                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-23-1995

Miller v Cigna
Precedential or Non-Precedential: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

           Reargued in banc October 18, 1994
  BEFORE: SLOVITER, Chief Judge, BECKER, STAPLETON
   MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN,
NYGAARD, ALITO, ROTH, LEWIS and McKEE, Circuit Judges

         (Opinion Filed:    January 23, l995 )




                     Stephanie A. Middleton (Argued)
                     Gregory B. Tobin
                     CIGNA Corporation
                     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
                         Alice W. Ballard (Argued)
                         Lynn Malmgren
                         Samuel & Ballard
                         225 South 15th Street
                         Suite 1700
                         Philadelphia, PA 19102

                         Attorneys for Appellant

                         Robert J. Gregory
                         Room 7032
                         Equal Employment Opportunity
                         1801 L. Street N.W.
                         Washington, DC 20507

                         Attorney Amicus Appellant




                      OPINION OF THE COURT




STAPLETON, Circuit Judge:



          This appeal is before the court for rehearing in banc

to clarify the proper standard for a jury charge in a pretext

case alleging age discrimination.1

          Defendant Insurance Company of North America ("INA")

terminated plaintiff William J. Miller from his job after fifteen




1
 . The Equal Employment Opportunity Commission participated on
rehearing as amicus curiae.
years of employment.2   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.

            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

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.    Because Miller should not

have been required to prove that age was the sole cause of INA's

decision, we conclude that he is entitled to a new trial.




2
 . The parties have stipulated that INA, a subsidiary of CIGNA
Corporation, was the plaintiff's employer at all times relevant
to this appeal.
                                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 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, then Chief of Human

Resources, indicated that they would find Miller a permanent

position at the 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, Finance and Administration in 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 because his

position might be eliminated.    In March of 1989, Miller's new

superior, Nord Bjorke, informed Miller that his position was

eliminated and 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 the Corporate Real Estate

Department, 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 did

company officials apprise Miller of five vacancies at the company

for which he might have applied.

            The first vacancy was for the position of Vice

President, Filing and Regulation.    The company 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.   INA 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,

although Miller testified that when he expressed interest in the

position, Godorecci's superior told Miller he was "over

qualified."   App. at 150.

          The third vacancy was for the position of Senior Vice

President, Finance Systems and Administration, in the Claims

Department.   Qualifications desired for the position included:

broad knowledge and experience in the property and casualty

business; knowledge of financial measures and objectives;
demonstrated 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, was not familiar

with loss control and statistical monitors, and lacked

credibility among the actuaries.   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.     Although

it was a temporary assignment, when his work in this position was

completed Peters was retained by the company.

           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.

           The evidence at trial also focused on the nature of

INA's hiring and promotion decisionmaking process.     Human
resource personnel testified about the company's formal placement

process available for positions above pay grade fifty-four ("the

54+ placement process").   A department manager using the 54+

placement process would receive assistance from an assigned human

resource contact who would act as the manager's agent within the

company, helping to locate, sort through, and evaluate potential

candidates for the position.    Open positions above grade fifty-

four were not publicly posted and a candidate could only access

information about these openings through direct management

contact.    The 54+ placement process was not mandatory, however,

and many of the managers who testified at trial explained that

they had in fact filled their management vacancy through an

informal process by assessing their own needs, reflecting on the

qualifications of their staff members, and initiating contact

with potential candidates directly.    Richard Morrissey, director

of human resources for CIGNA's property and casualty companies,

also testified about the company's annual organizational review

process through which department managers assess the

qualifications, potential, and development needs of their staff

with an eye toward identifying and developing future high level

managers.

            During trial, the district judge asked counsel if

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

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 discrimination3 and cases that

qualify for a mixed motives, burden shifting instruction under

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).   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 asserted that plaintiff's

burden of proof 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.

                                * * *

                 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.


3
 . 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).
                               * * *

               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 [the

jury was] whether age was a determinative factor according to
[Hazen Paper Co. v. Biggins, 113 S. Ct. 1701 (1993)]."    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
          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 responding to this inquiry, the district judge

twice described the issues before the jury in terms of whether

the relevant decision of INA had been "based solely on Mr.

Miller's age."   App. at 691-92 (emphasis added).   After two days

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


                                 II.


          We conduct a plenary review when an appellant contends

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

the correct legal standard.4    Griffiths v. CIGNA Corp., 988 F.2d
457, 462 (3d Cir.) (citing Savarese v. Agriss, 883 F.2d 1194,

1202 (3d Cir. 1989)), cert. denied, 114 S. Ct. 186 (1993).     "[W]e

will reverse if the instructions were capable of confusing and

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

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

1991) (in banc)).5




4
 . The district court had jurisdiction over this matter pursuant
to 29 U.S.C. §§ 623(a), 626(c)(1) and 28 U.S.C. § 1331. We have
jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.
5
 . INA 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, and 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) (holding that the
purpose of Rule 51 is served when objections to the jury charge
give the trial judge an opportunity to correct the erroneous
charge), cert. denied, 114 S. Ct. 650 (1993).
                                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. § 2000e-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); Seman v. Coplay Cement Co., 26 F.3d

428, 432 n.7 (3d Cir. 1994).    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.

228 (1989).   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 (plurality

opinion); id. at 262-63 (O'Connor, J., concurring in the
judgment).     All members of the Court agreed, however, that

"because of" did not mean "solely because of."     See, e.g., id. at

241 (plurality opinion); id. at 284 (Kennedy, J., dissenting).

             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.



                  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 240-41 (emphasis added and altered

from original) (footnote omitted).

          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
          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 (additional 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 be any legal
               consequences." [100 Cong. Rec.
               7254 (1964).]

          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

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) (quoting Village

of Arlington Heights, 429 U.S. at 265).

           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 (quoting Mt.

