatic exception to every adverse ruling").

The requirement that there be an express determination by the

lower court that Rule 51 will not be applied as written serves

the purpose of allowing the trial judge to direct the charging

process in the manner the court deems most efficient, while also

creating a reviewable record for appellate purposes of the

matters as to which timely objections were made.

0
   Although Agnes was a criminal case, and thus interpreted
Federal Rule of criminal Procedure 30, the criminal counterpart
to Rule 51, the analysis under Rule 51 is identical. See Agnes,
753 F.2d at 301 n.11 (citing Granite Music Corp. v. United
Artists Corp., 532 F.2d 718, 721-22 (9th Cir. 1976)).
     In the instant case, counsel for both parties were given
express permission by the district court at the in camera
charging conference to incorporate by reference objections made
during that conference. If there was any doubt about that when
counsel left the in camera proceeding, the district court
dispelled it the following day when it stated in open court that:
     Again, as I said yesterday when we were discussing the
charge in chambers, after the charge is finished, after I
finished giving the charge, you don't need to take any exceptions
to anything that you've already raised and I've ruled on. Just
anything knew [sic].


App. 505.

     We are satisfied that U.S. Cement preserved for our review

the issue it now presses on appeal.   That conclusion is not

inconsistent with the "policy that an appellate court will not

predicate error on an issue upon which the district court was not

provided with an opportunity to rule."      Remington Rand Corp.-

Delaware v. Business Systems, Inc., 830 F.2d 1260, 1267 (3d Cir.

1987); accord Waldorf v. Shuta, 896 F.2d 723, 739 (3d Cir. 1990).

Here, the district court had the opportunity to rule twice on the

precise issue raised on appeal by U.S. Cement.     As we have

observed, the district court had considered and had rejected U.S.

Cement's objection to the jury charge, and it also had considered
and rejected that same argument when U.S. Cement raised it again

in its motion for a new trial.   App. 67.



                                 B.

     Because the district court expressly preserved for appeal

U.S. Cement's exception to the reduction in force instruction, we

will conduct a plenary review to determine whether the charge

read as a whole accurately sets forth the correct legal standard.
Griffiths, 988 F.2d at 462.   Under that standard of review, we

must agree with U.S. Cement that the jury received what was, in

effect, two instructions on Seman's prima facie case.   The jury

first was instructed that Seman had the burden of proving his

prima facie case by showing "that he was more than 40 years old,

that he was qualified, and that age was a determining factor in

the decision of defendant's to terminate his employment."0 App.

536.   The jury also was told that there could be no violation of

the ADEA and that it would have to return a verdict for U.S.

Cement if it found U.S. Cement's decision to terminate Seman's



0
   After the Seman trial had concluded, we stated in Griffiths
that a plaintiff in a pretext case must prove that age was the
determinative factor in the employer's adverse decision. 988
F.2d at 472. Prior to Griffiths, our cases may have suggested
that the employer's discriminatory motive need not be the sole
factor causing the employment decision in a pretext case. See,
e.g., Billet v. CIGNA Corp., 940 F.2d 812, 816 (3d Cir. 1991)
(using "a determinative factor" test) (emphasis added).
Presumably for this reason, U.S. Cement never objected at trial
to the instruction that the jury could find U.S. Cement liable if
Seman proved that age was only one of the reasons for his
termination or "a determining factor."
    After receiving the parties' briefs, we requested
supplemental briefing on the question of what effect, if any,
Griffiths had on the jury instruction issue raised on appeal by
U.S. Cement. In its supplemental brief and again at oral
argument, U.S. Cement's counsel focused only on that aspect of
the Griffiths decision discussing the order and allocation of
burdens of proof.
    Counsel never raised the Griffiths issue of whether Seman had
to prove that age was "the," rather than "a," determining factor
in the termination decision. See Griffiths, 988 F.2d at 471-72.
U.S. Cement therefore has waived the "determining factor" issue,
and we need not decide whether the district court erred in
combining a mixed motive charge (plaintiff only need show that
age was a motivating factor or one of the reasons for the
discharge) with a pretext charge (plaintiff must prove that age
was the determining factor).
employment "was made for business reasons among which age was not

a determining factor."     App. 537.

     The jury then was advised that Seman could "prove that age

was a determining factor in his discharge [by showing] that

younger employees were treated more favorably in the reduction in

force."   App. 537.   That instruction incorrectly states the

applicable legal standard.     A decision affecting an employee in

the protected class does not become a discriminatory decision

"merely because made in the context of a reorganization, or

because a younger employee is benefitted by the decision."

Billet, 940 F.2d at 827.

     Taken as a whole, the charge failed to convey that, once

U.S. Cement put forth a legitimate business explanation, Seman

had the ultimate burden of proving that U.S. Cement intentionally

discriminated on the basis of age.     The jury could not, as it was

instructed, find for Seman simply on the basis that younger

employees were retained by U.S. Cement.    It was not enough, in

other words, to find U.S. Cement liable for age discrimination

under the ADEA merely on the basis of Seman's prima facie case;

Seman had to prove intentional discrimination.

     Even before the recently-decided case of Hicks, the Supreme
Court in United States Postal Serv. Bd. of Governors v. Aikens,

460 U.S. 711, 714-16 (1982), explained that the rebuttable

McDonnell-Burdine presumption created by the plaintiff-employee's

prima facie case "drops from the case" once the employer responds

by offering evidence of the reason for the plaintiff-employee's

rejection, and "the factfinder must then decide whether the
rejection was discriminatory . . . . [and t]he plaintiff retains

the burden of persuasion."     Id. (citations and internal

quotations omitted).

     Accordingly, any presumption of discrimination created by

Seman's prima facie case had dropped out of the picture once U.S.

