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


1-31-1996

Sheridan v. DuPont & Co.
Precedential or Non-Precedential:

Docket 94-7509




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              UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT
                       ____________

                          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. 93-00046)
                  ____________________

                   Argued: May 4, 1995
Before:   SLOVITER, Chief Judge, and ALITO, Circuit Judge,
           and SCHWARZER, Senior District Judge*

            (Opinion Filed: January 31, 1996)

                   ____________________

                THOMAS S. NEUBERGER, ESQ. (Argued)
                200 West Ninth Street,
                Ninth Street Plaza
                Wilmington, DE 19801-1646

                Attorney for Appellant

                RAYMOND M. RIPPLE, ESQ. (Argued)
                DONNA L. GOODMAN, ESQ.
                E.I. duPont de Nemours & Company
                Legal Department
                1007 Market Street, Dupont Building
                Wilmington, DE 19880-0036

                Attorneys for Appellee




                            1
* The Honorable William W Schwarzer, Senior United States
District Judge for the Northern District of California, sitting
by designation.
                      ____________________

                        OPINION OF THE COURT
                        ____________________

ALITO, Circuit Judge:


          Barbara Sheridan filed this action against her former

employer, E.I. duPont de Nemours & Co., Inc. ("duPont"), and a

duPont supervisory employee, Jacques Amblard, under Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e-l et seq.   She

asserted several different claims for sex discrimination and

unlawful retaliation.   Before trial, the district court granted

the defendants' motion in limine to exclude certain evidence.

During trial, the court dismissed the claims against Amblard on

the ground that an employee cannot be sued under Title VII.    The

jury subsequently returned a verdict in favor of Sheridan and

against duPont on her constructive discharge claim, but the jury

found for duPont on Sheridan's remaining claims.   The district

court then granted duPont's motion for judgment as a matter of

law (and in the alternative for a new trial) on the constructive

discharge claim.

          Following the great weight of the federal appellate

decisions concerning employee liability under Title VII, the Age

Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and

the Americans with Disabilities Act, 42 U.S.C. § 12111 et seq.,

we affirm the dismissal of the claims against Amblard.   Because

we are bound by our court's decision in Fuentes v. Perskie, 32



                                 

(3d Cir. 1994), and subsequent decisions following

Fuentes, we reverse the entry of judgment as a matter of law on

the constructive discharge claim against duPont, but we affirm

the granting of a new trial.    We also hold that the district

court did not err in its ruling on duPont's motion in limine.



                                  I.

            Barbara Sheridan began working for duPont in 1979 as a

part-time waitress in the Hotel duPont.       Sheridan v. E.I. duPont

de Nemours and Co., No. 93-46 (D. Del. March 28, 1994) ("Sheridan

I") at 2.   She was subsequently promoted to hostess in the Lobby

Lounge, group leader in the Lobby Lounge, and captain in the

Brandywine Room restaurant.     

   In May 1989, she was

transferred to the Green Room restaurant and was promoted to head

captain of the breakfast and lunch shifts.       In this capacity, she

reported to Ed Barba, the Green Room restaurant manager.       Barba,

in turn, reported to Nicholas Waller, who managed all the hotel's

restaurants.    

            Initially, Sheridan received good employment reviews.

Her 1990 performance review rated her overall performance as

"very good," which was the second highest possible rating.       App.

197.   She received the highest possible rating in the categories

of interpersonal relationships, planning, and problem solving.

marks, in the categories of oral and written

communication and attendance, were respectively "good" and

"satisfactory."   

summarized her strengths and

weaknesses as follows:


                                  3
            Very good guest relations, organized.   As a

            team player, strengthening is needed to

            improve the overall relationship with the

            rest of the operation. . . .   Since May of

            1989, Barbara's persistence has paid off by

            guest loyalty, staff does not call off sick,

            and overall very good morale from the support

            team.

App. 198.

            Sheridan also received several awards and merit

increases.    In May 1990, she received a $948 yearly merit

increase.    She also won a $1000 accomplishment award in December

of that year.    App. 151.   The letter that informed her of this

award stated:
          [t]he enthusiasm you portray in greeting
          customers and providing them service is
          outstanding . . . . [Y]ou project an image
          of quality, service and commitment. . . .
          Your success in creating an environment in
          which high quality customer service
          flourishes is evident by the team spirit of
          your staff. Again, congratulations for this
          well-deserved award and thank you for being a
          role model and a true ambassador for the
          company.

employees received awards for $200 to $500,

Sheridan was the only restaurant employee to receive a $1000

award.   App. 287.    The next month, she was chosen to appear in a

company video, and in February 1991 she received another merit

raise of $1188 per year.     App. 733-34, 740-41.

             DuPont claims that Sheridan's performance began to

deteriorate in early 1991.     In February 1991, Ed Barba met with


                                  4
Sheridan and discussed various corrective measures.         App. 228.

Two of these measures were maintaining an accurate count sheet to

insure a fair distribution of "covers" (i.e., tips received from

the tables) and ending her use of the Green Room bar for grooming

and smoking.    

meeting, Barba later saw Sheridan

putting on makeup and smoking in the Green Room bar.         App. 229,

305h.

            According to Nicholas Waller, he met with Sheridan in

the summer of 1991 to discuss "numerous complaints" about her

treatment of Green Room employees.       App. 960.    Waller testified

that employees had complained that Sheridan had asked them to

perform personal services, such as parking her car, giving her a

wake-up call, and taking personal mail to the post office.         App.

963.    These employees allegedly told Waller that those who helped

her with these personal tasks were favored with more "covers."

disputed Waller's recollection of this

meeting.    Sheridan points to Barba's testimony that he was

unaware of any employee complaints regarding "covers" between

February and September 1991.     App. 298.      She also observed that,

despite the alleged complaints, she received another promotion

and raise on October 1, 1991.     App. 142.

            During the summer and fall of 1991, the hotel

streamlined its operating structure.         Sheridan I at 5.   As part

of this reorganization, the hotel eliminated the managers of the

individual restaurants and hired a single new manager for all the

restaurants.    

for this new position, but

the hotel selected Jeff Maisel.        

that she was


                                   5
qualified for this position and that she was not promoted because

of her sex.   On at least three occasions, she complained about

this alleged discrimination to Jacques Amblard, the hotel general

manager.    

            On October 17, 1991, Maisel met with Sheridan to

discuss her alleged unfairness in the distribution of "covers,"

her tardiness, and her continued disregard for the hotel's

grooming policy.      App. 206, 885.   Subsequent to this meeting,

duPont claims that the following infractions were recorded:
          Oct. 20: Sheridan was 45 minutes late and
                    violated grooming policy.

            Oct. 22:    Sheridan was 25 minutes late.

            Oct. 23:    Sheridan was 20 minutes late.

            Nov.   3:   Sheridan was 17 minutes late and
                        violated grooming policy.

