Barbara R. Sheridan v. E.I. Dupont De Nemours and Company, Jacques Amblard

1061 non- rational trier of fact to find ‘genuine moving party, there is no issue for SHERIDAN, Appellant, Barbara R. ” Indus. v. Ze trial.’ Matsushita Elec. Co. v. 574, 587, 106 Corp., 475 S.Ct. nith Radio U.S. E.I. de AND DuPONT NEMOURS (1986) 1348, 1356, (citing 89 L.Ed.2d 538 COMPANY, Jacques Bank Ariz. v. Cities Serv.

First Nat’l of Amblard. 289, 1575, 1592-93, 20 391 U.S. (1968)). No. 94-7509. This rule has been L.Ed.2d 569 applied in numerous ADA and Rehabilitation Appeals, United of States Court City Dep’t Act cases. See Fink v. New York Third Circuit. Personnel, Cir.1995); Agued May 1995. Tennessee, University Maddox v. (6th Hose, Cir.1995); Myers v. Reargued May en banc (4th Cir.1995); University Doe v. Ma Decided Nov. (4th ryland Sys. Corp., Medical 50 F.3d 1261 Cir.1995); McGregor v. Louisiana State (5th Supervisors, Univ. Bd. 3 F.3d 850 denied,

Cir.1993), cert. (1994); Bradley 127 L.Ed.2d

S.Ct. University Texas M.D. Anderson Can (5th Ctr., Cir.1993), cer 3 F.3d 922 cert. de

nied, (1994); Frank,

L.Ed.2d 389 Fuller v. (9th Cir.1990);

F.2d 558 Smith v. Midland

Brake, Inc., (D.Kan.1995); F.Supp. R-1,

Dyer County Sch. Dist. Jefferson (D.Colo.1995). F.Supp. correctly It was

applied in the instant case.

Because the district court concluded disability prevent

that Atman’s him performing in

from a reasonable manner the

activities involved in the Chief Medicine, correctly

Internal also dismissed claim Human

Atman’s under New York’s 292(21).

Rights § Law. See N.Y. Exec. Law of the district court is af-

firmed. Neuberger (Argued), Wilming-

Thomas S. ton, DE, DE, Haverly Wilmington, D. Martin Appellant. Raymond Ripple (Argued), Donna L. M. Goodman, E.I. DuPont de Nemours & Co. DE, Wilmington, Ap- Legal Department, pellees. Smith, Mullin,

Nancy Erika Neil Lisa Manshel, Mullin, P.C., Orange, Smith West NJ, Rocah, Liberties David American Civil N.J., Newark, NJ, for Amicus Union of Curi- of N.J. in ae American Civil Liberties Union Support Appellant. Jones, Shaw,

Elaine R. Theodore M. Ralston, Legal Stephen Charles NAACP De- Fund, Inc., and Educational New York fense City, Legal for Amicus NAACP De- Curiae in Support and Educational Fund fense Appellant. Stewart, Gwendolyn Young Gregory

C. Reams, Wheeler, Carolyn Greg- L. Robert J. ory, Equal Employment Opportunity Com- DC, mission, Washington, for Amicus Curiae Equal Employment Opportunity Commission Appellant. Support Ballard, Ballard, Philadel- Alice Samuel & PA, Burr, Epstein, Alan B. phia, A. Scott Drucker, Jablon, Epstein, Cap- & Philadel- ceased one the Head Wolf PA, Room, National Em- tains of the hotel’s phia, for Amicus Curiae Green asserted Lawyers’ Support Association in that DuPont ployment discriminated her on the promote basis of her Appellant. sex when failed to her (Count I), Manager of Restaurants in 1991 Kathryn Levering, & H. Drinker Biddle against for complaining retaliated her about Reath, PA, Philadelphia, for Amicus Curiae by putting proba- sex discrimination her on Support Appel- Corp. Martin in Lockheed taking tion disciplinary various actions lees. (Count II), against her and created intoler- conditions, working culminating able in her Argued May 1995. supervisory position, removal from a which SLOVITER, ALITO, Judge, Before: Chief (Count discharge resulted her constructive SCHWARZER, Judge, and District Circuit III). Judge.* discovery, After the defendants moved for May 14, Reargued en banc 1996. summary judgment which the court district SLOVITER, Judge, Before: Chief denied. court held that The Sheridan had BECKER, MANSMANN, GREENBERG, presented facie' case of discrimina- SCIRICA, COWEN, NYGAARD, ALITO, permit tion and sufficient evidence fact- ROTH, LEWIS, McKEE, SAROKIN**, finder to believe that for DuPont’s reasons Judges. Circuit her, i.e., promoting that she was not qualified position Manager for the of Res- OF THE COURT OPINION applied taurants and that she had not SLOVITER, Judge. Chief position, pretexts were for discrimination. App. at 57. The court further held that appeal This offers the en banc court the presented adequate Sheridan had evidence to opportunity attempt clarify quan- summary judgment survive on her retaliation permit nature that will tum and of evidence reasonably claim and to enable a factfinder to jury employer engaged to find supervisors intentionally believe that her impermissible employment discrimination. job poor performance fabricated evidence of Although opin- we believe that several of our in order to her from remove her years accurately adequate- ions recent desirable, Captain Head and offer her less ly legal applicable principles, set forth the jobs. App. dead-end at 68. The court con- the decision of the district court and that of a plaintiffs cluded that version of the facts “[i]f court, withdrawn, panel require of this now fact, accepted by were á trier of it would be presented us to return to the central issue reasonable for the trier of fact to conclude here. resignation plaintiffs only option.” Id. I. Sheridan, Thereafter, employee proceeded

Barbara a former the ease to trial. (DuPont), subject E.I. DuPont de Nemours Co. The conduct that & was the Sheri- period filed this action under Title VII of the Civil dan’s claims before and straddled 21, 1991, Rights § Act of U.S.C. 2000e-l et after the date of the November seq., charging super- Rights DuPont and her former enactment of the Civil Act of visor, Amblard, 102-166, (1991), Jacques with several Pub.L. No. claims Stat. granted right jury of sex discrimination and retaliation. which to a trial on Title Sheri- dan, employee who had been an of the Hotel VII intentional discrimination claims for compensatory punitive damages du Pont1 since 1979 and was at the time are her * Schwarzer, capitalized Quixotically, W as is Hon. William Senior United States the hotel is Judge, confusion, District the Northern District of designation. United States District Court for company. the name of the To avoid California, sitting by we will nonetheless refer to the hotel and the interchangeably defendant as DuPont. ** argument Hon. H. Lee Sarokin heard but retired prior opinion. from office to the issuance of the 1977A(c), findings respect conduct jur/s § at 1073 to the 105 Stat. id. at

sought, 1981a(c)). (codified alleged place § I and II that took dis- Counts at 42 U.S.C. jury would serve as November ruled that before trict court claims that fact Sheridan’s the finder of parties as a Both moved that occurred after on conduct were based for a new matter of law or the alternative date, would serve granted judgment in trial. The district court advisory capacity for claims based on in an recognized that DuPont’s favor. The court that date. This occurred before events that proffered principal DuPont had as one of the jury’s verdicts on Count meant disciplinary actions it had reasons for the (failure alleged promote) and the retaliato- alleged her unautho- taken Sheridan that occurred before ry II acts Count i.e., away complimen- “comping,” giving rized advisory, to be 1991 were November tary food and drinks in violation of the hotel’s jury to be the finder of fact for was while they registered, and policy that should be alleged acts of retaliation and remaining contrary, Sheridan offered evidence to III, claim of to Count Sheridan’s respect with indeed, on evidence that she was elsewhere discharge. constructive days some of the that DuPont claimed she days. occupied six The trial During “comping” in the hotel. engaged was trial, district court dismissed the claims ground that an em- against Amblard on overturning jury’s In verdict on the Title ployee cannot sued under VII. discharge claim in favor of Sher- constructive idan, jury that if jury spe- the court stated even deliberating, the returned After reasonably rejected legitimacy could have interrogatories. respect With to the cial claim, al- jury investigation that of DuPont’s of Sheridan’s promotion found Sheri- job Manager leged “comping,” and thus its reasons for qualified for the dan was her, discharging “the is still left and therefore found Court of Restaurants discriminatory searching gen- that failure to the record for evidence her claim of her on retaliation, respect played a determinative role in defen- der promote. With conduct_ ... DuPont had not retaliated dant’s The Court has failed jury that found from which the complaining of sex dis- locate sufficient evidence against Sheridan contrast, jury jury finding.” In did find in could infer such a Sheridan v. crimination. 93-46, claim of E.I. DuPont de No. favor on her constructive Nemours Sheridan’s (D.Del. 1994).2 $17,500 July her in com- 1994 828309 at 9 discharge. It awarded WL damages, over and above lost The court ruled that the evidence Sheridan pensatory gen- presented arguably that DuPont’s actions were related to her found wages, but der, malice or reckless indiffer- such as the facts that no woman had not taken “with preclud- position Manager of rights, App. at thus ever held the Restau- to her ence” rants, receiving punitive replaced that a man as Head ing from dam- Sheridan Sheridan (b)(1). shift, morning § Finally, Captain 1981a of the Green Room ages. 42 U.S.C. See had failed to that Amblard had told Sheridan he would jury found that Sheridan $33,000, “dog,” damages that watch her like “hawk” and mitigate her ignoring speak- Amblard’s in her and be deducted from the total actions amount supervisors if wages instead to one of her male of lost owed. Because amount totality in wages present, lost to be one was was even insuffi- court calculated Sheridan’s $18,072, $51,072, that it awarded her addition cient to a reasonable inference $12,768. pay totalling gender motivating front was a factor in DuPont’s months of to six adopted as its own the actions. Id. at 9-10. court The district cause, op- court instructed the that it was was a determinative district crimination The cause, employer's gender posed chal- required to find that Sheridan’s was the to the sole discharge, lenged ruling on DuPont's motion for of her constructive action. sole cause . law, judgment court jury apparently this as a matter of the district found that standard trial, gender we held that the evidence of After the held in Miller been met. (3d Cir.1995) (en was under Corp., in Sheridan's case insufficient even CIGNA banc), Miller standard. need show that dis- that II. order to demon- “[i]n court stated The factor, motivating gender strate DISCUSSION point to some evidence plaintiff would have of those the decision the motive A. evidence exists making process. No such Legal. Issues at 11-12. The district court the record.” Id. motion for accordingly granted DuPont’s parties disagree appli- both as to the law, and ruled con-