Healthy, 429 U.S. at 285).    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. (quoting Mt. Healthy, 429 U.S.
at 287).   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 [the employer'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

reluctant to attribute to Congress an intention that an employer

should be liable if a hiring or discharge decision is based

solely on an employee's age and not liable if the decision is

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

the employee's supervisor did not like the employee's

personality, hair color, or some other personal trait or

conduct.6

            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.




6
 . We note that a majority of the Courts of Appeals have
rejected the "sole cause" or "sole factor" formulation in pretext
cases. See, e.g., Faulkner v. Super Valu Stores, Inc., 3 F.3d
1419, 1425 & n.3 (10th Cir. 1993); Sarsha v. Sears, Roebuck &
Co., 3 F.3d 1035, 1038 (7th Cir. 1993); Purcell v. Seguin State
Bank & Trust Co., 999 F.2d 950, 955 (5th Cir. 1993); Montana v.
First Fed. Savs. & Loan Assoc., 869 F.2d 100, 105 (2d Cir. 1989);
Cassino v. Reichhold Chems., Inc., 817 F.2d 1338, 1343-44 (9th
Cir. 1987), cert. denied, 484 U.S. 1047 (1988); Blackwell v. Sun
Elec. Corp., 696 F.2d 1176, 1181-82 (6th Cir. 1983); Loeb v.
Textron, Inc., 600 F.2d 1003, 1019 (1st Cir. 1979). But see
Foster v. University of Arkansas, 938 F.2d 111, 115-16 (8th Cir.
1991) (upholding a jury instruction that required plaintiff to
prove the protected characteristic was "the determining" and
"sole" factor and rejecting the formulation of "a determining
factor" as improperly eliminating the distinction between
"pretext" and "mixed motives" cases). We think it unclear what
effect, if any, the Supreme Court's decision in St. Mary's Honor
Center v. Hicks, 113 S. Ct. 2742 (1993), will have on the
standard enunciated by the Court of Appeals for the Eighth
Circuit.
                                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).7   They viewed those cases as "pretext" cases

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


7
.   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 an opportunity to prove by a
          preponderance of the evidence that the
          legitimate reasons offered by the defendant
          were not its true reasons, but were a pretext
          for discrimination.

Texas Dep't of Community Affairs v. Burdine, 450 U.S. at 252-53
(internal quotation and citation omitted).
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 244-45, 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 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. (internal

quotation omitted).    "[W]here a plaintiff has made this type of

strong showing of illicit motivation, the factfinder 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

semantic discussions on whether Mt. Healthy . . . creates an

affirmative defense."      Price Waterhouse, 490 U.S. at 259.   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.    Id. at 259-60.

            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 [an impermissible motive] played a

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

259 (internal quotation omitted).   Second, while the holding of

the Court fashioned a special rule reducing the plaintiff's

burden of persuasion in a defined 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.    In Hazen Paper Co., 113 S. Ct. 1701 (1993), 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.

          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 there is a "but-for" causal connection between the

plaintiff's age and the employer's adverse action -- i.e., that

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

process and had a determinative influence on the outcome" of that

process.   Hazen Paper, 113 S. Ct. at 1706.


                                V.

           We find further support for our holding in the Supreme

Court's decision in St. Mary's Honor Center v. Hicks, 113 S. Ct.

2742 (1993).   That decision makes clear that the trier of fact in

a pretext case is not limited to a choice between finding 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 v CIGNA
Corp., 988 F.2d 457 (3d Cir.), cert. denied, 114 S. Ct. 186

(1993),8 it was possible to view all pretext cases as presenting

8
 . INA insists that our decision in Griffiths mandated the "sole
cause" instructions given by the district court in this case.
INA's reading of Griffiths would be inconsistent with a long line
of decisions of this court, including our in banc decision in
Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir.)
(holding that an ADEA plaintiff "need not prove that age was the
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.

          St. Mary's instructs 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, 2749 (1993).

          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 the plaintiff on a number of
(..continued)
employer's sole or exclusive consideration, but must prove that
age made a difference in the decision"), cert. dismissed, 483
U.S. 1052 (1987); see also Bellissimo v. Westinghouse Elec.
Corp., 764 F.2d 175, 179 n.1 (3d Cir. 1985) (finding the
requirement of proving that the improper motive was "'the
determinative factor' [to be] inconsistent with the 'but-for'
causation test"), cert. denied, 475 U.S. 1035 (1986). To the
extent language in Griffiths can be read to suggest that the
charge in this case was appropriate, it is hereby overruled.
occasions had permitted his subordinates to break institutional

rules, and on one occasion had threatened his superior.   See

Hicks v. St. Mary's Honor Ctr., 756 F. Supp. 1244, 1246-48 (E.D.

Mo. 1991).    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 was

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

the district court concluded that "although [the] plaintiff ha[d]

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

proven that the crusade was racially rather than personally

motivated."    Id. at 1252.

          The court of appeals, viewing pretext cases as bipolar,

ruled that, once the 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.   St. Mary's Honor Ctr., 113 S.

Ct. at 2749-51.   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 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 discharge, 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 evidence may be such that the use of

"sole factor" or "sole cause" to describe the plaintiff's burden

would be harmless error.   We perceive no reason, however, why a

trial court would choose to use those phrases in any case.    Even

in those rare cases where the evidence appears to present the

jury with only a bipolar choice, such phrases misstate the law

and hold a potential for creating a misunderstanding in the minds

of the jury that may outlive their service in that particular

case.
          In most age discrimination cases that get to the jury,

the record will support an inference that both a legitimate and

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

and the charge must provide for the possibility that the jury

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 had a determinative influence

on the outcome of that process.9

9
 . We are here, of course, describing cases in which the
challenged action of the employer may be the product of two or
more motives. 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 explained more fully in Griffiths, 988 F.2d at 470, and Hook
v. Ernst & Young, 28 F.3d 366, 373-76 (3d Cir., May, 1994),
"mixed motives" cases 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 "direct"
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. The term of art "mixed motive" is
thus misleading because it describes only a small subset of all
employment discrimination cases in which the employer may have
had more than one motive. 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 as those categories are defined in that case.
Only in a "mixed motives" ADEA case is the plaintiff entitled to
an instruction that he or she need show only that the forbidden
motive played a role, i.e., was "a motivating factor." Even
then, the 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. See Griffiths v. CIGNA Corp., 988 F.2d at 472. In all
other ADEA disparate treatment cases, the jury should be
instructed that the plaintiff may meet his or her burden only by
showing that age played a role in the employer's decisionmaking
                               VI.

