Argued May 4, 1995.
Reargued en banc May 14, 1996.

SLOVITER, Chief Judge.

    This appeal offers the en banc court the opportunity to attempt to clarify the quantum and nature of

evidence that will permit a jury to find that an employer engaged in impermissible employment

discrimination. Although we believe that several of our opinions in recent years accurately and

adequately set forth the applicable legal principles, the decision of the district court and that of a panel

of this court, now withdrawn, require us to return to the central issue presented here.

    Barbara Sheridan, a former employee of E.I. DuPont de Nemours & Co. (DuPont), filed this action

former supervisor, Jacques Amblard, with several claims of sex discrimination and retaliation.

employment ceased one of the Head Captains of the hotel's Green Room, asserted that DuPont

discriminated against her on the basis of her sex when it failed to promote her to Manager of

Restaurants in 1991 (Count I), retaliated against her for complaining about sex discrimination by

putting her on probation and taking various disciplinary actions against her (Count II), and created

intolerable working conditions, culminating in her removal from a supervisory position, which

resulted in her constructive discharge (Count III).

    FN1. Quixotically, the hotel is not capitalized as is the name of the company. To avoid

confusion, we will nonetheless refer to the hotel and the defendant interchangeably as

DuPont.

    After discovery, the defendants moved for summary judgment which the district court denied. The

court held that Sheridan had presented a prima facie case of discrimination and sufficient evidence to

permit a factfinder to believe that DuPont's reasons for not promoting her, i.e., that she was not

qualified for the position of Manager of Restaurants and that she had not applied for the position,

were pretexts for discrimination. App. at 57. The court further held that Sheridan had presented

adequate evidence to survive summary judgment on her retaliation claim and to enable a factfinder to

reasonably believe that her supervisors had intentionally fabricated evidence of poor job performance

in order to remove her from her position as Head Captain and offer her less desirable, dead-end jobs.

App. at 68. The court concluded that "[i]f plaintiff's version of the facts were accepted by a trier of

fact, it would be reasonable for the trier of fact to conclude that resignation was plaintiff's only

option." Id.

    Thereafter, the case proceeded to trial. The conduct that was the subject of Sheridan's claims straddled

the period before and after November 21, 1991, the date of the enactment of the Civil Rights Act of

1991, Pub.L. No. 102-166, 105 Stat. 1071 (1991), which granted a right to a jury trial on Title VII

jury would serve as the finder of fact for Sheridan's claims that were based on conduct that occurred

after that date, but that the jury would serve only in an advisory capacity for claims based on events

that occurred before that date. This meant that the jury's verdicts on Count I (failure to promote) and

the alleged retaliatory acts in Count II that occurred before November 21, 1991 were to be advisory,

while the jury was to be the finder of fact for the remaining alleged acts of retaliation and with respect

to Count III, Sheridan's claim of constructive discharge.

    The trial occupied six days. During the trial, the district court dismissed the claims against Amblard

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

    After deliberating, the jury returned special interrogatories. With respect to the promotion claim, the

jury found that Sheridan was not qualified for the job of Manager of Restaurants and therefore found

against her on her claim of discriminatory failure to promote. With respect to retaliation, the jury

found that DuPont had not retaliated against Sheridan for complaining of sex discrimination. In

contrast, the jury did find in Sheridan's favor on her claim of constructive discharge. It awarded her

$17,500 in compensatory damages, over and above lost wages, but found that DuPont's actions were

not taken "with malice or reckless indifference" to her rights, App. at 33, thus precluding Sheridan

had failed to mitigate her damages by $33,000, that amount to be deducted from the total amount of

lost wages owed. Because the court calculated Sheridan's lost wages to be $51,072, it awarded her

$18,072, in addition to six months of front pay totalling $12,768. The district court adopted as its own

the jury's findings with respect to the conduct alleged in Counts I and II that took place before

November 21, 1991.

    Both parties moved for judgment as a matter of law or in the alternative for a new trial. The district

court granted judgment in DuPont's favor. The court recognized that DuPont had proffered as one of

the principal reasons for the disciplinary actions it had taken against Sheridan her alleged

unauthorized "comping," i.e., giving away complimentary food and drinks in violation of the hotel's

policy that they should be registered, and Sheridan offered evidence to the contrary, indeed, evidence

that she was elsewhere on some of the days that DuPont claimed she was engaged in "comping" at the

hotel.

    In overturning the jury's verdict on the constructive discharge claim in favor of Sheridan, the court

stated that even if the jury could have reasonably rejected the legitimacy of DuPont's investigation of

Sheridan's alleged "comping," and thus its reasons for discharging her, "the Court is still left searching

the record for evidence that gender played a determinative role in defendant's conduct.... The Court ...

The court ruled that the evidence Sheridan presented which arguably related to her gender, such as the

facts that no woman had ever held the position of Manager of Restaurants, that a man replaced

Sheridan as Head Captain of the Green Room morning shift, that Amblard had told Sheridan he

would watch her like a "hawk" and a "dog," and Amblard's actions in ignoring her and speaking

instead to one of her male supervisors if one was present, was even in totality insufficient to support a

reasonable inference that gender was a motivating factor in DuPont's actions. Id. at 9-10.

