Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-14-1996

Sheridan v. EI DuPont de Nemours
Precedential or Non-Precedential:

Docket 94-7509




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Recommended Citation
"Sheridan v. EI DuPont de Nemours" (1996). 1996 Decisions. Paper 26.
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       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                             No. 94-7509



                          BARBARA R. SHERIDAN,
                                            Appellant
                                   v.

                E.I. DUPONT DE NEMOURS AND COMPANY,
                          JACQUES AMBLARD



         On Appeal from the United States District Court
                   for the District of Delaware
                  (D. C. Civil No. 93-cv-00046)



                          Argued May 4, 1995

      Before:   SLOVITER, Chief Judge, ALITO, Circuit Judge,
                   and SCHWARZER, District Judge*


                   Reargued en banc May 14, 1996

    Before:    SLOVITER, Chief Judge, BECKER, MANSMANN, GREENBERG,
              SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, MCKEE,
              and SAROKIN*, Circuit Judges

                 (Opinion Filed November 14, 1996)



Thomas S. Neuberger (Argued)
Wilmington, DE 19801-1646

Martin D. Haverly
Wilmington, DE    19801

   Attorneys for Appellant
________________________

*  Hon. William W Schwarzer, Senior United States District Judge,
   United States District Court for the Northern District of
   California, sitting by designation.
** Hon. H. Lee Sarokin heard argument but retired from office
   prior to the issuance of the opinion.
Raymond M. Ripple (Argued)
Donna L. Goodman
E. I. DuPont de Nemours & Co.
  Legal Department
Wilmington, DE 19880-0036

   Attorneys for Appellees

Nancy Erika Smith
Neil Mullin
Lisa Manshel
Smith Mullin, P.C.
West Orange, NJ 07052

David Rocah
American Civil Liberties Union of N.J.
Newark, NJ 07102

   Attorneys for Amicus Curiae
   American Civil Liberties Union of N.J. in Support of Appellant

Elaine R. Jones
Theodore M. Shaw
Charles Stephen Ralston
NAACP Legal Defense and Educational Fund, Inc.
New York, NY 10013

   Attorneys for Amicus Curiae NAACP Legal Defense
   and Educational Fund in Support of Appellant

C. Gregory Stewart
Gwendolyn Young Reams
Carolyn L. Wheeler
Robert J. Gregory
Equal Employment Opportunity Commission
Washington, DC 20507

   Attorneys for Amicus Curiae Equal Employment
   Opportunity Commission in Support of Appellant

Alice Ballard
Samuel & Ballard
Philadelphia, PA   19102

Scott A. Burr
Alan B. Epstein
Jablon, Epstein, Wolf & Drucker
Philadelphia, PA 19102

   Attorneys for Amicus Curiae National Employment
   Lawyers' Association in Support of Appellant

Kathryn H. Levering
Drinker Biddle & Reath
Philadelphia, PA 19107-3496

   Attorney for Amicus Curiae
   Lockheed Martin Corp. in Support of Appellees
                       OPINION OF THE COURT


SLOVITER, Chief Judge.


         This appeal offers the en banc court the opportunity to
attempt to clarify the quantum and nature of evidence that will
permit a jury to find that an employer engaged in impermissible
employment discrimination. Although we believe that several of
our opinions in recent years accurately and adequately set forth
the applicable legal principles, the decision of the district
court and that of a panel of this court, now withdrawn, require
us to return to the central issue presented here.
                                I.
         Barbara Sheridan, a former employee of E.I. DuPont de
Nemours & Co. (DuPont), filed this action under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-1 et seq., charging
DuPont and her former supervisor, Jacques Amblard, with several
claims of sex discrimination and retaliation. Sheridan, who had
been an employee of the Hotel du Pont since 1979 and was at the
time her employment ceased one of the Head Captains of the
hotel's Green Room, asserted that DuPont discriminated against
her on the basis of her sex when it failed to promote her to
Manager of Restaurants in 1991 (Count I), retaliated against her
for complaining about sex discrimination by putting her on
probation and taking various disciplinary actions against her
(Count II), and created intolerable working conditions,
culminating in her removal from a supervisory position, which
resulted in her constructive discharge (Count III).
          After discovery, the defendants moved for summary
judgment which the district court denied. The court held that
Sheridan had presented a prima facie case of discrimination and
sufficient evidence to permit a factfinder to believe that
DuPont's reasons for not promoting her, i.e., that she was not
qualified for the position of Manager of Restaurants and that she
had not applied for the position, were pretexts for
discrimination. App. at 57. The court further held that
Sheridan had presented adequate evidence to survive summary
judgment on her retaliation claim and to enable a factfinder to
reasonably believe that her supervisors had intentionally
fabricated evidence of poor job performance in order to remove
her from her position as Head Captain and offer her less
desirable, dead-end jobs. App. at 68. The court concluded that
"[i]f plaintiff's version of the facts were accepted by a trier
of fact, it would be reasonable for the trier of fact to conclude
that resignation was plaintiff's only option." 

case proceeded to trial. The conduct
that was the subject of Sheridan's claims straddled the period
before and after November 21, 1991, the date of the enactment of
the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071
(1991), which granted a right to a jury trial on Title VII
intentional discrimination claims for which compensatory or
punitive damages are sought, 

105 Stat. at 1073
(codified at 42 U.S.C. § 1981a(c)). The district court ruled
that the jury would serve as the finder of fact for Sheridan's
claims that were based on conduct that occurred after that date,
but that the jury would serve only in an advisory capacity for
claims based on events that occurred before that date. This
meant that the jury's verdicts on Count I (failure to promote)
and the alleged retaliatory acts in Count II that occurred before
November 21, 1991 were to be advisory, while the jury was to be
the finder of fact for the remaining alleged acts of retaliation
and with respect to Count III, Sheridan's claim of constructive
discharge.
         The trial occupied six days. During the trial, the
district court dismissed the claims against Amblard on the ground
that an employee cannot be sued under Title VII.
         After deliberating, the jury returned special
interrogatories. With respect to the promotion claim, the jury
found that Sheridan was not qualified for the job of Manager of
Restaurants and therefore found against her on her claim of
discriminatory failure to promote. With respect to retaliation,
the jury found that DuPont had not retaliated against Sheridan
for complaining of sex discrimination. In contrast, the jury did
find in Sheridan's favor on her claim of constructive discharge.
It awarded her $17,500 in compensatory damages, over and above
lost wages, but found that DuPont's actions were not taken "with
malice or reckless indifference" to her rights, App. at 33, thus
precluding Sheridan from receiving punitive damages. See 42
U.S.C. § 1981a (b) (1). Finally, the jury found that Sheridan
had failed to mitigate her damages by $33,000, that amount to be
deducted from the total amount of lost wages owed. Because the
court calculated Sheridan's lost wages to be $51,072, it awarded
her $18,072, in addition to six months of front pay totalling
$12,768. The district court adopted as its own the jury's
findings with respect to the conduct alleged in Counts I and II
that took place before November 21, 1991.
         Both parties moved for judgment as a matter of law or
in the alternative for a new trial. The district court granted
judgment in DuPont's favor. The court recognized that DuPont had
proffered as one of the principal reasons for the disciplinary
actions it had taken against Sheridan her alleged unauthorized
"comping," i.e., giving away complimentary food and drinks in
violation of the hotel's policy that they should be registered,
and Sheridan offered evidence to the contrary, indeed, evidence
that she was elsewhere on some of the days that DuPont claimed
she was engaged in "comping" at the hotel.
         In overturning the jury's verdict on the constructive
discharge claim in favor of Sheridan, the court stated that even
if the jury could have reasonably rejected the legitimacy of
DuPont's investigation of Sheridan's alleged "comping," and thus
its reasons for discharging her, "the Court is still left
searching the record for evidence that gender played a
determinative role in defendant's conduct. . . . The Court . . .
has failed to locate sufficient evidence from which the jury
could infer such a finding." Sheridan v. E.I. DuPont de Nemours
and Co., No. 93-46 (D. Del. July 14, 1994) at 9. The court
ruled that the evidence Sheridan presented which arguably related
to her gender, such as the facts that no woman had ever held the
position of Manager of Restaurants, that a man replaced Sheridan
as Head Captain of the Green Room morning shift, that Amblard had
told Sheridan he would watch her like a "hawk" and a "dog," and
Amblard's actions in ignoring her and speaking instead to one of
her male supervisors if one was present, was even in totality
insufficient to support a reasonable inference that gender was a
motivating factor in DuPont's actions. 

         The court stated that "[i]n order to demonstrate that
gender was a motivating factor, plaintiff would have to point to
some evidence that was the motive of those in the decision making
process. No such evidence exists in the record." 

The district court accordingly granted DuPont's motion
for judgment as a matter of law, and ruled conditionally,
pursuant to Fed. R. Civ. P. 50(c), that if the judgment were
reversed on appeal, DuPont would be entitled to a new trial
"because the jury's verdict is contrary to the weight of the
evidence." 

n.11. Sheridan appealed.
         A panel of this court heard argument on May 4, 1995 and
issued an opinion that reversed the district court's order
granting judgment as a matter of law for DuPont on Sheridan's
constructive discharge claim but was divided as to the
alternative grant of a new trial, with two judges voting to
affirm the grant of a new trial and the third voting to remand
the issue whether a new trial was warranted for reconsideration
by the district court, using the correct legal principles. SeeSheridan v.
DuPont, No. 94-7509 (Jan. 31, 1996), vacated, 

(3d Cir. 1996). The majority and dissenting opinions
differed in particular in their interpretation of the effect of
the Supreme Court's opinion in St. Mary's Honor Center v. Hicks,

(1993), on the inferences that the finder of fact
may draw from its disbelief of the employer's proffered
justification for the disciplinary employment action taken
against Sheridan and the amount and type of evidence needed to
sustain a jury verdict.
         Both DuPont and Sheridan petitioned for rehearing and
the court voted to hear the appeal en banc. As required by our
Internal Operating Procedures, the opinion of the panel issued
January 31, 1996 was withdrawn and the court held the en banc
argument on May 14, 1996.
                             II.
                           DISCUSSION
                               A.
                          Legal Issues
         The parties disagree both as to the applicable law and
the weight of the evidence. DuPont argues that the district
court's decision in its favor should have been affirmed in all
respects. It apparently recognizes that the district court's
finding that Sheridan had not carried her burden of proving that
DuPont's decisions were based on gender discrimination was not
consistent with this court's prior decisions. Thus, DuPont
challenges and requests that we reconsider our prior decisions
with respect to the "recurring problem of the shifting burdens"
in employment discrimination cases, arguing that our decisions do
not fully incorporate the teaching of the Supreme Court in Hicks.
It singles out in particular the "underlying decision of the
Court in [Fuentes v. Perskie, 

(3d Cir. 1994)]."
DuPont's Petition for Rehearing at 5.
          Sheridan for her part argues that we have correctly
interpreted Hicks in our post-Hicks decisions with respect to the
evidence that would permit a plaintiff claiming employment
discrimination to prevail, and cites, inter alia, Fuentes, 