          In this case, the district court's repeated reference

to "sole cause" and "sole factor" was not harmless error.    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 his employer offered evidence to show that Miller was

not qualified or that he was less qualified than the candidate

ultimately selected.   Based on the evidence presented at trial, a

jury could well have concluded that both Miller's and the

employer's explanations were accurate--that Miller was qualified

for one or more of the open positions, that the employer's

promotion and hiring decisionmaking process contained a bias in

favor of younger employees, and that Miller's credentials did not

sufficiently distinguish him from the competing candidates to

overcome this bias.

          For example, with respect to the vacancy for general

manager with CIGNA Reinsurance Company, United Kingdom (the

"CIGNA UK position"), the manager responsible for filling that

position testified that he wrote the job description with Michael

Durkin, the successful candidate, in mind; that Durkin had most

of the qualities needed for that position; and that Durkin had

more experience than Miller in reinsurance and accounting work.

(..continued)
process and that it had a determinative effect on the outcome of
that process.
A jury who credited the employer's evidence could therefore

conclude that Durkin's promotion was a legitimate hiring

decision.    However, Miller testified that he had extensive

reinsurance experience as well as substantially more management

experience and skills than Durkin -- one of the qualifications

for the position.    Durkin had managed a staff of only twenty

employees, while Miller had managed much larger groups.    Miller

also testified that when he expressed interest in the CIGNA UK

position the president of that division told him he was

"overqualified."    Miller also offered evidence that Durkin had

obtained his reinsurance experience in part through his manager's

desire to cross-train and develop him for this type of managerial

promotion.    Miller additionally points out that many of the INA

managers responsible for the hiring decisions at issue, including

the manager who filled the CIGNA UK position, testified that they

eschewed the company's formal inter-departmental placement

process available for positions above grade fifty-four for an

informal and personal decisionmaking process.    This testimony

lends credence to Miller's theory that the promotion and hiring

decisions for upper level management positions were susceptible

to age-animus.   Accordingly, a jury crediting Miller's evidence

could infer that the decision not to consider or select him for

the CIGNA UK position was based on age.

            Because INA's and Miller's explanations were not

inherently contradictory, however, it would have been possible

for the jury to find that the company considered both Miller's

qualifications and his age, and that both factored into the
relevant hiring decisions.   Thus, the jury could have reasonably

concluded that Miller was less than ideally qualified for a

particular position and that this was a factor in INA's

decisionmaking process.   At the same time, it could reasonably

have concluded that INA's decisionmakers were biased in favor of

younger workers and a younger person with Miller's credentials

would have been assigned to the post.

          The ADEA's protection against age discrimination is not

limited to perfectly qualified employees.   As the court observed

in Shager v. Upjohn Co., 913 F.2d 398, 403 (7th Cir. 1990): "The

statute does not protect merely the older worker who is perfect

from the standpoint of his employer; such a worker needs no

protection except from irrational employers, and they are rare.

It protects, as a practical matter, the imperfect older worker

from being treated worse than the imperfect younger one."     Cf.

Mardell v. Harleysville Life Ins. Co., 31 F.3d 1221, 1233 (3d

Cir. 1994) ("[N]either Title VII nor ADEA strips a wrongdoing

employee of his or her entitlement to protection against unlawful

discrimination.").   Despite his imperfect credentials, 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.


                               VII.

          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 had a determinative

effect on the outcome of that process.10   Since the district

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

the 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.


                                 Miller v. CIGNA Corporation; The
Insurance Company of North America, No. 93-1773

GREENBERG, Circuit Judge, concurring in part and concurring in
the judgment.


          To put it succinctly, the question before us is the

effect of Hazen Paper Co. v. Biggins, ____ U.S. ____, 113 S.Ct.

1701 (1993), and St. Mary's Honor Center v. Hicks, ____ U.S.

____, 113 S.Ct. 2742 (1993), on our holding in Griffiths v. CIGNA

Corp., 988 F.2d 457 (3d Cir.), cert. denied, ____ U.S. ____, 114
S.Ct. 186 (1993), that there are two types of cases under the

10
 . 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 of 1991 followed
parallel courses. 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." The substantive provisions of the
1991 Act that amended Title VII did not amend the ADEA, and
Miller does not contend that section 107 is applicable to ADEA
cases.
ADEA -- mixed motives cases and pretext cases -- and that in the

latter, the plaintiff must show that age was the determinative

factor in the adverse employment decision.    The majority

correctly concludes that "in ADEA cases that do not qualify for a

burden shifting charge under Price Waterhouse . . . district

courts should instruct the jury that 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."   Typescript at 3.   I thus join in the Introduction

and Parts I, II, VI and VII of the majority Opinion.    I write

separately for three reasons:   First, I cannot accept portions of

the majority's analysis in Parts III, IV and V.    Second, the area

of employment discrimination law is cursed with elusive terms

like "mixed motives" and "pretext," and with numerous

presumptions, inferences and burden-shifting rules.    Those terms

and rules historically often have taken on lives of their own,

independent of their connection to the underlying theories of

liability that gave them birth.     Thus, a "mixed motives" case is

not about mixed motives, and a "pretext" case has little to do

with pretext.    I believe the time has come to clarify the current

status of theories of ADEA liability, and to dispense with

unhelpful monikers whenever possible.    Thus, unlike the in banc

majority, I would dispense altogether with the terms "pretext"

and "mixed motives" and hold explicitly that the same standard

applies to all disparate treatment cases.    Finally, I believe
that the entire debate over "but-for" causation makes something

out of nothing, and that district courts should feel free to

instruct juries in all ADEA cases that a plaintiff does not

succeed unless but-for causation is shown.