judgment as a matter of weight law and the of the evidence. cable 50(e), ditionally, pursuant to Fed.R.Civ.P. argues DuPont deci- the district court’s ap- that if the were reversed favor have sion its should been affirmed to a new trial peal, DuPont would be entitled respects. apparently recognizes all It contrary jury’s to the “because the verdict court’s that Sheridan had district at 12 n. 11. weight of the evidence.” Id. proving her Du- not carried burden of appealed.3 Sheridan Pont’s decisions were based on dis- argument on panel A of this court heard crimination was not consistent opinion that re- May 1995 and issued Thus, prior court’s decisions. DuPont chal- granting court’s order versed the district lenges requests that we reconsider our of law for DuPont on judgment as a matter prior respect “recurring decisions with to the discharge claim but constructive Sheridan’s problem shifting employ- burdens” grant of a was divided as to the alternative cases, arguing ment discrimination that our trial, judges voting to affirm new with two fully incorporate decisions do not the teach- voting grant of a new trial and the third the in Supreme of the Court It sin- Hicks. the issue whether a new trial was to remand gles particular “underlying out in deci- by for reconsideration the district Perskie, warranted of the Court in v. [Fuentes sion court, legal using principles. (3d Cir.1994) the correct See F.3d 759 DuPont’s Petition ].” DuPont, 94-7509, v. No. 1996 WL Sheridan Rehearing for at 5. (Jan. vacated, 31, 1996), F.3d 1459 part argues for her Sheridan we have Cir.1996). (3d majority dissenting and post-Hicks correctly interpreted Hicks in our opinions particular in their inter- differed respect the evidence that decisions with pretation Supreme of of the effect permit plaintiff claiming employment opinion Mary’s Court’s St. Honor Center cites, prevail, inter Hicks, 2742, 502, v. 509 U.S. 113 S.Ct. Fuentes, alia, 759; Sempier v. John- (1993), L.Ed.2d 407 on the inferences that (3d Cir.), Higgins, 45 son & cert. of fact from its the finder draw disbelief — denied, -, 2611, 115 S.Ct. U.S. justification employer’s proffered (1995); v. SL Indus- L.Ed.2d 854 Waldron disciplinary employment action taken (3d tries, Cir.1995); 56 F.3d 491 and Brewer type of against and the amount and Sheridan Quaker Refining Corporation, 72 v. State Oil evidence needed to sustain a verdict. Cir.1995). F.3d 326 petitioned Both DuPont and Sheridan turn, bane, We thus this time en to reex- rehearing and the court voted to hear the continuing amine what DuPont calls “this required by appeal en banc. As our Internal problem interpreting perplexing Procedures, opinion Operating shifting burden Hicks.” 31,1996 panel January was withdrawn issued argument By Supreme and the court held the en banc the time Hicks reached Court, 14,1996.4 required components plain- May Fund, finding challenge jury's the American Civil Liberties Union 3. Sheridan does not cation qualifications promotion Jersey, Employment as to her lack of for the National of New subject Manager Association, of Restaurants that was the Lawyers all as amicus filed briefs longer of her Count I. Thus that claim is no position. Lock- curiae in of Sheridan’s issue. Corporation brief in heed Martin filed an amicus support of DuPont. Equal Employment Opportunity Commis- 4. The (EEOC), Legal sion the NAACP Defense and Edu- Hicks, employment case of discrim In a case in which the prima facie tiffs brought alleging a Title VII action that he established McDonnell ination had been discharged was demoted and because of his Green, Corporation v. 411 U.S. Douglas race, appeals the court of had concluded that 1817, 1824, 36 L.Ed.2d 668 93 S.Ct. plaintiff proved employer’s] “[o]nce [the all of Community (1973), Department Texas proffered employ reasons for the adverse Burdine, 450 U.S. 253 & n. Affairs pretextual, plaintiff ment actions to be 6,n. 1093-94 & 67 L.Ed.2d 101 S.Ct. judgment entitled to as matter of law.” (1981),5 requirement had been the holding 970 F.2d at 492. It that was proffer obliged to a nondis employer was Court, by Supreme reversed held employ for its adverse criminatory reason is not com action, Douglas, 411 see McDonnell ment pelled by the disbelief of the rea 1824; Burdine, 802, 93 S.Ct. at at U.S. 509 U.S. at at 2749. On sons. S.Ct. 254, at 1094. Also estab U.S. at S.Ct. hand, explicitly the other the Court also stat requirement that the burden lished was proffered ed that a the reasons at all persuasion remained times with the pretextual permits are the factfinder to draw States Postal Bd. plaintiff. See United Serv. intentionally that the defendant the inference Athens, 711, 716, Governors plaintiff. discriminated Id. (1983); 75 L.Ed.2d 403 deciding question” “ultimate Burdine, employer unlawfully whether discrimi- however, subject open, and the of con Still nated, following the Court stated oft- dispute, was the effect of the deci siderable quoted passage that “[t]he factfinder’s disbe- by of fact that sion the trier reasons put lief of the reasons forward the defen- given by the were not the real (particularly accompanied dant if disbelief is the adverse action. reasons for suspicion mendacity) may, together Hicks, As the Court noted there were case, prima with the elements of the appeals that a eases in the courts of held that suffice to show intentional discrimination.” finding finding pretext of does not mandate a “rejection explained Id. The Court of discrimination, see, illegal e.g., v. EEOC reasons, proffered per- the defendant’s will (10th 1312, Flasher 986 F.2d Cir. mit the trier of fact to infer the ultimate fact Telecom, Inc., 1992); v. Northern Galbraith discrimination,” of intentional and continued: (6th 275, Cir.1991), denied, 944 F.2d cert. Appeals “the Court was correct when it 1497, 117 503 U.S. S.Ct. L.Ed.2d 637 that, upon rejection, noted such addi- ‘[n]o (1992), finding and others that held that a proof required.’” tional of discrimination is illegal discrimination was mandated on a Hicks, (emphasis original) (quoting in Id. see, finding pretext, e.g., Hicks v. St. 493).6 F.2d at Center, Mary’s Honor 492-93 (8th reversed, Cir.1992), 509 U.S. Reading these statements (1993); King L.Ed.2d 407 S.Ct. opinion, context of the un Court’s we have Palmer, (D.C.Cir.1985); 778 F.2d derstood Hicks to hold that the elements Pittsburgh Duffy Wheeling Corp., Steel prima facie case and disbelief of the (3d 1393, 1395-96 Cir.), denied, cert. 738 F.2d proffered defendant’s reasons are the thresh 83 L.Ed.2d 702 findings, beyond jury permit old which the ted, required, not to draw an inference prima significance 5. a facie case To establish of discriminato It is not without the four dissenting justices (1) did take Hicks issue ry discharge plaintiff a Tide VII show must majority’s acceptance sufficiency with the class, (2) protected a of a she that she is member rejected pretext to demonstrate discrimina- (3) position, qualified was she was dis Instead, gone tion. the dissenters would have (4) ultimately charged, and was further and construed Burdine to hold that once See, by person protected filled not of the class. rejected employer’s proffered the factfinder Industries, e.g., Waldron v. SL reason, plain- of discrimination for the 1995) (citing Douglas Cir. McDonnell 532-33, compelled. was 509 U.S. at tiff See Burdine). J., (Souter, dissenting). S.Ct. at 2760-61 explanations discharged was inten- it had the 63- leading it conclude that there —that year-old plaintiff company reorgani- Accordingly, due to a tional discrimination. plan and with his explained that “the factfinder zation dissatisfaction work we Fuentes plain- performance attempt age to conceal combination of the may infer from the —was Waldron, rejection own discrimination. 502-03. prima facie case and its tiffs non-discriminatory holding court’s proffered We viewed the district employer’s unlawfully requiring plaintiffs to dis- bear the burden of reasons that demonstrating “pretext-plus,” plaintiff and was a burden we criminated rejected illegal explicitly act with in Fuentes. Id. at merely trying to conceal its 32 F.3d at 764. It the articulated reasons.” plaintiff may sum- followed that a survive Brewer, again we cited Fuentes for the (or mary judgment as a this ease plaintiff proposition that a will survive sum- law) plaintiff produced if suffi- matter of mary judgment produce if can sufficient s/he genuine of fact cient evidence to raise issue employer’s proffered evidence non- employer’s proffered rea- as to whether discriminatory employment reason for its ac- for the chal- sons were not its true reasons tion was the true reason. 72 F.3d at 331. (“[T]o lenged action. Id. de- Finding the evidence in Brewer’s suffi- case summary judgment when the defendant feat permit cient believe that plaintiffs prima answers the facie case employer’s poor performance by claim of non-discriminatory legitimate, reasons for its 53-year-old pretextual, salesman was we re- action, point plaintiff must to some evi- entry summary versed the district court’s dence, circumstantial, direct or from which judgment on Brewer’s ADEA claim. Id. (1) reasonably disbe- factfinder could either majority of other federal courts of employer’s legitimate lieve the articulated appear appeals interpreted to have Hicks (2) reasons; that an dis- believe invidious precedent. a similar manner to this court’s criminatory likely than not reason was more See, e.g., Shaw v. HCA Health Servs. of motivating or determinative cause of the (8th Cir.1996) Midwest, Inc., action.”). (where dispute plain defendant did not Although ultimately we decided Fuentes tiff made out a facie case had failed to submit evi- per that defendant had altered dence cast sufficient doubt on his em- firing formance evaluations of after ployer’s place proffered reasons for failure to him, “jury (although entitled not re sought, applica- him the that he giv ... quired) to conclude that the reasons approach in cases tion of the same some later by hospital firing [plaintiff] a en for were plaintiff us to that the had satisfied led hold discrimination”); pretext age for Barbour or raised an issue to be his her burden and (D.C.Cir.1995) Merrill, 1270, 1277 48 F.3d Thus, Sempi- by decided the trier of fact. (“As rejection explained, Hicks a factfinder’s grant court’s of er we reversed district reasons, employer’s nondiscriminatory summary judgment employer in an compel finding a of while not sufficient to Employment Act

Age Discrimination in discrimination, permit nonetheless suffices to (ADEA) Sempier, an execu- action because — dismissed, finding.”), cert. U.S. such a brokerage tive at an insurance and consult- -, 1037, 134 (1996); 116 L.Ed.2d 113 S.Ct. firm, presented to sufficient evidence Inc., Allen, v. Ethan EEOC genuine create a issue of fact as whether (2d Cir.1994) (“A finding pretextuality al of company’s claim that he was forced to juror reject proffered a a defendant’s lows poor performance pretext a retire for challenged action reasons for a age discrimination. 45 F.3d at 732-33. permits ultimate and thus inference Waldron, discrimination.”); thereafter, Shortly Manzer another Diamond case, again summary ADEA we held that Shamrock Chemicals (“Hicks (6th Cir.1994) only that the judgment improper clarified nondiscriminatory employer’s ques- a because the evidence factual effect raised proffered the inference of tion as to whether the is to convert informed to which upon plaintiffs pri- rience and based discrimination mandatory one'which litigants may properly case from a resort for ma facie courts and draw, permissive one the jury Vinson, must Savings Bank v. guidance.” Meritor draw, jury finds provided that the 57, 65, 2399, 2404, 91 belief.”); ‘unworthy’ of employer’s explanation (1986)(internal quotation marks L.Ed.2d Corp., v. Baxter Healthcare erson omitted). And and citations (7th Cir.1994) (to defeat by attack DuPont and the dissent on summary judgment, plaintiff Title VII “must The from which a rational ‘produce paradigm other courts have we and these company lied’ infer that the factfinder could Hicks is multi- constructed the wake of proffered reasons for his dismissal” about its suggests an DuPont that there is faceted. (citation omitted)); v. Data Gen. Mitchell caselaw, inconsistency between this court’s as Cir.1993) (4th 1310, 1316 Corp., 12 F.3d articulated, requirement applied and the summary judgment by (plaintiff can defeat persuasion the ultimate burden “presenting] evidence' sufficient establish discrimination must rest with the intentional case, showing] ... prima facie inconsistency. plaintiff. find no such We fact genuine dispute of material there is important, Supreme More Court itself proffered explana [the defendant’s] about expressly Hicks stated that its various state- Garrett, action); Washington v. tion” for its opinion to the ments in that burden Cir.1993) (9th (“[A]s St. bear, enough must i.e. “it is not ... recognizes, the factfinder in a Title Mary’s employer,” to disbelieve the 509 U.S. at infer discrimination case is entitled to VII 113 S.Ct. at and the must show prima case plaintiffs proof from facie false, the reason was and that “both anything showing pretext without reason,” was the real id. at .”).7 more... 515, 113 S.Ct. at were not inconsistent Opportunity Com- Equal Employment “rejec- opinion in the with the statement mission, charged agency government proffered tion of the defendant’s reasons will employment discrim- with enforcement permit the trier of fact to infer the ultimate amicus curiae ination laws and an discrimination,” fact of intentional id. at case, “that a has also taken the view explained at 2749. Hicks S.Ct. ease, justifi- coupled with a non-credible “rejection statement of the defendant’s employer, is sufficient to cation from the proffered enough reasons is to sustain law finding of discrimination.” EEOC finding of discrimination” was inconsis- Mary’s Honor Enforcement Guidance St. placement tent with its of the burden of Hicks, (BNA), Comp.Man. Center v. EEOC persuasion plaintiff because on the “there 12, 1994). N:3361, (Apr. n. 3 “As must he a discrimination.” Id. at interpretation of the Act administrative óf (emphasis n. n. 4 Guidelines, enforcing agency, these while Thus, throughout original). discussion in controlling upon the courts reason of body Supreme very claim authority, expe- constitute a Court has answered the their do Isenbergh creating that of the four cases from other here indicates that failed It is of interest contrary by "strong the dissent as dis-believability circuits cited authority,” an issue of fact about the holding the actual was that in three decision”). employer’s hiring reason present evidence "failed to sufficient Tools, (5th Rhodes v. Guiberson Oil 75 F.3d 989 permit to infer that a reasonable factfinder Cir.1996), adopts analysis which of Hicks that pretext [the reason was a defendant’s] articulated circuits, majority counter to the the court runs Woodsv. Fric for unlawful ... discrimination.” found that nonetheless based the evidence Materials, Inc., 255, (1st tion 262 Cir. false, given by employer that the reason 1994); see v. Great American Ins. also LeBlanc juiy find that the reasons “the was entitled to Co., ("We 836, (1st Cir.1993) 845 con discharge pretexts given [plaintiff's] were clude ... that a reasonable factfinder could not age ”[v]iewing this evidence discrimination" pretext age these infer circumstances.”), or discrimination from light [plaintiff], most a reason- in the favorable denied, - U.S. -, cert. employer] jury [the able could have found that (1994); Isenbergh S.Ct. 128 L.Ed.2d 72 v. Inc., plaintiff] Sales, on the basis [the discriminated Knight-Ridder Newspaper 97 F.3d 436 (11th Cir.1996) ("Our age.” of his Id. at 996. examination of the record reason, his decision purports to find in with some based inconsistency DuPont impermissible on an consideration Hicks. such interpretation of our race. dissent’s Similarly unpersuasive is the Id. impermissibly gives Fuentes

