William J. Miller v. Cigna Corporation the Insurance Company of North America

586 467, 481 F.2d Lundy Campbell, 888 910, v. 921, 27 also denied, 91 S.Ct. 401 cert. denied, 950, 110 (6th Cir.1989), cert. 495 (1971). L.Ed.2d 825 (1990). 2212, 109 L.Ed.2d 538 that the dis claims also Hurtado court Although the district disagree. We failing to instruct court erred trict accommodating on more conspired might have been to be found not that he could Hurtado occasion, the difficulties agent, and the bulk of government or an informant

with defend to of to his decisions assistance were due faced ineffective received that he of coun- disregard to the advice to move and to failure himself counsel’s by his counsel Moreover, court committed Hurta the district ground. this sel. indictment quash the delay the start of refusing in the district to argument one do did not raise error — plain to wear trial, thereby compelling Hurtado governed court, also so it is which, day could not Although Hurtado first of garb on the prison error standard. trial — sole Hur- overwhelming consisted conspiracy evidence of the convicted if in view be informants, beyond see United believe was harmless ly agents guilt, tado’s we (2d summary, record Goldberg, 756 F.2d States v. a reasonable doubt. 1009, denied, requiring 105 S.Ct. Cir.), 472 U.S. particular error cert. neither discloses (1985), presence war- 2706, 721 of factors 86 L.Ed.2d accumulation nor an reversal conspiracy destroy a not agent does ranting an trial. such a new involved persons of the at least two where v. States See United private individuals. are CONCLUSION (2d Cir.),

Miranda-Ortiz, 175 F.2d 926 judgment foregoing, Based on the denied, 116 502 U.S. cert. court is Affirmed. the district (1991). L.Ed.2d charged that indictment In this before Naser Naser conspired with

Hurtado not informant. Naser

became respect to co-conspirator

charged as arrest. occurring after Naser’s overt acts Sacco, F.2d v.

See, States e.g., United denied, (2d Cir.), cert. (1971). Accord MILLER, Aрpellant, J. William failing did err court not ingly, the district failure jury, counsel’s to so instruct v. on this indictment quash move to to CORPORATION; Insurance CIGNA assistance of ineffective ground was Company of North America. remaining argu reject the counsel. We also pro se brief. by Hurtado his raised ments No. 93-1773. Appeals, Court of United States Deprivation Fair Trial

7. Third Circuit. argument last Hurtado’s standing alleged errors even none 28, 1994. March Argued reversal, he was de alone would warrant 18, 1994. Reargued In Banc Oct. im collective trial their prived of a fair He pro his se status. given pact, especially Jan. Decided a new trial should receive claims that he clothes, prison appearance based on his arguments, to make certain

counsel’s refusal himself, represent decision

his reluctant him grant court’s refusal

and the district and review prepare of time

extensions Gugliel See, States e.g.,

evidence. United (2d Cir.1967);

mini, see

Argued March STAPLETON, HUTCHINSON Before: ROTH, Judges. Circuit Reargued in banc October SLOVITER, Judge, Before: Chief MANSMANN, STAPLETON, BECKER, SCIRICA, HUTCHINSON, GREENBERG, ROTH, ALITO, NYGAARD, COWEN, McKEE, Judges. Circuit LEWIS COURT OF THE OPINION STAPLETON, Judge: Circuit for rehear- the court appeal This is before clarify proper standard for to ing in banc alleging age pretext case jury charge in a discrimination.1 Company of North Insurance Defendant (“INA”) plaintiff William terminated America years job fifteen from his after J. Miller alleges that he Miller was employment.2 age of his against on the basis discriminated Age in Em- Discrimination violation (“ADEA”), §§ 621- Act 29 U.S.C. ployment 34. trial, judge instructed the the district

At for return a verdict Miller jury that it could “the proved age was sole only if he jury After the INA’s decision. cause” of favor, Miller a verdict INA’s returned the district court asserting that appealed, jury regarding his charged the improperly proof. ADEA We hold burden qualify for a burden shift- cases do not v. Hop- ing charge under Waterhouse kins, 228, 109 S.Ct. (argued), Gregory A. Middleton Stephanie (1989), district courts should PA, Corp., Philadelphia, Tobin, B. CIGNA burden instruct Co. of Corp. and Ins. appellees CIGNA in the em- age played a role America. North decisionmaking and that ployer’s process Lynn Malm- (argued), Ballard Alice W. the outcome effect on had a determinative PA, Ballard, Philadelphia, & gren, Samuel Miller should not process. Because appellant. prove that was the required to have been decision, we conclude of INA’s E.E.O.C., sole Washington, cause Gregory, Robert J. trial. is entitled to new DC, that he appellant. for amicus INA, stipulated parties subsid- Opportunily 2. The Equal Employment Commis- plaintiff’s Corporation, was the iary CIGNA rehearing as curiae. participated amicus sion appeal. this at all times relevant I. being Hoag terminated. advised Miller that O’Neil, he could assist Robert head of the Miller was hired 1975 as an assistant to Corporate Real Department, Estate posi- INA’s Chief Financial Officer. In that special projects. In November of Mil- tion, opera- he directed INA’s reinsurance ler was informed that position being was Company, tions at the Newark Reinsurance eliminated and that he would be terminated center, processing created a financial service at the end of December. At the time he was production summary and directed the fi- terminated, Miller fifty-eight years old serving nancial After documents. as Vice downgraded and had been pay grade fifty- President and Director of Special INA’s Risk nine. At no during time company 1990 did Facility, promoted Miller was to Senior Vice apprise officials Miller of five vaсancies at President, Operations. Field He created a company might for which ap- he have organization, managed new million $200 plied. 8,000 budget, supervised and employees. over career, vacancy The point At first position this his was for the Miller was com- President, pensated Filing Vice pay grade sixty-one Regulation. and and his su- company perior consistently DeMoss, announced performance evaluated his that Darrell age forty-two, exceeding had expectations. been selected. Miller had not position known of the and contends that promotion After his to Senior Vice Presi- qualified because, he was for it as Senior dent, join Miller was special asked to team President, Vice Administration, Finance and of executives called IMPACT. IMPACT’S supervised he Filing Regulation and identify major mission was to strategic issues function. INA asserts that Miller was not strategies and market Property for INA’s considered position because the required le- Casualty Fowler, and Division. Caleb Chief gal analysis Franklin, and Richard hiring Financial Property Officer of the and Casual- manager position, for this decided to hire an Division, ty Hoag, and Richard then Chief of attorney. notes, however, Miller that his Resources, Human they indicated that would name was not included on the list of nonlaw- permanent find position Miller a at the con- yer candidates who were considered but dis- project. clusion of the When IMPACT con- qualified, previous and that the Vice Presi- cluded in assigned late Miller was to a dent, Filing Regulation, and was not a law- special project on reinsurancе collection. yer. Upon completing special project vacancy The second position was collection, reinsurance Miller appointed was Manager General of CIGNA Reinsurance position President, of Senior Vice Fi- Company, Kingdom. Among United the de- nance and Administration in the Underwrit- “[wjork qualifications sired experience were ing position, Division. In this Miller man- Kingdom with either accounting prac- United aged departments, four complaints handled tices or accounting practices reinsurance and agents from regulatory and agencies, pre- principles.” App. at 712. Miller asserts that pared filings state and annual budgets, and position involved responsibili- the same managed a budget. million annual $70 ties supervised he had when he the Newark In late supervisor, Miller’s Jack Mor- Company. Godorecci, Reinsurance James rison, advised Miller that he should search charge who was in hiring position, for the job for another position might because his be acknowledged job qualifica- he wrote the eliminated. In March of Miller’s new Durkin, age thirty-five, tions with Michael superior, Bjorke, Nord informed Miller mind and that he never considered Miller for position his was eliminated and sent him position. INA contends that Miller Hoag special Richard assignment receive a credentials, lacked the desired academic reducing real Property estate costs experience, work knowledge and of United Casualty and Division. Kingdom accounting practices, although Mil- year later, Hoag One informed Miller ler expressed testified when he interest despite his reducing success in position, real estate in the superior Godorecci’s told Mil- costs, position his as “real estate czar” was qualified.” App. ler he was “over at 150. manager us- department A process”). ment position vacancy was for The third re- process would placement + President, and the 54 Systems Finance Vice Senior re- assigned human from an Department. assistance