                               I.

          In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93

S.Ct. 1817 (1973), the Supreme Court first set forth the order of

proof in disparate treatment cases, and the Court elaborated upon

and explained the framework in Texas Dep't of Community Affairs

v. Burdine, 450 U.S. 248, 101 S.Ct. 1089 (1981).   In the later

case, the Court described the process as follows:
          First, the plaintiff has the burden of
          proving by the preponderance of the evidence
          a prima facie case of discrimination.
          Second, if the plaintiff succeeds in proving
          the prima facie case, the burden shifts to
          the defendant 'to articulate some legitimate,
          nondiscriminatory reason for the employee's
          rejection.' [McDonnell Douglas], at 802, 93
          S.Ct. at 1824. Third, should the defendant
          carry this burden, the plaintiff must then
          have an opportunity to prove by a
          preponderance of the evidence that the
          legitimate reasons offered by the defendant
          were not its true reasons, but were a pretext
          for discrimination. Id. at 804, 93 S.Ct., at
          1825.


Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093.    Burdine

repeatedly speaks about the employer's "true" reason for the

discharge, see id. at 256, 101 S.Ct. at 1095, and therefore, the

opinion was cast in either-or terms.   Post-Burdine cases
reaffirmed this proposition.   See, e.g., N.L.R.B. v.

Transportation Management Corp., 462 U.S. 393, 400 n.5, 103 S.Ct.

2469, 2473 n.5 (1983) (in Burdine, "[t]he Court discussed only

the situation in which the issue is whether either illegal or

legal motives, but not both, were the 'true' motives behind the

decision"); United States Postal Service Bd. of Governors v.

Aikens, 460 U.S. 711, 717, 718, 103 S.Ct. 1478, 1483 (1983) ("a

plaintiff prevail[s] when at the third stage of a Title VII trial

he demonstrates that the legitimate, nondiscriminatory reason

given by the employer is in fact not the true reason for the

employment decision") (Blackmun, J., concurring).   Thus, the pre-

Price Waterhouse jurisprudence "assumed . . . that a single

impulse moves the employer who discriminates," see Theodore Y.

Blumoff & Harold S. Lewis, Jr., The Reagan Court and Title VII:

A Common-Law Outlook on a Statutory Task, 69 N.C.L. Rev. 1, 47

(1990), and that all disparate treatment claims could be analyzed

under Burdine's either-or pretext framework.   This did not mean

that the Court foreclosed liability when more than one cause

motivated the adverse employment decision, but only that the

employment discrimination cases coming before the Court were

argued under the Burdine pretext framework.
          Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct.

1775 (1989), changed the employment discrimination liability

landscape, but not in the way the in banc majority suggests.     In

my view, the majority confuses Price Waterhouse's general holding
that plaintiffs may obtain relief despite their inability to fit

their proofs into Burdine's pretext framework, with the standard

for causation in cases that do proceed under Burdine.    The

majority correctly points out that "[a]ll members of the [Price

Waterhouse] Court agreed . . . that 'because of' did not mean

'solely because of.'"   Typescript at 12.   But the quotations from

the Price Waterhouse opinions demonstrate only that in that case,

all members of the Court agreed that plaintiffs were not without

a remedy if their proofs did not fit into the classic Burdine

mold.    Rather, all members of the Court agreed that when there is

no one true reason behind the discharge, the employer in certain

circumstances still could be liable.   The Price Waterhouse

dissent suggested interpreting Burdine so that it could cover all

claims of disparate treatment.   But a majority of the Court chose

to retain Burdine's framework for pretext cases, and to provide a

separate theory of liability, together with a separate order of

proof, to apply in cases involving both legitimate and

illegitimate reasons for the adverse employment action.

           Thus, Price Waterhouse does not support the conclusion

that in a pretext case, a plaintiff need not prove that age was

the determinative factor in the employment decision.     Quite the

contrary, a majority of the justices explicitly reaffirmed

Burdine's assumption that in a pretext case, as opposed to a

mixed motives case, the illicit reason must be the determinative

cause.   Crucial passages in the various opinions, that the in
banc majority does not cite, demonstrate that a majority of the

Price Waterhouse court viewed Burdine's "one or the other"

description of pretext liability as still viable in cases

proceeding under a pretext theory.   Writing for himself as well

as Justices Marshall, Blackmun and Stevens, Justice Brennan

distinguished Burdine as follows:
          Where a decision was the product of a mixture
          of legitimate and illegitimate motives . . .
          it simply makes no sense to ask whether the
          legitimate reason was 'the "true reason"'
          (Brief for Petitioner 20 (emphasis added))
          for the decision -- which is the question
          asked by Burdine. See Transportation
          Management, supra, at 400, n.5, 103 S.Ct., at
          2473, n.5. Oblivious to this last point, the
          dissent would insist that Burdine's framework
          perform work that it was never intended to
          perform. It would require a plaintiff who
          challenges an adverse employment decision in
          which both legitimate and illegitimate
          considerations played a part to pretend that
          the decision, in fact, stemmed from a single
          source -- for the premise of Burdine is that
          either a legitimate or an illegitimate set of
          considerations led to the challenged
          decision. To say that Burdine's evidentiary
          scheme will not help us decide a case
          admittedly involving both kinds of
          considerations is not to cast aspersions on
          the utility of that scheme in the
          circumstances for which it was designed.