suggestion that presumption of dis continuing weight to the previously proba- This court has noted the by prima facie case created crimination significance tive of the factfinder’s disbelief Douglas presump after the McDonnell even proffered explanation by party, stating: a argu This dissipated or “burst.” tion has always It has been understood —the infer- assumption on the mistaken ment is based simplest in hu- ence indeed is one presumption of discrimination that once experience party’s man —that falsehood initially by prima facie case created preparation pre- or other fraud Burdine, case,” at “drops from the U.S. cause, of his or sentation his fabrication n. the under n. 101 S.Ct. at 1095 suppression by bribery spo- or evidence probative value. How lying facts lose their liation, against him as an is receivable ever, Supreme specifically ex Court of his ease indication consciousness his saying that the plained “[i]n Burdine one; and from that is weak unfounded drops from presumption [of discrimination] may be inferred the fact it- consciousness case, imply that the trier of we do not self of the cause’s lack of truth and merit. previ longer fact no consider evidence Co., McQueeney Wilmington Trust ously to establish introduced (3d Cir.1985) (quoting 921-22 prima facie case.... evidence [T]his 278(2) (Chadbourne 1979)). Wigmore § Rev. may be properly drawn therefrom inferences recently court remarked in the As another fact on issue of considered the trier of context of an discrimination pre the defendant’s whether is, pretextual explanation “Resort to a ease: long As as the must textual.” Id. crime, flight like from the scene of a discrimination, of intentional make is, indicating guilt, consciousness of why there is no reason the evidence course, illegal evidence of conduct.” Binder prima coupled case supported the facie Lighting Long Island jury’s employer’s determination Cir.1995). pretextual proffered explanations are logic, presume We the same albeit a verdict of discrimina sufficient unarticulated, Supreme was the basis for the tion. in Hicks that disbelief of Court’s statement Justice, Justice, Rehnquist As Chief then permit the factfin reason will explained, presumption the initial earlier fact of discrimina der to infer the ultimate plaintiffs arises from the of discrimination tion, 509 U.S. at 113 S.Ct. at even ease of discrimination “because though presumption of acts, if unex presume we these otherwise “drops from the ease” after the plained, likely than not based on are more actions, proffers legitimate reason for its impermissible factors.” the consideration Burdine, n. Waters, Corp. v. Furnco Construction n. 1095 10. 2943, 2949-50, 567, 577, He continued: L.Ed.2d routinely expect party give that a hon- We law; testimony in is no willing presume largely est a court of [W]e are experience expect employer charged of an we know from our reason to less because employ- If the people often than not do not act in a with unlawful discrimination. more manner, any totally arbitrary un- er fails to come forth with the true without reasons, keeps a hid- derlying especially in a business credible and instead Thus, agenda, peril. it own Un- setting. legitimate when all reasons den does so at its circumstances, policy is no to rejecting applicant an have been elimi- der those for jury by refusing permit to the to possible employ- reasons for the be served nated actions, likely that the motivation is the one that it is more than not the infer real er’s plaintiff charged. has employer, generally who we assume acts the actions, legitimate that in usual case concedes the its those must be its rea- The dissent by prima sons. created the presumption the after dissipated and sufficient evi- facie ease has argues The dissent that mere disbelief of adduced, there will pretext has been dence of the articulated reason is not to a verdict of

be sufficient enough a to sustain verdict. Of course Hicks is concerned The dissent discrimination. rely merely did not the factfinder’s disbe- may atypical case this not be so. the explanation proffered by lief of the the em- plaintiff who posits the situation It ployer uphold employee. to a verdict for the grounds, illegal, all the multiple Instead, claims noted, as we have under Hicks it is We see no reason to action. employment combination the disbelief the em- dialogue speculation as to how in a engage ployer’s proffered explanation, the evidence case, a factual case, a divorced from supported finding prima to treat such record, because the situation particularly jury’s finding of intentional discrimi- and the following was not the case in by proper the dissent nation instruction to that presented Hicks, plaintiff claimed race dis- effect. where Fuentes, crimination, not the case in was Although the dissent states at the outset origin plaintiff claimed national

where approach its “does not mean that a discrimination, it nor is the case before us fact, plaintiff, in order to reach the trier of ’ now, claims sex discrim- Sheridan where i.e., always prove ‘pretext plus, must ination. always plaintiff produce must some evidence necessary addition what is to establish posited by situation the dissent The other prima facie case and to show that em- join unwillingness to for its otherwise ployer’s explanation pretextual,” Dissent- court is that created unanimous en banc added), ing Op. (emphasis at 1078 the dis- “may employer not wish to disclose where an approach bring sent’s would the courts of promoting B A.” reasons for over his real this circuit back to the confusion and uncer- persistence n. 8. Dissenting Op. at 1086 The tainty “pretext plus” created maintaining that action language prompted “some evidence” unquali- was taken because court consider this case en banc. being eliminated due fied or case, In Sheridan’s the district court had employer in force when the to a reduction presented reviewed the evidence in connec- nepotism the real reason is knows that summary tion judg- with DuPont’s motion for language if not spirit of Rule violate ment and found that Sheridan had made out Rules of Federal Civil Procedure. gender facie case for discrimination gives why no reason dissent The culminating in discharge. constructive is not entitled to the alleging Also, carefully the district court had in- decision, personnel real no reason jury structed the on the need to find inten- the truth matter how uncomfortable tional discrimination before could return a Surely, judicial system employer. any verdict for Sheridan on of her claims. gain approach. the dissent’s has little Early charge in its the court had advised the jury Supreme “allegations Court has stated that this case involves articulating discrimination, is, employer can meet its burden intentional sexual only through intentionally treating people the reason for its action some favor- less ably gender.” Bur- than introduction of admissible evidence. others because of their dine, 9,101 App. Again, at 255 n. at 1094n. at 111. S.Ct. connection with the Burden-shifting designed sharpen discharge “to constructive count the court had question the elusive factual inquiry prove into reminded the that Sheridan must 1) “by preponderance discrimination.” Id. at 255 n. intentional the evidence that n. It intentionally plaintiffs at 1094 follows that the defendant made work- analysis is rooted in require- Burdine conditions so intolerable that a reason- 2) person resign; ment that when the advances able would feel forced to through plaintiffs motivating the reasons for was the sole fac- admissible evidence 3) conduct; ... plain- part because ... discrimination is often in defendant’s tor Chipollini fact, “[A]n subtle.” 814 F.2d tiff, resigned.” App. at 123. The in knowingly ... rejected Du- who discriminates signifies that jury’s verdict revealing the leave no written records for its proffered reasons Pont’s may communicate it forbidden motive and that the real reason was action and believed orally (quoting LaMontagne to no one.” Id. discrimination. Prods., v. American Convenience law judgment as a matter of granting In (7th Cir.1984)). 1405, 1410 DuPont, court stated that the district proof employ The distinct method point to some evi would have to “plaintiff ” cases, relying pre ment discrimination of those that was the motive dence sumptions shifting burdens of articu decision-making process. It is evident in the production, lation and arose out of the court believed that some the district recognition Supreme Court’s that direct forth thing required than was set more was employer’s evidence of an motivation will only was such a and our cases. Not Hicks acquire. often be unavailable or difficult to rejected requirement of additional evidence Hopkins, v. See Price Waterhouse plain that “if the in Fuentes where we stated 228, 271, 1775, 1801-02, U.S. 109 S.Ct. sufficiently to evidence to pointed tiff has (1989) (O’Connor, J., con 104 L.Ed.2d 268 reasons, proffered the defendant’s discredit (“[T]he curring) purpose entire summary judgment to survive Douglas prima McDonnell facie ease is to with additional need not also come forward compensate fact for the that direct evi beyond or her his evidence of discrimination hard dence intentional discrimination is 764, case,” 32 F.3d at but it is prima facie Airlines, by.”); Trans come World Inc. with the statement Hicks also inconsistent Thurston, 111, 121, v. 469 U.S. 105 S.Ct. rejection prof upon of the defendants’ (1985) (“The 613, 621-22, 83 L.Ed.2d 523 action, “no additional fered reasons proof shifting burdens of set forth required.” proof of discrimination is Douglas designed McDonnell are to as (internal 511, 113 quota at 2749 U.S. at day in sure that has his omitted). tion marks unavailability despite court of direct “[tjhere noted, Supreme has As the Court (internal quotation evidence.” marks omit testimony ‘eyewitness’ will seldom be ted)); see also International Bhd. of processes.” mental United States, 324, Teamsters v. United Bd. Governors v. Ai States Postal Serv. 1843, 45, 45, 1867 n. 359 n. 97 S.Ct. 1482, kens, 711, 716, 103 S.Ct. U.S. (1977) (recognizing L.Ed.2d that bur (1983). recognized have 75 L.Ed.2d We ... den-shifting rules “are often created victims often come to “[discrimination party’s superior access to conform with a legal process without witnesses and proof’); Chipollini 814 F.2d at indicating precise little direct evidence 897; Dillon, 746 F.2d at 1003. wrongs they have suffered.” nature of the Thus, employ- it is not disbelief University Pittsburgh, 826 Jackson v. proffered er’s reason that suffice (3d denied, Cir.1987), cert. F.2d case, plaintiffs dissent sustain the as the 108 S.Ct. 98 L.Ed.2d U.S. jury’s argues. It is the determination charging are Cases given pretextual together the reason prove depend uniquely difficult to and often supported with the evidence See, e.g., upon circumstantial evidence. finding of inten- facie case that will sustain Corp., 85 Aman v. Cort Furniture Rental proper made after a tional discrimination Cir.1996); F.3d 1081-82 Lockhart charge. 43, 48 Westinghouse Corp., Credit v. (3d Cir.1989); determining the infer- Chipollini Spencer Gifts, The role of whether (3d Cir.) (en banc) Inc., must re- ence of discrimination warranted dismissed, jury, province because main within cert. Coles, (1987); is at bottom a 746 a of discrimination 97 L.Ed.2d 815 Dillon (3d Cir.1984). making of intent. “This is true determination jury finding, perform must its traditional meets requirement, this threshold it assessing weight of the pretermit jury’s function of evi ability not in- to draw dence, credibility of the witnesses testimony, including ferences from the testimony of both through observation direct inference of intentional discrimination drawn trial, and cross-examination and the proffered by from an unbelievable reason strength of the inferences that can be drawn employer. the elements of the facie case from us, legal principles With these before we that undermines the and the evidence em turn to the district granting court’s order ployer’s proffered reasons for its actions. judgment for DuPont as a matter law on factfinder, uniquely This is the role of the jury Sheridan’s verdict that she con- v. the court. See Barber CSX Distribution structively discharged as a result discrimi- (3d Cir.1995)(“Evalu- Servs., 694, 68 F.3d plenary nation. We exercise review of the credibility ation of witness is the exclusive granting district court’s order DuPont’s mo- jury, function of the where judgment tion for as a matter of law. Seman testimony, evidence of intent is oral Co., (3d 428, Coplay v. Cement 26 F.3d it.”) always (quoting could choose to discredit Cir.1994). Westinghouse Bhaya Corp., Elec. (3d Cir.1987), denied, cert. 488 U.S. B. 782, (1989)); L.Ed.2d 774 Aikens, see also 460 U.S. at 103 S.Ct. at Factual Issues (“It very is true that it is difficult to We need recount all of the evi prove what the state of a man’s mind at a is, dence adduced at the trial if because we exam particular time it can be ascertained else.”) ine the record with anything (quot purpose much a fact as the limited is as Fitzmaurice, ascertaining Edgington whether Div. there was sufficient evi Ch. (1885)); dence to Chipollini withstand as a F.2d at 899 matter (“The so, In doing law. issue defendant’s intent at the we must look at the evi plaintiffs discharge clearly light Sheridan, dence in time of most favorable to winner, question.”). factual the verdict and draw all reasonable inferences in her favor. See v. Provi Hofkin mean This does not the courts in dent & Accident Ins. Life cases lose their traditional (3d Cir.1996). with, obligation, when faced a motion for law, judgment as a matter of to review the At the time of the events that formed adequacy showing presented to the case, the basis of this Sheridan one of factfinder. The district court must deter captains hotel, five head at the occupying the mine whether the has east sufficient Captain of Head of the Green Room upon employer’s proffered doubt rea Sheridan, for the breakfast lunch shifts. permit a sons to reasonable factfinder to began working part- who at the hotel as a incredible, conclude that the reasons are time supervi waitress reached that previous and our explained eases have sory position following in 1989 a series of plaintiffs detail the regard. burden in this steady promotions. In addition pro to those See, Fuentes, (“[T]he e.g., 32 F.3d at 764-65 motions, Sheridan received numerous non-moving plaintiff must demonstrate such job performance. commendations for her weaknesses, inconsistencies, implausibilities, incoherencies, Focusing on period immediately before contradictions the em issue, ployer’s that at proffered legitimate May was evidence that in reasons its action that 1989 Sheridan was peers a-reasonable nominated her factfinder could ra tionally “Employee and received an ‘unworthy Quarter find them of cre Block, (quoting dence ....’” Award” for Wolf, “outstanding” Ezold v. work. She re- Solis-Cohen, Schorr & May ceived merit raises in 1990 and Febru- Cir.1992), denied, ary July cert. “Way 1990 she received a (1993))). 126 L.Ed.2d 56 to Go” award But once from the Personnel & Adminis- the court is satisfied that “going beyond the evidence trative Services Division for including “maintaining duty.” DuPont’s October an accurate cover the call of (custom- review, signed by supervi- two count sheet” to insure that performance “covers” ers) Amblard, staff, Jacques fairly including among defendant were distributed sors “very good,” following “grooming policy” the sec- rated Sheridan overall which re- rating. quired report “out- to highest ond She was rated she work on time and in dress, standing” “Interpersonal Relationships,” refraining using full and from for “Planning/Organizing,” and “Problem-Solv- Green Room as a break room and for smok- report ing. ing.” Although App. noted that at 228. Nicholas “[a]s Waller testified strengthening im- in player, Manager team is needed to the summer of as Restaurants, prove relationship with the rest of he met with the overall Sheridan to discuss operation,” report alleged complaints listed one of her that Sheridan had asked relations, “[v]ery good guest strengths employees help as Green Room to her with tasks, organized.” report personal ear, that “Bar- parking giv- stated such as her call, persistence paid by guest loyal- wake-up. taking off personal bara’s has her her sick, office, ty, post does not call off and overall mail to the and that staff she had very good support employees complied by from the team.” rewarded who giving morale mark, given lowest for “At- them in dining Even Sheridan’s additional “covers” room. tendance/Punetuality/Dependability,” App. at 960-63.