Administration, ceive in the Claims manag- as the who act includ- contact would position source desired Qualifications company, helping the- agent in the within experience er’s knowledge and ed: broad potential business; knowledge locate, through, and evaluate casualty sort and property positions objectives; position. Open demon- for the and measures candidates financial publicly post- ability fifty-four to work not credibility grade were and above strated influencing access informa- skill candidate managers; ed could other and strategy; and through direct openings implementing these managers and tion about placement skills. Miller + written The 54 contact. management verbal effective however, requirements be- mandatory, these not he satisfied process contends experience. James management at trial managers who testified many cause of position, manager for this hiring their they in fact filled Engle, explained had because he qualified vacancy through Miller was an informal management testified strong needs, math and statistical reflect- by assessing did not own process their con- familiar with loss backgrоund, was staff qualifications of their mem- ing the on monitors, cred- and lacked and statistical bers, potential trol initiating and contact company The actuaries. ibility among the Morrissey, di- directly. Richard candidates DiFeliee, age thirty-eight, that Victor asserts for human CIGNA’s rector of resources job. for the qualified was better casualty companies, also testi- property and organiza- company’s annual the fied about position the vacancy, for The fourth depart- process through which review tional filled Strategy Implementation, was Head of qualifications, po- managers assess the ment Peters, forty-nine. com- age The by Ronald tential, of their development needs staff qualified for Miller was that pany conceded develop- identifying and eye toward with an Peters was bet- job, maintained the managers. high level future temporary it was a Although qualified. ter position in this his work assignment, when trial, judge asked During the district coun by the was retained completed Peters was or “pretext” was a “mixed if Miller’s sel company. inquiry made case. This reference motives” position of vacancy for the was fifth The employment dis between distinction to the Casualty Mar- President, Property and Vice plaintiff cases which the seeks crimination ap- Thomas Hiring manager Cobb keting. by showing that carry his or her burden to thirty- Cole-Dougherty, age Cynthia pointed reason for the chal employer’s tendered ability included an eight. qualifications Job pretext for lenged action discrimination3 studies, research, market conduct market to motives, qualify for a mixed and cases segmentation stud- analyses, and competitive under Price Wa shifting instruction burden Cynthia although INA asserts ies. Hopkins, v. U.S. 490 terhouse expe- not have insurance Cole-Dougherty did (1989). Miller’s L.Ed.2d 268 coun 104 rience, primary considerations one that this the district court sel advised to from was a desire hire hiring decision judge then “dis “pretext” ease. The district industry. company and the both outside questions [to be to counsel the tribute[d] jury.” App. to the to submit case used] on the at trial also focused The evidence questions, Mil reviewing After those at 610. hiring promotion deci- nature of INA’s objection. had an stated that she per- ler’s counsel Human resource sionmaking process. burden asserted company’s formal Counsel testified about sonnel age “awas deter proof was to establish that for positions available placement process factor,” i.e., (“the it “made a differ- place- mining fifty-four 54 + grade pay above - Hicks, Green, (1981); Mary's Ctr. v. See, St. Honor Douglas Corp. v. 207 e.g., 3. McDonnell -, 125 L.Ed.2d 407 668 113 S.Ct. L.Ed.2d 411 U.S. (1973); Community (1993). Dep’t Bur Texas Affairs dine, L.Ed.2d ... App. question ence” in the s decision. stated [and that] the before [the jury age was] 612. whether was a determinative according Paper [Hazen Big Co. v. factor Notwithstanding objection, this the district — -, gins, judge jury instructed the as follows: (1993) App. (emphasis ].” theory To recover under the added). The district court declined to alter which the asserts this charge. by preponderance must establish deliberations, During of the evidence that his was the sole its sent the following message cause of defendants’ failure to hire him judge: district that the tion fied and mate burden of cause of the nondiscriminatory defеndant against into vacancies that became available and to terminate his The If the last of those page ^{[*] [*]} solely the defendants articulate a him because of his discriminatory rejected v ^[*] because at all times retains the ulti- intentionally ‍​‌​‌‌​‌​‌‌‌‌​​‌‌‌​​​​​​‌​‌‌‌‌​‌‌‌‌‌‌‌​‌‌‌​‌​​‌​​‍employment position you under persuading you Hs ^[*] for have; reason listings the as a real estate czar his motive was the sole ^{[*] [*]} that he was positions law action. that I’ve age. age. discriminated ^{[*] [*]} must rejection, put prove quali- ques- ^[*] on before the relevant decision of INA had been “based App. at the district ations, solely (emphasis ler not selected as the meaning of each of candidate sions in (regarding Is the plaintiffs age) on Mr. the jury requests being added). jury question question judge jury slate, discrimination based Miller’s In responding defendants’ jobs returned a verdict in favor of actively considered —on the in terms of whether twice described the issues person or b. After two “a” which we are #2. focused on: a. age.’’ Mr. Miller not through clarification on the get days App. “e”? addressing of deliber- at 691-92 solely Mr. inquiry, job, being deci- Mil- the prove pretext,

In order to INA.

must show that the defendant’s reasons were false and that discrimination was the II. reason, however, you real if disbelieve the plenary We conduct a review when an put reasons forth the defendants to appellant contends that the instructions to decision, justify you may their but are not whole, jury, read as a do not state the required to find intentional discrimination. legal correct standard.4 v. CIGNA Griffiths v # Hí % (3d Cir.) 457, Corp., (citing 988 F.2d 462 prove The doesn’t have to (3d Agriss, Savarese v. 883 F.2d 1202 hated him.... He has to — Cir.1989)), denied, -, cert. 114 plaintiffs age was the sоle de- (1993). L.Ed.2d 145 “[W]e will particular terminative em- factor if capable reverse the instructions were ployment decision. confusing thereby misleading jury.” added). App. (emphasis (citing at 673-77 At the Id. Limbach Co. v. Sheet Metal Work Ass’n, (3d charge, conclusion of the Miller’s counsel re- ers Int’l 949 F.2d 1259 n. 15 Cir.1991) (in banc)).5 “objection newed her to ... the verdict sheet factor, jurisdiction 4. The district court had over this was a determinative and not the 623(a), 626(c)(1) pursuant §§ matter to 29 U.S.C. employment sole cause of the decision. See Fed. jurisdiction § and 28 U.S.C. 1331. We have over 51; Hovic, R.Civ.P. Dunn v. 1 F.3d 1379 appeal pursuant § to 28 U.S.C. 1291. (3d Cir.1993) (in banc) (holding purpose objections of Rule 51 is served when to the argues preserve INA that Miller failed to charge give judge opportunity the trial an objection jury charge. disagree. We Mil- - denied, charge), correct the erroneous U.S.-, cert. objected, ler's counsel both before and after the (1993). 114 S.Ct. 126 L.Ed.2d 608 charged jury, plaintiff’s court district burden on the issue of causation was to show 592 gender these words to mean We take