Price Waterhouse, 490 U.S. at 247, 109 S.Ct. at 1788-89

(plurality opinion).   Moreover, in discussing the standards for

proving liability in a mixed motives case, the plurality pointed

out that "[i]f the plaintiff fails to satisfy the factfinder that

it is more likely than not that a forbidden characteristic played

a part in the employment decision, then she may prevail only if
she proves, following Burdine, that the employer's stated reason

for its decision is pretextual."    Id. at 247, 109 S.Ct. at 1789

n.12 (plurality opinion).   Justice White similarly drew this

distinction:
          The Court has made clear that 'mixed-motives'
          cases, such as the present one, are different
          from pretext cases such as McDonnell Douglas
          and Burdine. In pretext cases, 'the issue is
          whether either illegal or legal motives, but
          not both, were the "true" motives behind the
          decision.' NLRB v. Transportation Management
          Corp., 462 U.S. 393, 400 n.5, 103 S.Ct. 2469,
          2473 n.5 (1983). In mixed-motives cases,
          however, there is no one 'true' motive behind
          the decision.


Id. at 260, 109 S.Ct. at 1796 (White, J., concurring).

          In fact, the Price Waterhouse plurality's theory of

employment discrimination liability necessarily assumed that a

plaintiff proceeding under a mixed motives theory could not

succeed under a pretext theory.    This is because of the

following:   In a pretext case, the defendant responds to the

plaintiff's prima facie case by offering legitimate

nondiscriminatory reasons for the discharge.    The plaintiff then
must prove that those reasons are pretextual.    If a plaintiff

cannot prove that the proffered reasons for the discharge were

not in fact real reasons, then by definition the plaintiff has

failed to demonstrate pretext, and has failed the third prong of

the Burdine test.   Assume, however, that the district court is

convinced that even though the defendant's proof has gone

unrebutted, the plaintiff nonetheless has proven that age played
a role in the adverse employment decision.    That is a scenario in

which both legitimate and illegitimate factors played a role in

the decision.   Here, the Price Waterhouse scenario comes into

play, and even though the claim fails under Burdine, the

defendant would have the burden of disproving but-for causation.

           Thus, Price Waterhouse is important not because it said

anything about the standard for showing pretext liability but

because it constituted the first time the Supreme Court

explicitly decided that Burdine liability, while alive and well,

did not provide the only framework for imposing liability.    I

believe, then, that the in banc majority is wrong to suggest that

the Price Waterhouse majority used "mixed motives" as a "term of

art" that describes "only a small subset of all employment

discrimination in which the employer may have had more than one

motive."   Typescript at 26 n.9.   To be sure, there is language in

the various Price Waterhouse opinions addressing the evidence the

plaintiff must adduce to prove that the illicit criterion played

a role in the decision.   But, at least in Price Waterhouse, the

nature of the evidence that can be used "to satisfy the

factfinder that it is more likely than not that a forbidden

characteristic played a part in the employment decision," Price
Waterhouse, 490 U.S. at 247 n.12, 109 S.Ct. at 1789 n.12, is a

question separate and apart from how a plaintiff can proceed when

he or she is unable to prove pretext.   In fact, in the wake of

Price Waterhouse, a number of courts have addressed the nature of
the proofs required to shift the burden in an employment

discrimination case, and have arrived at differing results.     That

is hardly surprising, since Price Waterhouse does not address

that question.   Compare White v. Federal Express Corp., 939 F.2d

157, 160 (4th Cir. 1991) ("To show discrimination in a mixed

motive case . . . a plaintiff . . . may carry its burden under

ordinary principles of proof by any sufficiently probative direct

or indirect evidence") with Brown v. East Mississippi Elec. Power

Ass'n, 989 F.2d 858, 861 (5th Cir. 1993) ("[w]hen a plaintiff

presents credible direct evidence that discriminatory animus in

part motivated or was a substantial factor in the contested

employment action, the burden of proof shifts to the employer . .

. .") (emphasis added).   For our part, we have held that "[a]t a

bare minimum, a plaintiff seeking to advance a mixed motive case

will have to adduce circumstantial evidence 'of conduct or

statements by persons involved in the decision-making process

that may be viewed as directly reflecting the alleged

discriminatory attitude'."   Griffiths, 988 F.2d at 470 (quoting

Ostrowski v. Atlantic Mut. Ins. Cas., 968 F.2d 171, 182 (2d Cir.

1992)).

          In short, then, a majority of the justices in Price
Waterhouse held that Title VII provides two theories of

liability:   (1) pretext, or Burdine analysis, under which an

employee only wins by showing that the employer's proffered

reason for the adverse employment decision was pretextual and
that, in fact, the decision was based solely on illegitimate

factors; (2) mixed motives cases, in which the trier of fact

concludes that both licit and illicit motives played a role in

the employment decision, and where the burden shifts to the

employer to prove that it would have made the same decision

absent the illegitimate motive.   This means that the in banc

majority's conclusion that "we would be reluctant to attribute to

Congress an intention that an employer should be liable if a

hiring or discharge decision is based solely on an employee's age

and not liable if the decision is based primarily on the

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

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

or some other personal trait or conduct," Typescript at 16,

really states the obvious.   Other than perhaps the appellant in

Price Waterhouse, few contended or contend that a plaintiff would

always lose under the ADEA if age was not the determinative

factor.   The question is how to analyze claims alleging both

legitimate and illegitimate motives.



                                II.