; Sempier v. Johnson & Higgins, 

(3d Cir.),
cert. denied, 

(1995); Waldron v. SL Industries, 

(3d Cir. 1995); and Brewer v. Quaker State Oil Refining
Corporation, 

(3d Cir. 1995).
         We thus turn, this time en banc, to reexamine what
DuPont calls "this continuing and perplexing problem of
interpreting the shifting burden of Hicks."
         By the time Hicks reached the Supreme Court, the
required components of a plaintiff's prima facie case of
employment discrimination had been established in McDonnell
Douglas Corporation v. Green, 

, 802 (1973), and Texas
Department of Community Affairs v. Burdine, 

, 253 &
n.6 (1981), as had been the requirement that the employer was
obliged to proffer a nondiscriminatory reason for its adverse
employment action, see McDonnell 

;

. Also established was the requirement
that the burden of persuasion remained at all times with the
plaintiff. See United States Postal Serv. Bd. of Governors v.
Aikens, 

, 716 (1983); 

.
Still open, however, and the subject of considerable dispute, was
the effect of the decision by the trier of fact that the reasons
given by the employer were not the real reasons for the adverse
employment action. As the Court noted in Hicks, there were cases
in the courts of appeals that held that a finding of pretext does
not mandate a finding of illegal discrimination, see, e.g., EEOC
v. Flasher Co., 

, 1321 (10th Cir. 1992); Galbraith
v. Northern Telecom, Inc., 

, 283 (6th Cir. 1991),
cert. denied, 

(1992), and others that held that a
finding of illegal discrimination was mandated on a finding of
pretext, see, e.g., Hicks v. St. Mary's Honor Center, 

, 492-93 (8th Cir. 1992), reversed, 

(1993); King
v. Palmer, 

, 879 (D.C.Cir. 1985); Duffy v. Wheeling
Pittsburgh Steel Corp., 

, 1395-96 (3d Cir.), cert.
denied, 

(1984).
         In Hicks, a case in which the plaintiff had brought a
Title VII action alleging that he was demoted and discharged
because of his race, the court of appeals had concluded that
"[o]nce plaintiff proved all of [the employer's] proffered
reasons for the adverse employment actions to be pretextual,
plaintiff was entitled to judgment as a matter of 

. It was this holding that was reversed by the Supreme
Court, which held that judgment for the plaintiff is not
compelled by the disbelief of the employer's 

. On the other hand, the Court also explicitly stated that
a finding that the reasons proffered are pretextual permits the
factfinder to draw the inference that the defendant intentionally
discriminated against the plaintiff. 

the "ultimate question" of whether the
employer unlawfully discriminated, the Court stated in the
following oft-quoted passage 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." 

explained that
"rejection of the defendant's proffered reasons, will permit the
trier of fact to infer the ultimate fact of intentional
discrimination," and continued: "the Court of Appeals was
correct when it noted that, upon such rejection, '[n]o additional
proof of discrimination is required.'" 

original) (quoting 

).
         Reading these statements in the context of the Court's
opinion, we have understood Hicks to hold that the elements of
the prima facie case and disbelief of the defendant's proffered
reasons are the threshold findings, beyond which the jury is
permitted, but not required, to draw an inference leading it to
conclude that there was intentional discrimination. Accordingly,
in Fuentes we explained that "the factfinder may infer from the
combination of the plaintiff's prima facie case and its own
rejection of the employer's proffered non-discriminatory reasons
that the employer unlawfully discriminated against the plaintiff
and was merely trying to conceal its illegal act with the
articulated 

. It followed that a
plaintiff may survive summary judgment (or in this case judgment
as a matter of law) if the plaintiff produced sufficient evidence
to raise a genuine issue of fact as to whether the employer's
proffered reasons were not its true reasons for the challenged
employment action. 

summary judgment when the
defendant answers the plaintiff's prima facie case with
legitimate, non-discriminatory reasons for its action, the
plaintiff must point to some evidence, direct or circumstantial,
from which a factfinder could reasonably either (1) disbelieve
the employer's articulated legitimate reasons; or (2) believe
that an invidious discriminatory reason was more likely than not
a motivating or determinative cause of the employer's action.").
         Although we ultimately decided in Fuentes that the
plaintiff had failed to submit evidence which cast sufficient
doubt on his employer's proffered reasons for failure to place
him in the position that he sought, application of the same
approach in some later cases led us to hold that the plaintiff
had satisfied his or her burden and raised an issue to be decided
by the trier of fact. Thus, in Sempier we reversed the district
court's grant of summary judgment for the employer in an Age
Discrimination in Employment Act (ADEA) action because Sempier,
an executive at an insurance brokerage and consulting firm, had
presented sufficient evidence to create a genuine issue of fact
as to whether the company's claim that he was forced to retire
for poor performance was a pretext for age 

.
         Shortly thereafter, in Waldron, another ADEA case, we
again held that summary judgment for the employer was improper
because the evidence raised a factual question as to whether the
employer's proffered explanations -- that it had discharged the
63-year-old plaintiff due to a company reorganization plan and
dissatisfaction with his work performance -- was an attempt to
conceal age discrimination. 

. We
viewed the district court's holding as requiring plaintiffs to
bear the burden of demonstrating "pretext-plus," a burden we had
explicitly rejected in Fuentes. 

         In Brewer, we again cited Fuentes for the proposition
that a plaintiff will survive summary judgment if s/he can
produce sufficient evidence that the employer's proffered
nondiscriminatory reason for its employment action was not the
true 

. Finding the evidence in Brewer's
case sufficient to permit a jury to believe that the employer's
claim of poor performance by the 53-year-old salesman was
pretextual, we reversed the district court's entry of summary
judgment on Brewer's ADEA claim. 

of other federal courts of appeals appear
to have interpreted Hicks in a similar manner to this court's
precedent. See, e.g., Shaw v. HCA Health Servs. of Midwest,
Inc., 

, 100 (8th Cir. 1996) (where defendant did not
dispute that plaintiff made out a prima facie case and there was
evidence that defendant had altered performance evaluations of
plaintiff after firing him, "jury was entitled (although not
required) to conclude . . . that the reasons given by the
hospital for firing [plaintiff] were a pretext for age
discrimination"); Barbour v. Merrill, 

, 1277 (D.C.
Cir. 1995) ("As Hicks explained, a factfinder's rejection of the
employer's nondiscriminatory reasons, while not sufficient to
compel a finding of discrimination, nonetheless suffices to
permit such a finding."), cert. dismissed, 

(1996); EEOC v. Ethan Allen, Inc., 

, 120 (2d Cir.
1994) ("A finding of pretextuality allows a juror to reject a
defendant's proffered reasons for a challenged employment action
and thus permits the ultimate inference of discrimination.");
Manzer v. Diamond Shamrock Chemicals Co., 

, 1083 (6th
Cir. 1994) ("Hicks clarified that the only effect of the
employer's nondiscriminatory explanation is to convert the
inference of discrimination based upon the plaintiff's prima
facie case from a mandatory one which the jury must draw, to a
permissive one the jury may draw, provided that the jury finds
the employer's explanation `unworthy' of belief."); Anderson v.
Baxter Healthcare Corp., 

, 1124 (7th Cir. 1994) (to
defeat summary judgment, Title VII plaintiff "must only `produce
evidence from which a rational factfinder could infer that the
company lied' about its proffered reasons for his dismissal"
(citation omitted)); Mitchell v. Data Gen. Corp., 

,
1316 (4th Cir. 1993) (plaintiff can defeat summary judgment by
"present[ing] evidence sufficient to establish a prima facie
case, and . . . show[ing] that there is a genuine dispute of
material fact about [the defendant's] proffered explanation" for
its action); Washington v. Garrett, 

, 1433 (9th Cir.
1993) ("[A]s St. Mary's recognizes, the factfinder in a Title VII
case is entitled to infer discrimination from plaintiff's proof
of a prima facie case and showing of pretext without anything
more . . . .").
         The Equal Employment Opportunity Commission, the
government agency charged with enforcement of the employment
discrimination laws and an amicus curiae in this case, has also
taken the view "that a prima facie case, coupled with a non-
credible justification from the employer, is sufficient to
support a finding of discrimination." EEOC Enforcement Guidance
on St. Mary's Honor Center v. Hicks, EEOC Comp. Man. (BNA),
N:3361, 3363 n.3 (Apr. 12, 1994). "As an administrative
interpretation of the Act by the enforcing agency, these
Guidelines, while not controlling upon the courts by reason of
their authority, do constitute a body of experience and informed
judgment to which courts and litigants may properly resort for
guidance." Meritor Savings Bank v. Vinson, 

, 65
(1986)(internal quotation marks and citations omitted).
         The attack by DuPont and the dissent on the paradigm we
and these other courts have constructed in the wake of Hicks is
multi-faceted. DuPont suggests that there is an inconsistency
between this court's caselaw, as applied or articulated, and the
requirement that the ultimate burden of persuasion of intentional
discrimination must rest with the plaintiff. We find no such
inconsistency. More important, the Supreme Court itself in Hicksexpressly
stated that its various statements in that opinion as
to the burden that plaintiff must bear, i.e. "it is not enough
. . . to disbelieve the 

, and the
plaintiff must show "both that the reason was false, and that
discrimination was the real reason," 

were not
inconsistent with the statement in the opinion that "rejection of
the defendant's proffered reasons will permit the trier of fact
to infer the ultimate fact of intentional discrimination," 

Hicks explained that the statement that "rejection of the
defendant's proffered reasons is enough at law to sustain a
finding of discrimination" was not inconsistent with its
placement of the burden of persuasion on the plaintiff because
"there must be a finding of discrimination." 

n.4
(emphasis throughout discussion in original). Thus, the Supreme
Court has answered the very claim of inconsistency DuPont
purports to find in our interpretation of Hicks.
         Similarly unpersuasive is the dissent's suggestion that
Fuentes impermissibly gives continuing weight to the presumption
of discrimination created by the prima facie case even after the
McDonnell Douglas presumption has dissipated or "burst." This
argument is based on the mistaken assumption that once the
presumption of discrimination created initially by the prima
facie case "drops from the case," 

n.10,
the underlying facts lose their probative value. However, the
Supreme Court specifically explained in Burdine that "[i]n saying
that the presumption [of discrimination] drops from the case, we
do not imply that the trier of fact no longer may consider
evidence previously introduced by the plaintiff to establish a
prima facie case. . . . [T]his evidence and inferences properly
drawn therefrom may be considered by the trier of fact on the
issue of whether the defendant's explanation is pretextual." 

as the jury must make a finding of intentional
discrimination, there is no reason why the evidence that
supported the prima facie case coupled with the jury's
determination that the employer's proffered explanations are
pretextual is not sufficient to support a verdict of
discrimination.
         As Chief Justice, then Justice, Rehnquist earlier had
explained, the initial presumption of discrimination arises from
the plaintiff's prima facie case of discrimination "because we
presume these acts, if otherwise unexplained, are more likely
than not based on the consideration of impermissible factors."
Furnco Construction Corp. v. Waters, 

, 577 (1978).
He continued:
         [W]e are willing to presume this largely
         because we know from our experience that more
         often than not people do not act in a totally
         arbitrary manner, without any underlying
         reasons, especially in a business setting.
         Thus, when all legitimate reasons for
         rejecting an applicant have been eliminated
         as possible reasons for the employer's
         actions, it is more likely than not the
         employer, who we generally assume acts only
         with some reason, based his decision on an
         impermissible consideration such as race.