III. judge in a case ADEA verse ADEA tional interpreting individual’s ployer from tion tent ployee “because mandated taken tions U.S.C. adverse course, ation. of’ in Court’s Trans World (1985); has followed 111, 121, against origin,” U.S.C. Title VII was “because jurisprudence The nature Like instruct opinions prohibits § employment 432 n. 7 623(a)(1). by the use of the Congress’ mandate Seman race, color, Title VII taking adverse Airlines, an 42 under either statute of’ of such individual’s in Price Waterhouse v. employee “because the Title an (3d Cir.1994). A of the causal connection jury in a manner consis action must have been analogous a foсus of the concerning actions employer from which Coplay Cement Not Inc. 613, 621, religion, prohibited consider § VII 2000e-2(a)(l), surprisingly, v. prohibits an em phrase “because employment against an Thurston, jurisprudence prohibition. sex, 83 L.Ed.2d age.” 29 Supreme must, of prohibi of such district Co., taking or Hop em 469 na ad ac we understand them. mixture Moreover, tion,” tion, factors must be irrelevant that decision was “because sions. decision siderations. gender condemn of,’7 other, account. same er considers both that would “because ... the words “because colloquial Congress specifically may say ^[*] we that the decision would have been as does (1964). To construe the words “because legitimate considerations —even at the time of was also know that Title VII gender of’ even those decisions critical ^[*] since legitimate later, shorthand a factor the moment do not mean When, therefore, placed Price had not been taken into we know that ^[*] inquiry ... in the context of of." gender and Waterhouse, the word rejected making a for “but-for causa- v employment illegitimate of’ sex and the “solely because Cong.Rec. “solely” an amendment employment ^[*] is whether based on a the words is to mis- meant to decision, employ made. litiga ^[*] deci- front con of’ if kins, 490 U.S. 240-41, (1989). The members of the 268 (emphasis at 1785 added and altered S.Ct. of’ as to whether “because Court differed omitted). (footnote original) from must consideration meant that the forbidden writing Kennedy, in dissent for Justice (i.e., without which cause one be a “but-for” Justice, Scalia, himself, and Justice the Chief employment action would not the adversе required “but- concluded that “because of’ taken) only impermissi have been or so, rejected doing he likewise for” cause. “played a moti must have ble consideration suggestion that it was intended mean the decision to take that vating part” in “solely because of’: 244, at at 109 S.Ct. 1787 action. id. See understanding, By any normal 262-63, 109 at (plurality opinion); id. at S.Ct. conveys phrase “because of’ the idea (O’Connor, J., judg concurring in the 1797 question a difference to the motive made ment). agreed, of the Court All members way use the words this the outcome. We however, not mean “because of’ did everyday assuming, as the speech. And See, 241, “solely e.g., id. at 109 of.” because does, plurality ought that we to consider 284, opinion); id. at (plurality S.Ct. at 1785 prepared by interpretive memorandum J., (Kennedy, dissenting). 109 at 1808 S.Ct. drafters, we find that this is the statute’s Brennan, meant to them as well. writing for himself and what the words Justice distinction, Blackmun, Stevens, a Marshall, “To is to make discriminate Justices in treatment or fa- required of’ to make difference position took that “because (1964). Cong.Rec. 7213 Con- gender or some other vor.” 110 finding way a clearer gress could not have chosen prohibited played part consideration liability of under proof to indicate that challenged action. He decision to take the race, requires showing part Title VII explained position in as follows: their 593 color, sex, religion, origin or Only national than a mental act. if he does the act grounds at issue. because of the caused the decision stated in the bill any legal consequences.” would there be decisions confirm that Title VII is Our (1964).] Cong.Rec. [100 7254 presence with the of not concerned mere Thus, disagree plurality’s I with the dictum motives; impermissible it is directed to that the words of’ “because do not mean employment decisions that result from causation; manifestly they “but-for” do. those motives. The verbal formulae we precedents synony- have used in our are Waterhouse, 262-63, Price 490 at U.S. 109 mous with but-for causation. at 1797. In opinion, S.Ct. the course of her result Price added). opinion, disagreed 109 S.Ct. at whether need not be the sole cause in order for Justice element required, since the words “because of’ do tion. This is a decision, ie., a however, that sex must be the sole cause of a decision approach to causation that decision difference to the decision. Discrimination combination with other cause of the decision. Under the cussed, liability not mean [109 of “because We are told ... ‡ Waterhouse, reached O’Connor, sex is a cause for the whenever, consideration “solely the set ‡ before arise, at of’ Justice Brennan’s 1785]. but-for with the because of.” there is a Title VII viola- 490 U.S. at offactors and separate question while that but-for either (additional merely agreed No one factors, cause. concurring plurality’s sex must be a that caused the 281-82, 284, with that of I have dis- Ante, ‡ cause itself or in it made a necessary contends, emphasis accepted plurality in the at is not read- ^[*] from 241 jected Healthy City School District Board Mt. Heights Metropolitan Housing racially discriminatory purposes.’ Amendment that “the in the ment ples U.S. at cation v. L.Ed.2d 450 to rehire.’ “substantial” or at Justice O’Connor likened the relevant L.Ed.2d 471 (quoting Village Arlington Heights, 429 inee on whether Finally, Justice “because of.” In the context of a Healthy approach, to those involved in Corp., part judgment a rule of causation that focused 109 S.Ct. at Doyle, challenged ” decision not to rehire an because of his exercise of First protected (1977), rights, 429 U.S. 97 S.Ct. at (1977), 97 S.Ct. at otherwise, was not White, the Court had there “re- action rested where the Court held conduct (quoting 252, guidance Court, Village (emphasis who also concurred 563). required in a decision not 575). plaintiff played looked to Mt. Mt. ” Under the Arlington interpret- solely supplied) ‘to Develop- Healthy, 490 U.S. employ- was re- princi- ‘solely public Edu- part, 50 at the dissent: quired prove only to that “the unlawful mo- tive was a substantial factor in the adverse legislative history of Title VII bears action,” employment but there could be no plain language suggests: out what its liability if the defendant showed that only

substantive violation of the statute “ “wouldhave reached the same decision ... illegiti- occurs when consideration of an protected in even the absence of the con- mate criterion is the “but-for” cause of an ” (quoting Healthy, duct.’ Id. Mt. 429 U.S. employment legisla- adverse action. The 576). 287, necessary at 97 S.Ct. at A corol- history Congress tive makes it clear that lary approach, according to this to Justice attempting discriminatory to eradicate White, plaintiff was that a does not have “to employment setting, actions in the not illegitimate factor was the discriminatory thoughts.... mere Sena- only, principal, or true reаson for em- [the Case, plurality tor whose views the so finds ployer’s] action.” Id. elsewhere, persuasive responded: opinions “The man must do or fail to do some- find it clear from the in Price We Waterhouse, thing regard employment. legislative history to There and from the cite, act, specific they Congress, by using phrase must be some external more 594 discrimination and the of unlawful of,” “solely because evidenee” not mean did

“because permits a conclusion that as a whole guidance, evidence not have this if we did of.” Even impermissible consider- permissible both however, reluctant to attribute would be we employer’s deci- played a role in the employer ations that an intention Congress an sion, plaintiff need show discharge hiring or deci- if a liable should be motivating was a substantial unlawful motive employee’s age and solely on an sion is based If of fact in that decision. the finder factor primarily on is based if the decision not liable plaintiff has carried this concludes that the fact that also on the employee’s but burden, persuasion shifts to the burden not like the supervisor did employee’s color, prove that the unlawful the defendant or some hair employee’s personality, i.e., cause, was not a but-for motive or conduct.6 personal trait other taken, because action would have been same that “because of’ does Having concluded considerations, in the absence of of,” “solely we now look to because not mean the unlawful motive. to determine the governing precedents in an jury instruction рroper concurring in of the Court The members qualify ease that does discrimination judgment in Price reached Waterhouse motives, charge shifting un- burden a mixed by routes. Justices this result different der Price Waterhouse. Blackmun, Brennan, Marshall, and Stevens any imposing liability in the statute as read

IV. motive was a where the unlawful situation factor, “motivating” recognized an “affir- judg concurring in the The Justices shows apply mative defense” where declined ment in Price Waterhouse ‍​‌​‌‌​‌​‌‌‌‌​​‌‌‌​​​​​​‌​‌‌‌‌​‌‌‌‌‌‌‌​‌‌‌​‌​​‌​​‍taken that the same actions would have been them the familiar before to the situation of the unlawful motive. Price allocating production the absence the burdens rules for 244-45, 250, Douglas 490 U.S. at 109 in McDonnell persuasion found 1817, 1787-88, Green, 792, 1790. Justice O’Connor Corp. v. (1973), agreed dissenters that Depart with the three 668 and Texas 36 L.Ed.2d Burdine, required predicate 460 statute but-for cause as Community v. ment Affairs liability, shifting rule L.Ed.2d 207 to but favored burden 101 67 (1981).7 plaintiff “pre “show[s] cases in which the They viewed those cases as illegitimate criterion them as a direct evidence that and the case before text” cases Id. was a substantial factor the decision.” case. The Court held “mixed motives” cases, “direct 109 S.Ct. at 1804. such offers cases where — Hicks, U.S.-, Ap majority or Center v. of the Courts of 6. We note that (1993), peals rejected or "sole the "sole cause” will have on the stan- 125 L.Ed.2d See, e.g., cases. factor” formulation Appeals for the dard enunciated the Court of Stores, Inc., Super Valu 3 F.3d Faulkner Eighth Circuit. Sears, Cir.1993); (10th Sarsha v. 1425 & n. 3 Co., (7th Cir.1993); 3 F.3d Roebuck & Purcell v. are; Burdine, 7. As summarized in those rules Co., Seguin State Bank & Trust (5th Cir.1993); Montana v. First F.2d First, proving by has the burden of Assoc., (2d Fed. Savs. & Loan prima prepondеrance of the evidence a facie Chems., Inc., Cir.1989); v. Reichhold Cassino Second, case of discrimination. if the denied, (9th Cir.1987), cert. 1343-44 proving prima the facie the succeeds in 484 U.S. (1988); production] shifts to the defendant [of burden Corp., v. Sun Elec. 696 F.2d Blackwell legitimate, articulate some nondiscriminato- to Textron, (6th Cir.1983); Loeb v. 1181-82 Third, rejection. ry employee's reason for the Cir.1979). Inc., (1st But see 600 F.2d burden, carry this the should the defendant Arkansas, University 938 F.2d Foster v. of opportunity plaintiff to must then have an Cir.1991) (8th (upholding jury a instruc 115-16 prove by preponderance a of the evidence that prove protected required plaintiff tion that to the by the defendant reasons offered determining” and "sole” characteristic was "the reasons, were a were not its true rejecting the formulation of "a deter factor and mining for discrimination. eliminating improperly the dis factor” as Burdine, Community Dep't Texas "pretext" tinction cases). and "mixed motives” between of Affairs 252-53, (internal quota- effect, 101 S.Ct. at 109 any, We think it unclear what omitted). Supreme Mary’s tion and citation decision in St. Hon- Court's here, employer justify plaintiff its “to the to claimed that he had been dis- burden shifts decision,” charged age because of in show that the decision would violation of the —“to Supreme upon ADEA. The was the same absent discrimination.” Court called have been omitted). “[Wjhere (internal relationship to a address the between the stan- quotation Id. ordinary liability dard of strong under the ADEA plaintiff type has made this of show- motivation, liability liquidated and the standard of ing of illicit the factfinder is enti- damages provision under the of that Act employer’s presume discrimi- tled authorizing damages such for “willful” viola- in natory animus made a difference the out- former, respect tions. With Justice come, contrary proof to the from the absent O’Connor, Court, writing for a unanimous un- employer.” Id. Justice White found it applicable disparate reviewed the case law necessary get “to into semantic discussions discrimination) (i.e., treatment individual Healthy Mt ... creates an affir- whether cases and concluded as follows: mative defense.” employer’s decisionmaking agreed at 1795. He Whatever U.S. at however, O’Connor, process, disparate a treatment claim can- with Justice employee’s protect- not succeed unless plaintiff in Price Waterhouse had made the actually played trait a in pro- ed role requisite showing that sex was a substantial cess and had a determinative influence on factor in the decision and that the the outcome. persuasion of then should have shift- “burden prove” ed to Price Waterhouse to the same at-, Id. 113 S.Ct. at 1706. decision would have been made absent the respect liability to the standard of With 259-60, unlawful motive. Id. at 109 S.Ct. at liquidated damages, the Court held: therefore reaffirm We that the Thurston present purposes,