           The in banc majority's description of Price Waterhouse
derives not from the opinions in the Price Waterhouse majority,

but from the Price Waterhouse dissent's characterization of the

Court's holding.11   Justice Kennedy's dissent in Price Waterhouse

11
 . It is evident that we decided Griffiths correctly, as
Griffiths was after Price Waterhouse but before Hazen. Of
sought to recast the Court's analytical grounding away from the

theory underlying the plaintiff's case and in terms of the type

of evidence the plaintiff had adduced to prove disparate

treatment.   Writing for himself, the Chief Justice and Justice

Scalia, Justice Kennedy began by describing his view of the

court's holding:
          I read the opinions as establishing that in a
          limited number of cases Title VII plaintiffs,
          by presenting direct and substantial evidence
          of discriminatory animus, may shift the
          burden of persuasion to the defendant to show
          that an adverse employment decision would
          have been supported by legitimate reasons.
          The shift in the burden of persuasion occurs
          only where a plaintiff proves by direct
          evidence that an unlawful motive was a
          substantial factor actually relied upon in
          making the decision. . . . In sum, the court
          alters the evidentiary framework of McDonnell
          Douglas and Burdine for a closely defined set
          of cases.


Price Waterhouse, 490 U.S. at 280, 109 S.Ct. at 1806 (Kennedy,
J., dissenting).   Thus, in the dissent's view, the court did not

draw a distinction between pretext cases and mixed motives cases

but rather between direct evidence cases and circumstantial

evidence cases.12 More than that, the dissent appeared to
(..continued)
course, Price Waterhouse constituted the first stage in a process
that ultimately saw the Supreme Court abandoning the notion that
there are different theories of disparate treatment liability.
12
 . The dissent disagreed with this distinction as well: "Our
opinions make plain that Burdine applies to all individual
disparate-treatment cases, whether the plaintiff offers direct
proof that discrimination motivated the employer's actions or
chooses the indirect method of showing that the employer's
proffered justification is false, that is to say, a pretext. See
Aikens, supra, at 714 n.3, 103 S.Ct. at 1481 n.3 ('As in any
criticize the plurality opinion for the latter's assumption that

pretext analysis requires proof of sole cause:
          The plurality tries to reconcile its approach
          with Burdine by announcing that it applies
          only to a 'pretext' case, which it defines as
          a case in which the plaintiff attempts to
          prove that the employer's proffered
          explanation is itself false. . . . This
          ignores the language of Burdine, which states
          that a plaintiff may succeed in meeting her
          ultimate burden of persuasion 'either
          directly by persuading the court that a
          discriminatory reason more likely motivated
          the employer or indirectly by showing that
          the employer's proffered explanation is
          unworthy of credence.' 450 U.S., at 256, 101
          S.Ct., at 1095 (emphasis added). Under the
          first of these two alternative methods, a
          plaintiff meets her burden if she can
          'persuade the court that the employment
          decision more likely than not was motivated
          by a discriminatory reason.' United States
          Postal Service Bd. of Governors v. Aikens,
          460 U.S. 711, 717-18 (1983) (Blackmun, J.,
          concurring).


Price Waterhouse, 490 U.S. at 287-88, 109 S.Ct. at 1810.   The

dissent's view is totally compatible with the in banc majority's

(and my) conclusion that in all but a limited number of cases,

the holding of Price Waterhouse is irrelevant.   See id. at 280,

109 S.Ct. at 1806 (Kennedy, J., dissenting) ("In sum, the Court

alters the evidentiary framework of McDonnell Douglas and Burdine

for a closely defined set of cases.").   Indeed, I believe it is



(..continued)
lawsuit, the plaintiff may prove his case by direct or
circumstantial evidence.')". Price Waterhouse, 490 U.S. at 288,
109 S.Ct. at 1810 (Kennedy, J., dissenting).
impossible to square the Price Waterhouse majority's framework

with the language of subsequent Supreme Court cases.

            The Price Waterhouse dissent explicitly criticized the

Court for unnecessarily complicating disparate treatment analysis

by dividing it into various theories.    See Price Waterhouse, 490

U.S. at 279, 109 S.Ct. at 1806 (Kennedy, J., dissenting)

("Continued adherence to the evidentiary scheme established in

[McDonnell Douglas and Burdine] is a wiser course than creation

of more disarray in an area of the law already difficult for the

bench and bar.").   Just four years later, that view became the

majority.   In Hazen Paper Co. v. Biggins, ____ U.S. ____, 113

S.Ct. 1701 (1993), the Court clarified the standards for proving

disparate treatment under the ADEA.   In no uncertain terms, the

Court held that:
          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 ____, 113 S.Ct. at 1706.   One thing is clear from this
language:   In no disparate treatment case must a plaintiff prove

that the illicit motive was the determinative factor.   It

necessarily follows that the Court's distinction in Price

Waterhouse between pretext cases and mixed motives cases no

longer proves a viable rationale for the Price Waterhouse's

burden-shifting approach.   This is because in light of Hazen, a

plaintiff need not prove that age was the determinative factor to
prove liability in a pretext case -- rather, under the language

of Hazen, a plaintiff could succeed under Burdine without proving

that the employer's reasons are wholly pretextual.   And, if the

reasons are not wholly pretextual, some of them must be true.

Further still, if some of the employer's reasons are true,

pretext cases sometimes involve mixed motives.   Thus, after

Hazen, the burden-shifting approach of Price Waterhouse -- if it

survives at all -- must rest not on the distinction between cases

involving mixed motives and cases involving pretexts for

discrimination, but rather on the distinction between

circumstantial evidence cases and direct evidence cases -- the

distinction drawn by Justice Kennedy in his Price Waterhouse

dissent.   Thus, in my view, this court should not continue to

refer to the term "mixed motives" and then define it as meaning

something other than mixed motives.   See Typescript at 26 n.9.

Instead, we simply should abandon the term altogether.