has previously noted the probative
significance of the factfinder's disbelief in a proffered
explanation by a party, stating:
         It has always been understood -- the
         inference indeed is one of the simplest in
         human experience -- that a party's falsehoodor other fraud in the
preparation and
         presentation of his cause, his fabrication or
         suppression of evidence by bribery or
         spoliation, is receivable against him as an
         indication of his consciousness that his case
         is a weak or unfounded one; and from that
         consciousness may be inferred the fact itself
         of the cause's lack of truth and merit.
McQueeney v. Wilmington Trust Co., 

, 921-22 (3d Cir.
1985) (quoting 2 Wigmore § 278(2) (Chadbourne Rev. 1979)). As
another court recently remarked in the context of an employment
discrimination case: "Resort to a pretextual explanation is,
like flight from the scene of a crime, evidence indicating
consciousness of guilt, which is, of course, evidence of illegal
conduct." Binder v. Long Island Lighting Co., 

, 200
(2d Cir. 1995).
         We presume that the same logic, albeit unarticulated,
was the basis for the Supreme Court's statement in Hicks that
disbelief of the employer's reason will permit the factfinder to
infer the ultimate fact of 

, even
though the presumption of discrimination "drops from the case"
after the employer proffers a legitimate reason for its actions,

n.10.
         We routinely expect that a party give honest testimony
in a court of law; there is no reason to expect less of an
employer charged with unlawful discrimination. If the employer
fails to come forth with the true and credible explanation and
instead keeps a hidden agenda, it does so at its own peril.
Under those circumstances, there is no policy to be served by
refusing to permit the jury to infer that the real motivation is
the one that the plaintiff has charged.
         The dissent concedes that in the usual case after the
presumption created by the prima facie case has dissipated and
sufficient evidence of pretext has been adduced, there will be
sufficient evidence to support a verdict of discrimination. The
dissent is concerned that in the atypical case this may not be
so. It posits the situation of a plaintiff who claims multiple
grounds, all illegal, for the employment action. We see no
reason to engage in a dialogue of speculation as to how to treat
such a case, divorced from a factual record, particularly because
the situation presented by the dissent was not the case in Hicks,
where the plaintiff claimed race discrimination, was not the case
in Fuentes, where the plaintiff claimed national origin
discrimination, nor is it the case before us now, where Sheridan
claims only sex discrimination.
         The other situation posited by the dissent for its
unwillingness to join the otherwise unanimous en banc court is
that created where an employer "may not wish to disclose his real
reasons for not promoting B over A." Dissenting Typescript Op.
at 22 n.8. The persistence in maintaining that the employment
action was taken because the plaintiff was unqualified or the
position was being eliminated due to a reduction in force when
the employer knows that the real reason is nepotism would violate
the spirit if not the language of Rule 11 of the Federal Rules of
Civil Procedure. The dissent gives no reason why a plaintiff
alleging discrimination is not entitled to the real reason for
the personnel decision, no matter how uncomfortable the truth may
be to the employer. Surely, the judicial system has little to
gain by the dissent's approach.
         The Supreme Court has stated that an employer can meet
its burden of articulating the reason for its action only through
the introduction of admissible evidence. 

n.9. Burden-shifting is designed "to sharpen the inquiry
into the elusive factual question of intentional discrimination."

n.8. It follows that the Burdine analysis is rooted
in the requirement that when the employer advances through
admissible evidence the reasons for its actions, those must be
its legitimate reasons.
         The dissent argues that mere disbelief of the
employer's articulated reason is not enough to sustain a verdict.
Of course Hicks did not rely merely on the factfinder's disbelief
of the explanation proffered by the employer to uphold a verdict
for the employee. Instead, as we have noted, under Hicks it is
the combination of the disbelief in the employer's proffered
explanation, the evidence that supported finding a prima facie
case, and the jury's finding of intentional discrimination
following a proper instruction to that effect.
         Although the dissent states at the outset that its
approach "does not mean that a plaintiff, in order to reach the
trier of fact, must always prove 'pretext plus,' i.e., that the
plaintiff must always produce some evidence in addition to what
is necessary to establish a prima facie case and to show that the
employer's explanation is pretextual," Dissenting Typescript Op.
at 2 (emphasis added), the dissent's approach would bring the
courts of this circuit back to the confusion and uncertainty
created by the "pretext plus" and "some evidence" language that
prompted this court to consider this case en banc.
         In Sheridan's case, the district court had reviewed the
evidence presented in connection with DuPont's motion for summary
judgment and found that Sheridan had made out a prima facie case
for gender discrimination culminating in constructive discharge.
         Also, the district court had carefully instructed the
jury on the need to find intentional discrimination before it
could return a verdict for Sheridan on any of her claims. Early
in its charge the court had advised the jury that this case
involves "allegations of intentional sexual discrimination, that
is, of intentionally treating some people less favorably than
others because of their gender." App. at 111. Again, in
connection with the constructive discharge count the court had
reminded the jury that Sheridan must prove "by a preponderance of
the evidence that 1) defendant intentionally made plaintiff's
working conditions so intolerable that a reasonable person would
feel forced to resign; 2) plaintiff's gender was the sole
motivating factor in the defendant's conduct; and 3) plaintiff,
in fact, resigned." App. at 123. The jury's verdict signifies
that it rejected DuPont's proffered reasons for its employment
action and believed that the real reason was discrimination.
         In granting judgment as a matter of law for DuPont, the
district court stated that "plaintiff would have to point to some
evidence" that gender was the motive of those in the decision
making process. It is evident that the district court believed
that something more was required than was set forth in Hicks and
our cases. Not only was such a requirement of additional
evidence rejected in Fuentes where we stated that "if the
plaintiff has pointed to evidence sufficiently to discredit the
defendant's proffered reasons, to survive summary judgment the
plaintiff need not also come forward with additional evidence of
discrimination beyond his or her prima facie 

, but it is also inconsistent with the statement in Hicks that
upon rejection of the defendants' proffered reasons for the
action, "no additional proof of discrimination is 

(internal quotation marks omitted).
         As the Supreme Court has noted, "[t]here will seldom be
`eyewitness' testimony as to the employer's mental processes."
United States Postal Serv. Bd. of Governors v. Aikens, 

, 716 (1983). We have recognized that "[d]iscrimination
victims often come to the legal process without witnesses and
with little direct evidence indicating the precise nature of the
wrongs they have suffered." Jackson v. University of Pittsburgh,

, 236 (3d Cir. 1987), cert. denied, 

(1988). Cases charging discrimination are uniquely difficult to
prove and often depend upon circumstantial evidence. See, e.g.,
Aman v. Cort Furniture Rental Corp., 

, 1081-82 (3d
Cir. 1996); Lockhart v. Westinghouse Credit Corp., 

,
48 (3d Cir. 1989); Chipollini v. Spencer Gifts, Inc., 

, 897 (3d Cir.) (en banc) cert. dismissed, 

(1987); Dillon v. Coles, 

, 1003 (3d Cir. 1984).
"This is true in part because . . . discrimination . . . is often
subtle." 

. "[A]n employer who
knowingly discriminates . . . may leave no written records
revealing the forbidden motive and may communicate it orally to
no one." 

v. American Convenience Prods.,

, 1410 (7th Cir. 1984)).
         The distinct method of proof in employment
discrimination cases, relying on presumptions and shifting
burdens of articulation and production, arose out of the Supreme
Court's recognition that direct evidence of an employer's
motivation will often be unavailable or difficult to acquire.
See Price Waterhouse v. Hopkins, 

, 271 (1989)
(O'Connor, J., concurring) ("[T]he entire purpose of the
McDonnell Douglas prima facie case is to compensate for the fact
that direct evidence of intentional discrimination is hard to
come by."); Trans World Airlines, Inc. v. Thurston, 

,
121 (1985) ("The shifting burdens of proof set forth in McDonnell
Douglas are designed to assure that the plaintiff has his day in
court despite the unavailability of direct evidence." (internal
quotation marks omitted)); see also International Bhd. of
Teamsters v. United States, 

, 359 n.45 (1977)
(recognizing that burden-shifting rules "are often created . . .
to conform with a party's superior access to the proof");

; 

.
         Thus, it is not only disbelief in the employer's
proffered reason that would suffice to sustain the plaintiff's
case, as the dissent argues. It is the jury's determination that
the reason given was pretextual together with the evidence that
supported the prima facie case that will sustain a finding of
intentional discrimination made after a proper charge.
         The role of determining whether the inference of
discrimination is warranted must remain within the province of
the jury, because a finding of discrimination is at bottom a
determination of intent. In making that finding, the jury must
perform its traditional function of assessing the weight of the
evidence, the credibility of the witnesses through observation of
both direct testimony and cross-examination at trial, and the
strength of the inferences that can be drawn from the elements of
the prima facie case and the evidence that undermines the
employer's proffered reasons for its actions. This is uniquely
the role of the factfinder, not the court. See Barber v. CSX
Distribution Servs., 

, 700 (3d Cir. 1995)("Evaluation
of witness credibility is the exclusive function of the jury, and
where the only evidence of intent is oral testimony, a jury could
always choose to discredit it." (quoting Bhaya v. Westinghouse
Elec. Corp., 

, 262 (3d Cir. 1987), cert. denied, 

(1989))); see also 

("It is true
that it is very difficult to prove what the state of a man's mind
at a particular time is, but if it can be ascertained it is as
much a fact as anything else." (quoting Edgington v. Fitzmaurice,
29 Ch. Div. 459, 483 (1885)); 

("The
issue of the defendant's intent at the time of the plaintiff's
discharge is clearly a factual question.").
         This does not mean that the courts in discrimination
cases lose their traditional obligation, when faced with a motion
for judgment as a matter of law, to review the adequacy of the
showing presented to the factfinder. The district court must
determine whether the plaintiff has cast sufficient doubt upon
the employer's proffered reasons to permit a reasonable
factfinder to conclude that the reasons are incredible, and our
previous cases have explained in detail the plaintiff's burden in
this regard. See, e.g., 

("[T]he non-
moving plaintiff must demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or
contradictions in the employer's proffered legitimate reasons for
its action that a reasonable factfinder could rationally find
them `unworthy of credence . . . .'" (quoting Ezold v. Wolf,
Block, Schorr & Solis-Cohen, 

, 531 (3d Cir. 1992),
cert. denied, 

(1993))). But once the court is
satisfied that the evidence meets this threshold requirement, it
may not pretermit the jury's ability to draw inferences from the
testimony, including the inference of intentional discrimination
drawn from an unbelievable reason proffered by the employer.
         With these legal principles before us, we turn to the
district court's order granting judgment for DuPont as a matter
of law on Sheridan's jury verdict that she was constructively
discharged as a result of discrimination. We exercise plenary
review of the district court's order granting DuPont's motion for
judgment as a matter of law. Seman v. Coplay Cement Co., 

, 431 (3d Cir. 1994).
                                B.
                          Factual Issues
         We need not recount all of the evidence adduced at the
trial because we examine the record with the limited purpose of
ascertaining whether there was sufficient evidence to withstand
judgment as a matter of law. In doing so, we must look at the
evidence in the light most favorable to Sheridan, the verdict
winner, and draw all reasonable inferences in her favor. SeeHofkin v.
Provident Life & Accident Ins. Co., 