For there are two im- definition “willful”—that portant things opin- disregard to note about the either knew several or showed reckless First, majority ions in Price Waterhouse. a for the matter of whether its conduct was prohibited applies of the members of the Court did not endorse to all statute — plurality’s imposed disparate view that Title VII treatment cases under liability played prohibited whenever a factor ADEA. Once a “willful”violation has been shown, motivating challenged employee additionally role decision. need not age predominant ... Justices O’Connor and White and the three was the rejected, in than a dissenters the words Justice rather determinative factor White, “a rule of causation that focused sole- decision. ly impermissible [an motive] on whether at-, Id. 113 S.Ct. at 1710. otherwise, played part, ‘substantial’ or support Paper find in Hazen for our We decision.” 490 at 1795 conclusion that of’ does not earlier “because (internal omitted). Second, quotation while “solely If an ADEA mean because of.” holding special of the Court fashioned a age was “the need show reducing plaintiffs per- rule burden of predominant lia- factor” order establish category in a of Title VII suasion defined liquidated damages, surely bility for such cases, majority individual discrimination plaintiff does not have to show that the Court endorsed views of Title VII that challenged the sole cause of the decision in

would leave in other individual dis- right order to establish a to normal forms of showing crimination eases with the burden Paper pro- relief. We also believe Hazen but-for cause. an to our second vides authoritative answer inquiry.

All A ADEA who members of the Court now seem to ease agree showing qualify shifting that a instruc- but-for causation does not for burden required in ADEA cases that tion under Price Waterhouse has the burden special persuading by prepon- do not call for treatment under Price the trier of fact Paper Big Waterhouse. In v. derance of the evidence that there is “but- Hazen Co. — -, 1701, plaintiffs gins, U.S. 113 123 for” causal connection between the S.Ct. i.e., (1993), plaintiff, age employer’s L.Ed.2d like and the adverse 338 the the action — 596 by brought discharged employer. his He “actually played [the a role em- age

that VII, asserting that the em- decisionmaking] process and had a suit under Title ployer’s ployer’s actions were the result of racial ani- on the outcome” of influence determinative — employer mus. The insisted it took these Paper, at Hazen U.S. process. that plaintiff actions the on a number of -, 1706. because 113 S.Ct. permitted occasions had his subordinates rules, occasion break institutional one Y. superior. Hicks v. had threatened See holding in support for our find further We Ctr., 1244, Mary’s F.Supp. Honor 756 St. Mary’s decision St. Supreme Court’s (E.D.Mo.1991). court, 1246-48 The district —Hicks, -, 113 U.S. Honor v. Center fact, as the trier of found that the threaten- (1993). L.Ed.2d 407 That 125 S.Ct. ing conduct and rules violations had oc- that the trier of fact makes clear decision curred, these but concluded neither not limited to choice be pretext case is plaintiffs race was the real events nor the alleged discriminatory finding that the tween discharge. reason for demotion and nondiscriminatory employer’s motive or Rather, court concluded that “al- the district employ explanation the sole cause was though plaintiff proven the exis- ha[d] [the] At the time we decided ment action. Grif him, a crusade to terminate he [had] tence of (3d Cir.), Corp., F.2d 457 v. 988 CIGNA fiths proven racially not the crusade was — U.S.-, denied, cert. personally rather than motivated.” Id. (1993),8 possible to view it was 1252. pos pretext presenting as two all cases appeals, viewing pretext The court of cases conclude the fact finder could ei sibilities: bipolar, plaintiff as ruled once the prov succeeded in ther that the had proved employer’s proffered reasons explanation ing employer’s was a judgment pretextual, were he was entitled to discrimination, pretext plain or that the Mary’s of law. v. as matter Hicks St. view, prove. this tiff failed to so Under had Cir.1992). Ctr., (8th Honor 970 F.2d employer’s prof plaintiff proved reversed, Supreme concluding The Court pretextual, was the trier fact fered reason rejection that the trier of fact’s of the em- law, presumed, imper a matter of that the ployer’s proffered reason for its action did alleged by plaintiff was the missible cause compel the conclusion that race was the employer’s sole decision. cause sole cause of the decision. St. bipolar Mary’s instructs that this St. —Ctr., at-, Mary’s Honor U.S. A view of cases is inaccurate. find Rather, 113 S.Ct. at 2749-51. the record employer’s nondiscriminatory that the ex supported possible evidence three causes: planation pretext permits, does not is a race, threats and violations of the require, trier of fact to conclude that the rules, personal animosity. Supreme against employer discriminated Court ruled that the trier of fact was entitled ground alleged. Mary’s based on the St. to draw from the record evidence whatever —Hicks, — , — , v. Honor Ctr. support. inferences that evidence would (1993). 2742, 2749, 125 L.Ed.2d 407 Since the district court concluded that plaintiff, explanation an African- Mary’s, advanced was a St. American, ultimately pretext, had been demoted and it could have further inferred that (1987); INA insists that our decision in man 97 L.Ed.2d 815 see also Bellissimo v. Griffiths given dated the cause” instructions Westinghouse Corp., "sole Elec. 764 F.2d 179 n. 1 reading case. INA's (3d 1985) district court (finding requirement proving Cir. " long would be inconsistent with a line of improper ‍​‌​‌‌​‌​‌‌‌‌​​‌‌‌​​​​​​‌​‌‌‌‌​‌‌‌‌‌‌‌​‌‌‌​‌​​‌​​‍motive was ‘the determina Griffiths decisions of this court, including our in banc factor’ inconsistent with the 'but-for' [to be] tive Inc., Chipollini Gifts, Spencer decision in test”), denied, causation cert. (3d Cir.) (holding that an ADEA (1986). 89 L.Ed.2d 353 To the extent prove age "need not was the em language suggest can he read to Griffiths consideration, ployer's sole or exclusive but must charge appropriate, it is in this case decision”), made a difference in the hereby overruled. dismissed, rt. ce potential creating misunderstanding a in impermissible an motive to hide. was there so, required jury may however. If the to do the minds of the outlive their It was personal inferred that animosi- particular district court in that case. service and dis- ty the cause of the demotion was age In most discrimination cases too, permissible. was charge, get jury, support the record will Supreme think it clear from the We legitimate an inference that both a and an Mary’s in that the of opinion St. trier Court’s illegitimate played reason a role in the em case, the record will fact a where ployer’s charge pro decision and the must it, may accept support choose not to either possibility jury vide for the that the will find litigating reflecting the party’s position as employer’s product decision to be the Mary’s, may, as in St. whole truth. This cases, more than one In consideration. those take the form of a conclusion the ad charge, the court must with accordance for a reason other verse action was taken Paper, plaintiffs Hazen that the burden is to parties. urged reasons It than the prohibited show that consideration may also take the form of a conclusion that played decisionmaking process a role employer’s and the alleged discrimination that it had a and determinative influence on nondiscriminatory explanation played both a process.9 the outcome of that plain If role in the decision. tiff, example, argues that he or she was VI. discharged employer and the because plaintiffs that it was because of the insists In this the district court’s re absenteeism, may the trier of fact record peated reference to “sole cause” and “sole plaintiffs conclude that the absenteeism rec factor” was not harmless error. Miller al part, played ord a but that the would leged age, that because of his he was not twenty or were not have been fired he she high open manage selected for various level years younger. positions qualified ment for which he was and eases, may be such that thereafter he was terminated. For each some evidence open positions employer or “sole cause” that the use of “sole factor” offered quali burden would be evidence to show that Miller was not to describe rеason, perceive qualified or that he was than the harmless error. We no fied less however, why ultimately a trial court would choose to candidate selected. Based on the trial, jury phrases any presented ease. Even in those evidence could well use those appears rare cases where the evidence have concluded that both Miller’s and the choice, jury only bipolar employer’s explanations present were accurate —that phrases qualified misstate the law and hold a Miller was for one or more of the such here, course, describing had more than one motive. Under Price 9. We are cases in have Waterhouse, wording challenged employer may of a causation which the action of the the correct depending product jury of two or motives. It is instruction to a differs on wheth- be more however, understand, important er the case before the court is a “mixed motives” these “pretext” categories legal categoty are cases do not fall within the or a case as those defined special Only treat in that case. in a "mixed motives” ADEA "mixed motives” cases reserved for explained to an under Price Waterhouse. As we case is the entitled instruction that ment fully Griffiths, only or need show that the forbidden more 988 F.2d and Hook he she role, i.e., (3d motivating Young, played "a 28 F.3d 373-76 Cir. motive v. Ernst & then, 1994), only must be fol- "mixed motives” cases are cases not factor.” Even the instruction support explanation may that the defendant where the record would conclusion lowed liability by showing challenged illegitimate escape that both factors decision, played employer's action would have been taken in the absence of role in plaintiff's motive. See v. CIGNA where the evidence of discrimination is the forbidden Griffiths dispa- sufficiently proof Corp., In all other ADEA "direct” to shift the burden of 988 F.2d at 472. cases, employer be whether the same rate treatment should instruct- on the issue of plaintiff may ed that the meet his or her burden decision would have been made in the absence of by showing age played discriminatory only a role in the animus. The term of art decisionmaking misleading employer's process it "mixed motives" is thus because effect on the outcome of that describes a small subset of all had determinative may process. discrimination cases in which the explanations Because INA’s and Miller’s employer’s promotion the positions, that open however, contradictory, inherently decisionmaking process contained were not hiring and jury possible it would been for younger employees, and a bias in favor company Mil- sufficiently find that the considered both not did that Miller’s credentials age, that both qualifications and his ler’s competing candi- him from distinguish hiring factored into the relevant decisions. this bias. overcome dates to Thus, reasonably jury could have con- vacancy with.respect to the example, For ideally quali- that Miller was less than cluded manager with CIGNA Reinsur- general for position and that particular fied for a (the Kingdom “CIG- United Company, ance decisionmaking pro- factor in INA’s awas manager responsible pоsition”), NA UK time, reasonably At it could cess. the same testified that he wrote filling position that INA’s decisionmakers have concluded Durkin, Michael job description with younger workers and were biased favor of mind; candidate, in that Durkin successful younger person a with Miller’s credentials qualities needed for that had most of the post. assigned have been would experi- that Durkin had more position; and protection against age The ADEA’s and account- in reinsurance ence than Miller perfectly discrimination is not limited to employ- juryA who credited the work. employees. qualified As the court observed conclude that could therefore er’s evidence Co., Shager Upjohn v. 913 F.2d hiring a promotion Durkin’s (7th Cir.1990): protect “The statute does not However, testified that he Miller decision. merely perfect the older worker who is from experience as well extensive reinsurance had standpoint employer; his such a work substantially management experi- more as protection except er needs no from irrational qual- than Durkin. —one of the ence and skills they protects, employers, and are rare. It position. Durkin had man- ifications for matter, practical imperfect older work twenty employees, aged while a staff of being imper er from treated worse than the managed larger groups. much Miller had younger Harleys fect one.” Mardell Cf. expressed that when he Miller also testified (3d Co., ville Ins. Life position presi- in the CIGNA UK interest Cir.1994) (“[NJeither Title VII nor ADEA him he was “over- dent of that division told strips wrongdoing employee or her of his qualified.” Miller also offered еvidence that protection against unlawful entitlement experi- Durkin his reinsurance had obtained discrimination.”). Despite imperfect cre his manager’s part through ence in desire to dentials, prevailed Miller should have if he develop type him for this cross-train and passed would not have been over but for his additionally managerial promotion. Miller age. charge The district court’s “sole cause” many managers points of the INA out permit jury did to find in not Miller’s issue, hiring responsible for the decisions at favor on this basis. It follows that Miller is manager who including the filled the CIGNA entitled to a new trial. they position, eschewed the UK testified inter-departmental company’s place- formal VII. positions process ment available for above grade fifty-four personal an informal and We hold that an ADEA case which does testimony qualify shifting decisionmaking process. This not for a burden instruction theory that under Price court lends credence to Miller’s district upper promotion hiring decisions for lev- should instruct susceptible prove by preponderance management positions el were to must of the evi- age-animus. jury crediting age played employ- Accordingly, dence role decisionmaking process and that it had a Miller’s evidence could infer that the decision er’s him for determinative effect on the outcome of that to consider or select the CIGNA position age. process.10 the district court instructed UK was based on Since opinion, Rights parallel we the Civil Act of 1991 followed In the course of this have relied Rights development on Title VII bеcause the courses. Section 107 of the 1991 Civil cases Act, 2000e-2(m), prior provides § at 42 U.S.C. relevant case law under the two statutes codified dispense unhelp- liability, ADEA and to the sole cause be shown to be age must Thus, possible. un- rec- ful monikers whenever and since the employer’s decision of the majority, dispense I would while like the in banc support a conclusion ord would role, “pretext” altogether a deter- with the terms and played a factors other factor, explicitly and remand and hold that the we will reverse “mixed motives” minative applies disparate to all treat- same standard a new trial. Finally, I believe that the entire