            Nov.   3:   During a staff meeting, Sheridan
                        left premises and was observed with
                        another employee in a company van.

            Nov. 7.     Sheridan was eating and smoking in
                        Green Room bar during service
                        hours.

App. 206.

            Allegedly because of these continued infractions,

Maisel placed Sheridan on probation on November 10, 1991.       Maisel

told her that in order to be taken off probation, she would have

to report to work on time, follow the hotel's grooming and

smoking policies, and stay in her assigned work area.        App. 207.

Maisel informed her that further infractions or instances of poor

performance could result in termination.       App. 208.




                                   6
           Other incidents allegedly took place while Sheridan was

on probation.     When Joe Marshall, the room and service head

captain, attended her daily staff meeting one day in February

1992, Sheridan told him to "leave her meeting,"        App. 219, and

according to Maisel, who was present, Sheridan was quite rude.

was asked to work on a Sunday, but she

initially refused.     When told that she was required to report,

she agreed but stated that "after 13 years she deserved to work

Monday-Friday."    App. 220.

           In late February, the hotel began to investigate

Sheridan for giving complimentary drinks without ringing up

complimentary checks, as hotel policy required.        App. 221.   At

trial, duPont offered evidence that Sheridan had improperly given

away large quantities of complimentary drinks, as well as food.

According to a supervisor who participated in the investigation,

the investigation received "rather consistent feedback from the

employees of the restaurant" that Sheridan "comped liquor and

[did] not properly record[] it."        App. 1159.   An internal duPont

document memorialized alleged statements by numerous co-workers,

male and female, to the effect that Sheridan "comped" beverages

and food without recording that this was being done.        App. 222-

226.   The most damaging evidence came from a bartender, James

Dougherty, who stated that he had kept a daily record of the

drinks that Sheridan had improperly "comped," and that the total

for the period from November 1, 1991, to February 18, 1992, was

$921.75.   Dougherty testified that his dates were "about 98-

percent accurate."      App. 688.   There was evidence, however, that


                                    7
Sheridan was on jury duty or was not scheduled to work on some of

the days in question.

          After the investigation was completed, Maisel and

others met with Charles Beinkampen, the director of hospitality,

to determine what to do about Sheridan, and they decided to

reassign her to a non-supervisory position that did not involve

the handling of cash.    App. 910, 1160.    The hotel offered her the

positions of front desk representative, health spa attendant, or

banquet server.   She was offered these positions without a

reduction in pay.     App. 910.    While the hotel also claimed that

she would be eligible for promotion and raises in any of these

positions, Sheridan offered conflicting evidence.       Rather than

accepting reassignment, Sheridan resigned in April 1992.

          Sheridan subsequently filed suit against duPont and

Amblard, asserting three violations of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.      Count I of her

complaint claimed that the hotel had refused to promote her to

manager of restaurants because of her sex.       App. 82-83.   Count II

charged that she had been placed on probation and that other

disciplinary actions had been taken against her in retaliation

for her complaints about the hotel's failure to promote her on

account of her sex.     App. 83.   Count III alleged that the hotel

had created intolerable working conditions that resulted in her

constructive discharge.     App. 83-84.

          The district court denied the defendants' motion for

summary judgment, holding, among other things, that the evidence

in the summary judgment record, if believed, was sufficient to


                                    8
show that Sheridan had been constructively discharged.    App. 68-

69.   The court granted in part the defendants' motion in limine

to exclude certain testimony by Sheridan and two other witnesses.

The court also ruled that the jury would serve as the finder of

fact for the claims based on conduct that occurred after November

21, 1991, the date of the enactment of the Civil Rights Act of

1991, P.L. 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.    The court

ruled that the jury would serve in an advisory capacity for the

claims based on events that occurred before that date.    Thus, the

court ruled that the jury would return advisory verdicts with

respect to Count I (failure to promote) and those alleged

retaliatory acts (Count II) that occurred before November 21,

1991.   The court ruled that the jury would serve as the finder of

fact with respect to the remaining alleged retaliatory acts and

with respect to Count III (constructive discharge).      During

trial, the court dismissed the claims against Amblard, holding

that individual employees are not liable under Title VII.

           The jury returned special interrogatories.   With

respect to Count I (failure to promote), the jury found that

Sheridan was not qualified for the job of manager of restaurants.

App. 31.   With respect to Count II (retaliation), the jury found

that the defendants' actions both before and after November 21

were not taken in retaliation for Sheridan's complaints about the

defendants' failure to promote her.   App. 32.   However, on Count

III (constructive discharge), the jury found in favor of Sheridan


                                9
and awarded her $17,500 in compensatory damages, exclusive of

lost wages.0   App. 33.   The 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.

          Both parties then moved for judgment as a matter of law

or in the alternative for a new trial.    The court granted

duPont's motion for judgment as a matter of law because it found

that the evidence was insufficient to allow a reasonable jury to

conclude that sex played a determinative role in Sheridan's

constructive discharge.    Sheridan v. E.I. duPont de Nemours and

Co., No. 93-46 (D. Del. July 14, 1994) ("Sheridan II").    The

court did not dispute the fact that Sheridan had established a

prima facie case, and the court stated that it was "willing to

accept that the jury rejected the defense witnesses' claims that

the investigation into plaintiff's `comping' activities was

legitimate."   Sheridan II at 9.    But the court added: "Having

accepted that proposition . . ., the Court is still left

searching the record for evidence that gender played a

determinative role0 in defendant's conduct."    

court calculated Sheridan's lost wages to be $51,072.
Sheridan v. E.I. duPont de Nemours and Co., No. 93-46 (D. Del.
May 20, 1994). However, the jury found that Sheridan had failed
to mitigate these damages in the amount of $33,000. The court
thus awarded her the difference -- $18,072 -- in addition to six
months of front pay in the amount of $12,768. 

0
  This case was tried prior to our decision in Miller v. CIGNA
Corp., 

(3d Cir. 1995) (in banc), in which we held
that a plaintiff in an Age Discrimination in Employment Act case
need show only that age was a determinative cause (as opposed to
the sole cause) of the challenged action. Relying on our prior
decision in Griffiths v. CIGNA, 

(3d Cir.), cert.
denied, 

(1993), the district court in this case


                                   10
                                  II.

          A.    1.    We first consider Sheridan's argument that the

district court erred in granting duPont's motion for judgment as

a matter of law.       With respect to this question, we exercise

plenary review.      Seman v. Coplay Cement Co., 

, 431 (3d

Cir. 1994).    "Such a motion should be granted only if, viewing

the evidence in the light most favorable to the nonmovant and

giving it the advantage of every fair and reasonable inference,

there is insufficient evidence from which a jury reasonably could

find liability."      Lightning Lube, Inc. v. Witco Corp., 

, 1166 (3d Cir. 1993) (citation omitted).      "Although judgment

as a matter of law should be granted sparingly, a scintilla of

evidence is not enough to sustain a verdict of liability.      `The

question is not whether there is literally no evidence supporting

the party against whom the motion is directed but whether there

is evidence upon which the jury could properly find a verdict for

that party.'"     