“Satisfactory.” App. at 197-98. 17, 1991, Maisel, by On October Jeff then $1,000 Restaurants, Manager

In Sheridan won a December met with Sheri- informing accomplishment problems allegedly perceived award. The letter dan to discuss performance, including her of the award referred to her as “a role with her tardiness continuing disregard and “a ambassador for the com- model” true for the hotel’s pany.” App. grooming policy. App. at 151. Other restaurant em- at 885. On No- 10, 1991, ployees ranging placed received awards from vember Maisel Sheridan on $200- $500, ostensibly employee probation, ground was the to on the Sheridan that she high App. performance. receive an award as at had not corrected her Maisel $1000. January 287. In was chosen warned that her failure Sheridan Sheridan to follow employees policies as one of about 20 DuPont to could in the hotel’s result her termi- appear company App. App. in a at 734. video. On nation. 1, 1991, pro- October Sheridan received support of its claim of Sheridan’s inad- salary

motion and increase. equate performance, DuPont introduced var- attempted pic- paint DuPont to a different ious notes and records that DuPont had jury. Notwithstanding compiled specific ture to the the record infractions Sheridan. commendations, promotions complaints evidence of Illustrative DuPont’s performance it contended that be- Barba to the file that on occa- Sheridan’s memo one gan early in smoking to deteriorate 1991. DuPont sion he had observed Sheridan in produced supervisors putting evidence that met with the Green Room Bar and on make- Sheridan, dissatisfactions, expressed up. meticulously A report and di- listed other de- improve categories. placing proba- rected her to various tails to Sheridan on Barba, example, February For Ed tion.8 DuPont contended that even while Manager, probation, then Room’s the Green listed “cor- Sheridan was on she continued take, inadequate performance.9 rective measures” that Sheridan should her included, example, period employee during 8. These for for short Room Bar with another service App. at in 1991: Oct. 20: Sheridan arrived at work hours. on, makeup minutes late and without her grooming policy; reported violation of Oct. 22: 9. Specifically, February DuPont contends that in late; reported work minutes Oct. 23: spoke rudely meeting Sheridan at a staff late; Marshall, work minutes late, Nov. 3: was 17 minutes Cap- Joe the Room and Service Head wearing makeup; Nov. 3: Sheridan presented tain. It also evidence that once when employee was observed another Sunday, com- Sheridan was asked to work on a she refused, work, pany during meeting; initially agreed van Nov. staff 7: Sheri- but then al- eating smoking though allegedly dan was seen in the that "[s]he Green she told Maisel felt DuPont not consider part DuPont’s lected Maisel. did defense important

An id., position, and Sheridan actions centered on its claim Sheridan its i.e., complained times engaged “comping,” to Amblard least three that Sheridan period September food and drinks and October away complimentary giving promoted was not due to up complimentary checks. she ringing without App. investigating discrimination. at 51-52. She also tes- began Sheridan The hotel time, February, around this Amblard told her and its tified that activity in late planned repeatedly that he to watch her “like investigation lists statements of record of App. dog” App. and “like a hawk.” at 748'. at 222-26. numerous co-workers. position was that the hotel’s a bartender who was one Sheridan’s Dougherty, James daily activity “comp- recordkeeping of details of her witnesses on principal of DuPont’s “nitpicking” in retaliation for her com- DuPont that due to his was reported to ing,” App. at 1337. “discrepancies” plaints of sex discrimination. numerals about concerns Sheridan, sought portray Amblard as a handling problems” with She further and “cash that, and testified when she was with keep of the amount of free sexist began to track he supervisors, gave away. He recorded one of the other male he liquor Sheridan ignore speak to the from November her and instead totaled $921.75 18, 1992, February App. man. at 748. with $417.25 1991 to away in given December of drinks worth In addition to the affirmative evidence Dougherty at App. 222. testified alone. accomplishments, present- own her Sheridan he saw serve a each time Sheridan trial that ed evidence at trial that was directed drink, would record the date he free credibility impeaching of DuPont’s wit- drink, and claimed dollar amount nesses, to, particularly, limited “98-percent accurate.” about his dates were Dougherty and Maisel. demon- Sheridan App. at 688. January strated that for two weeks during Dougherty listed dates that based on the hotel’s three testified Maisel drinks, allegedly dispensed she investigation, DuPont decided that when free internal jury duty Superi- reassigned reported to a non-su- she had at the be Sheridan should 173-79, require App. at Even a position that would not her or Court. 540-13. pervisory App. at 910. document handwritten Maisel showed that Sheridan to handle cash. reception- captain options: front desk another head was scheduled cover three offered attendant, server, days. App. ist, club Sheridan’s shift on those at 167. banquet health salary. The hotel Maisel’s schedule also indicated that Sheri- with no diminution for work on Decem- eligible for ad- dan was not scheduled that she would claimed 24, 1991, although Dougherty’s any positions, although ber 23 and of those vancement sug- among included those when evidence at trial that list these dates offered Sheridan 473-75, required him App. allegedly to deliver gested See Sheridan otherwise. weeks, 167, 227, complimentary App. at considering the offer for some drinks. After fact, In Maisel’s work schedule could resigned. written Sheridan contradicting Dougherty’s be viewed as list testimony portrayed the at trial Sheridan’s separate as to seven dates. differently DuPont. It was than did events seeking pretextual nature alleged dissatisfaction to show the position that her reasons, of DuPont’s articulated Sheridan performance stemmed from her with her noted, alia, temporal proximity which she inter complaint of sex discrimination complaints when the hotel her to Amblard of sex discrimina- in the fall of made his that he would watch to eliminate the tion and statements reorganized its structure surfac- managers place subsequent and to her like a “hawk” to the individual restaurant performance, of dissatisfaction with her manager over all of the restaurants new recordkeeping of the details not advertise the the meticulous the hotel. The hotel did daily activities, of her and the hotel’s investi- position, only five of its own em- considered (all men), gations alleged “comping.” into her ployees post and se- for the new App. Monday- Friday.” at 220. years after 13 she deserved to work Sheridan, constructively discharged Thus, jury in case DuPont clear that the it is proved by preponderance evidence on both sides she must have was faced with jury’s “intentionally parties. The ver- the evidence that DuPont issues raised working on her constructive dis- so [her] dict for Sheridan made conditions intolerable jury accepted person charge claim shows that a reasonable would feel forced to rejected this claim and resign” view on and that “[Sheridan’s] Sheridan’s pretextual. motivating the sole factor in the defendant’s DuPont’s App. conduct.” at 1487. cautioned that previously “[i]n have We suffi-, determining the evidence is whether investigative of the series of liability, the court eient to sustain activities, place- allegations improprieties, evidence, credibility weigh determine the probation after more than a decade ment witnesses, or its version of the substitute satisfactory performance, and the ultimate Lightning jury’s version.” facts for the supervisory removal of from her Sheridan Lube, Corp., 4 F.3d Inc. v. Witco highly reputed in the Green Room to Cir.1993). (3d jury A reasonable could have prestigious of three far one less dead-end proffered DuPont’s reasons for disbelieved attendant, positions, such as the health club evidence and its actions based on Sheridan’s jury could have been viewed as meet- rejection credibility of certain of its discharge. the criteria of a constructive witnesses, principal Dough- as DuPont’s such jury unqualified returned an verdict erty paucity find no and Maisel. We finding constructively that DuPont had dis-‘ jury could have based evidence on which the charged Sheridan and did so based on her finding for on her constructive its Sheridan gender. that We cannot hold Sheridan failed discharge claim. present to sufficient evidence to withstand judgment DuPont’s motion for as a matter of law, applicable a who Under the law, district and therefore reverse the will may voluntarily resigned maintain a case of (cid:127) court’s order to that effect. discharge constructive when the allegedly discriminatory conduct creates equiva