ment eases. GREENBERG, concurring Judge, Circuit makes debate over “but-for” causation some- judgment. concurring in the part in and nothing, thing out of and that district courts juries in should feel free to instruct all us succinctly, question before put it To ADEA that a does not succeed eases Biggins, Paper Co. v. effect of Hazen is the — unless but-for causation shown. 1701, -, 123 L.Ed.2d 113 S.Ct. U.S. (1993), Mary’s v. Honor Center 338 and St. — 2742, -, Hicks, 125 113 S.Ct. I. (1993), holding our 407 on L.Ed.2d Grif Green, Douglas Corp. 411 In McDonnell v. (3d Cir.), Corp., F.2d 457 v. 988 CIGNA

fiths 792, 1817, 93 S.Ct. 36 L.Ed.2d 668 — denied, U.S.-, 114 S.Ct. cert. (1973), Supreme Court first set forth the (1993), types there are two cases, disparate proof order of treatment ADEA —mixed motives under the of cases upon explained and the Court elaborated and pretext and cases—and cases Dep’t Community the framework in Texas latter, age was plaintiff must show that Burdine, 248, v. 450 U.S. 101 S.Ct. Affairs adverse em factor the determinative (1981). 67 L.Ed.2d 207 the later correctly majority ployment decision. The process as the Court described the “in ADEA eases that do not concludеs follows: shifting charge under qualify for a burden First, prov- plaintiff has the burden of ... courts should district Waterhouse ing by preponderance of the evidence a burden is instruct the prima ease of discrimination. Sec- facie age played a role in the em prove that to ond, proving succeeds in decisionmaking process and that it ployer’s case, the burden shifts to the prima facie outcome of a determinative effect had legitimate, some defendant ‘to articulate join Opinion I thus process.” at 589. nondiscriminatory employ- for the reason I, II, and Parts VI and VII the Introduction Douglas, 411 rejection.’ [McDonnell ee’s separately majority Opinion. I write Third, U.S.], at at First, accept I reasons: cannot for three burden, carry this should the defendant majority’s analysis in Parts portions of the opportunity must then have Second, III, employ the area of IV and V. prove by preponderance the evi- law is cursed with elu ment discrimination legitimate reasons offered dence that the “pre like “mixed motives” and sive terms reasons, not its true by the defendant were text,” in presumptions, and with numerous discrimination. Id. pretext but were a burden-shifting rules. Those and ferences S.Ct., at 1825. at historically have taken and rules often terms Burdine, 252-53, at own, independent of their on lives of their repeatedly speaks about the lia 1093. Burdine underlying theories of connection to the discharge, Thus, reason for the “mixed “true” bility gave them birth. motives, there- and see id. at is not about mixed motives” case fore, in either-or terms. opinion was cast has little to do with “pretext” case proposi- cases reaffirmed has come to Post-Burdine pretext. I believe the time See, Transportation e.g., N.L.R.B. tion. clarify current status of theories provisions of the 1991 Act practice The substantive is estab- tice.” "an unlawful that lished when the that ADEA, complaining party demonstrates not amend the Title VII did that amended prohibited consideration] was a motivat- [a that section 107 is does not contend and Miller any employment practice, even ing factor for applicable to ADEA cases. prac- though factors also motivated other 6,n. Corp., 462 U.S. be liable. The Price Waterhouse dissent Management n. 76 L.Ed.2d 667 suggested interpreting Burdine so (in (1983) Burdine, “[t]he Court discussed disparate cover all could claims of treatment. in which the issue is wheth- the situation majority But a of the Court chose to retain motives, legal illegal or but not cases, er either Burdine’s framework for both, the ‘true’ motives behind the deci- were provide separate theory liability, to- sion”); States Postal Service Bd. United gether separate proof, with a order of Aikens, 711, 717, 718, 460 U.S. Governors apply involving legitimate in cases both and (1983) 1483, 75 L.Ed.2d 403 illegitimate employ- reasons for the adverse (“a plaintiff prevail[s] stage when at the third ment action. that of a Title VII trial he demonstrates the Thus, support Price Waterhouse does not nondiscriminatory given legitimate, reason case, pretext plain- the conclusion that in a in fact not employer the is the true reason tiff need not that was the determi- decision”) (Blackmun, J., employment for the employment native factor in the decision. Thus, concurring). pre-Priсe the Water- Quite contrary, majority justices the jurisprudence “assumed ... that a house explicitly assumption reaffirmed Burdine’s single impulse the who moves dis- case, pretext opposed that in a to a mixed criminates,” Y. Ha- see Theodore Blumoff & case, motives illicit the reason must the be Jr., Lewis, Reagan rold The and S. Court passages determinative cause. Crucial in the Title A Outlook on a VII: Common-Law opinions, majority various that the banc Task, (1990), Statutory N.C.L.Rev. cite, majority does not demonstrate that a disparate and that all treatment claims could the Price Waterhouse court viewed Bur- analyzed pre- be either-or under Burdine’s description pre- dine ’s “one or the other” text not mean that framework. This did the liability proceed- text as still viable in eases liability Court foreclosed when more than pretext theory. under a Writing for employment one motivated the adverse cause Marshall, himself as well as Justices Black- decision, only employment that dis- Stevens, mun and Justice Brennan distin- coming crimination cases before the Court guished Burdine as follows: argued pretext were under the Burdine product Where a decision was the of a framework. legitimate mixture of illegitimate mo- Hopkins, Price Waterhouse v. simply tives ... it makes no sense to ask (1989), 104 L.Ed.2d 268 S.Ct. legitimate whether reason was ‘the changed employment discrimination lia- ’ (Brief (em- “true reason” for Petitioner 20 bility landscape, way but not in the added)) phasis for the decision—which is view, majority suggests. my bane question asked Burdine. See majority gener- confuses Price Waterhouse’s Transportation Managеment, supra [462 holding plaintiffs may al obtain relief U.S.], S.Ct., n. n. 5. despite inability proofs to fit their their into point, Oblivious to this last the dissent framework, Burdine’s with the stan- would insist that Burdine’s framework proceed dard for causation in that do cases perform work that it was never intended to majority correctly under Burdine. perform. require It would who points out that members of the “[a]ll [Price challenges employment an adverse decision agreed ... Waterhouse Court that ‘because ] ” legitimate which both illegitimate ‘solely Opin- did not mean because of.’ played part pretend considerations quotations ion at But from the decision, fact, that the opinions only Price stemmed from a Waterhouse demonstrate single premise that in source —for the all members of the Burdine Court agreed illegitimate is that either a or an were not without a remedy if set of proofs challenged their considerations led to the did not fit into the Rather, say classic Burdine mold. all decision. To that Burdine’s evidentia- members agreed ry help the Court that when there is no scheme will not us decide a ease one true discharge, admittedly involving reason behind the both kinds of consid- employer in certain circumstances still aspersions could erations is not to cast on the play, comes into and even house scenario in the circumstances