(quoting Patzig v. O'Neil,

, 846 (3d Cir. 1978)).

          2.    We begin by considering duPont's argument that the

evidence was insufficient to show that Sheridan was

constructively discharged.      Although the district court did not

grant judgment as a matter of law on this basis, duPont argues in

instructed the jury that it had to find that Sheridan's gender
was the sole cause of her constructive discharge, and the jury
apparently found that this higher standard had been met. But in
granting duPont's motion for judgment as a matter of law the
district court held that the evidence of sex discrimination was
insufficient even under the lesser Miller standard.


                                   11
effect that we should affirm the district court on this

alternative ground.

          In Goss v. Exxon Office Systems Co., 

, 887-

88 (3d Cir. 1984), our court recognized the concept of

"constructive discharge" for Title VII purposes.    As we observed,

"[c]lassifying a termination as a constructive discharge rather

than a voluntary quit has significant ramifications with resect

to the scope of relief."   

  Noting that some courts of

appeals had apparently "required a finding that the

discrimination complained of amounted to an intentional course of

conduct calculated to force the victim's resignation," we

rejected this approach and adopted "an objective standard"

requiring a finding that "the employer knowingly permitted

conditions of discrimination in employment so intolerable that a

reasonable person subject to them would resign."    

We have applied this test in subsequent cases.     See, e.g., Clowes

v. Allegheny Valley Hospital, 

(3d Cir.), cert.

denied, 

(1993); Gray v. York Newspapers, Inc., 

(3d Cir. 1992); Levendos v. Stern Entertainment, Inc.,

(3d Cir. 1988).   We are bound to apply this

standard here.

          Applying the Goss test and our subsequent precedents,

we agree with the district court that there was adequate evidence

to establish a constructive discharge in this case.    Sheridan

offered evidence that, when viewed in the light most favorable to

her, would support a finding that Dougherty's evidence was

fabricated.   Moreover, Sheridan's situation was aggravated by the


                                12
fact that most of her staff knew about the investigation and

might interpret her acceptance of a transfer as an acknowledgment

of guilt.    Sheridan also presented evidence from which a

reasonable trier of fact could infer that the new positions

offered to her would have represented demotions and that she

would have effectively lost the opportunity for promotion or pay

raises.     Taken as a whole, the evidence of constructive discharge

was sufficient.

            3.   We thus turn to the question whether, as the

district could held, there was insufficient evidence under St.

Mary's Honor Center v. Hicks, 

(1993), to show

that Sheridan's gender was a determinative cause of the

constructive discharge.     As Sheridan argues, it appears that she

made out a prima facie case of gender discrimination by showing

(a) that she is a woman, (b) that she was qualified for the

position of head captain, (c) that she was constructively

discharged, and (d) that she was replaced by a man.     See, e.g.,

Waldron v. SL Industries, Inc., 

, 494 (3d Cir. 1995).

Under Hicks, Sheridan contends, "[t]hat prima facie showing,

coupled with the jury's ability to find that the reason offered

[by duPont] was a pretext, permitted the jury to find that sex

discrimination had occurred."    Appellant's Br. at 27 (footnote

omitted).

            In Hicks, the plaintiff claimed that he had been

demoted and discharged because of race.    He established a prima

facie case, the employer offered legitimate reasons for the

demotion and discharge, and the district court, sitting as the


                                  13
trier of fact, found the employer's reasons to be pretextual.

Hicks v. St. Mary's Honor Center, 

, 1251 (E.D.

Mo. 1991).    The court noted, however, that the plaintiff bore the

ultimate burden of proving that race was a determinative factor.

the plaintiff had failed to prove that the

employer's conduct was racially rather than personally motivated,

the court found in favor of the employer.     

             The court of appeals reversed, stating that "[o]nce

plaintiff proved all of defendants' proffered reasons for the

adverse employment actions to be pretextual, plaintiff was

entitled to judgment as a matter of law. . . .     No additional

proof of discrimination is required."     Hicks v. St. Mary's Honor

Center, 

, 492-93 (8th Cir. 1992).    Thus, the court of

appeals directed the district court to enter judgment in favor of

the plaintiff.    

             The Supreme Court granted certiorari to determine

whether the factfinder's rejection of the employer's proffered

reasons mandated a finding for the plaintiff.    

.     The Court began its analysis with a review of the

burden-shifting scheme established in McDonnell Douglas Corp. v.

Green, 

(1973).     Under this scheme, the establishment

of a prima facie case creates a presumption that the employer

unlawfully discriminated against the employee.     

.     To overcome this presumption, the employer must

"`clearly set forth, through the introduction of admissible

evidence,' reasons for its actions which, if believed by the

trier of fact, would support a finding that unlawful


                                  14
discrimination was not the cause of the employment action."    

(quoting Texas Dept. of Community Affairs v. Burdine, 

, 254-55 & n.8 (1981)).    Once the employer satisfies this

burden, the presumption raised by the prima facie case is

"rebutted" and "drops from the case."   

emphasized that once the presumption was

rebutted, the plaintiff had to carry the ultimate burden of

proving intentional discrimination at trial. The Court wrote:
          It is important to note . . . that although
          the McDonnell Douglas 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 

). The

Court continued:
          The defendant's "production" (whatever its
          persuasive effect) having been made, the
          trier of fact proceeds to decide the ultimate
          question: whether plaintiff has proven "that
          the defendant intentionally discriminated
          against [him]" because of his race.

(quoting 

). The
Court thus held that rejection of the defendant's proffered

reasons does not compel judgment for the plaintiff.    

when the defendant moves for

summary judgment or judgment as a matter of law are less clear.

Some courts of appeals have held that under Hicks a plaintiff

will not necessarily survive summary judgment or judgment as a

matter of law simply because the evidence is sufficient to permit

a rational factfinder to disbelieve the employer's proffered


                                  15
reasons.    E.g., Rhodes v. Guiberson Oil Tools, 

(5th

Cir. 1994), reh'g in banc granted, 

(5th Cir. 1995);

Woods v. Friction Materials, Inc., 

, 260-61 n.3 (1st

Cir. 1994); Nelson v. Boatmen's Bancshares, Inc., 

,

801 (8th Cir. 1994); LeBlanc v. Great American Ins. Co., 

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

(1994).    However, other courts of appeals have disagreed.     E.g.,

Collier v. The Budd Company, 

, 893 n.11 (7th Cir.

1995); EEOC v. Ethan Allen, Inc., 

, 120 (2d Cir.

1994); Washington v. Garrett, 

, 1433 (9th Cir. 1993).