Cement articulated its facially valid business reasons for the

adverse employment decision.     By instructing the jury that "one

method by which [Seman could] prove that age was a determining

factor in his discharge [was] to show that younger employees . .

. were not terminated whereas the older employees were

terminated," the district court well may have misled the jury to

believe that Seman, merely by proving his prima facie case,

satisfied his burden of proof.    In so doing, the district court

erred.

     The potential for confusion created by the district court's

failure to explain Seman's burden of proof after U.S. Cement

articulated a facially nondiscriminatory explanation was without

question highly prejudicial to U.S. Cement.     The district court

incorrectly instructed the jury that merely by virtue of

retaining younger employees while terminating older protected

employees, the jury in effect could find for Seman.     The charge

given by the district court therefore lacked clarity and content

regarding the requisite elements and burden of proof.

     The district court so unfairly prejudiced U.S. Cement by its

charge that we are satisfied that the error infected the judicial

process.   Having determined that the district court's charge

unjustly prejudiced U.S. Cement, we can do no less than reverse
the final order of the district court entering judgment in favor

of Seman and against U.S. Cement.     See Griffiths, 988 F.2d at 472

(holding that failure of district court to charge jury correctly

on allocation of proof requires reversal).



                                 C.

     By reversing the district court's judgment in favor of

Seman, we are obliged to remand for a new trial.     Any new trial

will require new instructions concerning the elements which Seman

must establish and the burden of proof which he must carry.        In

conducting a new trial, we are certain that the district court

will be alert to the decision of the Supreme Court in Hicks, to

which we have previously referred.     Hicks, of course, was not

filed until June 25, 1993, five months after the district court

had charged the jury on January 28, 1993.

     As Hicks makes clear, what is required to establish the

McDonnell Douglas prima facie case is "infinitely less" than what

is needed to prove that an employer acted with a discriminatory

intent.   113 S. Ct. at 2751.   Hicks requires that once an

employer has met its burden of production by coming forward with

a nondiscriminatory business reason for discharging a protected

employee, the plaintiff-employee must then prove that the

business reason was pretextual and that he was intentionally

discriminated against on the basis of his age.     Proof of one

without the other will not suffice.0    That is so because there is

0
   Mere proof of pretext, without a finding of discrimination, is
not by itself sufficient to meet the employee's ultimate burden
of proof. Hicks, 113 S. Ct. at 2749 and n.4. In this regard,
the Hicks Court explicitly rejected the view of several courts of
appeal that a finding of pretext mandates a finding of illegal
discrimination. Hicks, 113 S.Ct. at 2750 (citing, e.g., Duffy v.
Wheeling Pittsburgh Steel Corp., 738 F.2d 1393, 1395-1396 (3d
Cir. 1984)). On this point the Court was quite clear:

     [N]othing in law would permit us to substitute for the
     required finding that the employer's action was the product
     of unlawful discrimination, the much different (and much
     lesser) finding that the employer's explanation of its
     action was not believable.

113 S. Ct. at 2751.

    Hicks also rejects as inadvertent dictum the language in
Burdine that suggested that a plaintiff could satisfy his
ultimate burden of proving discrimination merely "by showing that
the employer's proffered explanation is unworthy of credence."
Burdine, 450 U.S. at 256). Many of our cases have relied on that
now-repudiated dictum in Burdine to suggest that a plaintiff
could prove intentional discrimination simply by disproving the
employer's facially nondiscriminatory explanation. See, e.g.,
Griffiths, 988 F.2d at 469; Billet v. CIGNA Corp., 940 F.2d 812,
816 (3d Cir. 1991); Turner v. Schering-Plough Corp., 901 F.2d
335, 342 (3d Cir. 1990); Fowle v. C & C Cola, 868 F.2d 59, 62 (3d
Cir. 1989); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 898
(3d Cir.) (in banc), cert. dismissed, 483 U.S. 1052 (1987).
After Hicks, that proposition no longer correctly states the law.
As the Hicks majority explained:

    The problem is, that that dictum contradicts or renders
    inexplicable numerous other statements, both in Burdine
    itself and in our later case-law -- commencing with the very
    citation of authority Burdine uses to support the
    proposition. McDonnell Douglas does not say, at the cited
    pages or elsewhere, that all the plaintiff need do is
    disprove the employer's asserted reason. In fact, it says
    just the opposite: "[O]n retrial respondent must be given a
    full and fair opportunity to demonstrate by competent
    evidence that the presumptively valid reasons for his
    rejection were in fact a coverup for a racially
    discriminatory decision." * * * The statement in question
    also contradicts Burdine's repeated assurance (indeed, its
    holding) regarding the burden of persuasion: "The ultimate
    burden of persuading the trier of fact that the defendant
    intentionally discriminated against the plaintiff remains at
    all times with the plaintiff."
"no authority to impose liability upon an employer for alleged

discriminatory employment practices unless an appropriate

factfinder determines, according to proper procedures, that the

employer has unlawfully discriminated."   Id.



                               IV.

     We, therefore, will reverse the September 23, 1993 final

amended judgment entered by the district court, and remand




    * * *   And lastly, the statement renders inexplicable
    Burdine's explicit reliance, in describing the shifting
    burdens of McDonnell Douglas, upon authorities setting forth
    the classic law of presumptions * * * In light of these
    inconsistencies, we think that the dictum at issue here must
    be regarded as an inadvertence, to the extent that it
    describes disproof of the defendant's reason as a totally
    independent, rather than an auxiliary, means of proving
    unlawful intent.

113 S. Ct. at 2752-53 (citations and footnote omitted).
for a new trial on Seman's ADEA claim against U.S. Cement,

consistent with the foregoing opinion.