utility of that scheme Burdine, though claim fails under designed. it was for which disprov- have the burden of defendant would U.S. at Price ing but-for causation. Moreover, in opinion). (plurality at 1788-89 Thus, important is not Waterhouse liability proving discussing the standards anything it about the standard becаuse said ease, pointed plurality mixed motives in a showing pretext liability but because satisfy the plaintiff fails to “[i]f out Supreme the first Court constituted time likely not that it more than is factfinder liability, explicitly decided Burdine part played a forbidden characteristic well, provide while alive and did decision, may pre- then she believe, imposing liability. I framework for Burdine, proves, following only if she vail then, majority wrong that the in bane reason for its deci- employer’s stated majority suggest that the Price Waterhouse 247 n. pretextual.” Id. at sion is of art” that used “mixed motives” as “term opinion). Jus- (plurality n. 12 at 1789 employ “only a small subset of all describes similarly this distinction: drew tice White in which the em ment discrimination cases that ‘mixed- has made clear The Court may had than one motive.” ployer have more one, cases, present are such as the motives’ sure, Opinion at 597 n. 9. To be there is as pretext cases such from different language in the Price Waterhouse various pre- In Douglas Burdine. and McDonnell plaintiff opinions addressing evidence the eases, whether either ‘the issue is text prove that the illicit criterion must adduce to both, motives, not were illegal legal or But, at in played a role in the decision. least the decision.’ “true” motives behind Waterhouse, the nature of the evidence Price Management Transportation NLRB v. satisfy “to the factfinder that can be used n. Corp., 462 likely not that a forbid that it is more than (1983). In [76 667] 2473 n. 5 played part a in the em den characteristic cases, however, is no there mixed-motives Waterhouse, decision,” ployment Price the decision. оne ‘true’ motive behind 12, 109 at 1789 n. is a at 247 n. (White, J., at 1796 Id. at separate apart from how question and concurring). or she is un plaintiff proceed can he when fact, plurality’s the Price In Waterhouse fact, In in the prove pretext. wake able to liability theory employment discrimination of courts Price number plaintiff proceed- necessarily assumed that required proofs the nature addressed theory could a mixed motives under employment dis the burden in shift theory. This is pretext succeed under case, arrived at differ and have crimination following: In a of the because hardly surprising, since ing results. That is pri- responds plaintiffs the defendant address that does not Price Waterhouse by offering legitimate nondis- case ma facie Compare v. Federal Ex question. White discharge. (4th Cir.1991) criminatory reasons for Corp., press reasons prove must that those plaintiff (“To then in a mixed motive show discrimination plaintiff If a cannot pretextual. carry may are ... its burden plaintiff ... a case discharge any reasons for the proffered proof by ordinary principles under reasons, then defini- not in fact real indirect evi sufficiently probative were or direct dence”) to demonstrate plaintiff Mississippi has failed tion the v. East with Brown (5th prong Ass’n, of the has failed the third pretext, and 989 F.2d Elec. Power however, Assume, Cir.1993) (“[w]hen presents credi plaintiff Burdine test. though discriminatory ani that even evidence district court convinced ble direct unrebutted, a substantial gone part or was proof has mus in motivated the defendant’s action, employment proven that in the has factor contested nоnetheless employ- employment proof burden of shifts a role in the adverse played added). er_”) part, For our (emphasis in which both That is a scenario decision. minimum, a a bare played “[a]t a we have held illegitimate and factors motive seeking a mixed Here, to advance Water- role in the decision. majority, to adduce circumstantial evi- case will have the Price Waterhouse but from the by persons or dence ‘of conduct statements Price Waterhouse dissent’s characterization decision-making process involved in the holding.1 Kennedy’s of the Court’s Justice directly may reflecting the al- be viewed as sought dissent in Price Waterhouse to recast discriminatory Griffiths, leged attitude’.” analytical grounding away the Court’s from (quoting 988 F.2d at 470 Ostrowski v. Atlan- theory underlying case and (2d Cos., 968 F.2d tic Mut. Ins. type terms of the of evidence the Cir.1992)). prove disparate had adduced to treatment. then, short, majority justices himself, Writing for the Chief Justice and pro- Price Waterhouse held that Title VII Sealia, Kennedy began by Justice Justice (1) liability: pretext, two or vides theories describing holding: his view of the court’s analysis, employee which an Burdine under opinions I establishing read the that in showing wins plain- a limited number ‍​‌​‌‌​‌​‌‌‌‌​​‌‌‌​​​​​​‌​‌‌‌‌​‌‌‌‌‌‌‌​‌‌‌​‌​​‌​​‍of cases Title VII proffered reason for the adverse tiffs, by presenting direct and substantial fact, pretextual decision was animus, discriminatory may evidence of solely illegitimate fac- decision was based (2) tors; cases, persuasion shift the burden of mixed motives which the to the de- trier of concludes that both licit fact fendant employ- to show that an adverse played emрloy- illicit motives a role in the supported ment decision would have been decision, ment and where the burden shifts by legitimate reasons. The shift prove that it employer would have persuasion only burden of occurs where a illegiti- made the same decision absent the plaintiff proves by direct evidence that an mate This means that the in banc motive. unlawful motive was a substantial factor majority’s “we conclusion that would be re- actually upon making relied in the deci- Congress luctant to attribute to an intention sum, ... sion. the court alters the hiring that an should be hable if a evidentiary framework of McDonnell discharge solely or decision is based Douglas closely and Burdine for a defined employee’s age and if the not hable decision set of cases. primarily employee’s age is based on the employee’s supervi- also on the fact that the Waterhouse, Price 490 U.S. at employee’s personahty, sor did not like the (Kennedy, Thus, at 1806 J.,'dissenting). in color, personal hair or some trait other or view, the dissent’s the court did not draw a conduct,”- 593, really Opinion at states the pretext distinction between cases and mixed perhaps appellant than obvious. Other motives cases but rather between direct evi- Waterhouse, in Price few contended or con- dence cases and circumstantial evidence plaintiff always tend that a would lose under cases.2 More than appeared the dissent age the ADEA if not was the determinative plurality opinion to criticize the for the lat- question factor. analyze The is how to assumptiоn pretext analysis ter’s that re- alleging illegiti- claims both quires proof of sole cause: mate motives. plurality approach tries to reconcile its