Cf. Barbour v. Merrill, 

, 1277 (D.C. Cir. 1995),

cert. granted on other ground, --- S. Ct. ---, 

(1/19/96); 

(statement of Williams, J., concurring in

denial of rehearing in banc).

            Our court is among those in the latter group.     Relying

on the statement in Hicks that the "rejection of the defendant's

proffered reasons, will permit the trier of fact to infer the

ultimate fact of intentional discrimination,"    

,

our court has taken the position that "`if the plaintiff has

pointed to evidence sufficient[] 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 case.'"    

;

(quoting 

) (brackets in Waldron).       See

also Brewer v. Quaker State Oil Refining Corp., --- F.3d ---,

(3d Cir. Dec. 14, 1995); Sempier v. Johnson &




                                 16
Higgins, 

, 731 (3d Cir.), cert. denied, 

(1995).        We are compelled to follow these precedents here.

             Although these prior cases concerned motions for

summary judgment rather than motions for judgment as a matter of

law, we cannot distinguish them on that basis.        The legal

standard applied to a motion for summary judgment mirrors that

applied to a judgment as a matter of law.        Anderson v. Liberty

Lobby, Inc., 

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

Catrett, 

, 323 (1986).        It would make no sense to

allow a plaintiff to defeat summary judgment and proceed to trial

if the plaintiff's evidence could not sustain a judgment in his

or her favor.

             In this case, as the district court recognized, a

rational trier of fact could have found that duPont's proffered

reasons for the constructive termination were pretextual. We are

therefore required under our court's precedents to reverse the

entry of judgment as a matter of law in favor of duPont.

             B.     While we are bound to follow our court's prior

interpretation of Hicks and while we acknowledge that that

interpretation finds support in language in the Hicks opinion,0we
0
    Hicks stated:

             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


                                     17
question whether that interpretation is consistent with two of

the fundamental principles on which Hicks rests.

          The first of these is that, under the McDonnell Douglas

scheme, the ultimate burden of persuasion rests at all times with

the plaintiff.   See 

.    The second is

that the "presumption" of discrimination that is created when the

plaintiff makes out the elements of a prima facie case is

governed by the "bursting bubble" theory. Under this theory,
          a presumption disappears when sufficient
          counterproof is offered. The trier may still
          find the presumed fact, but 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.




          noted that, upon such rejection, "[n]o
          additional proof of discrimination is
          required."
          ____________________________________________

          4. Contrary to the dissent's confusion-
          producing analysis, post, at 2761-2762, 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 2752, and (2) "it is
          not enough . . . to disbelieve the employer,"
          infra, at 2754. 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
          

& n.4.



                                18
1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal

Evidence, § 71 at 334 (1994); see also, e.g., 2 McCormick on

Evidence, § 344 at 462-63 (4th ed. 1992).0

          From these principles, it seems to follow that once a

defendant satisfies its production burden and the McDonnell

Douglas presumption "bursts," a court should no longer accord

that framework or its elements any special significance but

should instead focus directly on the central issue in the case --

intentional discrimination.   Thus, in deciding whether a

defendant is entitled to summary judgment or judgment as a matter

of law, the court should focus directly on the question whether

there is sufficient evidence in the record to persuade a

reasonable factfinder that intentional discrimination on the


0
 That Hicks regards the McDonnell Douglas presumption as a
"bursting bubble" presumption is shown by the following passages:

          "If the defendant carries this burden of
          production, the presumption raised by the
          prima facie case is rebutted," 

, and "drops from the case," 

(emphasis added).

          If . . . the defendant has succeeded in
          carrying its burden of production, the
          McDonnell Douglas framework -- with its
          presumptions and burdens -- is no longer
          relevant. . . . The presumption, having
          fulfilled its role of forcing the defendant
          to come forward with some response, simply
          drops out of the picture. [Burdine, 450
          U.S.] at 255.

(emphasis added). See also McKenna v. Pacific Rail
Service, 

, 829 (3d Cir. 1994); Gomez v. Allegheny
Health Services, Inc., 

(3d Cir. 1995).


                                19
ground alleged by the plaintiff was a determinative cause of the

challenged employment action.    This approach, which focuses

directly on the question of intentional discrimination, rather

than continuing to view the record through the lens of McDonnell

Douglas, appears to be what the Supreme Court had in mind when it

said in Hicks that after the defendant satisfies its burden of

production "the McDonnell Douglas framework -- with its

presumptions and burdens -- is no longer relevant" and should not

be 

.

          Our court, however, has outlined a different approach.

Instead of recognizing that the McDonnell Douglas framework is

"no longer relevant" once the defendant has met its production

burden, our approach continues to accord a special place to a

central element of that framework -- the defendant's proffered

explanation.   According to our cases, a plaintiff at this stage

may defeat a summary judgment motion "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).    If the plaintiff relies

on the first method, our cases require the use of a complicated

standard for determining whether the plaintiff's reasons have

been sufficiently discredited.    Under this standard, a plaintiff

cannot defeat summary judgment "simply by arguing that the

factfinder need not believe the defendant's proffered legitimate

explanations," but the plaintiff need not "adduce evidence


                                 20
directly contradicting the defendant's proffered legitimate

explanations."    

  "Rather, the 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.'"    

(citation omitted).       "[T]he plaintiff

cannot simply show that the employer's decision was wrong or

mistaken," but "[o]f course, a decision foolish, imprudent, or

incompetent by comparison to the employer's usual mode of

operation can render it implausible, inconsistent, contradictory,

or weak."   

& n.8.     Moreover, when the 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."        

  But

"[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.

            Although elaborate, Fuentes' discussion of proof that

tends to discredit the defendant's reason(s) still does not fully

capture the relationship between such proof and the plaintiff's

ultimate burden of establishing intentional discrimination.          As

we will try to show below, the degree to which evidence

discrediting an employer's explanation tends to show


                                   21
discrimination on the ground alleged by the plaintiff depends on

a number of other factors that will vary from case to case.

Accordingly, we believe that, once the defendant in a McDonnell

Douglas case has shouldered the production burden, the court, in

ruling on a defense motion for summary judgment or judgment as a

matter of law, should inquire directly whether, based on all of

the evidence in the record when viewed in the light most

favorable to the plaintiff, a reasonable trier of fact could find

that discrimination on the ground alleged was, more likely than

not, a determinative cause of the action at issue.    This inquiry

will require an assessment of four categories of evidence.

          First, there is the inference of discrimination that

naturally arises from the elements of the prima facie case.      The

strength of this inference, however, will vary from case to case.

In some cases, it will be substantial.   (An example is the

McDonnell Douglas case itself, in which a black man had engaged

in a civil rights protest against the employer who denied him a

position in 1964 in favor of a white applicant.)     In other cases,

however, the inference of discrimination that naturally arises

from the elements of the prima facie case will be weak.    (An

example is the age discrimination case in which one middle-aged

person is hired, promoted, etc., instead of another somewhat

older middle-aged person.   See, e.g., Barber v. CSX Distribution

Services, 

(3d Cir. 1995).)   We think that it is clear

that the inference of discrimination naturally arising from the

elements of a prima facie case will not always be enough to take

a plaintiff to trial or to sustain a plaintiff's verdict.