, 369
(3d Cir. 1996).
         At the time of the events that formed the basis of this
case, Sheridan was one of five head captains at the hotel,
occupying the position of Head Captain of the Green Room for the
breakfast and lunch shifts. Sheridan, who began working at the
hotel as a part-time waitress in 1979, reached that supervisory
position in 1989 following a series of steady promotions. In
addition to those promotions, Sheridan had received numerous
commendations for her job performance.
         Focusing on the period immediately before that at
issue, there was evidence that in May 1989 Sheridan was nominated
by her peers and received an "Employee of the Quarter Award" for
"outstanding" work. She received merit raises in May 1990 and
February 1991. In July 1990 she received a "Way to Go" award
from the Personnel & Administrative Services Division for "going
beyond the call of duty." DuPont's October 29, 1990 performance
review, signed by two supervisors including defendant Jacques
Amblard, rated Sheridan overall "very good," the second highest
rating. She was rated "outstanding" for "Interpersonal
Relationships," "Planning/Organizing," and "Problem-Solving."
Although that report noted that "[a]s a team player,
strengthening is needed to improve the overall relationship with
the rest of the operation," the report listed one of her
strengths as "[v]ery good guest relations, organized." The
report stated that "Barbara's persistence has paid off by guest
loyalty, staff does not call off sick, and overall very good
morale from the support team." Even Sheridan's lowest mark,
given for "Attendance/Punctuality/Dependability," was
"Satisfactory." App. at 197-98.
         In December 1990, Sheridan won a $1,000 accomplishment
award. The letter informing her of the award referred to her as
"a role model" and "a true ambassador for the company." App. at
151. Other restaurant employees received awards ranging from
$200-$500, but Sheridan was the only employee to receive an award
as high as $1000. App. at 287. In January 1991, Sheridan was
chosen as one of about 20 DuPont employees to appear in a company
video. App. at 734. On October 1, 1991, Sheridan received a
promotion and salary increase.
         DuPont attempted to paint a different picture to the
jury. Notwithstanding the record evidence of promotions and
commendations, it contended that Sheridan's performance began to
deteriorate in early 1991. DuPont produced evidence that
supervisors met with Sheridan, expressed dissatisfactions, and
directed her to improve in various categories. For example, in
February 1991, Ed Barba, then the Green Room's Manager, listed
"corrective measures" that Sheridan should take, including
"maintaining an accurate cover count sheet" to insure that
"covers" (customers) were distributed fairly among the staff,
following the "grooming policy" which required that she report to
work on time and in full dress, and refraining from using the
Green Room as a break room and for smoking. App. at 228.
Nicholas Waller testified that in the summer of 1991, as Manager
of Restaurants, he met with Sheridan to discuss alleged
complaints that Sheridan had asked Green Room employees to help
her with personal tasks, such as parking her car, giving her a
wake-up call, or taking her personal mail to the post office, and
that she had rewarded employees who complied by giving them
additional "covers" in the dining room. App. at 960-63.
         On October 17, 1991, Jeff Maisel, by then the Manager
of Restaurants, met with Sheridan to discuss problems allegedly
perceived with her performance, including tardiness and
continuing disregard for the hotel's grooming policy. App. at
206, 885. On November 10, 1991, Maisel placed Sheridan on
probation, ostensibly on the ground that she had not corrected
her performance. Maisel warned Sheridan that her failure to
follow the hotel's policies could result in her termination.
App. at 208.
         In support of its claim of Sheridan's inadequate
performance, DuPont introduced various notes and records that
DuPont had compiled of specific infractions by Sheridan.
Illustrative of DuPont's complaints is a memo by Barba to the
file that on one occasion he had observed Sheridan smoking in the
Green Room Bar and putting on makeup. A report meticulously
listed other details to support placing Sheridan on probation.
DuPont contended that even while Sheridan was on probation, she
continued her inadequate performance.
         An important part of DuPont's defense for its
employment actions centered on its claim that Sheridan had
engaged in "comping," i.e., giving away complimentary food and
drinks without ringing up complimentary checks. The hotel began
investigating Sheridan for this activity in late February, 1992,
and its record of the investigation lists statements of numerous
co-workers. App. at 222-26. James Dougherty, a bartender who
was one of DuPont's principal witnesses on "comping," reported to
DuPont that due to his concerns about numerous "discrepancies"
and "cash handling problems" with Sheridan, he began to keep
track of the amount of free liquor Sheridan gave away. He
recorded that it totaled $921.75 from November 1, 1991 to
February 18, 1992, with $417.25 worth of drinks given away in
December alone. App. at 222. Dougherty testified at trial that
each time he saw Sheridan serve a free drink, he would record the
date and dollar amount of the drink, and claimed that his dates
were about "98-percent accurate." App. at 688.
         Maisel testified that based on the hotel's internal
investigation, DuPont decided that Sheridan should be reassigned
to a non-supervisory position that would not require her to
handle cash. App. at 910. Sheridan was offered three options:
front desk receptionist, banquet server, or health club
attendant, with no diminution of salary. The hotel claimed that
she would be eligible for advancement in any of those positions,
although Sheridan offered evidence at trial that suggested
otherwise. See App. at 473-75, 776. After considering the offer
for some weeks, Sheridan resigned.
         Sheridan's testimony at trial portrayed the events
differently than did DuPont. It was her position that the
alleged dissatisfaction with her performance stemmed from her
complaint of sex discrimination which she made in the fall of
1991, when the hotel reorganized its structure to eliminate the
individual restaurant managers and to place a new manager over
all of the restaurants in the hotel. The hotel did not advertise
the position, considered only five of its own employees for the
new post (all men), and selected Maisel. DuPont did not consider
Sheridan for the position, 

complained to
Amblard at least three times in the period of September and
October 1991 that she was not promoted due to gender
discrimination. App. at 51-52. She also testified that around
this time, Amblard told her repeatedly that he planned to watch
her "like a dog" and "like a hawk." App. at 748. Sheridan's
position was that the hotel's recordkeeping of details of her
daily activity was "nitpicking" in retaliation for her complaints
of sex discrimination. App. at 1337. She further sought to
portray Amblard as a sexist and testified that, when she was with
one of the other male supervisors, he would ignore her and
instead speak only to the man. App. at 748.
         In addition to the affirmative evidence of her own
accomplishments, Sheridan presented evidence at trial that was
directed to impeaching the credibility of DuPont's witnesses,
particularly, but not limited to, Dougherty and Maisel. Sheridan
demonstrated that for two weeks in January 1992, during which
Dougherty listed three dates when she allegedly dispensed free
drinks, she had reported for jury duty at the Superior Court.
App. at 173-79, 540-43. Even a document handwritten by Maisel
showed that another head captain was scheduled to cover
Sheridan's shift on those days. App. at 167. Maisel's schedule
also indicated that Sheridan was not scheduled for work on
December 23 and 24, 1991, although Dougherty's list included
these dates among those when Sheridan allegedly required him to
deliver complimentary drinks. App. at 167, 227, 540. In fact,
Maisel's written work schedule could be viewed as contradicting
Dougherty's list as to seven separate dates.
         In seeking to show the pretextual nature of DuPont's
articulated reasons, Sheridan noted, inter alia, the temporal
proximity of her complaints to Amblard of sex discrimination and
his statements that he would watch her like a "hawk" to the
subsequent surfacing of dissatisfaction with her performance, the
meticulous recordkeeping of the details of her daily activities,
and the hotel's investigations into her alleged "comping."
         Thus, it is clear that the jury in this case was faced
with evidence on both sides of the issues raised by the parties.
The jury's verdict for Sheridan on her constructive discharge
claim shows that the jury accepted Sheridan's view on this claim
and rejected DuPont's explanation as pretextual.
         We have previously cautioned that "[i]n determining
whether the evidence is sufficient to sustain liability, the
court may not weigh the evidence, determine the credibility of
witnesses, or substitute its version of the facts for the jury's
version." Lightning Lube, Inc. v. Witco Corp., 

, 1166
(3d Cir. 1993). A reasonable jury could have disbelieved
DuPont's proffered reasons for its actions based on Sheridan's
evidence and its rejection of the credibility of certain of
DuPont's principal witnesses, such as Dougherty and Maisel. We
find no paucity of evidence on which the jury could have based
its finding for Sheridan on her constructive discharge claim.
         Under the applicable law, a plaintiff who voluntarily
resigned may maintain a case of constructive discharge when the
employer's allegedly discriminatory conduct creates an atmosphere
that is the constructive equivalent of a discharge. See Gray v.
York Newspapers, Inc., 

, 1079 (3d Cir. 1992). We
apply an objective test to determine whether "the employer
knowingly permitted conditions of discrimination in employment so
intolerable that a reasonable person subject to them would
resign." Aman v. Cort Furniture Rental Corp., 

, 1084
(3d Cir. 1996) (quoting Goss v. Exxon Office Systems Co., 

, 888 (3d Cir. 1984)).
         In denying DuPont's motion for summary judgment, the
district court rejected DuPont's argument that there was no basis
on which a jury could find that the conditions to which Sheridan
claimed she was subjected could have reached the level that would
constitute a constructive discharge. Instead, the court held
that if Sheridan's version of the facts were accepted by a trier
of fact, it would be reasonable for the trier of fact to conclude
that resignation was Sheridan's only option. Thus, when the
court instructed the jury, it charged that for the jury to find
that DuPont constructively discharged Sheridan, she must have
proved by a preponderance of the evidence that DuPont
"intentionally made [her] working conditions so intolerable that
a reasonable person would feel forced to resign" and that
"[Sheridan's] gender was the sole motivating factor in the
defendant's conduct." App. at 1487.
         The evidence of the series of investigative activities,
allegations of improprieties, placement on probation after more
than a decade of satisfactory performance, and the ultimate
removal of Sheridan from her supervisory position in the highly
reputed Green Room to one of three far less prestigious dead-end
positions, such as the health club attendant, could have been
viewed by the jury as meeting the criteria of a constructive
discharge. The jury returned an unqualified verdict finding that
DuPont had constructively discharged Sheridan and did so based on
her gender. We cannot hold that Sheridan failed to present
sufficient evidence to withstand DuPont's motion for judgment as
a matter of law, and therefore will reverse the district court's
order to that effect.
                               C.
                       Grant of a New Trial
         Because the district court's ruling focused primarily
on its decision to grant DuPont's motion for judgment as a matter
of law, the court's explanation for its grant of a new trial was
brief. The court noted in a footnote that it was obliged under
Fed.R.Civ.P. 50(c) to make a conditional ruling on the
defendant's motion for a new trial. To comply with that
requirement, the court stated merely that it "would grant the
motion for a new trial because the jury's verdict is contrary to
the weight of the evidence." Sheridan (July 14, 1994) at 12
n.11.
         We are unable to ascertain the extent to which this
ruling was affected by the court's misconception that direct
evidence of discriminatory intent was necessary to sustain the
jury's verdict, i.e., its understanding that "[i]n order to
demonstrate that gender was a motivating factor, plaintiff would
have to point to some evidence that that was the motive of those
in the decision-making process." D. Ct. Opinion at 11-12.
Because such evidence is not a prerequisite to a finding of
intentional discrimination, we believe the district court should
reconsider whether a new trial is warranted in light of the
correct legal principles.
         It is also unclear whether the district court applied
the complete test for ruling on a new trial motion. In granting
that motion, the district court merely concluded that the jury's
verdict was contrary to the weight of the evidence. Although we
recognize that a new trial may be granted even if the evidence is
legally sufficient to support the verdict, Roebuck v. Drexel
Univ., 