II. by announcing with Burdine applies that it majority’s description ‘pretext’ The in to a bane of Price which it defines as opinions Waterhouse derives not from the in a in plaintiff case which the attempts to cases, correctly, 1. It we plaintiff is evident that decided proof whether the offers direct Griffiths after Price was Waterhouse but before that employer’s discrimination motivated the ac Griffiths course, Of Price Waterhouse constituted Hazen. showing tions or chooses the indirect method of stage process ultimately the first in a saw the false, employer's proffered justification that the is Supreme abandoning Court the notion that there Aikens, say, pretext. supra, that is to See disparate are different theories of treatment lia- ('As U.S. at 714 n. 103 S.Ct. at 1481 n. 3 bility. lawsuit, any plaintiff may prove his case evidence.')”. direct or circumstantial terhouse, Price Wa disagreed The dissent with this distinction as opinions plain well: 490 U.S. at "Our 109 S.Ct. at 1810 make that Burdine applies J., disparate-treatment (Kennedy, dissenting). all individual proffered employee’s prove employer’s protect- that the succeed unless the ema actually played ignores pro- ed trait This role nation is itself false.... Burdine, cess and had a determinative influence on language which states that a of the outcome. meeting plaintiff may succeed her ulti directly persuasion ‘either mate burden at-, Id. at thing 1706. One by persuading the court that a discrimina language: disparate clear from this In no likely tory more motivated the em reason plaintiff prove treatment case must a indirectly by showing ployer or illicit motive was determinative factor. It employer’s proffered explanation necessarily is unwor follows that the Court’s distinc- U.S., thy pretext at 101 tion Price Waterhouse between credence.’ added). S.Ct., cases and mixed (emphasis longer at Under motives cases no methods, proves a viable rationale for the Price Water- first of these two alternative burden-shifting house’s approach. This is burden if she can meets her Hazen, light because need not ‘persuade the court was the determinative factor likely than not motivat decision more rather, prove liability in a discriminatory ed reason.’ United case— Hazen, language under States Postal Service Bd. Governors v. could prov- succeed under Burdine without Aikens, [103 717-18 S.Ct. employer’s wholly reasons are (1983) (Black 403] 75 L.Ed.2d And, pretextual. if the reasons are not whol- mun, J., concurring). ly pretextual, some of them must be true. 287-88, 490 U.S. at still, Further if some of the rea- totally at 1810. The dissent’s view is true, pretext sons are in- cases sometimes (and majority’s compatible with the in banc Hazen, Thus, volve mixed motives. after my) conclusion that in all but a limited num- burden-shifting approach of Price Water- cases, holding ber of of Price Waterhouse house —if it survives at all—must rest not on is irrelevant. See id. involving the distinction between cases mixed (“In J., sum, (Kennedy, dissenting) involving pretexts motives and eases for dis- evidentiary Court alters the framework of crimination, but rather on the distinction be- Douglas McDonnell and Burdine for a сlose- tween circumstantial evidence cases and di- cases.”). Indeed, ly I defined set of believe it rect evidence cases—the distinction drawn impossible square is the Price Waterhouse Kennedy in Justice his Price Waterhouse majority’s language framework with the Thus, view, my in dissent. this court should subsequent Supreme Court cases. not continue to refer to the term “mixed explicitly The Price Waterhouse dissent meaning motives” and then define it as some- unnecessarily compli criticized the Court thing Opinion other than mixed motives. See cating disparate analysis by treatment divid Instead, simply at 597 n. 9. we should aban- ing it into various theories. See Wa altogether. don the term terhouse, 490 U.S. at 109 S.Ct. at 1806 Along abandoning of an with the notion (“Continued J., (Kennedy, dissenting) adher independent category of “mixed motives” evidentiary ence to the scheme established in eases, important Hazen is for another reason Douglas and Burdine is a wis [McDonnell ] signalled as well—it discomfort with the Bur- disarray in er course than creation of more apportioning dine scheme burdens and already an area of the law difficult for the presumptions, consequently, en- bar.”). later, years bench and Just four “pretext” liability. In tire notion of this re- majority. Paper In view became the Hazen gard, in the Court foreshadowed its decision — U.S.-, Biggins, Co. v. 113 S.Ct. Mary’s by pointing “inferring out that St. (1993), 123 L.Ed.2d 338 the Court clarified age-motivation implausibility from the of the proving disparate the standards for treat employer’s explanation may problematic be ADEA. ment under the no uncertain motives, unsavory in where other such cases terms, the that: Court held interferencе, pension present.” Id. were Hence, at-, employer’s decisionmaking Whatever the 113 S.Ct. at 1708. the Court process, disparate expressed or treatment claim can- wariness about the “one —Id., pretext The to show intentional discrimination.” cases. approach other” And, at-, as the 113 S.Ct. at 2749. U.S. pointing to critique supported Court finding majority recognizes, “[a] in banc tending to eases show language nondiscriminatory explanation imposed under the be liability could require, pretext permits, is a but does motivating age was not when ADEA even employ- of fact to conclude that the the trier factor: against the based er discriminated prior language our deci- Although some ground alleged.” Opinion at 596. on the read to mean that an em- might be sions Mary’s says by focusing on what St But the ADEA whenever its ployer violates cause,” majority misses the about “sole improper firing employee an is reason may per- significance Mary’s, real St Douglas any respect, see McDonnell in our petuate misreadings of the case both Green, 792, 802, Corp. v. commentary. case law and in the own (1973) (creat- 668] [36 Mary’s purely within interpret If we St ADEA) applicable to ing proof framework majority pretext paradigm, as the in banc ‘legitimate, nondis- (employer must do,3 say appears to the case can be read to against criminatory for action em- reason’ proceed- disparate that in all treatment cases reading obviously is incorrect. ployee), this framework, plain- within the Burdine cannot be true that an example, it For minimum, must, prove pretext. tiff at a Af- аn older black worker employer who fires all, ter is how Burdine described thereby is black vio- because the worker And, recently three-pronged test. we held employee’s race is the ADEA. lates Unisys Corp., F.3d Armbruster v. reason, improper is improper (3d Cir.1994), Mary’s post-St pre- that in a VII, not the ADEA. under Title text case “a who claims invidious — at-, Hazen, at 1707. discrimination but lacks overt evidence of Thus, general- criticism of Burdine with the discriminatory point to animus must evidence holding ly, the Court’s all and with tending explanation to show the defendant’s need disparate treatment cases added). pretextual.” (Emphasis If that is only prove that the illicit factor had deter- true, however, very nearly we are back outcome, on the the Court minative effect again. plain- sole cause This is because the pretext liability strongly signalled the end of being tiff is forced not to make an theory disparate treatment as a distinct showing affirmatively affirmative but also liability. Armbruster, disprove facts. See Mary’s point made the even more ex- St (“After Mary’s, ... St it seems clear pretext plicit, abandoned the notion of that the trier of fact cannot find for the case, liability altogether. In that the Su- plaintiff merely because it disbelieves the rejected preme the view that when a Court proffered explanation; it defendant’s must employer’s proffered plaintiff proves an rea- persuaded employment also be that the deci- employment sons for the adverse action is that can sion was the result the bias be pretextual, plaintiff automatically the wins. falsity inferred from the of the defendant’s Rather, case, disparate in a treatment the (“an added); explanation.”) (emphasis id. plaintiff prove intentional discrimina- must finding illegal ultimate discrimination in a tion, proof concept of affirmative is and the pretext requires showing pri- case evidence a analytically proving distinct from other ex- showing pre- ma case and evidence facie planations wrong. Mary’s qualified text”) (second added); St alteration see also Smoke, by saying factfinder’s disbelief of Zubrensky, Despite “[t]he Michael A. the put Require- the reasons forward the defendant There Is No Gun: Direct Evidence accompanied by (particularly if disbelief is Employment ments in Mixed-Motives Law mendacity) may, together suspicion Hopkins, Waterhouse Stan. After (1994) case, prima (“plaintiffs the facie suffice L.Rev. dis- [must] elements ("We it, Opinion support may accept 3. See at 597 think it clear from the will choose not to either Supreme opinion Mary’s party's litigating position reflecting Court's in St. as the whole case, truth.”) added). (emphasis pretext trier of fact ain where record the (“[Ojnce prove respond- unstated reasons for the 2753-54 the defendant has decision”). But, clear, in as Hazen makes no plaintiffs prima ed to the facie ‘the plaintiff disparate treatment case must a court has before it all district the evidence it prove that the illicit factor was the sole or (as needs to decide’ not the dissent would employ- cause of the adverse determinative it) have whether the response defendant’s is Therefore, Mary’s ment action. tо read St. credible, but ‘whether the defendant inten- plaintiff prove pretext requiring to is to ”) tionally against plaintiff.’ discriminated misread the case. (citation omitted). Mary’s place point The of St. was not to problem probably arose with St. plaintiffs, dual on to treat burden rather Mary’s assumption proving pretext is disparate treatment discrimination eases— affirmatively proving easier than intentional prima plaintiff after the has established a Mary’s discrimination. St. assumed that facie case and after the defendant has met its purely when the factfinder is focussed on production -just any burden of like other — proffered whether the defendant’s reasons plaintiff case where bears the burden true, plaintiff getting are is somehow off proof. Gehring Corp., See also v. Case hook. In may some cases that be true. (7th Cir.1994) (“Once judge assumption But certainly is incorrect as plaintiff made the mini- finds has general proposition. Rather, may it be (the necessary ‘prima mum demonstration disprove employ- much more difficult to case’) pro- and that facie the defendant has explanation point er’s than to to evidence age explanation duced an neutral ... tending to show that if even only remaining question jury ... need correct, explanation partly is the illicit motive answer is whether the is a victim of also the action. caused discrimination.”) plain- intentional After tiff and the defendant have met their initial putting assumption But incorrect burdens, procedure the entire Burdine no aside, point Mary’s the real of St. was to any longer (apart is of relevance from the disparate focus the factfinder in all treatment procedure provided fact that a mecha- away question cases from the court). get nism to evidence before the Id. question on instead of whether intention- sure, plaintiff may attempt To be to place. Mary’s al took discrimination St. is prove solely by intentional discrimination fo- important because it tells district courts falsity cusing expla- on the of the defendant’s dispense pretext analysis with abstract alto- — nations, Mary’s, see St. U.S. at-n. gether except light insofar as it sheds at 2749 n. but that means place. whether intentional discrimination took if disbelieves the defendant’s eases, in all As there must be evidence argument, may opposite. believe the support finding in record to favor of the Nothing proposition peculiar in that question. on the ultimate As Hazen words, claims. discrimination other clear, makes when the is not re- plaintiff certainly required is not to rebut the cause, quired sole it should not proffered completely, defendant’s reasons legitimate played matter at all that a reason he or she nonetheless is able establish Thus, process. in role the once the defen- the illicit motive was a but-for of the cause proffer, jury dant has met its the should be employment adverse decision. See St. it of instructed that should consider evidence Mary’s, -U.S. at-n. 113 S.Ct. at prima the facie evidence of (“there finding 2749 n. 4 must of dis- be explanations, bearing evidence on the credi- crimination”); at-, id. 113 S.Ct. at 2751 explanations, bility of and all other those (employee prove employer must “that the has in the to determine relevant evidence case discriminated”); --(cid:127), unlawfully id. at employer against whether the discriminated (“proving employer’s at 2752 the reason plaintiff. the (and considerably part false becomes of often assists) By abandoning sole as the basis for greater enterprise proving of cause liability, Hazen clear that that the real reason was intentional discrimi- makes nation”); at-, separate category of mixed mo- id. 113 S.Ct. at there is no of illegitimate was a ‘but-for’ cause turning “pre- in motive By the focus