                                22
           Second, there is the inference of discrimination that

may often be drawn from the ruling out of the employer's

proffered reason(s).   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 cause 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 permit an 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 generally Miller v. CIGNA Corp., 

, 597

(3d Cir. 1995) (in banc) (trier of fact may conclude that adverse

employment action "was taken for a reason other than the reasons

urged by the parties").   Perhaps the clearest of these cases are

those in which the plaintiff challenges a single adverse

employment action based on two or more alternative grounds.    For

example, an employee may claim that he or she did not get a

promotion (1) because of gender and (2) because of handicap.    If

the record in such a case contains strong evidence of handicap

discrimination, rejection of the employer's proffered reason (let

us say inferior qualifications) will not by itself permit an

inference that the employer's true reason was gender

discrimination.


                                23
             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.   See, e.g., 

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.

             Third, disbelief of the employer's proffered reason(s)

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


                                  24
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 our prior

hypothetical, handicap 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).

          The fourth category of evidence that may remain after

the McDonnell Douglas presumption "bursts" 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).

          Based on the two fundamental principles noted at the

outset -- i.e., that the plaintiff always bears the ultimate

burden of proving intentional discrimination on the ground

alleged and that the McDonnell Douglas presumption "bursts" -- it

appears that when the defendant satisfies its production burden

and the court must decide whether to grant summary judgment or

judgment as a matter of law for the defendant, the court should

decide whether in the particular case at hand the evidence in all

of these four categories taken together could persuade a

reasonable trier of fact by a preponderance of the evidence that

discrimination on the ground alleged was a determinative cause of

the challenged action.

          If we were free in this case to apply this mode of

analysis, we would discuss the evidence in some detail.     For


                                25
present purposes, however, we think that it suffices to say that

we are inclined to agree with the district court's evaluation of

the proof.    However, since we are not free to employ this mode of

analysis, we are required, as previously noted, to reverse the

entry of judgment as a matter of law in duPont's favor.



                                 III.

             We must therefore consider whether the district court

also erred when it granted duPont's motion for a new trial.        Such

a motion may be granted even if the evidence is legally

sufficient to support the verdict.      Roebuck v. Drexel University,

, 735 (3d Cir. 1988).       A new trial is appropriate so

long as the district court could "reasonably conclude[] that a

miscarriage of justice would occur if the jury's verdict were

left [to] stand."     Klein v. Hollings, 

, 1290 (3d

Cir. 1993) (quoting Williamson v. Consolidated Rail Corp., 

, 1348 (3d Cir. 1991)) (citing Shanno v. Magee Indus.

Enters., Inc., 

, 567 (3d Cir. 1988)).      A trial

court's decision to grant a new trial based on the weakness of

the prevailing party's evidence is generally reviewed for an

abuse of discretion.    Greate Bay Hotel & Casino v. Tose, 

, 1235 (3d Cir. 1994); 9A Wright & Miller, Federal Practice

and Procedure § 2540 at 378 (1995).       The trial court deserves

this deference because it is better able to weigh the evidence

presented at trial.     However, when it is argued that the district

court's order was based on the application of incorrect legal

precepts, we exercise plenary review with respect to that


                                  26
contention.   See generally Greate Bay 

;

Rotondo v. Keene Corp., 

, 438 (3d Cir. 1992).

          In this case, the district court applied the correct

legal standard when it granted duPont's motion.      The court

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 when the

failure to do so would result in injustice or shock the

conscience of the court.   Moreover, in assessing the evidence,

the court recognized that disbelief of duPont's proffered reason

was evidence of discrimination.    Accordingly, we hold that the

district court applied the correct legal precepts in ruling on

duPont's new trial motion, and we therefore review this decision

for an abuse of discretion.

          Like the district court, we find little evidence of sex

discrimination.   Although there is evidence that management may

have treated Sheridan unfairly, there is scant evidence that this

was because she was a woman.   Sheridan's testimony that Amblard

would not address her in the company of her male supervisor and

that he told her he would watch her like a "hawk" indicates

little more than personal dislike.      Although a man was promoted

to manager of restaurants and a man replaced Sheridan as head

captain of the Green Room, the record indicates that at all


                                  27
relevant times, two of the other four head captain positions at

the hotel were filled by women.    Sheridan II at 10.   Based on

this evidence, we cannot find that the district court abused its

discretion in granting a new trial on the constructive discharge

claim.0



                              IV.

          We next consider whether the district court erred in

dismissing the claims against Amblard, the hotel general manager,

on the ground that Title VII does not impose liability on

individual employees. App. 847-48. Title VII states that
          [i]t shall be an unlawful employment practice
          for an employer --


0
 The dissenting opinion concludes that the district court's new
trial ruling was tainted by its decision on the motion for
judgment as a matter of law. We disagree. In ruling on the
motion for a new trial, the district court assumed that its order
granting judgment as a matter of law would be reversed and, in
the alternative, still granted the motion for a new trial.
Sheridan II at 12 & n.11. We therefore do not agree that the new
trial decision is undermined by our reversal of the order
granting judgment as a matter of law.
          The dissenting opinion also suggests that the district
court may have failed to apply the complete test in ruling on the
motion for a new trial. The dissent apparently is concerned that
the district judge did not make an explicit finding that allowing
the verdict to stand would effect a miscarriage of justice.
Although such a finding would have been helpful for our review,
the district court did recognize that a motion for a new trial
should be granted on the ground that the verdict is against the
weight of the evidence only "`when the failure to do so would
result in injustice, or would shock the conscience of the
court.'" 

(citation omitted). We do not see how this
statement differs in any material way from the test set forth in
the dissenting opinion, and we think that a finding that this
standard had been satisfied was certainly implicit in the court's
decision to grant the motion for a new trial. We therefore do
not agree that the court misapplied the test governing the motion
for a new trial.


                                  28
               (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)(1).   The term "employer"

          means a person engaged in an industry
          affecting commerce who has fifteen or more
          employees . . ., and any agent of such a
          person . . . .

42 U.S.C. § 2000e(b).

          Sheridan argues that these provisions permitted her to

assert claims against Amblard.   She notes that § 2000e(b) defines

the term "employer" to include "any agent" of an employer, and

she contends that Amblard was an "agent" of duPont.    She also

observes that under the Civil Rights Act of 1991, a Title VII

plaintiff may now obtain relief -- compensatory damages -- that a

defendant such as Amblard is in a position to provide.    See 42
U.S.C. § 1981a(a)(1).