, 735-36 (3d Cir. 1988), we have nonetheless
cautioned that a district court should grant a new trial on the
basis that the verdict was contrary to the weight of the evidence
"only where a miscarriage of justice would result if the verdict
were to stand," Williamson v. Consolidated Rail Corp., 

, 1352 (3d Cir. 1991). We have explained that this stringent
standard is necessary "to ensure that a district court does not
substitute its `judgment of the facts and the credibility of the
witnesses for that of the jury. Such an action effects a
denigration of the jury system and to the extent that new trials
are granted the judge takes over, if he does not usurp, the prime
function of the jury as the trier of facts.'" Fineman v.
Armstrong World Indus., Inc., 

, 211 (3d Cir. 1992)
(quoting Lind v. Schenley Indus. Inc., 

, 90 (3d Cir.)
(en banc), cert denied, 

(1960)), cert. denied, 

(1993).
         Therefore, before imposing on Sheridan the burden and
expense of a new trial, we will remand to require the district
court to determine whether, inasmuch as Sheridan was not obliged
to produce direct evidence of discriminatory intent, the jury's
verdict for Sheridan was against the great weight of the evidence
and would effect a miscarriage of justice.
         We have previously remarked that the district court's
instruction to the jury placed on Sheridan a higher burden of
proof than our cases require. See note 

. If there were
a new trial, Sheridan would not have to prove that discrimination
was the sole cause of DuPont's action but only that
discrimination was a motivating factor in its decision. SeeMiller v.
CIGNA Corp., 

(3d Cir. 1995) (en banc).
         Sheridan has raised other trial errors to support her
motion for a new trial, but we need consider briefly only one.
Sheridan argues that the district court erred in excluding
testimony of a female co-worker that Amblard stated, after
watching a woman in a tight dress walk by, that he "would like to
grab that," App. at 699-700, 1520, and that on another occasion
Amblard rejected her offer to park cars at the hotel on the
ground that she could not park cars because she was a woman.
App. at 1521. The district court excluded this testimony under
Federal Rules of Evidence 401 and 403, finding these statements
"prejudicial and irrelevant." App. at 44. We review a district
court's rulings concerning the admission of evidence for abuse of
discretion. Glass v. Philadelphia Elec. Co., 

, 191
(3d Cir. 1994). Although Amblard's comments would be relevant
to determining whether he was biased against women generally and
therefore the district court took too narrow a view in holding
that they had no probative value, we cannot conclude that the
district court abused its discretion in deciding that Amblard's
statements were more prejudicial than probative of the ultimate
issue of whether DuPont's employment actions as to Sheridan were
caused by gender-based animus. We turn then to the final issue
before us, the court's dismissal of Amblard as a defendant.
                                D.
               Individual Liability Under Title VII
         Sheridan contends that the district court erred in
dismissing Jacques Amblard as a defendant on the ground that
individual employees may not be held liable under Title VII.
         Title VII provides, in relevant part:
         It shall be an unlawful employment practice
         for an employer--

              (1) to fail or refuse to hire or to
         discharge any individual, or otherwise to
         discriminate against any individual with
         respect to his compensation, terms,
         conditions, or privileges of employment,
         because of such individual's race, color,
         religion, sex, or national origin . . . .

42 U.S.C. § 2000e-2(a) (emphasis added). The statute defines
"employer" as "a person engaged in an industry affecting commerce
who has fifteen or more employees . . . and any agent of such a
person." 

         Sheridan argues that there is no language in the
statute excluding individuals, and she looks to the law of agency
to support the proposition that agents can be held jointly liable
with employers for wrongs resulting from their tortious conduct.
She also contends that we should interpret the 1991 amendments,
which added to the remedies provided in Title VII a provision for
compensatory and punitive damages, as suggesting that Congress
intended to hold individual defendants liable because, unlike
equitable remedies such as reinstatement which are uniquely
available from an employer, these newly available monetary
remedies can be forthcoming from an employee.
         These arguments are not without some force. However,
the clear majority of the courts of appeals that have considered
this question have held that individual employees cannot be held
liable under Title VII. See Williams v. Banning, 

(7th Cir. 1995); Tomka v. Seiler Corp., 

, 1313-17 (2d
Cir. 1995); Gary v. Long, 

, 1399 (D.C.Cir.), cert.
denied, 

(1995); Grant v. Lone Star Co., 

(5th Cir.), cert. denied, 

(1994); Miller v.
Maxwell's Int'l Inc., 

, 587-88 (9th Cir. 1993), cert.
denied, 

(1994). Others appear to lean in that
direction, see, e.g., Lenhardt v. Basic Inst. of Technology,
Inc., 

(8th Cir. 1995)(interpreting parallel state
statute to preclude employee liability); Birkbeck v. Marvel
Lighting Corp., 

, 510-511 & n.1)(4th Cir.)(deciding
issue under ADEA as to "personnel decisions of a plainly
delegable character"), cert. denied, 

(1994), while
others have either permitted liability in an employee's official
capacity only, see Cross v. Alabama, 

, 1504 (11th
Cir. 1995); Garcia v. ELF Atochem North America, 

, 451
n.2 (5th Cir. 1994), or left the issue an "open question," Ball
v. Renner, 

, 668 (10th Cir. 1995).
         In our independent examination of this issue, we find
most significant the fact that when Congress amended the statute
in 1991 to provide a detailed sliding scale of damages ranging
from $50,000 for an employer of more than 14 and fewer than 101
employees, to $300,000 for employers with more than 500
employees, 42 U.S.C. § 1981a(b)(3), it made no reference as to
the amount of damages, if any, that would be payable by
individuals. This strongly suggests that Congress did not
contemplate that such damages would be assessed against
individuals who are not themselves the employing entity. 

; 

n.2; Ascolese
v. Southeastern Pa. Transp. Auth., 

, 540 (E.D.Pa.
1995), modified on other grounds, 

(1996).
         Moreover, we note that Congress had previously
expressed its concern about the impact of Title VII litigation on
small businesses when it excluded businesses with fewer than
fifteen employees from the definition of an "employer." It is
reasonable to infer that Congress's concern in that regard
applies as well to individuals. See 

;

(citing remarks of legislators indicating
concern with burdens imposed upon small businesses forced to
defend against Title VII suits); 

.
         For these reasons, as well as some of the others cited
by the other circuits, we are persuaded that Congress did not
intend to hold individual employees liable under Title VII.

                               III.
                            CONCLUSION
         For the foregoing reasons, we will reverse the district
court's entry of judgment in DuPont's favor on the constructive
discharge claim, and remand to the district court to reconsider
DuPont's motion for a new trial.

                       Sheridan v. E.I. DuPont
No. 94-7509

ALITO, Circuit Judge, concurring in part and dissenting in part.

         I   join part IID of the opinion of the court. I also
agree with   the court's disposition of the plaintiff's evidentiary
argument.    See Maj. Op. 37-38. I dissent, however, from parts
IIA - C of   the court's opinion.

                                 I.

         My primary disagreement with the majority concerns the
test for determining whether a defense motion for summary
judgment or judgment as a matter of law should be granted in an
employment discrimination case governed by the procedural scheme
sanctioned in McDonnell Douglas Corp. v. Green, 

(1973). Like several other courts of appeals, see Maj. Op. 15-
16, the majority here holds that when the plaintiff has made out
a prima facie case and has offered enough evidence to support a
finding that the explanation was pretextual, a defense motion for
summary judgment or judgment as a matter of law must always be
denied. However, there is strong contrary authority, which the
majority does not acknowledge. The in banc Fifth Circuit, by a
vote of 16 to 1, has rejected the majority's position. Rhodes v.
Guiberson Oil Tools, 

, 993 (5th Cir. 1996) (in banc).
So have the First and Eleventh Circuits. Isenbergh v. Knight-
Ridder Newspaper Sales, Inc., 

, 442-43 (11th Cir.
1996); Woods v. Friction Materials, Inc., 

, 260-61 n.3

(1st Cir. 1994); LeBlanc v. Great American Ins. Co., 

,
842-43 (1st Cir. 1993), cert. denied, 

(1994). I
believe that these other courts have analyzed the question more
accurately than the majority has here.
         If the majority had merely said that, under the
circumstances described above, a defense motion for summary
judgment or judgment as a matter of law must generally be denied,
I would agree. When a plaintiff makes out a prima facie case and
there is sufficient evidence in the record to permit a rational
trier of fact to find that the employer's explanation is untrue,
a defense motion for summary judgment or judgment as a matter of
law should usually be denied. But not always, as the majority
contends.
         In my view, the correct test is the following: a
defense motion for summary judgment or judgment as a matter of
law should be granted when the evidence in the record could not
persuade a rational trier of fact that intentional discrimination
on the ground alleged by the plaintiff was a determinative cause
of the challenged employment action. This does not mean that a
plaintiff, in order to reach the trier of fact, must always prove
"pretext plus," i.e., that the plaintiff must always produce some
evidence in addition to what is necessary to establish a prima
facie case and to show that the employer's explanation is
pretextual. On the contrary, in most cases, such additional
proof is not needed. But I disagree with the majority that proof
of the elements of the prima facie case and proof of pretext are
always enough.

                             II.

         A. The key to the question at issue lies in the nature
of the "presumption" of discrimination that arises when the
plaintiff establishes the elements of a prima facie case. In
Texas Dept. of Community Affairs v. Burdine, 

, 254
(1981), the Court explained that the "[e]stablishment of the
prima facie case in effect creates a presumption that the
employer discriminated against the employee." This presumption
"places upon the defendant the burden of producing an explanation
to rebut the prima facie case -- i.e., the burden of producing
evidence that the adverse employment actions were taken `for a
legitimate nondiscriminatory reason.'" St. Mary's Honor Ctr. v.
Hicks, 

, 506 (1993), (quoting 

). But while this presumption shifts the burden of production
to the defendant, "`[t]he ultimate burden of persuading the trier
of fact that the defendant intentionally discriminated against
the plaintiff remains at all times with the plaintiff.'" 

(quoting 

). "In this
regard," Hicks observed, "it operates like all presumptions, as
described in Federal Rule of Evidence 

.
         Critical for present purposes is what happens when the
defendant satisfies its production burden. Burdine addressed
this question in the following passage:
         If the defendant carries this burden of production,
         the presumption raised by the prima facie case is
         rebutted, 10/ and the factual inquiry proceeds to a new
         level of specificity.


         10/ See generally J. Thayer, Preliminary Treatise on
         Evidence 346 (1898). In saying that the presumption
         drops from the case, we do not imply that the trier of
         fact no longer may consider evidence previously
         introduced by the plaintiff to establish a prima facie
         case. A satisfactory explanation by the defendant
         destroys the legally mandatory inference of
         discrimination arising from the plaintiff's initial
         evidence. Nonetheless, this evidence and inferences
         properly drawn therefrom may be considered by the trier
         of fact on the issue of whether the defendant's
         explanation is pretextual . . . 