tives cases. decision.”) (plurality opin- pretext, of away from evidence cases text” (“The ion); at 1807 sepa- id. at that there is no Mary’s makes clear St liability plurality theory we are of Title VH pretext cases. What category of rate incorporates but- adopts essentially ... category disparate is one broad left with standard.”) J., (Kennedy, dissenting). that, except for limited for eases treatment eases, words, justices always all the should other Waterhouse category of Price in an agreed that a cannot win alike.4 be treated causation is not discrimination suit but-for disagreement in proved; Price Water- III. question of involves the much different house question causa brings to the me This what can proof who the burden of bears great lengths to majority goes to tion. The those burdens are not met. be inferred when prove must but-for causa show (“The impor- at 1807 Id. at ultimate test prevail, but the tion in order today’s decision is not the standard tance of but-for neglects all mention it announces to the employs, of сausation it but its shift 596-97, Opinion at Opinion at causation. See (Kenne- proof.”) burden of defendant intimations, majority’s Contrary to the J., dy, dissenting). in itself justices all Price Waterhouse majority’s in belief that “but-for” I banc agreed point. believe controversy in in causation is surrounded has majority when it states that is incorrect Brennan, Waterhouse, shy away concept from Mar induced it to “Justices Price jury charge though shall, Blackmun, articulating a read the stat and Stevens —even majority opinion point explicitly recog- liability any situation at one imposing ute as into but- ‘motivating’ nizes that the Hazen test translates unlawful motive was where the (“A causation, Opinion Price see at 595-96 Opinion at 594-95. While the factor.” plaintiff in ADEA ... has burden pointed “Hop out that an case plurality Waterhouse showing persuading of fact ... that there made this the trier argues kins that once she motivating causal connection between the unlawful motive was a is ‘but-for’ [that the finding plaintiff’s age employer’s and the adverse to a she was entitled factor] unnecessarily against action....” I believe this had discriminated Price Waterhouse sex,” rejected complicates Gehring, 43 F.3d at quickly it matters. her on the basis Cf. (“‘determining factor’ is not a term in argument. usage, n. common and it therefore does not at 244 109 S.Ct. at 1787 10. Justice n. Putting concepts. illuminate really concerned with burdens the essential Brennan jury point was that if the unusual terms instructions does little presumptions; Thus, beyond jurors”). prove confusing the while could not its affirmative de defendant fense, presume that true that in all non-Price Waterhouse trier of fact could cases, “plaintiff proven. [has had been See id. the test is whether the but-for causation proven] preponderance at 1788 n. 11 of the evidence at 246 n. (“ age played its a role is unable [W]here decisionmaking process made the and that it had a claim that it would have same discrimination, of that absence of we determinative effect on the outcome decision 598-99, process,” Opinion also gender conclude that did make are entitled to outcome.”) may technically that this word- (plurality be instructed difference into but-for causation. opinion); see also id. at S.Ct. at 1790 ed test translates (“A (“one Gehring, 43 F.3d at 344 attractive for- court that finds for a under this jury effectively an mulation” is that the should be instruct- standard has concluded that agree sufficiently light Mary's, 4. dence ’direct’ to and St. I of discrimination Hazen majority's that Price Waterhouse employer conclusion proof on the shift the burden of cases are "cases not where the record issue of whether the same decision would have support would a conclusion that both discriminatory been made in the absence of the illegitimate played a role in the em- factors Opinion n. animus." at 597 9. decision, ployer’s plaintiff’s but where the evi- would ed decide “whether whose address is 808 Moorefield Park [demoted, employee Drive, if Richmond, Virginia, 23236; off] have fired laid Fed employee younger Deposit had been than 40 and Commission, eral Insurance as same”) (al- everything else had remained the Savings Bank, Receiver for American original). F.S.B.; teration In Price Waterhouse Capital Corpo General Electric cases, as defined note 9 of the in banc ration; Corpo DLG Financial Services majority’s opinion, should in- be ration, Services, DLG Financial a/k/a structed that the defendant fails to meet its Inc.; Equity York, Inc.; Colonial of New showing burden of that it would have made Demetrakis; James D. Vincent Travali same decision the absence of the illicit no; Mastro’s, Inc., Del Del’s Enter t/a motive, it must conclude that the has prise; Enterprises, Inc.; Del Mastro Ho 'proven but-for causation. Corporation; I rizon Colonial DPC

Corp., I. INTERIORS,

LESAL INC. v. CORPORATION,

RESOLUTION TRUST Savings as Receiver Bank; for CorEast Corp. I, Jersey Colonial DPC a New Cor INTERIORS, INC., Appellant, LESAL poration; The Echelon Glen Residents v. Association; and Owners The Polis Housing Corporation VI, Foundation ASSOCIATES, L.P., ECHOTREE a New defendants, and certain John Doe fi Jersey Partnership; Limited nancing institutions involved in the “re HLM/Echotree, Inc.; Echelon Glen Co financing” Project, of the Echelon Glen Inc.; operative, Michaels, Inc.; H.L. M.J. defendants, and Certain John Doe II Rayes Incorporated, Raynes, M.J. a/k/a fraudulently transferees assets con Inc.; Corporation, Resolution Trust Re veyed by I; Corp. Colonial DPC Howard Savings F.S.B., ceiver of CorEast Bank L. Michaels. whose address is 808 Moorefield Park Drive, Richmond, Virginia, 23236; Fed Interiors, Inc., Appellant. Lesal Deposit Commission, eral Insurance Savings Bank, Receiver for American 93-5707, Nos. 94-5047. F.S.B.; Capital Corpo General Electric Appeals, United States Court of ration; Corpo DLG Financial Services Third Circuit. ration, Services, DLG Financial a/k/a Inc.; Equity York, Inc.; Colonial of New Argued July 1994. Demetrakis; James D. Vincent Travali Decided Feb. no; Mastro’s, Inc., Del Del’s Enter t/a prise; Enterprises, Inc.; Del Mastro Ho Corporation; I

rizon Colonial DPC

Corp., I. INTERIORS, INC., Appellant,

LESAL ASSOCIATES, L.P.,

ECHOTREE a New

Jersey Partnership; Limited

HLM/Echotree, Inc.; Echelon Glen Co-

operative, Inc.; Michaels, Inc.; H.L. M.J.

Rayes Incorporated, Raynes, M.J. a/k/a Inc.; Corporation, ‍​‌​‌‌​‌​‌‌‌‌​​‌‌‌​​​​​​‌​‌‌‌‌​‌‌‌‌‌‌‌​‌‌‌​‌​​‌​​‍Resolution Re- Trust Savings F.S.B.,

ceiver of CorEast Bank

Case Details

Case Name: William J. Miller v. Cigna Corporation the Insurance Company of North America

Court Name: Court of Appeals for the Third Circuit

Date Published: Jan 23, 1995

Citation: 47 F.3d 586

Docket Number: 93-1773

Court Abbreviation: 3rd Cir.