          Arguments such as Sheridan's have been considered by

many of the other courts of appeals in cases under Title VII, as
well as the Age Discrimination in Employment Act ("ADEA") and the

Americans with Disabilities Act ("ADA"), which contain

definitions of an "employer," 29 U.S.C. § 630(b) and 42 U.S.C.

§12111(5), that mirror that of Title VII.   Many of these courts

appear to have completely rejected the concept of employee

liability.   See, e.g., Tomka v. Seiler Corp., 

, 1313-

17 (2d Cir. 1995) (Title VII); Gary v. Long, 

, 1399

(D.C. Cir.) (Title VII), cert. denied, 

(1995);



                                 29
Equal Employment Opportunity Commission v. AIC Security

Investigations, LTD., 

, 1279-82 (7th Cir. 1995)

(ADA); Cross v. State of Alabama, 

, 1504 (11th Cir.

1995) (Title VII) (citing Busby v. City of Orlando, 

,

772 (11th Cir. 1991) (Title VII)); Smith v. Lomax, 

,

403 n.4 (11th Cir. 1995) (Title VII and ADEA); Grant v. Lone Star

Co., 

, 653 (5th Cir.) (Title VII),0 cert. denied, 

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

,

587 (9th Cir. 1993) (Title VII and ADEA), cert. denied, 114 S.

Ct. 1049 (1994).0
0
  An earlier Fifth Circuit case that seemed to reach a contrary
result, Hamilton v. Rodgers, 

(5th Cir. 1986), has
been held to be "nonauthoritative." Harvey v. Blake, 

, 228 n.1 (5th Cir. 1990).
0
  In addition, the Fourth Circuit has rejected such claims against
employees based on "personnel decisions of a plainly delegable
character." Birkbeck v. Marvel Lighting Corp., 

, 510-
11 & n.1 (4th Cir.), cert. denied, 

(1994); see
also Paroline v. Unisys Corp., 

, 104 (4th Cir. 1989)
(employee may be individually liable for sexual harassment),
vacated in part on other grounds, 

(4th Cir. 1990) (in
banc). The law in the Sixth and Tenth Circuits is less clear.
For the Sixth Circuit, see, e.g., Jones v. Continental Corp., 

, 1231 (6th Cir. 1986) (statement, in discussion of
award of attorney's fees, that Title VII claims may be asserted
against employees); Romain v. Kurek, 

(6th Cir.
1985); York v. Tennessee Crushed Stone Ass'n, 

(6th
Cir. 1982); see generally Winston v. Hardee's Food Systems, Inc.,

(W.D. Ky. 1995) (noting absence of controlling
Sixth Circuit authority, collecting cases, and holding no
employee liability under Title VII); Johnson v. University
Surgical Group, 

, 981-86 (S.D. Ohio 1994) (noting
absence of controlling Sixth Circuit authority, collecting cases,
and holding employee may be liable under Title VII). For the
Tenth Circuit, see, e.g., Ball v. Renner, 

, 668-69
(10th Cir. 1995) (holding employee not individually liable at
least where he or she does not exercise employer-like functions);
Lankford v. City of Hobart, 

, 480 (10th Cir. 1994) (no
employee liability); Brownlee v. Lear Siegler Management Services
Corp., 

, 978 (10th Cir.) (dictum that employees may be
liable under ADEA), cert. denied, 

(1994); Sauers


                               30
          Among other things, the decisions rejecting employee

liability note that Title VII's definition of an "employer"

predates the Civil Rights Act of 1991; that before the passage of

that Act, Title VII did not permit compensatory or punitive

damages; and that the equitable remedies, including back pay,

that were then available were directed against the employer.      AIC

Security Investigations, 

; 

n.2; 

.   From these facts, it has

been inferred that prior to 1991, an employee could not be sued,

and it has been noted that Congress did not indicate any desire

to change this rule when it passed the 1991 Act.   

contrary, it has been argued that the statutory scheme of the

1991 Act affirmatively indicates that Congress assumed that

employees would not be sued under Title VII.   In passing the 1991

Act, Congress limited damages available based upon the size of

the defendant.   Under § 1981a(b)(3),


v. Salt Lake County, 

, 1124-25 (10th Cir. 1993)
(holding that claim against employee must be deemed to be in
official capacity). The First and Eighth Circuits have not yet
addressed the issue. See Lenhardt v. Basic Institute of
Technology, Inc., 

, 380 (8th Cir. 1995) (not reaching
issue of employee liability under Title VII, but interpreting
similar state statute to preclude employee liability); Weeks v.
State of Maine, 

, 516 (D. Me. 1994) (noting lack
of First Circuit precedent). Also, numerous district court
decisions from this circuit have reached the same conclusion and
found no employee liability, see, e.g., Ascolese v. SEPTA, 902 F.
Supp. 533 (E.D. Pa. 1995); Clark v. Commonwealth of Pennsylvania,

(E.D. Pa. 1995); Caplan v. Fellheimer Eichen
Braverman & Kaskey, 

(E.D. Pa. 1995); Verde v.
City of Philadelphia, 

(E.D. Pa. 1994), although
several other courts have reached the opposite result, see, e.g.,
Doe v. William Shapiro, Esq., P.C., 

(E.D. Pa.
1994); Dreisbach v. Cummins Diesel Engines, Inc., 

(E.D. Pa. 1994).


                                31
            [t]he sum of the amount of compensatory
            damages awarded . . . shall not exceed . . .

                (A) in the case of a respondent who has
                more than 14 and fewer than 101
                employees . . . $50,000;

                (B) in the case of a respondent who has
                more than 100 and fewer than 201
                employees . . . $100,000;

                (C) in the case of a respondent who has
                more than 200 and fewer than 501
                employees . . . $200,000; and

                (D) in the case of a respondent who has
                more than 500 employees . . . $300,000.

42 U.S.C. § 1981a(b)(3).   This section, it has been argued,

suggests that Congress did not contemplate a respondent who was

not an employer.    See AIC 

; 

n.2; see also Ascolese v. 

-

41.   While reasonable arguments in favor of the contrary position

can be made, see 

(Fletcher, J.,

dissenting); 

(Parker, J., dissenting),

we follow the great weight of authority from other courts of

appeals and hold that an employee cannot be sued.   We therefore

affirm the dismissal of Sheridan's claims against Amblard.



                                 V.

            We next consider whether the district court erred in

granting in part duPont's motion in limine to preclude certain

evidence.   Sheridan had sought to introduce testimony by co-

worker Mary Deptula regarding a suggestive remark that was

allegedly made by Amblard when he saw a woman in a tight dress.

Deptula would also have testified that one day when she


                                 32
volunteered to park cars, Amblard told her that she could not do

so because she was a woman.    App. 1520-21.   The district court

found these statements to be "prejudicial and irrelevant" and

granted the defendants' motion in limine to exclude testimony

concerning them under Federal Rules of Evidence 401 and 403. App.