& n.10.
         Hicks similarly explained that, if the defendant meets
its production burden, "the McDonnell Douglas framework -- with
its presumptions and burdens -- is no longer relevant" and should
not be 

. "The presumption,
having fulfilled its role of forcing the defendant to come
forward with some response, simply drops out of the picture," and
"the trier of fact proceeds to decide the ultimate question:
whether plaintiff has proven that the defendant intentionally
discriminated against him [on the ground alleged.']" 

(quoting 

).

         B. I interpret these passages to mean that the
McDonnell Douglas presumption is governed by the "bursting
bubble" theory associated with Professor James Bradley Thayer.
See 2 McCormick on Evidence § 344 at 462 (4th ed. 1992). Under
this theory, "the only effect of a presumption is to shift the
burden of producing evidence with regard to the presumed fact.
If that evidence is produced by the adversary, the presumption is
spent and disappears." 

then proceeds "as though
there had never been a presumption at all." 1 Weinstein's
Evidence ¶300[01] at 300-4 (1996)(footnote omitted).
         That Burdine and Hicks regarded the McDonnell Douglaspresumption
as governed by this theory is suggested by the
following. First, Burdine states that the term "presumption"
properly "`refers only to a device for allocating the production

n.8 (emphasis added) (citation omitted)
-- the orthodox "bursting bubble" view. Second, both Burdine and
Hicks employ classic "bursting bubble" language to describe what
happens to a presumption if the defendant satisfies its
production burden: the presumption then "drops from the case,"
"drops out of the picture," is "no longer relevant," and
should not be "resurrect[ed]." Third, Burdine's footnote 10,
which was quoted above, appears to set out the pure "bursting
bubble" theory: once the presumption is burst, all that remains
is "the plaintiff's initial evidence" and "inferences properly
drawn 

n.10. In addition, this
footnote begins with a citation to Thayer, who stated that once
the opponent of a presumption offers sufficient counterproof,
"[all is then turned into an ordinary question of evidence, and
the two or three general facts presupposed in the rule of
presumption take their place with the rest, and operate, with
their own natural force, as a part of the total mass of probative
matter." James B. Thayer, Preliminary Treatise on Evidence 346
(1898). Finally, both Burdine and Hicks invoke Federal Rule of
Evidence 301, which has generally been interpreted as embodying
the "bursting bubble" theory. See e.g., McKenna v. Pacific Rail
Serv., 

, 829-30 (3d Cir. 1994); 

(Mansmann,
J., dissenting); A.C. Aukerman Co. v. R.L. Chaides Constr., 

, 1037-1038 (Fed. Cir. 1992); In re Yoder Co., 

, 1120 & n.13 (6th Cir. 1985); Legille v. Dann, 

,
5-7 (D.C. Cir. 1976); 10 Moore's Federal Practice § 301.04 [4.-1]
at III-22 (1995-96 Supp.); 1 Weinstein's Evidence 301-9; 9
Wigmore on Evidence § 2491(2) (3d ed. 1940).
         In 

, all of the panel members agreed that
the McDonnell Douglas presumption and Federal Rule of Evidence
301 embody the "bursting bubble" theory. Writing for the
majority, Judge Lewis concluded that the McDonnell Douglaspresumption is
governed by Federal Rule of Evidence 301 and that
under this rule "the introduction of evidence to rebut a
presumption destroys that presumption, leaving only that evidence
and its inferences to be judged against the competing evidence
and its inferences to determine the ultimate question at 

. Judge Lewis then went on to hold that the same
rule applies under the New Jersey Law Against Discrimination.

Judge Mansmann agreed that the "bursting bubble"
theory applies to federal claims, but contended that the New
Jersey presumption has a more durable effect. Specifically, she
wrote that "the federal rule `bursts the bubble' of the
presumption, while the New Jersey rule creates an issue for the
jury." 

(Mansmann, J., dissenting). With respect to
their analysis of federal law, I think that both the McKennamajority and
dissent were right.
         C. The version of Rule 301 that was proposed by the
Advisory Committee and promulgated by the Supreme Court rejected
the "bursting bubble" theory in favor of the theory advocated by
Professor Edmund M. Morgan and others. Proposed Rule of
Evidence 301 and Advisory Committee Note, 

, 208
(1973). Under this proposed rule, a presumption would have
shifted the burden of persuasion. 

rejected this proposal. The House
of Representatives instead adopted a rule that represented an
"intermediate position" between the "Thayer" and "Morgan"
theories. H.R. Rep. No. 93-650, 93d Cong., 1st Sess. 7 (1973),
reprinted in 1974 U.S.C.C.A.N. 7075, 7081. The House rule
provided that "a presumption imposes on the party against whom it
is directed the burden of going forward with the evidence, and,
even though met with contradicting evidence, is sufficient proof
of the fact presumed to be considered by the trier of fact." 120
Cong. Rec. 2370 (1974).
         In the Senate, the Advisory Committee and the Judicial
Conference's Standing Committee on Practice and Procedure
advocated a return to the originally proposed version of Rule
301. Dismissing the House compromise as conceptually unsound,
the committee argued that "[t]he basic choice is between the so-
called `bursting bubble' theory and one shifting the burden of
persuasion." Reporter's Memorandum, for the Advisory Committee
on Evidence and the Standing Committee, to the Senate Judiciary
Committee, reprinted in 1 Weinstein's Evidence at 301-3. The
Senate rejected the House approach and passed the present version
of Rule 301. S. Rep. No. 93-1277, 93d Cong., 2d Sess.       ,
reprinted in 1974 U.S.C.C.A.N. 7051, 7056; 120 Cong. Rec. 37,085
(1974).
         The Advisory Committee and the Committee on Rules of
Practice and Procedure then turned to the Conference Committee
and again urged the adoption of the originally proposed version
of Rule 301, arguing once more that "[b]asically the choice to be
made in treating the effect to be given presumptions lies between
giving them only the effect of a `bursting bubble' and giving
them the greater effect of imposing a burden of disproof once
evidence has established the conditions that call the presumption
into operation." See 1 Weinstein's Evidence at 301-7. However,
the Conference Committee recommended adoption of the Senate
version, Conf. Rep. No. 93-1597, 93d Cong., 2d Sess.    (1974),
reprinted in 1974 U.S.C.C.A.N. 7098, 7099, and this
recommendation was enacted. 120 Cong. Rec. 40,070, 40,897
(1974).
         Rule 301 states:
         In all civil actions and proceedings not otherwise
         provided for by Act of Congress or by these rules, a
         presumption imposes on the party against whom it is
         directed the burden of going forward with evidence to
         rebut or meet the presumption, but does not shift to
         such party the burden of proof in the sense of the risk
         of nonpersuasion, which remains throughout the trial
         upon the party on whom it was originally cast.

         Like the members of the McKenna panel and the other
previously mentioned authorities, I think that the most
reasonable interpretation of Rule 301 is that it incorporates the
"bursting bubble" theory. The text of the rule supports this
conclusion since it does not even hint that a presumption does
anything but shift the burden of production. If Congress had
intended for a presumption to have any further effect, such as
guaranteeing that the presumed fact would not be rejected at the
summary-judgment or judgment-as-a-matter-of-law stage, I think
that Congress would have said so in the text of the rule. I do
not think that Congress would have left it for the courts to
divine, without any clue in the language of the rule, that a
presumption should have such an important additional effect.
         Furthermore, the legislative history suggests that
Congress, advised that it was compelled to choose between the
Thayer and Morgan approaches, adopted "the pure Thayer rule." 1
Weinstein's Evidence at 301-9. Professors Wright and Graham
disagree with this position based on a passage in the Conference
Report. See 21 Charles A. Wright and Kenneth W. Graham, Jr.,
Federal Practice and Procedure §§ 5120 at 547 & n.27, 5126 at
609-10 & nn.23-24 (1977). Discussing the consequences that
follow when the adverse party meets its production burden, the
Conference Report states:
         If the adverse party does offer evidence contradicting
         the presumed fact, the court cannot instruct the jury
         that it may presume the existence of the presumed fact
         from proof of the basic facts. The court may, however,
         instruct the jury that it may infer the existence of
         the presumed fact from proof of the basic facts.

Conf. Rep. 

, at   , reprinted in 1974 U.S.C.C.A.N.
at 7099 (emphasis deleted; emphasis added). Because the
highlighted sentence discusses jury instructions, Professors
Wright and Graham view it as showing that the Conference
Committee contemplated that a presumption, even if met with
enough counterproof to satisfy the adverse party's production
burden, would nevertheless serve to take the factual question to
the jury. 21 Wright and Graham, supra, § 5126 at 610 n.23.
         Like the Sixth Circuit, In re Yoder 

n.13, I do not find this interpretation compelling. The
Sixth Circuit wrote:
         The emphasized portion of this quotation is not
         inconsistent with the bursting bubble theory. . . .
         The statement that the jury may be instructed to
         consider an inference is most naturally read as
         permitting such an instruction when called for by the
         existence of a logical inference.

original). This reading is at least as
reasonable as the alternative offered by Professors Wright and
Graham, and I am therefore unwilling, based solely on the
statement in question, to conclude that Rule 301 was intended to
give presumptions an important effect not mentioned in the text
of the rule.
         I must acknowledge that a passage in Hicks may be read
as supporting Professors Wright and Graham's argument, at least
with respect to the McDonnell Douglas presumptions. Hicksstated:
         The 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. Thus, rejection of
         the defendant's proffered reasons will permit the trier
         of fact to infer the ultimate fact of intentional
         discrimination,4/ and the Court of Appeals was correct
         when it noted that, upon such rejection, "[n]o
         additional proof of discrimination is required."


          4/ Contrary to the dissent's confusion-producing
         analysis, post, at 535-536, there is nothing whatever
         inconsistent between this statement and our later
         statements that (1) the plaintiff must show "both that
         the reason was false, and that discrimination was the
         real reason," infra, at 515, and (2) "it is not enough
         . . . to disbelieve the employer," infra, at 519. Even
         though (as we say here) rejection of the defendant's
         proffered reasons is enough at law to sustain a finding
         of discrimination, there must be a finding of
         

(all emphases in original) (ellipsis in

original).