           Along with abandoning the notion of an independent

category of "mixed motives" cases, Hazen is important for another

reason as well -- it signalled discomfort with the Burdine scheme

of apportioning burdens and presumptions, and consequently, with

the entire notion of "pretext" liability.   In this regard, the

Court foreshadowed its decision in St. Mary's by pointing out
that "inferring age-motivation from the implausibility of the

employer's explanation may be problematic in cases where other

unsavory motives, such as pension interference, were present."
Id. at ____, 113 S.Ct. at 1708.   Hence, the Court expressed

wariness about the "one or the other" approach of the pretext

cases.   The Court supported this critique by pointing to language

in pretext cases tending to show that liability could be imposed

under the ADEA even when age was not a motivating factor:
          Although some language in our prior decisions
          might be read to mean that an employer
          violates the ADEA whenever its reason for
          firing an employee is improper in any
          respect, see McDonnell Douglas Corp. v.
          Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824
          (1973) (creating proof framework applicable
          to ADEA) (employer must have 'legitimate,
          nondiscriminatory reason' for action against
          employee), this reading is obviously
          incorrect. For example, it cannot be true
          that an employer who fires an older black
          worker because the worker is black thereby
          violates the ADEA. The employee's race is an
          improper reason, but it is improper under
          Title VII, not the ADEA.


Hazen, ____ U.S. at ____, 113 S.Ct. at 1707.   Thus, with the

criticism of Burdine generally, and with the Court's holding that

in all disparate treatment cases the plaintiff need only prove

that the illicit factor had a determinative effect on the
outcome, the Court strongly signalled the end of pretext

liability as a distinct theory of disparate treatment liability.

          St. Mary's made the point even more explicit, and

abandoned the notion of pretext liability altogether.   In that

case, the Supreme Court rejected the view that when a plaintiff

proves an employer's proffered reasons for the adverse employment

action is pretextual, the plaintiff automatically wins.    Rather,
in a disparate treatment case, the plaintiff must prove

intentional discrimination, and the concept of affirmative proof

is analytically distinct from proving other explanations wrong.

St. Mary's qualified this by saying that "[t]he factfinder's

disbelief of the reasons put forward by the defendant

(particularly if disbelief is accompanied by a suspicion of

mendacity) may, together with the elements of the prima facie

case, suffice to show intentional discrimination."   Id. at ____,

113 S.Ct. at 2749.   And, as the in banc majority recognizes, "[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."   Typescript at 23.   But by focusing

on what St. Mary's says about "sole cause," the majority misses

the real significance of St. Mary's, and may perpetuate

misreadings of the case both in our own case law and in the

commentary.

          If we interpret St. Mary's purely within the pretext

paradigm, as the in banc majority appears to do,13 the case can

be read to say that in all disparate treatment cases proceeding

within the Burdine framework, the plaintiff must, at a minimum,
prove pretext.   After all, that is how Burdine described the

13
 . See typescript at 24 ("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.") (emphasis added).
three-pronged test.   And, we recently held in Armbruster v.

Unisys Corp., 32 F.3d 768, 782 (3d Cir. 1994), that in a post-St.

Mary's pretext case "a plaintiff who claims invidious

discrimination but lacks overt evidence of discriminatory animus

must point to evidence tending to show the defendant's

explanation is pretextual."   (Emphasis added).   If that is true,

however, we very nearly are back at sole cause again.     This is

because the plaintiff is being forced not only to make an

affirmative showing but also affirmatively to disprove facts.

See Armbruster, 32 F.3d at 783 ("After St. Mary's, it seems clear

. . . that the trier of fact cannot find for the plaintiff merely

because it disbelieves the defendant's proffered explanation; it

must also be persuaded that the employment decision was the

result of the bias that can be inferred from the falsity of the

defendant's explanation.") (emphasis added); id. ("an ultimate

finding of illegal discrimination in a pretext case requires

evidence showing a prima facie case and evidence showing

pretext") (second alteration added); see also Michael A.

Zubrensky, Despite the Smoke, There Is No Gun:    Direct Evidence
Requirements in Mixed-Motives Employment Law After Price

Waterhouse v. Hopkins, 46 Stan. L. Rev. 959, 964 (1994)

("plaintiffs [must] disprove unstated reasons for the employment

decision").   But, as Hazen makes clear, in no disparate treatment

case must a plaintiff prove that the illicit factor was the sole

or determinative cause of the adverse employment action.
Therefore, to read St. Mary's as requiring a plaintiff to prove

pretext is to misread the case.

              The point of St. Mary's was not to place a dual

burden on plaintiffs, but rather to treat disparate treatment

discrimination cases -- after the plaintiff has established a

prima facie case and after the defendant has met its burden of

production -- just like any other case where the plaintiff bears

the burden of proof. See also Gehring v. Case Corp., No. 94-1371,

1994 WL 715285 at *1 (7th Cir. Dec. 18, 1994) ("Once the judge

finds that the plaintiff has made the minimum necessary

demonstration (the 'prima facie case') and that the defendant has

produced an age neutral explanation . . . the only remaining

question . . . the jury need answer is whether the plaintiff is a

victim of intentional discrimination.")      After the plaintiff and

the defendant have met their initial burdens, the entire Burdine

procedure no longer is of any relevance (apart from the fact that

the procedure provided a mechanism to get evidence before the

court).     Id.   To be sure, the plaintiff may attempt to prove

intentional discrimination solely by focusing on the falsity of

the defendant's explanations, see St. Mary's,         U.S. at ____

n.4, 113 S.Ct. at 2749 n.4, but that only means that if a jury

disbelieves the defendant's argument, it may believe the

opposite.    Nothing in that proposition is peculiar to age

discrimination claims.      In other words, the plaintiff certainly

is not required to rebut the defendant's proffered reasons
completely, if he or she nonetheless is able to establish that

the illicit motive was a but-for cause of the adverse employment

decision.   See St. Mary's, ____ U.S. at ____, 113 S.Ct. at 2749

n.4 ("there must be a finding of discrimination");    id. at ____,

113 S.Ct. at 2751 (employee must prove "that the employer has

unlawfully discriminated"); id. at ____, 113 S.Ct. at 2752

("proving the employer's reason false becomes part of (and often

considerably assists) the greater enterprise of proving that the

real reason was intentional discrimination"); id. at ____, 113

S.Ct. at 2753-54 ("[O]nce the defendant has responded to the

plaintiff's prima facie case, 'the district court has before it

all the evidence it needs to decide' not (as the dissent would

have it) whether the defendant's response is credible, but

'whether the defendant intentionally discriminated against the

plaintiff.'") (citation omitted).