44.

            We generally review district court rulings concerning

Rule 403 for an abuse of discretion.    Glass v. Philadelphia

Electric Co., 

, 191 (3d Cir. 1994).    However, when the

district court "failed to explain its grounds for [deciding] a

Rule 403 [motion] and its reasons for doing so are not otherwise

apparent from the record, . . . we may undertake to examine the

record and perform the required balancing ourselves."    United

States v. Himelwright, 

, 781 (3d Cir. 1994) (citations

omitted).

            In this case, we need not decide the appropriate

standard of review because we conclude that under either standard

the district court properly excluded the testimony under Rule

403.   Amblard's comments had little probative value as to whether

he had a gender-based animus against Sheridan and whether this

animus was a determinative factor in any of the actions taken.

See Hook v. Ernst & Young, 

, 369, 376 (3d Cir. 1994).

On the other hand, these comments raise a substantial danger of

unfair prejudice.    Thus, we hold that the district court properly

excluded Deptula's testimony under Rule 403.

            Sheridan also sought to admit testimony by co-worker

April Akers that Amblard complimented many of the men on the


                                 33
staff but never complimented Sheridan or the other women.    App.

1515; see also Pl.'s Br. at 38-39.    The defendants, however,

claim that Sheridan never sought to admit this portion of Akers's

deposition testimony into evidence.    Defs.' Br. at 28 n. 6.

Sheridan has not provided a record citation showing that she

attempted to introduce this evidence.    Sheridan's only reference

is to a court order precluding Akers from testifying as to (1)

Sheridan's qualifications and job performance and (2) rumors that

Sheridan was stealing from the hotel.    App. 43.   In this order,

the court did not address the testimony by Akers that Sheridan

now seeks to admit.   Thus, we do not believe that Sheridan raised

this claim at trial, and in any event she has not properly

presented this argument on appeal.    See Third Circuit Local

Appellate Rule 28.1(a)(i)(1).



                                VI.

          Sheridan's final two arguments do not require extended

discussion.    Sheridan contends that defense counsel's use of a

peremptory challenge based on the age of a member of the venire

violated equal protection.    For the reasons explained in our

opinion in Pemberthy v. Beyer, 

, 870 & n.18 (3d Cir.),

cert. denied, 

(1994), we hold that this strike was

permissible.

          Sheridan also maintains that defense counsel improperly

vouched for the credibility of certain witnesses during summation

and that the district court should have instructed the jury to

disregard those statements.   However, assuming for the sake of


                                 34
argument that defense counsel's remarks were objectionable, we

hold that a new trial on Sheridan's denial-of-promotion and

retaliation claims is not warranted.



                              VII.

          For the reasons stated, we reverse the district court's

entry of judgment in favor of duPont on the constructive

discharge claim, but we affirm the court's decision to grant

duPont's motion for a new trial on that claim.   We affirm the

judgment against Sheridan on her claims against Amblard and her

denial-of-promotion and retaliation claims.   We also hold that

the district court properly granted duPont's in limine motion to

exclude evidence, and we remand this case to the district court

for further proceedings consistent with this opinion.




                               35
Sheridan v. E.I. duPont de Nemours & Co., No. 94-7509


SLOVITER, Chief Judge, concurring in the judgment reversing the
entry of judgment as a matter of law and dissenting from the
judgment affirming the grant of a new trial.



                                I.

          Although I join in the majority's conclusion that the

judgment as a matter of law on Sheridan's constructive discharge

claim should be reversed, I cannot join in much of its language

in doing so, particularly its suggestion that this court has

taken a wrong path in its series of opinions interpreting the

Supreme Court's opinion in St. Mary's Honor Center v. Hicks, 

(1993).

          In Hicks, the Court was faced with a holding of a court

of appeals that a factfinder's rejection of the defendant's

proffered reason for its adverse employment action compels a

judgment for the plaintiff.   In concluding that it does not, the

Court also explicitly stated that such a finding permits the
factfinder to draw the inference that the defendant intentionally

discriminated against the plaintiff.   Thus, we have read Hicks to

establish that the disbelief of the defendant's proffered reasons

is the threshold finding, beyond which the jury is permitted but

not required to draw the inference of intentional discrimination.

.   In Fuentes v. Perskie, 3

, 764

(3d Cir. 1994), from which the majority seeks to disassociate, we

stated that a plaintiff survives summary judgment by producing



                                36
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.

          As the majority recognizes, numerous other courts have

likewise interpreted the Supreme Court's decision in Hicks.     See

e.g., Barbour v. Merrill, 

, 1277 (D.C. Cir. 1995)

("According to Hicks, a plaintiff need only establish a prima

facie case and introduce evidence sufficient to discredit the

defendant's proffered nondiscriminatory reasons; at that point,

the factfinder, if so persuaded, may infer discrimination."),

petition for cert. filed, 

(U.S. Jul. 3, 1995)

(No. 95-27); 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., 

, 1123-24 (7th Cir. 1994)

("The Court [in Hicks] explicitly states that the plaintiff may

prevail in a discrimination case by establishing a prima facie

case and by showing that the employer's proffered non-

discriminatory reasons for her demotion or discharge are


                               37
factually false."); 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 . . . .").

          Instead of following this precedent, the majority would

require, at least in some cases, evidence beyond that

establishing the prima facie case and supporting the factfinder's

rejection of the defendant employer's proffered reasons in order

to find that plaintiff has met his or her burden of showing

intentional discrimination.   The majority offers no guidance as

to what specific additional evidence would be required, but

rather would allow the district court to base its determination

on its own evaluation of the following four considerations: 1)

the strength of the inference of discrimination arising from the

elements of the prima facie case; 2) the degree to which an

inference of discrimination drawn from the rejection of the

employer's proffered reasons is justified; 3) the strength of the

inference "that the employer was trying to conceal

discrimination," and 4) any other evidence of discrimination on

the ground asserted.

          However, the imposition of such an additional

evidentiary requirement is directly contrary to the Supreme

Court's statement in Hicks that "rejection of the defendant's

proffered reasons, will permit the trier of fact to infer the

ultimate fact of intentional discrimination, and . . . upon such

rejection, `[n]o additional proof of discrimination is


                                38


(emphasis in original) (citation

omitted).    Although the majority sees a conflict between this

statement and the requirement that the plaintiff must prove

intentional discrimination, the Court in Hicks believed

otherwise, stating that "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,' and (2) 'it is not enough

. . . to disbelieve the employer'."      

n.4 (citations

omitted) (emphasis in original).       The Court explained that "even

though . . . rejection of the defendant's proffered reasons is

enough at law to sustain a finding of discrimination, there must

be a finding of discrimination." 

original).