         Read in isolation, this passage may seem to suggest
that the facts underlying the prima facie case plus the rejection
of the employer's explanation are always sufficient to take the
case to the jury. This is the interpretation adopted in Fuentes
v. Perskie, 

, 763 (3d Cir. 1994), and by the majority
here. See Maj. Op. 11-12. However, like the First, Fifth, and
Eleventh Circuits, I do not think that this reading is compelled.
See 

; 

;

n.3. Instead, I believe that this
passage can reasonably be interpreted as simply rejecting the
"pretext plus" approach that Justice Souter attributed to the
Court in his dissent (509 U.S. at 535 (Souter, J., dissenting))
to which the Court 

n.4.    Under the
"pretext plus" approach, as summarized in the law review article
that Justice Souter cited, "the plaintiff must produce some
additional evidence other than the evidence supporting the prima
facie case and other than the fact of the defendant's deception."
Catherine J. Lanctot, The Defendant Lies and the Plaintiff Loses:
The Fallacy of the `Pretext-Plus' Rule in Employment
Discrimination Cases, 43 Hastings L.J. 57, 87-88 (1991). The
previously quoted passage from Hicks may be interpreted to mean
that such additional proof (i.e., the "plus" in "pretext plus")
is not always required. Accordingly, when the Court wrote (509
U.S. at 511) that "rejection of the defendant's proffered reasons
will permit the trier of fact to infer the ultimate fact of
intentional discrimination," what the Court may have meant is
that the trier of fact is permitted to draw such an inference --
in the sense that the trier of fact is not precluded by any legal
rule, such as "pretext plus," from doing so -- if such an
inference is factually warranted. The same interpretation may be
given to the Court's subsequent statement that "upon [the]
rejection [of the defendant's proffered reason] `[n]o additional
proof of discrimination is 

. "`No
additional proof is required'" in that there is no blanket legal
requirement of such proof, as there would be under the "pretext
plus" approach. Similarly, the "rejection of the defendant's
proffered reasons is enough at law to sustain a finding of
discrimination" (id. at 511 n.4) in the sense that no other
blanket legal requirement, such as proving the "plus," is needed.
I favor this interpretation because it is consistent with my
conclusion, discussed above, that Rule 301 presumptions in
general and the McDonnell Douglas presumption in particular are
governed by the "bursting bubble" theory.
         D. If it is true, as I believe, that the McDonnell
Douglas presumption is governed by the pure "bursting bubble"
theory, it follows that the majority's blanket rule barring
summary judgment or judgment as a matter of law in favor of the
defendant is unsound. It is well recognized that under the pure
"bursting bubble" theory, once a presumption is destroyed, the
proponent of the presumption has no guarantee that its case will
go to the trier of fact. One treatise states that the previously
presumed fact may then be found "only if the natural probative
force of the basic facts that brought the presumption into play
is sufficient to support such a finding (or the evidence as a
whole supports it). Otherwise, the presumed fact may not be
found, and the presumption does not protect this possibility." 1
Christopher B. Mueller and Laird C. Kirkpatrick, Federal Evidence§ 70 at
332 (1994) (emphasis added). Another observes: "The
opponent of the presumption may still not be entitled to a
directed verdict, but if its motion is denied, the ruling will
have nothing to do with the existence of a presumption." 2
McCormick on Evidence, § 344 at 462. See also 21 Wright and
Graham, Federal Practice § 5122 at 564. In Thayer's words, after
the presumption is spent, "[a]ll is then turned into an ordinary
question of evidence."   Thayer, Preliminary Treatise at 346.

                               III.

         Once it is recognized that the McDonnell Douglaspresumption
disappears in the face of sufficient counterproof,
the test to be applied in ruling on a defense motion for summary
judgment or judgment as a matter of law is clear: the motion
should be granted if all of the evidence in the record and the
inferences that may be drawn from that evidence could not
persuade a rational trier of fact that intentional discrimination
on the ground alleged by the plaintiff was a determinative cause
of the challenged action. This test follows from the following
three rules:
         1. In a McDonnell Douglas case, "[t]he ultimate burden
of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the
plaintiff." 

; see also 

.
          2. This burden requires proof that discrimination on
the ground alleged was a determinative cause of the challenged
action. Miller v. CIGNA Corp., 

(3d Cir. 1995) (in
banc).
         3. Summary judgment and judgment as a matter of law
are proper where a trier of fact could not rationally return a
verdict in favor of the opposing party. Anderson v. Liberty
Lobby, Inc., 

, 250-51 (1986); Celotex Corp. v.
Catrett, 

, 322-323 (1986).
         Putting these rules together, it is apparent that a
defense motion for summary judgment or judgment as a matter of
law should be granted where a trier of fact could not rationally
find based on the record (and giving no further consideration to
the presumption as such) that discrimination on the ground
alleged was a determinative cause of the challenged action.
         The majority, however, takes the position that such a
motion must be denied whenever there is enough evidence to
support a finding that the explanation offered by the employer is
untrue. See Maj. Op. 13. This position can be correct only if
proof that is sufficient to justify disbelief of the employer's
explanation (the majority's test) will always be enough to
justify a finding by a rational trier of fact that discrimination
on the ground alleged was a determinative cause of the challenged
action. Unless this relationship invariably holds true -- and I
will show below that it does not (see part VI, infra) -- the
majority's blanket rule is wrong.

                               V.

         Before turning directly to that question, however, it
is helpful to examine the types of evidence of discrimination
that may exist in the record of a discriminatory-treatment case
after the McDonnell Douglas presumption is burst and sufficient
evidence to show pretext is offered. This evidence may be
grouped into four categories.
         A. First, there are the facts that the plaintiff
proved to make out the prima facie case and the inferences to
which those facts naturally give rise. In some cases, the
"natural probative force" of these facts is substantial, but in
others it is relatively weak. "The burden of establishing a
prima facie case of disparate treatment is not onerous," 

, and "evidence sufficient to make out a prima
facie case is not always sufficient to support the ultimate
finding of intentional discrimination. . . . Where the evidence
behind the prima facie showing is strong, it may, standing alone,
justify a finding of intentional discrimination. . . . But where
the prima facie case is based on minimal evidence, it cannot."
United States v. Redondo-Lemos, 

, 442 (9th Cir. 1994).
         An example which the prima facie case gives rise to
only a weak inference of discrimination is the age discrimination
case in which a somewhat younger person is hired, promoted,
retained, etc. instead of a slightly older person. Under our
cases, a plaintiff in an age discrimination suit can make out a
prima facie case by showing that he or she (1) was over 40 years
of age at the time in question, (2) applied for and was minimally
qualified for the job, (3) but was rejected (4) in favor of a
person who was "`sufficiently younger to permit an inference of
age discrimination.'"   Barber v. CSX Distribution Services, 

, 698 (3d Cir. 1995), quoting Fowle v. C & C Cola, 

, 61 (3d Cir. 1989). With respect to the final element of
this formulation, we have held that an eight-year gap is enough
and have suggested that a five-year difference may suffice.

. Thus, I believe that a plaintiff
claiming that he or she was denied a promotion due to age
discrimination could make out a prima facie case under our
circuit law by showing, for example, that he or she (1) was 43
years old at the time in question, (2) had the minimum requisite
qualifications, (3) and applied for the job, but that (4) the
employer instead chose a 35-year old.
         I agree that these facts permit an inference of age
discrimination, but I do not think that a reasonable person could
give these facts, standing alone, much weight. A way to test
this hypothesis is to ask: if you knew nothing more about this
promotion decision, how much would you bet that, when all the
facts were revealed, the reason for the decision would turn out
to be age discrimination? I think that few people would be
willing to wager much on this bet -- precisely because the
natural probative force of the few facts needed to establish the
prima facie case is slight.
         A similar situation can arise in cases of alleged
national origin or religious discrimination. In order to make
out a prima facie case of discrimination on these grounds, a
plaintiff must show that he or she (1) is a member of a national
origin group or adherent of a religion, (2) applied or was
considered for the position or benefit, and (3) was at least
minimally qualified, but (4) the position or benefit went to a
person of another national origin or religion. See, e.g., Vitug
v. Multistate Tax Comm'n, 

, 515 (7th Cir. 1996)
(plaintiff established a prima facie case by showing that he was
a qualified Filipino Catholic and that promotion went to "a non-
Filipino and born-again Christian"). How strong an inference of
national origin or religious discrimination naturally arises from
such a bare showing?
         Suppose that all that you knew about an employment
decision was that the employer rejected an applicant who traced
his or her national origin to one country and instead chose
another person who did not trace his or her national origin to
that particular country. How confident would you be that the
reason for the decision, when all the facts were revealed, would
turn out to be national origin discrimination?
         Or suppose that all that you knew about an employment
decision was that the employer rejected a minimally qualified
Protestant, Catholic, Jew, Muslim, or adherent of another
religion in favor of another employee of a different religion.
How confident would you be that the reason for the decision, when
all the facts were revealed, would be intentional discrimination
on the basis of religion? In my view, most rational people,
without knowing more, would have little confidence that the real
reason would turn out to be national origin or religious
discrimination, and I therefore submit that these bare facts
naturally give rise to only a slight inference of discrimination.
And, although I will not belabor the point by posing further
examples, I think that the natural probative force of the prima
facie case is sometimes weak in race and gender cases as well.
In short, I submit that the natural probative force of the facts
underlying the prima facie case varies from case to case and that
in some cases that force will be too weak on its own to sustain a
finding of discrimination.
         B. Second, there is the inference of discrimination
that may often be drawn from the ruling out of the employer's
explanation. The degree to which such an inference is justified,
however, is inversely proportional to the degree to which the
record contains evidence of a third possible explanation for the
challenged employment action. For example, if it is certain that
an employee was discharged for either reason "a" or reason "b"
and no other, and if reason "b" can be ruled out, then obviously
it may be inferred that the real reason for the discharge was
"a." But if an employee was discharged for either reason "a,"
reason "b," or reason "c," then ruling out reason "b" does not
necessarily permit a strong inference that reason "a" was the
real reason.
         Cases in which the record contains strong evidence of a
third explanation for the challenged action are by no means
unknown. See Miller v. CIGNA Corp., 

, 597 (3d Cir.
1995). Perhaps the clearest examples are cases in which the
plaintiff challenges a single adverse employment action based on
two or more alternative grounds, a rather common tactic. See,
e.g., Roxas v. Presentation College, 

(8th Cir. 1996)
(plaintiff alleged race, national origin, gender, and age
discrimination); Lawrence v. Nat'l Westminster Bank of N.J., 

, No. 95-5603 (3d Cir. Oct. 15, 1996); Rabinovitz v.
Pena, 

(7th Cir. 1996) (age, religion, and
retaliation); Ford v. Bernard Finesan Dev. Ctr., 

(2d
Cir. 1996) (race, age, and gender); Hartsel v. Keys, 

(6th Cir. 1996) petition for cert. filed, 

(U.S.
Sept. 24, 1996) (No. 96-486) (age, gender, and retaliation);
Evans v. Technologies Applications & Ser. Co., 

(4th
Cir. 1996), (age and gender); Austin v. Owens-Brockway Glass
Container, Inc., 

(4th Cir. 1996), petition for cert.
filed, 

(U.S. Aug. 28, 1996) (No. 96-337) (gender
and disability); Americanos v. Carter, 

(7th Cir.
1996), cert. denied, 

(1996) (age, gender, and
national origin); Castillo v. Frank, 

(5th Cir. 1995)
(age, gender, and national origin); Meinecke v.
H & R Block, 

(5th Cir. 1995) (age and gender); Johnson
v. Office of Senate Fair Employment Practices, 

(Fed.
Cir. 1994) (gender and religion); Dashnaw v. Pena, 

,
1114 (D.C. Cir. 1994), cert. denied, 

(1994) (age,
national origin, religion, and race); Sarsha v. Sears, Roebuck &
Co., 