            The problem probably arose with St. Mary's assumption

that proving pretext is easier than affirmatively proving

intentional discrimination.    St. Mary's assumed that when the

factfinder is focussed purely on whether the defendant's

proffered reasons are true, the plaintiff is somehow getting off

the hook.    In some cases that may be true.   But that assumption

certainly is incorrect as a general proposition.    Rather, it may

be much more difficult to disprove an employer's explanation than

to point to evidence tending to show that even if the employer's
explanation is partly correct, the illicit motive also caused the

action.

            But putting that incorrect assumption aside, the real

point of St. Mary's was to focus the factfinder in all disparate

treatment cases away from the question of pretext and instead on

the question of whether intentional discrimination took place.

St. Mary's is important because it tells district courts to

dispense with abstract pretext analysis altogether except insofar

as it sheds light on whether intentional discrimination took

place.    As in all cases, there must be evidence in the record to

support a finding in favor of the plaintiff on the ultimate

question.    As Hazen makes clear, when the plaintiff is not

required to prove sole cause, it should not matter at all that a

legitimate reason played a role in the process.    Thus, once the

defendant has met its proffer, the jury should be instructed that

it should consider evidence of the prima facie case, evidence of

legitimate explanations, evidence bearing on the credibility of

those explanations, and all other relevant evidence in the case

to determine whether the employer discriminated against the

plaintiff.

            By abandoning sole cause as the basis for pretext

liability, Hazen makes clear that there is no separate category
of mixed motives cases.   By turning the focus in "pretext" cases

away from evidence of pretext, St. Mary's makes clear that there

is no separate category of pretext cases.    What we are left with
is one broad category of disparate treatment cases that, except

for the limited category of Price Waterhouse cases, should be

treated alike.14



                               III.

          This brings me to the question of causation.     The

majority goes to great lengths to show that plaintiffs must prove

but-for causation in order to prevail, but the ultimate test it

announces neglects all mention of but-for causation. See

Typescript at 25-26, Typescript at 29.   Contrary to the

majority's intimations, all the justices in Price Waterhouse

itself agreed on this point.   I believe that the majority is

incorrect when it states that in Price Waterhouse, "Justices

Brennan, Marshall, Blackmun, and Stevens read the statute as

imposing liability in any situation where the unlawful motive was

a 'motivating' factor."   Typescript at 18.   While the Price

Waterhouse plurality pointed out that "Hopkins argues that once

she made this showing [that the unlawful motive was a motivating

factor] she was entitled to a finding that Price Waterhouse had

discriminated against her on the basis of sex," it quickly
14
 . In light of Hazen and St. Mary's, I agree with the
majority's conclusion that Price Waterhouse cases 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 'direct' 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." Typescript at 26 n.9.
rejected that argument.   Price Waterhouse, 490 U.S. at 244 n.10,

109 S.Ct. at 1787 n.10.   Justice Brennan really was concerned

with burdens and presumptions; his point was that if the

defendant could not prove its affirmative defense, the trier of

fact could presume that but-for causation had been proven.     See

id. at 246 n.11, 109 S.Ct. at 1788 n.11 ("[W]here an employer is

unable to prove its claim that it would have made the same

decision in the absence of discrimination, we are entitled to

conclude that gender did make a difference to the outcome.")

(plurality opinion); see also id. at 249, 109 S.Ct. at 1790 ("A

court that finds for a plaintiff under this standard has

effectively concluded that an illegitimate motive was a 'but-for'

cause of the employment decision.") (plurality opinion); id. at

281, 109 S.Ct. at 1807 ("The theory of Title VII liability the

plurality adopts . . . essentially incorporates the but-for

standard.") (Kennedy, J., dissenting).   In other words, all the

justices always have agreed that a plaintiff cannot win in an age

discrimination suit if but-for causation is not proved; the

disagreement in Price Waterhouse involves the much different

question of who bears the burden of proof and what can be

inferred when those burdens are not met.   Id. at 281, 109 S.Ct.
at 1807 ("The importance of today's decision is not the standard

of causation it employs, but its shift to the defendant of the

burden of proof.") (Kennedy, J., dissenting).
          The in banc majority's belief that "but-for" causation

is surrounded in controversy has induced it to shy away from the

concept in articulating a jury charge -- even though the majority

opinion at one point explicitly recognizes that the Hazen test

translates into but-for causation, see Typescript at 21 ("A

plaintiff in an ADEA case . . . has the burden of persuading the

trier of fact . . . that there is a 'but-for' causal connection

between the plaintiff's age and the employer's adverse action . .

. ."   I believe this unnecessarily complicates matters. Cf.

Gehring, 1994 WL 715285 at * 2 ("'determining factor' is not a

term in common usage, and it therefore does not illuminate the

essential concepts.   Putting unusual terms in jury instructions

does little beyond confusing the jurors").   Thus, while it is

true that in all non-Price Waterhouse cases, the test is whether

the "plaintiff [has proven] by a preponderance of the evidence

that age played a role in the employer's decisionmaking process

and that it had a determinative effect on the outcome of that

process," Typescript at 29, the jury also may be instructed that

this technically worded test translates into but-for causation.

Gehring, 1994 WL 715285 at * 3 ("one attractive formulation" is
that the jury should be instructed to decide "whether the

employer would have fired [demoted, laid off] the employee if the

employee had been younger than 40 and everything else had

remained the same") (alteration in original).   In Price

Waterhouse cases, as defined in note 10 of the in banc majority's
opinion, the jury should be instructed that if the defendant

fails to meet its burden of showing that it would have made the

same decision in the absence of the illicit motive, it must

conclude that the plaintiff has proven but-for causation.