atmosphere that is the constructive C. discharge. Gray v. York News lent of a See a New Trial Grant of (3d Inc., papers, F.2d Cir. ruling Because the district court’s focused 1992). objective apply an test to deter We primarily grant to DuPont’s on its decision knowingly per “the mine whether law, a matter of motion for of discrimination in em mitted conditions grant of trial court’s for its a new ployment so intolerable that reasonable in a was brief. The court noted footnote subject resign.” person to them would 50(c) to obliged it was under Fed.R.Civ.P. Corp., Aman v. Cort Furniture Rental ruling make a conditional on the defendant’s Cir.1996) (3d (quoting F.3d Goss comply with that motion for a new trial. To Systems v. Exxon Office . merely it stated requirement, the court (3d Cir.1984)) trial grant the motion for a new “would summary denying In DuPont’s motion contrary jury’s to the because the verdict rejected judgment, Du- the district court (July weight of the evidence.” Sheridan argument no on Pont’s that there was basis 1994), at 12 n. 11. 1994WL 828309 which a could find conditions subjected to ascertain the extent to claimed she was We are unable Sheridan ruling the court’s level that would con- which this was affected could have reached the Instead, of dis- discharge. misconception that direct evidence stitute a constructive criminatory necessary intent was to sustain the court held that if Sheridan’s version of verdict, fact, i.e., understanding jury’s its accepted by a it the facts were trier “[i]n for the trier of fact to order demonstrate would be reasonable factor, have to only motivating plaintiff would resignation conclude that was Sheridan’s Thus, that was the point to some evidence option. when the court instructed decision-making pro- jury, charged jury to find that motive of those in the that for the great weight 11-12. Because such evidence Sheridan Id. at cess.” miscarriage and would effect a prerequisite to a of intention- is not discrimination, justice. district we believe the al trial whether new court should reconsider previously that the dis- We have remarked legal light of the correct

is warranted jury placed to the on trict court’s instruction principles. higher proof than our Sheridan a burden require. supra. If there cases See note district It is also unclear whether the trial, would not have to were new Sheridan ruling complete test for applied the court cause prove that discrimination was the sole motion, granting motion. a new trial only that discrimina- of DuPont’s action but merely concluded that the court the district motivating was a factor in its decision. tion contrary weight jury’s to the verdict was Corp., 47 F.3d 586 See Miller CIGNA Although recognize that a the evidence. we Cir.1995) (en banc). granted even if the evi new trial legally support the ver dence is sufficient raised other trial er Sheridan has Roebuck, Univ., dict, v. Drexel trial, motion for a new rors her (3d Cir.1988), we have nonetheless 735-36 briefly only one. but we need consider Sher grant court should that a district cautioned argues idan that the district court erred on the basis that the verdict was new trial testimony excluding of a female co-worker “only contrary weight of the evidence to the stated, watching a woman that Amblard after miscarriage justice result if where a by, tight in a dress that he “would like walk stand,” to Williamson v. the verdict were that,” 699-700,1520, grab App. to 1344, 1352 Corp., Rail 926 F.2d Consolidated rejected on another occasion Amblard her (3d Cir.1991). explained that this We have ground park offer to cars at the hotel on the necessary “to ensure stringent standard park that she could not cars because she was court does not substitute its that a district App. court a woman. at 1521. The district credibility facts and the ‘judgment of the testimony excluded this under Federal Rules jury. for that of the Such an the witnesses 403, finding of Evidence 401 and these state jury sys denigration action effects “prejudicial App. at ments and irrelevant.” that new trials are tem and to the extent rulings review a district court’s con We over, granted judge if he does not takes cerning the admission of evidence for abuse jury usurp, prime function of the as the Philadelphia of discretion. v. Elec. Glass Armstrong v. trier of facts.’” Fineman (3d Cir.1994).10 Co., 188, Al 34 F.3d 191 Indus., Inc., 980 F.2d World though comments would be rele Amblard’s Cir.1992) (quoting Schenley v. Indus. Lind determining vant to whether he was biased (3d Cir.) (en 79, banc), Inc., 90 cert 278 F.2d against generally and therefore women 835, 58, denied, 5 L.Ed.2d 364 U.S. 81 S.Ct. district court took too narrow a view hold denied, 921, (1960)), cert. 113 60 value, they probative had no we (1993). 1285,122 L.Ed.2d 677 S.Ct. cannot conclude that the district court Therefore, imposing deciding that Am before on Sheridan abused its discretion trial, expense prejudicial more of a new we blard’s statements were the burden require probative to than to the district court the ultimate issue wheth will remand whether, employment actions as to inasmuch as Sheridan er DuPont’s Sheri determine gender-based obliged produce by evidence of dan were caused animus. was not direct intent, us,11 jury’s discriminatory verdict for We turn then to the final issue before trial, failed there be a new the district court will have We concerned that the district court are 403, ruling. explicit reasoning opportunity its under Rule to reconsider to make required balancing regard but we Rule 403 implicit ruling apparent preserve its and therefore as her claim that 11. Sheridan has failed testimony record. See United States v. Himel from the other another co-worker was im- 777, (3d Cir.1994). wright, properly reject We note 42 F.3d 781 excluded. We also her claim expect peremptory routinely, use that we will not do so based on defense counsel's age requirements allegedly part will be strike based in on the of 68- of the Federal Rules year-old venire and her followed circuit. Should black member the courts in this