            The reasons why the factfinder should be entitled to

infer intentional discrimination from this evidence appear from

the relevant caselaw.    We have repeatedly acknowledged the

difficulty of proving intentional discrimination in Title VII

cases.     See, e.g., Chipollini v. Spencer Gifts, Inc., 

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

(1987); Dillon v. Coles, 

, 1003 (3d Cir. 1984). "This

is true in part because . . . discrimination . . . is often

subtle."    

.     As the Supreme Court has

recognized, "[t]here will seldom be `eyewitness' testimony as to

the employer's mental processes."      United States Postal Serv. Bd.

of Govs. v. Aikens, 

, 716 (1983).       We have tied the

Supreme Court's establishment of a distinct method of proof in

employment discrimination cases, that relies on presumptions and


                                  39
shifting burdens of production, to the Court's recognition that

direct evidence of an employer's motivation will often be

unavailable or difficult to acquire.    See 

; 

.

          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 Constr. Corp. v. Waters, 

, 577 (1978).     I

assume 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 discrimination, see 

,

even though the presumption "drops from the case" after the

defendant proffers a legitimate reason.   Texas Dept. of Community

Affs. v. Burdine, 

, 255 & n.10 (1981).

          The fact that the issue arises here in the context of a

motion for judgment as a matter of law rather than for summary

judgment should make no difference.    Because a finding of

intentional discrimination generally depends heavily on

assessments of the credibility of witnesses and those credibility

assessments are traditionally left to the jury, it follows that

the jury must be permitted to draw the inference of intentional

discrimination from its negative credibility finding.    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


                                 40
testimony, a jury could always choose to discredit it." (quoting

Bhaya v. Westinghouse Elec. Corp., 

, 262 (3d Cir.

1987))).   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.").

           The majority seems to believe that this court's focus

on the credibility of the defendant's proffered explanation

impermissibly gives continuing weight to the presumption of

discrimination created by the prima facie case even after the

McDonnell-Douglas presumption "bursts."   However, I see nothing

that undermines the "bursting" of the presumption.   The

McDonnell-Douglas prima facie case is used only to move the

plaintiff's case past the pleadings stage.    Once defendant has

satisfied its burden under Burdine to articulate a

nondiscriminatory reason for the employment decision, and

plaintiff has cast doubt on that reason, the case then moves from

the summary judgment stage to the factfinder.   It is at that

stage that the credibility of the defendant's proffered

explanation may play a significant - even a determinative - role.

           As the Court stated in Hicks, "[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


                                41
case, suffice to show intentional 

.   Fuentes and our later cases have reasonably concluded from

this statement that a plaintiff who has made out a prima facie

case may defeat an adverse judgment by the court by producing

evidence from which a factfinder might discredit the defendant's

proffered reasons.

           The majority is mistaken in its view that basing a

finding of intentional discrimination on the jury's rejection of

the employer's explanation together with the facts supporting the

prima facie case is inconsistent with the bursting of the

presumption.   In Burdine itself, the Supreme Court made clear

that "[i]n 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. . . . [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."    

n.10.

           Much of the majority's discussion is predicated on its

concern that an employer may proffer a false reason for its

actions, not to conceal the discrimination alleged but rather to

conceal a different form of discrimination or some other unlawful

conduct.   The courts should not base their decisions on such a

hypothesis.    We routinely expect a party to give honest testimony

in a court of law; there is no reason to expect less of a

defendant charged with unlawful discrimination.    If a defendant

fails to come forward with the true and credible explanation,


                                 42
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.

           In sum, I continue to believe that this court's

interpretation of Hicks, as stated in Fuentes, Waldron v. SL

Indus., Inc., 

(3d Cir. 1995), Sempier v. Johnson &

Higgins, 

(3d Cir.), cert. denied, 

(1995), and most recently in Brewer v. Quaker State Oil Ref.

Corp., No. 95-3101, 

(3d Cir. Dec. 19, 1995), is

true to the language and holding of Hicks and the principles upon

which it rests.

           This does not mean that the courts in discrimination

cases lose their traditional obligation to review the sufficiency

of the showing on which summary judgment may be based or, if the

issue is judgment as a matter of law, the adequacy of the showing

plaintiff made to the factfinder.    In both such instances, 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.   See, e.g., 

-765; Ezold v.

Wolf, Block, Schorr & Solis-Cohen, 

, 523, 531, 533

(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




                                43
proffered by the employer.   For these reasons, I agree that the

judgment for duPont as a matter of law must be reversed.0

                               II.

          However, I respectfully disagree that we should affirm

the order granting a new trial and instead would remand so that

the district court can reconsider that issue.   The district

court's explanation for its grant of a new trial was brief,

inasmuch as its ruling focused primarily on its decision to grant

defendant's motion for judgment as a matter of law.   The court

noted in a footnote that it was obliged under Rule 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."   D. Ct.

Opinion at 12 n.11.

          The majority would affirm the grant of a new trial,

noting that the court "applied the correct legal precepts."

Majority Opinion at 28.   I am less confident than the majority

that this is so.   If the majority is suggesting that the district

0
 As to the dismissal of the claims against Amblard on the ground
that Title VII does not impose personal liability on individual
employees, although I find the reasoning of Judge Fletcher and
Judge Parker convincing, see Miller v. Maxwell's Int'l Inc., 

, 588-90 (9th Cir. 1993) (Fletcher, J., dissenting);
Tomka v. Seiler Corp., 

, 1318-24 (2d Cir. 1995)
(Parker, J., dissenting), the majority correctly notes that the
great weight of authority from other courts of appeals is
otherwise, and I see no purpose to dissent from the court's
judgment on this issue.




                                44
court made no error of law in its post-trial rulings, this

statement would be inconsistent with our ruling that the district

court made a substantial error of law in its understanding of the

quantum of evidence that is needed to uphold a jury's verdict.

The district court based its grant of judgment as a matter of law

on 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.    No such evidence exists in the record."   D. Ct. Opinion

at 11-12.   This substantial legal error is the basis for our

decision today to reverse the district court's grant of judgment

as a matter of law.

            The district court was clearly operating under the

misconception that direct evidence of discriminatory intent was

necessary to sustain the jury's verdict.    It seems likely that

the court's conclusion that specific evidence of gender

discrimination was necessary led ineluctably to its conditional

new trial ruling.   However, because such evidence is not a

prerequisite to a finding of discrimination, I believe the

district court should be given the opportunity to reconsider

whether a new trial is warranted in light of the correct legal

principles.

            I believe 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.        I

recognize that a new trial may be granted even if the evidence is


                                 45
legally sufficient to support the verdict.      Roebuck v. Drexel

Univ., 

, 735 (3d Cir. 1988).      However, we have

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. Consol. 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.'"      Fineman v. Armstrong World

Indus., Inc., 

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

Schenley Indus. Inc., 

, 90 (3d Cir. 1960)), cert.

denied, 

(1993).    "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."     

imposing on Sheridan the burden and

expense of a new trial, I would 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.




                                  46
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