(7th Cir. 1993) (age and gender).
         To take one of the many possible combinations of
claims, an employee might contend that he or she did not get a
promotion (1) because of gender and (2) because of disability.
If the record in such a case contains strong evidence of
disability discrimination, rejection of the employer's
explanation (let us say, inferior qualifications) will not by
itself permit a strong inference that the employer's true reason
was gender discrimination.
         The degree to which a trier of fact can reasonably
conclude that there was discrimination on the ground claimed by
the plaintiff also depends upon the degree to which the trier of
fact can reasonably reject the employer's reason(s). (It is
important to bear in mind that acceptance or rejection of an
employer's reasons need not be an all-or-nothing proposition.)
The evidence in a particular case may be such as to justify only
a marginal or partial disbelief or belief of the employer's
reason(s). For example, a trier of fact might be justified in
believing that it is more probable than not (but barely so) that
the employer's explanation is false. Or, a trier of fact might
be justified in believing that it is more probable than not (but
barely so) that the employer's explanation is true. In addition,
a trier of fact might be justified in believing that the reason
asserted by the employer was not the sole cause but was a partial
cause (say a 20%, 40%, 60%, or 80% cause) for the challenged
action. Or, if the employer asserts multiple reasons, the
evidence might be such as to justify belief (to some degree) of
some reasons but not others. All other things being equal, the
more strongly and completely the trier of fact can rationally
rule out the employer's reason(s), the more justified it is to
conclude that there was discrimination on the ground alleged --
and vice versa.
         C. Third, disbelief of the employer's explanation may
also give rise to an inference that the employer was trying to
conceal discrimination on the ground that the plaintiff claims.
But the strength of this inference, too, will vary based on the
facts. Its strength will depend on whether there is evidence in
the record of some other possible explanation that the employer
might not want to disclose (e.g., in my prior hypothetical,
disability discrimination). In addition, its strength will
obviously be proportional to the extent and strength of the trier
of fact's disbelief of the employer's reason(s).
         D. The fourth category consists of any other relevant
evidence of discrimination on the ground asserted. "[S]tray
remarks in the workplace" that are insufficient to make out a
Price Waterhouse case are an example. See Price Waterhouse v.
Hopkins, 

, 277 (1989) (O'Connor, J., concurring).
When evidence falling into this category is present, it should
always be taken into account in determining whether a defense
motion for summary judgment or judgment as a matter of law should
be granted -- something that the Fuentes test does not
accomplish, as I will show below. See infra at 28-29. But of
course, many McDonnell Douglas cases lack evidence of this sort.
                               VI.

         Having surveyed the types of evidence of discrimination
that are relevant for present purposes, I return to the question
whether there will always be enough evidence to support a verdict
of discrimination on the ground alleged by the plaintiff after
the McDonnell Douglas presumption has burst and sufficient
evidence of pretext has been adduced. To ensure that I am not
misunderstood, I emphasize again that I think that under these
circumstances there will usually be sufficient evidence -- but
not always. Specifically, where the natural probative force of
the facts offered to prove the prima facie case is weak, where
there is strong evidence in the record that the challenged
employment action was attributable to some factor other than the
discriminatory ground alleged by the plaintiff or the explanation
offered by the employer, and where there is no other evidence
that the action was due to discrimination on the ground alleged,
the evidence of discrimination on that ground may be insufficient
to sustain a verdict and thus insufficient to defeat summary
judgment or judgment as a matter of law.
         Here is an example. A man with a disability applies
for a promotion, but the promotion is given to a woman without a
disability. See, e.g., Antol v. Perry, 

(3d Cir.
1996)(man who was denied promotion sued for gender and disability
discrimination). The plaintiff establishes a prima facie case of
gender discrimination by showing that he is a man, he was
qualified for the job, he applied, but it was given to a woman.
There is no other evidence of gender discrimination against men;
indeed, there is evidence that the decisionmaker was a man and
that the great majority of the employees in the job category at
issue were men. The employer says that the woman was chosen
because her qualifications were better, but the plaintiff shows
that this explanation is full of holes. In addition and most
important, there is strong, direct evidence that the
decisionmaker was biased against the plaintiff because of his
disability. Among other things, there is testimony that, when
the decisionmaker learned that the plaintiff had applied for the
promotion, the decisionmaker made insulting and derogatory
remarks about the plaintiff's disability.
         Is there enough evidence in this case to convince a
rational trier of fact that the promotion decision was based on
gender discrimination? I think not, and if I am right, then the
majority's blanket test is disproven. Consider the evidence in
each of the four categories that I previously described. The
facts underlying the prima facie case of gender discrimination --
basically that the plaintiff was qualified but a woman was given
the job instead -- have little natural probative force for the
purpose of showing gender discrimination; a qualified man might
be rejected in favor of a woman for many other reasons. As for
the evidence that the employer's explanation (the woman's
supposedly better qualifications) was untrue, ruling out the
employer's explanation still leaves both gender and disability
discrimination as possible explanations, and in light of the
strong evidence of disability discrimination, does little to show
gender discrimination. Likewise, while the employer's conduct in
proffering a false explanation permits an inference that the
employer's real reason was one that it wished to hide, that
inference does little to show that the employer's real reason was
gender discrimination because there is strong evidence of another
explanation (disability discrimination) that the employer would
also have a motive to conceal. Therefore, I submit that the
evidence in this hypothetical case is insufficient to support a
reasonable finding of gender discrimination and that that theory
should be weeded from the case before the plaintiff's claim of
disability discrimination is sent to the trier of fact.
         The majority's test, however, would require that the
gender discrimination claim be sent to the trier of fact as well.
Indeed, if the plaintiff had added claims of age, race, national
origin, and religious discrimination and was able to do the
minimum necessary to establish a prima facie case on all of those
grounds, all of those claims would have to be sent to the trier
of fact as well. I do not think that such results can be squared
with the cardinal rules that the plaintiff in a discriminatory
treatment case must prove intentional discrimination on each
ground alleged and that summary judgment or judgment as a matter
of law must be granted if the record does not rationally support
a judgment for the non-moving part on each such ground. See,
e.g., Deborah C. Malamud, The Last Minuet: Disparate Treatment
After Hicks, 

. Rev. 2229, 2306-2311 (1995).


                               VII.
         Recognition of what I believe is the correct test would
clarify the analysis of discriminatory-treatment cases and would
avoid analytical difficulties that the majority's test creates.
I will discuss two of these difficulties here.
         A. The first concerns cases in which the employer
offers a multi-part explanation for the challenged action. The
Fuentes opinion, which the majority follows, first states that,
when an employer asserts that the challenged action was taken for
several reasons, the evidence "must allow a factfinder reasonably
to infer that each of the employer's proffered nondiscriminatory
reasons . . . was either a post hoc fabrication or otherwise did
not actually motivate the employment action . . . 

(emphasis in original) (citations omitted). However, Fuentesqualifies
this statement by adding that "[i]f the defendant
proffers a bagful of legitimate reasons, and the plaintiff
manages to cast substantial doubt on a fair number of them, the
plaintiff may not need to discredit the remainder." 

n.7 (emphasis added).
         I am not sure what these rules mean. What is the
difference between "several reasons" and "a bagful"? What is a
"fair number" of a "bagful"? If the employer offers three
reasons, each of which, it says, was equally important in the
challenged decision, how many must the plaintiff knock down? All
of them? Or will two suffice? (I assume that one would not be a
"fair number.") What if the employer says that reason one was
the most important, counting for, say, 40%, and that reasons two
and three each counted for 30%? Would it be enough for the
plaintiff to refute reason one? If so, would refuting reason two
by itself also suffice? Why? I don't know, and I don't think
that it is possible to provide a satisfactory answer to questions
of this sort within the framework of the majority's test.
         By contrast, these problems disappear if what I contend
is the correct test is used. No matter how many reasons the
employer offers and no matter what combination of reasons the
plaintiff succeeds in knocking down, the dispositive question
remains the same: taking into account all of the evidence in the
record, including whatever inferences and deductions can
rationally be drawn from the rejection of some (or all) of the
employer's proffered reasons, is there enough proof to permit a
rational trier of fact to find that intentional discrimination on
the ground alleged was a determinative cause of the challenged
action?
         B. The second analytical difficulty concerns the
ability of a plaintiff to survive summary judgment or judgment as
a matter of law by combining the evidence that necessarily
remains after the McDonnell Douglas presumption has burst and
sufficient evidence of pretext has been offered (the facts
underlying the prima facie case and the inferences that logically
flow from the rejection of the employer's explanation) with any
other direct and circumstantial evidence of discrimination that
the plaintiff may be able to find. Under Fuentes, a plaintiff
may defeat summary judgment or judgment as a matter of law by
"either (i) discrediting the proffered reasons, either
circumstantially or directly, or (ii) adducing evidence, whether
circumstantial or direct, that discrimination was more likely
than not a motivating or determinative cause of the adverse
employment action." 

(emphasis in
original).
         Why can't a plaintiff potentially satisfy his or her
burden by combining some evidence from each of these categories?
For example, if a plaintiff can almost, but not quite, show
enough "weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer's proffered
legitimate reasons" to come within the first part of this test,

why can't the plaintiff make it over the hump by
adding a bit of evidence from the second part, i.e., other direct
or circumstantial evidence of discrimination? Fuentes doesn't
explain, and I don't think that any good explanation is possible.
               In sum, I submit that the majority's
test is both wrong and unwieldy and that the correct test is
simply whether a rational trier of fact could find, based on the
record, that discrimination on the ground alleged was a
determinative cause of the challenged employment action.

                             VIII.

         Applying this test, I agree with the district judge's
analysis of the record. The record shows great personal friction
between the plaintiff and her supervisors regarding matters such
as grooming, smoking, tardiness, and giving away free food and
beverages, but the district judge saw little if any evidence of
any kind that could reasonably link this personal animosity to
the plaintiff's gender. The district judge wrote that she was
"left searching the record for evidence that gender played a
determinative role in defendant's conduct."
         In reaching the opposite conclusion, the majority
apparently relies on the following: (a) "no woman had ever held
the position of Manager of Restaurants," (b) "a man replaced
Sheridan as Head Captain of the Green Room morning shift," (c)
"Amblard had told Sheridan he would watch her like a `hawk' and a
`dog'," and (d) Amblard "ignor[ed] her and [spoke] instead to one
of her male supervisors if one was present." Maj. Op. 7. But
factor (a) gives rise to only a weak inference of gender
discrimination because the plaintiff was found to be unqualified
for the position of Manager of Restaurants. Factor (b) likewise
gives rise to only a weak inference since two of the other four
head captains were women. Factor (c) does not provide a link to
gender; nor does factor (d). Is all of this evidence taken
together enough to persuade a rational factfinder that the reason
for the animosity between the plaintiff and her supervisors was
gender rather than sheer personal antipathy? The district judge
concluded that it was not, and I am inclined to agree with her
analysis.
         I also agree with the district judge's conditional
grant of a new trial. The district judge applied the correct
legal standard. She recognized that "[a] new trial cannot be
granted . . . merely because the court would have weighed the
evidence differently and reached a different conclusion."
Sheridan II at 12 (quoting Markovich v. Bell Helicopter Textron,Inc., 

, 1235 (E.D. Pa.), aff'd, 

(3d
Cir. 1992)). Instead, the court stated, a new trial may be
granted on the ground that the verdict was against the weight of
the evidence only when the failure to do so would result in
injustice or shock the conscience of the court. 

assessing the evidence, the court recognized that disbelief of
defendant's proffered reason was evidence of discrimination.
Accordingly, I believe that the district judge applied the
correct legal precepts in ruling on defendant's new trial motion,
and because I do not think that she abused her discretion in
granting the motion, I would affirm.