1077 1995); 1295, Corp., as a Tomka v. Seiler 66 F.3d of Amblará defen- the court’s dismissal (2d Cir.1995); Gary Long, 1313-17 v. 59 F.3d dant. — 1391, denied, (D.C.Cir.), 1399 cert. U.S. -, 569, (1995); 133 S.Ct. L.Ed.2d 493 D. (5th Grant v. Lone Star F.3d 649 Liability Title VII Individual Under — denied, Cir.), -, cert. U.S. 574, (1994); 130 L.Ed.2d 491 Miller v. Max contends district Sheridan Inc., (9th well’s Int’l 587-88 dismissing Jacques Amblará court erred denied, Cir.1993), cert. U.S. ground that as a defendant on the individual S.Ct. 127 L.Ed.2d 372 Others under Title employees not be held liable direction, see, e.g., appear to lean VII. Inst, Inc., Technology, v. Lenhardt Basic provides, part: Title VII relevant Cir.1995) (8th (interpreting par 55 F.3d 377 employment prac- It shall be an unlawful preclude employee allel state statute to liabil employer— tice for an ity); Lighting Corp., Birkbeck Marvel (1) hire or to dis- to fail or refuse to (4th Cir.) (deciding F.3d 510-511 & n. individual, any charge or otherwise “personnel issue under ADEA as to decisions any individual with discriminate character”), plainly delegable cert. de terms, respect compensation, his condi- - nied, -, tions, privileges employment, be- (1994), L.Ed.2d 600 others have either while race, color, reli- cause of such individual’s permitted liability employee’s in an official sex, gion, origin.... or national Alabama, capacity only, see Cross (11th Cir.1995); 2000e-2(a) added). Garcia v. § (emphasis 42 U.S.C. Elf America, Atochem North 451 n. “employer” person “a The statute defines (5th Cir.1994), “open or left the issue industry affecting engaged in an commerce Renner, question,” Ball v. employees ... and who has fifteen or more (10th Cir.1995). 2000e(b). § any agent person.” Id. of such a argues language independent is no Sheridan In our examination of this individuals, issue, excluding significant and she the fact that the statute we find most agency Congress to the law of amended the statute in 1991 looks when agents jointly sliding damages proposition provide that can be held a detailed scale of $50,000 employers wrongs resulting ranging liable with for from for employees, from their tortious conduct. She also con- more than 14 and fewer than 101 interpret $300,000 employers that we should the 1991 with more than 500 tends for amendments, 1981a(b)(3), § employees, which added to the remedies it made U.S.C. damages, if provided provision compen- in Title to the amount of VII no reference as satory punitive damages, suggesting any, .payable as that be individuals. would Congress strongly suggests Congress to hold individual that did not intended This because, equitable contemplate damages as- defendants liable unlike that such be against reinstatement which are who are not them- remedies such as sessed individuals Tomka, uniquely employer, employing entity. available from an these selves the See Maxwell’s, 1315; newly monetary can F.2d at 587 n. available remedies be F.3d at 2; forthcoming employee. Transp. from an Pa. Ascolese v. Southeastern Auth., (E.D.Pa.1995), F.Supp. arguments These are not without some grounds, F.Supp. on other modified However, majority force. the clear (1996). appeals considered this courts of have Moreover, Congress pre- had question employees held that individual we note have viously expressed the im- cannot held liable under Title VII. its concern about be See (7th Banning, pact litigation on busi- 72 F.3d 552 Cir. of Title VII small Williams closing argument jury, to the counsel vouched claim defense improperly during of certain witnesses credibility summary judgment judgment businesses with or as a matter excluded nesses when However, employees always from the defi- law must be denied. fifteen fewer than It “employer.” strong contrary authority, is reasonable to which the nition of an regard Congress’s majority acknowledge. concern does not The in banc infer Williams, Circuit, to individuals. See applies as well Fifth vote of 16 to has Tomka, 553; 66 F.3d at 1314 rejected majority’s position. 72 F.3d at Rhodes v. indicating (5th legislators Tools, con- (citing Oil 75 F.3d Guiberson remarks imposed upon Cir.1996) (in banc). with burdens small busi- cern So have the First and to defend Title VII nesses forced Isenbergh Knight-Rid Eleventh Circuits. Miller, suits); 991 F.2d Inc., Sales, Newspaper der 442- (11th Cir.1996); v. Friction Mate Woods reasons, For these as well some (1st rials, Inc., 260-61 n. 3 circuits, by the other we are others cited Cir.1994); LeBlanc v. Great American Ins. Congress did not intend to persuaded that (1st Cir.1993), 842-43 cert. employees hable under Title hold individual — denied, -, VII. L.Ed.2d 72 I believe that these other analyzed question more accu courts have III. majority rately than the has here. CONCLUSION that, majority merely If the said under reasons, foregoing we will reverse For the above, the circumstances described a defense entry judgment court’s in Du- the district summary judgment judgment or motion discharge Pont’s favor on the constructive denied, generally as a matter of law must claim, to the district court to and remand agree. I would When a makes out a DuPont’s motion for a new trial. reconsider prima facie case and there is sufficient evi- permit in the record to a rational dence trier ALITO, Judge, concurring part Circuit employer’s explanation of fact to find that the dissenting part. untrue, summary a defense motion for opinion join part I IID of the of the court. judgment judgment or as a matter of law disposition agree I also with the court’s usually always, should be denied. But not evidentiary argument. See plaintiffs majority as the contends. dissent, however, Maj. Op. at 1075-77. opinion. court’s parts from IIA —C view, my the correct test is the follow- ing; summary judgment a defense motion for I. as a matter of law should be granted when the evidence in the record majori- My disagreement with the primary persuade could not a rational trier of fact ty determining the test for whether concerns ground that intentional discrimination on the summary judgment a defense motion for alleged by plaintiff was a determinative grant- as a matter of law should be challenged employment cause of the action. gov- ed in an discrimination case plaintiff, This does not mean that a in order by procedural erned scheme sanctioned fact, always Green, prove to reach the trier of must Douglas Corp. McDonnell i.e., “pretext plus,” 1817, must 792, 36 L.Ed.2d 668 U.S. 93 S.Ct. always produce some evidence addition to appeals several other courts of Like necessary 1066-67), prima what is to establish a Maj. majority facie Op. at here {see employer’s expla- ease and to show that the holds that when the has made out a pretextual.1 contrary, nation is prima enough and has offered evi- On the facie case cases, explana- proof most such additional is not dence to need- pretextual, disagree majority a defense motion for But I with the tion was ed. Hicks, Fallacy Mary’s Ctr. v. The 1. See Honor 509 U.S. es: ‘Pretext-Plus’ Rule in Em- St. Cases, 502, 535, 2742, 2762, ployment Hastings Discrimination L.J. 113 S.Ct. 125 L.Ed.2d J., 57, (1991) (1993) (Souter, (explaining "pretext plus" dissenting); Catherine J. 81-83 rule). Lanctot, Los- Lies and Defendant Plaintiff Nonetheless, prop- evidence and inferences this prima of the facie ease elements proof of the erly be considered drawn therefrom always enough. are proof pretext of whether the defen- trier of on the issue fact pretextual.... is dant’s II. 10, n. at 1095 & at 255 & 101 S.Ct. 450 U.S. question at issue lies key to the A. The n. 10. “presumption” of discrimi the nature that, plaintiff estab similarly explained arises when the if the de nation that Hicks prima burden, facie case. production lishes the elements “the its fendant meets Community v. Bur Dept. Texas its Douglas framework —with McDonnell Affairs 1089, 1094, 254, 101 dine, 248, S.Ct. 450 U.S. longer no rel presumptions and burdens —is (1981), explained the Court L.Ed.2d 207 “resurreet[ed.]” and should not evant” prima facie that the “[establishment “The 113 S.Ct. at 2748. 509 U.S. at presumption creates a case in effect having its of forc presumption, fulfilled role employ against the employer discriminated some ing the to come forward with defendant upon the de “places presumption This ee.” picture,” response, simply drops out of the explana producing the burden fendant proceeds decide the “the trier of fact i.e., the tion to rebut ease — question: plaintiff has ultimate whether the ad producing evidence burden of intentionally dis proven that the defendant taken ‘for employment actions were verse ground al against him [on criminated nondiseriminatory reason.’” St. legitimate Hicks, 510-11, 113 at S.Ct. leged.]” 509 U.S. Hicks, 509 U.S. Mary’s Honor Ctr. v. Burdine, (quoting U.S. at at 2749 125 L.Ed.2d 407 113 S.Ct. 1093-94). 101 S.Ct. at 254, 101 Burdine, (1993), at (quoting 1094). presumption But this at while interpret passages S.Ct. these to mean B. production to the defen the burden of Douglas presumption shifts is McDonnell dant, persuading ultimate burden of theory “‘[t]he “bursting governed by the bubble” that the defendant intention the trier of fact Bradley Professor associated with James plaintiff re ally discriminated on Evidence Thayer. See McCormick ” plaintiff.’ with the mains at all times (4th 1992). this § Under 344 at 462 ed. Hicks, at 2747 at 113 S.Ct. 509 U.S. presumption is to theory, “the effect of a Burdine, at (quoting producing shift the burden 1093-94). regard,” “In Hicks ob this If that evi- regard presumed fact. served, presumptions, all operates “it like pre- adversary, the produced dence of Evidence 301.” in Federal Rule described disappears.” Id. The sumption spent and at 2747. 509 U.S. at though “as proceeds case then presumption at all.” Wein- never been a hap- present purposes is what Critical for ¶ 300-4 produc- 300[01] stein’s Evidence its pens the defendant satisfies when omitted). (1996)(footnote ques- Burdine addressed tion burden. following passage: tion regarded the Burdine and Hicks That carries this burden If the defendant gov- Douglas presumption as McDonnell by the production, presumption raised by theory suggested the by is erned this rebutted,10 the fac case is prima facie First, the following. Burdine states level of inquiry proceeds to a new tual ‘“refers “presumption” properly term specificity. bur- allocating production to device for a. ” Preliminary generally Thayer, Trea- 8, J. See den,’ at 1094 at 255 n. (1898). saying In tise on Evidence 346 omitted) added) (citation (emphasis n. 8 —the case, drops presumption we do not from the Second, “bursting view. bubble” orthodox longer may consid- imply the trier of fact no employ plain- classic by previously Burdine and Hicks both introduced er facie case. A satisfacto- tiff to establish what “bursting language to describe bubble” destroys by ry explanation the defendant presumption if the defendant happens to a mandatory legally inference of discrimination presump- production burden: satisfies its arising plaintiff's evidence. initial from case,”2 “drops “drops tion then from the out question enees to determine the ultimate longer relevant,”4 picture,”3 is “no Judge issue.” 32 F.3d at 830. Lewis then Third, and should not be “resurrect[ed].”5 went on applies to hold that the same rule 10, quoted Burdine’s footnote which was Jersey Against under the New Law Discrimi above, appears pure “bursting to set out the dissent, Judge nation. Id. In Mansmann theory: presumption bubble” once the is agreed “bursting theory bubble” burst, plaintiffs all that remains is ini “the claims, applies to federal but contended that tial evidence” properly and “inferences Jersey presumption the New has a more drawn therefrom.” 450 U.S. at n. Specifically, durable effect. she wrote that addition, S.Ct. at 1095 n. 10. In this footnote “the federal rule ‘bursts the bubble’ of the begins Thayer, with a citation to who stated presumption, Jersey while the New rule cre opponent that once the presumption (Mans jury.” ates an issue for the Id. at 841 counterproof, offers sufficient “[a]ll is then mann, J., dissenting). respect With to their ordinary question evidence, turned into law, analysis of federal I think that both the general and the presup two or three facts majority McKenna right. and dissent were posed in presumption the rule of take their C. The version of pro- Rule 301 that was place rest, operate, with the with their posed by Advisory pro- Committee and force, part own natural as a of the total mass mulgated by Supreme rejected Court probative Thayer, matter.” James B. Pre “bursting theory bubble” in favor of the theo- (1898). liminary Treatise on Evidence 346 ry advocated Professor Edmund M. Mor- Finally, both Burdine and Hicks invoke Fed gan Proposed and others.6 Rule of Evidence eral Rule of gener Evidence which has Advisory Note, 301 and Committee 56 F.R.D. ally interpreted embodying been (1973). rule, proposed Under this “bursting theory. bubble” e.g., See McKen presumption would have shifted the burden Serv., na v. Rail 32 F.3d 829-30 Pacific persuasion. Id. (3d Cir.1994); (Mansmann, J., id. at 841 dis however, Congress, rejected proposal. senting); AC. Aukerman v. R.L. Co. Representatives The House of instead Constr., Chaides 1037-1038 adopted represented a rule that an “interme- (Fed.Cir.1992); In re Yoder position” “Thayer” diate between the (6th Cir.1985); Legille & n. 13 “Morgan” H.R.Rep. 93-650, theories. No. Dann, (D.C.Cir.1976); 5-7 Cong., (1973), reprinted 93d 1st Sess. § Moore’s Federal Practice [4.-1] 301.04 (1995-96 U.S.C.C.A.N. 7081. The House III-22 Supp.); 1 Weinstein’s Evi provided presumption rule that “a imposes 301-9; Wigmore dence on Evidence 2491(2)(3d party against 1940). whom it is § directed the ed. going evidence, burden of forward with the McKenna, supra, panel all of the mem- and, though even met contradicting evi- agreed bers Douglas McDonnell dence, proof presumed sufficient of the fact presumption and Federal Rule of Evidence be considered the trier of fact.” 120 embody “bursting theory. bubble” Cong.Rec. 2370 Writing majority, Judge Lewis con- Senate, Advisory cluded that In the Douglas pre- the McDonnell Committee sumption governed by Standing and the Judicial Federal Rule of Conference’s Com- Evidence 301 and that under mittee on this rule “the Practice and Procedure advocated introduction originally of evidence to a return presump- proposed rebut to the version of destroys tion presumption, leaving only Dismissing Rule 301. compro- the House that evidence and judged unsound, its inferences to conceptually mise as the committee competing evidence and argued its infer- that “[t]he basic choice is between Burdine, 450 U.S. at 254 n. 101 S.Ct. at Id. 1095 n. 10. See, e.g., Morgan, Instructing 6. Edmund M. the Hicks, 3. at 113 S.Ct. at 2749. Jury upon Presumptions Proof, and Burden of (1933). Harv.L.Rev. Id. at 113 S.Ct. at 2748-49. summary-judgment judgment-as-a- at the or ‘bursting theory bubble’ and the so-called persuasion.” Congress I stage, of Re- matter-of-law think shifting the burden one Memorandum, Advisory the for have text of the rule. porter’s said so the Standing the Evidence and Congress on do not think that would have left it Committee Judiciary Committee, divine, to the Senate Commit- any the courts without clue to tee, reprinted rule, in Weinstein’s Evidence presumption language the of that a the rejected ap- the House 301-3. The Senate important have an additional should such ef- present the version of proach passed and fect. 93-1277, Cong., 93d 2d S.Rep. Rule No. Furthermore, history legislative sug- the reprinted U.S.C.C.A.N. in 1974 Sess. it gests Congress, advised that was com- (1974). 37,085 7056; Cong.Ree. Thayer pelled to the choose between and the Advisory and Commit- The Committee approaches, pure Morgan adopted Thay- “the then tee on of Practice Procedure Rules er rule.” Evidence 301-9. Weinstein’s Committee and turned to the Conference Wright disagree Professors and Graham with adoption originally of the again urged the passage this the Con- based on 301, arguing once proposed of Rule version Report. Wright ference 21 Charles A. See to “[bjasically the choice be made more that Graham, Jr., and Kenneth Federal W. Prac- given presump- to treating effect be §§ at 547 & n. tice Procedure giving them the effect tions lies between (1977). at 609-10 nn. & 23-24 Discuss- giving ‘bursting them the bubble’ that follow when consequences imposing a burden greater of dis- effect burden, party production adverse meets its proof has established the con- once evidence Report the Conference states: presumption opera- into ditions that call party If the does offer adverse evidence Evidence at 301-7. tion.” See Weinstein’s fact, contradicting presumed court However, Committee recom- the Conference may pre- jury cannot that it instruct version, adoption mended of the Senate Conf. presumed sume the fact existence (1974), 93-1597, Cong., 2d Rep. 93d Sess. No. proof from facts. The court of the basic reprinted 1974 U.S.C.C.A.N. however, jury may, it instruct and this enacted. recommendation may presumed the existence infer 40,070, 40,897 Cong.Ree. proof the basic fact from facts. Rule 301 states: at -, 93-1597, reprinted Conf.Rep. supra, proceedings not all civil actions and (emphasis at 7099 in 1974 U.S.C.C.A.N. de provided Congress Act of otherwise added). leted; emphasis high Because rules, presumption imposes these jury instructions, lighted sentence discusses it is party against whom directed it Wright and Graham view as Professors going forward with burden of showing that Committee con the Conference presumption, does rebut or meet if templated even presumption, that a met party proof the burden not shift to such satisfy the enough counterproof to ad nonpersuasion, in the of the risk of sense burden, party’s production would nev verse throughout upon the trial remains question serve take the factual ertheless originally it party on whom was cast. Graham, supra, jury. 21 Wright and panel Like the members McKenna § 5126 at 610 n. 23. previously mentioned authori- other Circuit, In re Yoder Like the Sixth ties, I think that the most reasonable inter- 13, I not find F.2d at 1119-20 n. do this it pretation incorporates 301 is that of Rule The interpretation compelling. Sixth Circuit theory. “bursting bubble” The text wrote: supports the rule this conclusion since does quotation any- emphasized portion presumption not even hint that a does bursting production. If with the bubble thing the burden of inconsistent but shift theory.... that the The statement Congress presumption intended for effect, to consider inference any guaranteeing as be instructed have further such naturally permitting such rejected is most read presumed fact would by an instruction when called for the exis- Instead, F.3d at 260-61 n. 3. I believe that logical inference. tence passage this reasonably can interpreted be as simply rejecting “pretext plus” approach original). in (emphasis reading Id. This is at that Justice Souter attributed to in as the Court least as reasonable the alternative offered (509 his dissent Wright Graham, U.S. at by and S.Ct. at 2762 Professors and I am (Souter, J., dissenting)) unwilling, solely based which the Court therefore the state- question, referred. 509 ment in to conclude U.S. at 511 n. that Rule 301 113 S.Ct. at give presumptions was intended to 2749 n. 4. impor- “pretext Under the plus” ap proach, in tant effect not mentioned as text of the summarized in the law review rule. cited, article that Justice Souter “the produce must some additional evidence other acknowledge

I must that a passage in than the supporting prima facie may supporting Hicks be read as Professors case and other than the fact of the defen Wright argument, and Graham’s at least with deception.” Lanctot, dant’s respect Catherine Douglas to the McDonnell J. The presump- Lies and tions. Hicks stated: Loses: The Defendant Plaintiff Fallacy the Pretext-Plus’ Rule in Em The factfinder’s disbelief of the reasons of ployment Cases, Discrimination put Hastings forward the defendant (particularly L.J. 87-88 accompanied previously quoted by suspicion if disbelief is of passage may from mendacity) may, together Hicks be interpreted the ele case, (i.e., mean that such proof ments of the additional suffice to Thus, “plus” “pretext intentional plus”) show discrimination. always re is not re jection proffered quired. Accordingly, defendant’s rea when the Court wrote (509 permit sons will the trier of 2749) fact to infer U.S. at 113 S.Ct. at fact of ultimate intentional “rejection discrimina proffered the defendant’s rea tion,4 Appeals and the Court of was correct permit sons will the trier of fact to infer the that, upon rejection, when it noted such discrimination,” ultimate fact of intentional proof additional “[n]o discrimination is what the may Court have meant is that the required.” permitted trier of fact is to draw such an inference —in the sense that the trier of fact Contrary confusion-produc- to the dissent's 535-536, ing analysis, post, at precluded nothing is by any rule, there is legal such as inconsistent whatever between this statement “pretext plus,” doing from so—if such an (1) and later our statements that factually inference is warranted. The same false, must show "both that the reason was and interpretation given reason," to the Court’s infra, that discrimination the real (2) enough at ‘‘it is not ... to dis- subsequent statement “upon rejec [the] employer,” infra, believe the at 519. Even tion proffered [of defendant’s reason] (as here) though say rejection we of the defen- proof ‘[n]o additional of discrimination is re proffered enough dant's reasons is at law to ” discrimination, finding sustain a quired,’ there must be 509 U.S. at 113 S.Ct. at 2749. finding discrimination. proof ‘“No additional required”’ is in that (all 509 U.S. at 113 S.Ct. at 2749 em- legal is no blanket requirement of such phases original) (ellipsis in original). proof, as there would be “pretext under the isolation, plus” approach. Similarly, “rejection this passage may Read seem proffered suggest defendant’s underlying facts reasons pri- enough at law to plus rejection ma facie case sustain a the em- discrimination” (id. ployer’s 4) always are n. S.Ct. at 2749 n. sufficient to in the jury. take the case to the sense that no legal This is other require the inter- blanket ment, pretation adopted Perskie, such proving “plus,” Fuentes v. is needed. Cir.1994), F.3d interpretation favor this the ma- because it is con- jority Maj. Op. my conclusion, here. See above, 1065-66. How- sistent with discussed ever, First, Fifth, like the presumptions Eleventh Rule 301 general Cir- cuits, I do not think reading Douglas McDonnell presumption par- compelled. Isenbergh, See at 442- governed by ticular are “bursting bub- 45; Rhodes, 993-95; Woods, 75 F.3d at theory. 30 ble” Burdine, trae, believe, plaintiff.” that times with the 450 U.S. it is as the D. If 1093; Hicks, governed at at see also Douglas presumption is 101 S.Ct. McDonnell theory, it “bursting fol- at at 2747. by pure bubble” the majority’s barring rule that the blanket lows proof requires 2. This burden that dis- judgment judgment as a matter summary or ground alleged on the was a de- crimination the is unsound. law in favor of defendant challenged terminative cause the action. pure that under the recognized It is well Corp., 47 F.3d Miller v. CIGNA theory, “bursting presump- once a bubble” Cir.1995) banc). (in pre- destroyed, proponent of the is the tion judgment Summary judgment and as a 3. its case will sumption guarantee has no that proper a fact matter of law are where trier of the trier of fact. One treatise states go to rationally could not return a verdict in favor may previously presumed fact then party. Liberty opposing of the Anderson “only probative if natural force be found the Inc., 242, 250-51, Lobby, 477 U.S. 106 S.Ct. brought presump- that the of the basic facts (1986); 2511-12, 91 L.Ed.2d 202 Celo play support to such a tion into is sufficient Catrett, 317, 322-23, Corp. tex (or supports finding the as a evidence whole 2548, 2552-53, 91 L.Ed.2d 265 it). Otherwise, may presumed fact found, pro- presumption does be Putting together, apparent these rules it is Christopher possibility.” this B. tect summary judgment that a motion for defense Kirkpatrick, Federal Mueller Laird C. judgment as a matter of law should be (1994) (emphasis § 70 at 332 add- Evidence ra- granted a trier of fact could not where ed). opponent Another observes: “The (and tionally giving find based on the record may still not entitled a presumption be to presumption no further consideration to the denied, verdict, if its motion is directed such) ground that discrimination on the ruling nothing will to do with the have alleged of the was a determinative cause 2 McCormick presumption.” existence challenged action. Evidence, § at also 21 462. See on however, majority, takes the Graham, § Wright and Practice Federal such motion be denied that must whenever words, pre- Thayer’s after enough finding there is evidence to sumption spent, is is then turned into “[a]ll by explanation offered Thayer, ordinary question of evidence.” Maj. posi- Op. at 1066. This is untrue. See Preliminary Treatise proof if is tion can correct be justify employ- sufficient to disbelief III. (the test) majority’s will al- er’s recognized it is that the McDonnell Once ways justify enough be Douglas in the presumption disappears face on rational trier of fact that discrimination counterproof, ap- to be of sufficient the test ground alleged cause was a determinative ruling a defense motion for sum- plied on challenged rela- action. Unless this mary judgment or as a matter of invariably I will tionship holds true —and granted be if law is clear: the motion should (see VI, part does not show below in the and the all of the evidence record wrong. rule infra) majority’s blanket —the may inferences that be drawn from evi- trier persuade could not a rational dence IV. fact intentional discrimination alleged ground a deter- turning directly question, Before challenged minative cause of action. however, helpful types of it is to examine the following from This test follows three of discrimination that exist rules: discriminatory-treatment of á case the record case, Douglas presumption is Douglas after McDonnell “[t]he 1.In McDonnell pretext trier sufficient evidence to show persuading ultimate of burst and burden evidence, may grouped intentionally discrimi- This fact that defendant offered. categories. at all into four nated remains First, facts, alone, standing there are the facts that weight. A. A way much hypothesis plaintiff proved you make out the test this is to if ask: knew nothing decision, about promotion case the inferences to which those more facts cases, that, you how much naturally give rise. In would bet when all some “nat revealed, facts were for ural force”7 of these facts is the reason the deci- probative sub sion stantial, relatively age would turn out to be in others it is discrimination? but weak. I people willing think that few would be establishing prima a facie “The burden , wager -precisely on onerous,” much this because disparate is not case treatment bet— probative the natural Burdine, force of the few facts at 101 S.Ct. at needed to prima establish the facie ease is prima sufficient make out a and “evidence slight. always is not facie case sufficient finding of intentional discrimina ultimate A similar situation can arise cases of tion. ... Where the evidence behind the alleged origin religious national or discrimi- prima showing strong, may, facie is stand prima nation. In a order to make out facie alone, justify ing a of intentional dis grounds, case of discrimination on these a prima ... But crimination. where facie (1) or must show that he she ais evidence, on case minimal it cannot.” is based origin group member of a national or adher- Redondo-Lemos, United 27 States (2) religion, ent applied of a or was consid- (9th Cir.1994). example An benefit, (3) ered for the or and prima gives only rise to facie case a weak (4) minimally qualified, at posi- least but age of discrimination is the inference dis tion person or benefit went to a of another youn case in See, crimination which a somewhat origin religion. e.g., national or Vitug v. hired, retained, ger person promoted, Comm’n, etc. Multistate Tax 88 F.3d slightly (7th Cir.1996) person. a older instead of Under our (plaintiff prima established a cases, age a an discrimination suit by showing facie case qualified that he was a prima by showing can out a case make facie Filipino promotion Catholic and that went to (1) years age Christian”). she was over 40 he or “a non-Filipino born-again and (2) question, applied for and strong time was How origin an inference of national or (3) job, qualified minimally religious for the but naturally discrimination arises from (4) rejected person showing? favor of a such a who was bare “ ‘sufficiently younger permit an inference Suppose all you knew about an ” age discrimination.’ Barber v. CSX Dis employer decision was that the Services, (3d tribution 68 F.3d Cir. rejected applicant who traced his or her Cola, 1995), Fowle quoting v. C & C country national origin to one and instead Cir.1989). respect With to the person chose another who did trace his formulation, final element we have origin or her national particular to that coun- eight-year gap enough held that an and try. you How confident be would five-year suggested that a have difference decision, reason for the all when the facts Barber, Thus, may suffice. 68 F.3d at 695. revealed, were would turn to be out national I plaintiff claiming a believe that that he or origin discrimination? promotion she age was denied due to dis suppose you Or that all that knew about an prima could crimination make out employment decision employer was that the case our circuit showing, under law rejected minimally Protestant, qualified (1) example, years he or was 43 she old Catholic, Jew, Muslim, or adherent of anoth- (2) question, had the time minimum religion employee er in favor of another (3) requisite qualifications, applied and religion. different you How confident would (4) job, but that instead decision, be that reason when all 35-year-old. chose revealed, the facts were intentional I agree permit that these facts an infer- religion? basis In discrimination, ence I age my view, do not think people, most rational without know- more, person give could reasonable these would have little confidence that Kirkpatrick, § and Mueller Federal Evidence 70 at 333. retaliation); Technologies Ap and turn out to be national Evans reason would the real (4th discrimination, plications and I & Service religious origin Cir.1996), (age gender); these facts natu- Austin v. Ow submit that bare therefore Container, Inc., ens-Brockway slight inference of Glass rally give rise to — (4th Cir.1996), denied, And, cert. U.S. although will be- discrimination. (1996) -, L.Ed.2d examples, I point by posing further labor disability); probative' (gender Americanos v. Car that the natural force think (7th Cir.1996), ter, weak race F.3d 138 cert. de facie case is sometimes —nied, short, -, I submit eases as well. (1996) (age, gender, national probative of the facts L.Ed.2d 953 that the natural force (5th Frank, origin); v. underlying prima the facie case varies from Castillo Cir.1995) (age, gender, origin); case that in some cases that force and national case to and (5th Block, H R on its to sustain a Meinecke v. & F.3d 77 will be too weak own Cir.1995) gender); (age and Johnson v. of discrimination. Of Practices, Fair Employment Senate fice of Second, is the inference of dis- B. there (Fed.Cir.1994) (gender 35 F.3d 1566 and reli may often drawn from crimination that be Pena, gion); Dashnaw v. ruling employer’s explanation. out the of the — (D.C.Cir.1994), denied, -, cert. degree such inference to which an is The (1994) (age, 115 S.Ct. L.Ed.2d however, justified, inversely proportional is race); religion, origin, national and v. Sarsha degree the contains to which record to Sears, (7th Co.,& 3 F.3d 1035 Roebuck Cir. possible explanation for evidence third 1993) gender). (age and challenged For employment action. ex- employee many possible To of the ample, if it is that an was take one combina- certain Claims, might employee tions of an contend discharged for either reason “a” or reason (1) other, promotion get if can that he she did a and no reason “b” be or not “b” (2) out, obviously may gender then be inferred because of because of disabili- ruled discharge ty. If a real for the record in such case contains that the reason was discrimination, discharged strong disability of employee But if an evidence “a.” (let “b,” “e,” “a,” rejection employer’s explanation or reason of the either reason reason qualifications) by ruling say, will not reason “b” does not necessar- us inferior then out strong permit itself a inference that the em- ily permit strong a inference that reason “a” ployer’s true reason was discrimina- was the real reason. tion. strong in which the record contains Cases explanation degree to a trier of fact can

evidence of third for the chal by reasonably action no conclude that there was discrimi- lenged are means unknown. Corp., ground plaintiff v. 597 nation on the claimed See Miller CIGNA Cir.1995). (3d degree to upon which the Perhaps depends clearest exam also reject reasonably can the em- ples chal fact are eases which the trier reason(s). (It important to bear single ployer’s is lenges adverse action rejection acceptance an grounds, in mind that or based on two or more alternative See, not be all-or- e.g., employer’s Roxas reasons need common tactic. rather (8th nothing par- proposition.) The evidence College, 90 F.3d 310 Cir. Presentation 1996) race, justify (plaintiff alleged origin, ticular case be such as national discrimination); marginal partial or age Lawrence v. or disbelief belief gender, reason(s). N.J., example, trier employer’s F.3d For Bank Natl Westminster Pena, 1996); justified believing that it might of fact be Cir. Rabinovitz v. F.3d (but so) (7th Cir.1996) barely (age, religion, probable is than not and retalia more Ctr., Or, tion); explanation is employer’s false. Ford Bernard Fineson Dev. (2d Cir.1996) believing (race, gen might justified age, and a trier fact be Cir.1996), (but (6th barely der); probable not Keys, that it more than Hartsel v. 87 F.3d 795 — so) denied, U.S. -, employer’s is true. rt. that the ce — L.Ed.2d -(1997) addition, might justified gender, a trier of fact be (age, believing the reason asserted V. employer the sole was not cause but was a Having surveyed types evidence 20%, 40%, 60%, (say a partial cause 80% discrimination that relevant present are cause) Or, challenged if action. I purposes, question return whether reasons, multiple employer asserts the evi- always enough will sup- there be evidence to (to might justify such as to belief dence port a verdict of discrimination on the degree) reasons some of some others. ground alleged by after being things equal, All other the more Douglas presumption McDonnell burst has strongly completely the trier of fact can pretext and sufficient evidence been has rationally reason(s), employer’s rule out adduced. To I am ensure that not misunder- justified the more it is to conclude stood, emphasize again that I think ground alleged— was discrimination usually under these circumstances there will and vice versa. always. Spe- be sufficient evidence —but cifically, probative where the natural force of Third, C. disbelief ex- facts prove offered planation may give rise to an inference also weak, case is strong where there trying dis- conceal in challenged employ- the record that the ground plaintiff on crimination the that the ment action was attributable to some factor strength inference, claims. But the of this n discriminatory ground alleged than the other too, vary will on based the facts. Its plaintiff explanation the or the offered strength depend will on whether there is employer, the and where there is no other possible in of evidence the record some other that evidence the action was due to discrimi- explanation employer might the that not on ground alleged, nation the the of evidence (e.g., my hypotheti- prior want to disclose in ground may discrimination on that be insuffi- cal, discrimination).8 addition, disability cient sustain a verdict and thus insufficient strength obviously its proportional will be summary judgment to defeat judgment or as strength the extent and of trier fact’s a matter of law. reason(s). disbelief of the is example. Here A man with a disabil category D. any The fourth of consists ity applies promotion, pro for a but the other relevant evidence discrimination on given is motion to a woman without a disabil , ground “[Sjtray the asserted. in remarks See, ity. e.g., Perry, Antol v. F.3d workplace” that are insufficient to make (3d Cir.1996)(man promotion who was denied a example. out Price Waterhouse case are an gender sued for disability discrimina Hopkins, Price See Waterhouse tion). plaintiff The prima establishes a facie 228, 277, 1776, 1805, 104 L.Ed.2d gender case by showing discrimination (1989) (O’Connor, J., concurring). When man, is qualified job, that he he was for the falling category present, evidence into this is applied, he given but it was to a woman. always it should be taken into account is no gender There other evidence discrim determining whether a defense motion for men; indeed, against ination there evi is summary judgment judgment or aas matter dence the decisionmaker was a man and law granted something should be great that the majority employees — the Fuentes not accomplish, test does as I job category at issue were men. The will show below. See But says 1087-88. employer that the woman was chosen infra course, many Douglas McDonnell cases qualifications better, because her were lack evidence of this sort. plaintiff shows that this is 8., imagine employer pro- Or personnel a situation when the decision that is nonetheless nondis- (a male) (a female) A motes white over B white criminatory." College, Vassar Fisher v. employer. because A was related to the The (2d Cir.1995); Selmi, Michael Cf. employer may not wish to real disclose his rea- Merit, Testing Equality: Efficiency, for promoting sons for not B because the news as to Debate, Action UCLA L.Rev. Affirmative his promoting likely criteria for B over A would (1995) (describing a set of economic models reputation hurt employee his and lower morale. fairness). perceptions tie worker effort to pretextual "[A]n may offer a for reason race, age, impor- plaintiff had added claims of most In addition and full of holes. tant, origin, religious strong, direct evidence that national there is plain- necessary was biased able do the minimum decisionmaker and was disability. Among other of his prima tiff because on all of case establish those that, testimony things, when grounds, claims have all of those to be learned that decisionmaker fact I do to the trier of as well. sent promotion, the decisionmaker applied for the squared can think that such results be insulting derogatory remarks made cardinal rules that a dis- disability. the plaintiffs about criminatory prove ease treatment must inten- ground alleged tional discrimination on each enough ease to evidence Is there summary judgment judgment and that fact rational trier of convince a granted if the a matter of law must be record was dis- promotion decision based rationally support not, right, I does I think and if am crimination? part ground.9 non-moving on each such majority’s disproven. blanket test

then Malamud, See, e.g., of the four C. The Last the evidence each Deborah Consider Hicks, Disparate categories previously I described. Minuet: Treatment After gen- underlying the facie case of facts 93 Mieh.L.Rev. 2306-2311 plain- basically that the der discrimination — qualified given but woman tiff VI.

job probative little natural instead —have showing gender purpose Recognition dis- force of what believe is the correct crimination; might reject- qualified man clarify analysis of discrimina- test would many other of a woman for analyt- ed favor tory-treatment cases and would avoid the em- reasons. As majority’s test cre- ical difficulties (the supposedly ployer’s explanation woman’s I will two of difficulties ates. discuss these untrue, ruling qualifications) out was better here. explanation both employer’s the still leaves A. The first concerns cases which the disability possi- gender and discrimination multi-part explanation for employer offers a strong explanations, light and in ble challenged opinion, action. The Fuentes the discrimination, disability lit- evidence of does follows, that, majority states the first Likewise, gender to discrimination. tle show employer that the chal- when asserts proffering a employer’s the conduct while rea'sons, lenged action was taken for several explanation permits an that false inference a “must allow factfinder reason- the evidence it employer’s real reason was one that the employer’s ably to infer that each of the hide, to that little to wished inference does ... nondiscriminatory reasons proffered employer’s show that the real reason post or otherwise did either a hoc fabrication is gender discrimination because actually employment ac- the not motivate (dis- strong of evidence another tion_” (emphasis origi- 32 F.3d at discrimination) ability employer the that omitted). nal) (citations However, Fuentes There- have a motive to conceal. would also by adding qualifies “[i]f this statement that fore, hypo- I evidence this submit legitimate proffers bagful the defendant support to a rea- case is insufficient thetical reasons, manages plaintiff and to cast finding gender discrimination and sonable them, on a number of substantial doubt fair theory weeded from the should be plaintiff may not need to discredit disability plaintiffs claim of case before the (emphasis add- Id. at n. remainder.” trier fact. is sent to the discrimination ed). however, test, re- majority’s would what rules mean. I am sure these claim be quire that the discrimination Indeed, “several rea- if is the difference between to trier of as well. What sent fact ground alleged. At our circuit least under majority’s test of course he correct the law, however, 9. The would prima facie plaintiff, the establishment if a in order to establish case, heightened required does not demand such a show- prove facts that are suffi- case were ing. on discrimination cient Fuentes, bagful”? (emphasis “a is a “fair num- tion.” sons” and What F.3d at 764 “bagful”? employer original). If the ber” offers reasons, which, says, each of it three was Why plaintiff potentially satisfy can’t a his decision, important challenged equally or combining her burden some evidence plaintiff must the knock many how down? categories? example, from each of these For (I All Or will two suffice? assume of them? almost, if plaintiff quite, can show number.”) would not be a “fair that one “weaknesses, enough implausibilities, incon- employer says that if reason one What sistencies, incohereneies, or contradictions in for, important, counting say, most was the proffered legitímate reasons” 40%, that reasons two and three each and test, part to come within the first of this id. enough for 30%? Would counted why plaintiff can’t the make it over so, plaintiff to refute reason one? If hump by adding a bit of evidence from refuting reason two itself also suf- i.e., part, the second other direct circum- know, I Why? fice? don’t and don’t think stantial evidence discrimination? Fuentes possible provide satisfactory that it explain, any doesn’t and I think don’t questions of this sort within the answer to good explanation possible. majority’s test. framework sum, majority’s I submit that the test is contrast, By problems disappear these if wrong unwieldy both the cor-

what I is the correct test contend is used. simply rect test is whether a rational trier of many how No matter reasons the find, record, fact could based on offers no matter what combination of ground alleged on discrimination was a in knocking reasons the succeeds challenged cause of determinative em- down, dispositive question remains the ployment action. taking into account all of the same: record, including in the whatever inferences VII. rationally can and deductions be drawn from (or all) test, rejection of some employ- Applying I agree with the district reasons, proffered enough proof judge’s er’s is there analysis of the record. The record permit great personal a rational trier of fact to find that shows friction between the ground supervisors regarding intentional al- her mat- leged grooming, smoking, tardiness, was determinative cause of the chal- ters such as lenged away giving beverages, action? free food and judge any the district saw little if evidence of analytical difficulty second B. The con- any reasonably kind could link per- this ability plaintiff cerns survive animosity sonal plaintiffs gender. to the summary judgment judgment or as a matter judge The district wrote she was “left by combining of law the evidence that neces- searching gen- the record for evidence that sarily Douglas after the remains McDonnell played der a determinative role in defen- presumption has burst and sufficient evi- dant’s conduct.” (the pretext dence of has been offered facts underlying conclusion, facie ease and in- In reaching opposite logically rejection majority ferences that flow from the apparently following: relies on the (a) explanation) any with other “no woman had ever held Restaurants,” (b) Manager direct and circumstantial evidence of discrim- “a man re- plaintiff may ination placed Captain be able to find. Sheridan as Head Fuentes, (c) may plaintiff shift,” Under morning defeat sum- Green Room “Amblard mary judgment or as a matter of had told Sheridan he would her watch like a (i) discrediting (d) law proffered ‘dog’,” “either “ig- ‘hawk’ and a Amblard reasons, circumstantially or directly, [spoke] either nored] her and instead to one of her (ii) evidence, adducing or supervisors Maj. whether circum- male if present.” one was direct, (a) Op. stantial or that discrimination gives only was at 1064. But factor rise to likely motivating than not more gender determi- weak inference of native cause of the unquali- adverse ac- because the was found to be Manager of Restau- position of fied for the (b) gives only rise to Factor likewise Earl BERRYMAN

rants. four since two of other a weak inference (c) Factor captains women. does

head were gender; nor factor a link to does provide MORTON, Administrator, New Jer Willis (d). together evidence taken Is all sey Prison, Trenton, Jersey, New State persuade a rational factfinder enough to Attorney Verniero, and Peter General animosity between the the reason Jersey1 Appellants. of New State supervisors and her No. 95-5468. antipathy? personal rather than sheer not, I judge that it was district concluded Appeals, United Court of States analysis. agree with her am inclined Third Circuit. judge’s agree the district condi I also Argued Feb. grant of a new trial. The district tional legal standard. judge applied the correct Decided Nov. new trial cannot be recognized “[a] She granted merely ... the court would because differently and weighed the evidence

have II a different conclusion.” Sheridan

reached Helicopter (quoting v. Bell

at 12 Markovich

Textron, Inc., F.Supp. (3d Cir.1992)).

(E.D.Pa.), aff'd, 977 F.2d 568

Instead, stated, trial the court new

granted that the verdict was ground weight of the evidence when injustice failure to do so would result

or shock the conscience the court. Id. evidence,

Moreover, assessing recognized that

court disbelief defendant’s

proffered of discrimina reason I that the district Accordingly,

tion. believe legal precepts in

judge applied the correct motion,

ruling on defendant’s new trial think that her

because I do not she abused motion, granting

discretion

affirm. action, has filing Peter Vemiero Christine Todd Whitman.

1. At time of the Deborah Attorney Jersey. Attorney Poritz was the General of New Jer- appointed T. of New been General Attorney sey. Subsequently, resigned 43(c), she Fed.R.App.Pro. Peter Vemiero Pursuant appointed and was Chief Justice of the General respondent. is substituted as Jersey by Supreme of New Governor Court

Case Details

Case Name: Barbara R. Sheridan v. E.I. Dupont De Nemours and Company, Jacques Amblard

Court Name: Court of Appeals for the Third Circuit

Date Published: Nov 14, 1996

Citation: 100 F.3d 1061

Docket Number: 94-7509

Court Abbreviation: 3rd Cir.