FN2. The district court instructed the jury that it was required to find that Sheridan's

gender was the sole cause of her constructive discharge, and the jury apparently found

that this standard had been met. After the trial, we held in Miller v. CIGNA Corp., 47

F.3d 586, 597 (3d Cir.1995) (en banc), that a plaintiff need show only that discrimination

was a determinative cause, as opposed to the sole cause, of the employer's

challenged action. In ruling on DuPont's motion for judgment as a matter of law, the

district court held that the evidence of gender discrimination in Sheridan's case was

    *The court stated that "[i]n order to demonstrate that gender was a motivating factor, plaintiff

would have to point to some evidence that was the motive of those in the decision making process. No

if the judgment were reversed on appeal, DuPont would be entitled to a new trial "because the jury's

FN3. Sheridan does not challenge the jury's finding as to her lack of qualifications for the

promotion to Manager of Restaurants that was the subject of her Count I. Thus that claim

is no longer in issue.

    A panel of this court heard argument on May 4, 1995 and issued an opinion that reversed the district

court's order granting judgment as a matter of law for DuPont on Sheridan's constructive discharge

claim but was divided as to the alternative grant of a new trial, with two judges voting to affirm the

grant of a new trial and the third voting to remand the issue whether a new trial was warranted for

dissenting opinions differed in particular in their interpretation of the effect of the Supreme Court's

on the inferences that the finder of fact may draw from its disbelief of the employer's proffered

justification for the disciplinary employment action taken against Sheridan and the amount and type

of evidence needed to sustain a jury verdict.

    Both DuPont and Sheridan petitioned for rehearing and the court voted to hear the appeal en banc. As

required by our Internal Operating Procedures, the opinion of the panel issued January 31, 1996 was

withdrawn and the court held the en banc argument on May 14, 1996. [FN4]

    FN4. The Equal Employment Opportunity Commission (EEOC), the NAACP Legal

Defense and Education Fund, the American Civil Liberties Union of New Jersey, and the

National Employment Lawyers Association, all filed briefs as amicus curiae in support of

Sheridan's position. Lockheed Martin Corporation filed an amicus brief in support of

DuPont.

A.

    The parties disagree both as to the applicable law and the weight of the evidence. DuPont argues that

the district court's decision in its favor should have been affirmed in all respects. It apparently

recognizes that the district court's finding that Sheridan had not carried her burden of proving that

DuPont's decisions were based on gender discrimination was not consistent with this court's prior

decisions. Thus, DuPont challenges and requests that we reconsider our prior decisions with respect to

the "recurring problem of the shifting burdens" in employment discrimination cases, arguing that our

DuPont's Petition for Rehearing at 5.

respect to the evidence that would permit a plaintiff claiming employment discrimination to prevail,

We thus turn, this time en banc, to reexamine what DuPont calls "this continuing and perplexing

802, 93 S.Ct. at 1824; Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. Also established was the

considerable dispute, was the effect of the decision by the trier of fact that the reasons given by the

employer were not the real reasons for the adverse employment action. As the Court noted in Hicks,

there were cases in the courts of appeals that held that a finding of pretext does not mandate a finding

112 S.Ct. 1497, 117 L.Ed.2d 637 (1992), and others that held that a finding of illegal discrimination

FN5. To establish a prima facie case of discriminatory discharge a Title VII plaintiff must

show (1) that she is a member of a protected class, (2) she was qualified for the position,

(3) she was discharged, and (4) the position was ultimately filled by a person not of the

discharged because of his race, the court of appeals had concluded that "[o]nce plaintiff proved all of

[the employer's] proffered reasons for the adverse employment actions to be pretextual, plaintiff was

Supreme Court, which held that judgment for the plaintiff is not compelled by the disbelief of the

stated that a finding that the reasons proffered are pretextual permits the factfinder to draw the

inference that the defendant intentionally discriminated against the plaintiff. Id.

In deciding the "ultimate question" of whether the employer unlawfully discriminated, the Court

stated in the following oft-quoted passage that "[t]he factfinder's disbelief of the reasons put forward

by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together

explained that "rejection of the defendant's proffered reasons, will permit the trier of fact to infer the

ultimate fact of intentional discrimination," and continued: "the Court of Appeals was correct when it

original) (quoting Hicks, 970 F.2d at 493). [FN6]

issue with the majority's acceptance of the sufficiency of a rejected pretext to demonstrate

hold that once the factfinder rejected the employer's proffered reason, a finding of

discrimination for the plaintiff was compelled. See 509 U.S. at 532-33, 113 S.Ct. at 2760-

61 (Souter, J., dissenting).

    [1] [2] [3] Reading these statements in the context of the Court's opinion, we have

proffered reasons are the threshold findings, beyond which the jury is permitted, but not required, to

facie case and its own rejection of the employer's proffered non-discriminatory reasons that the

employer unlawfully discriminated against the plaintiff and was merely trying to conceal its illegal act

judgment (or in this case judgment as a matter of law) if the plaintiff produced sufficient evidence to

raise a genuine issue of fact as to whether the employer's proffered reasons were not its true reasons

answers the plaintiff's prima facie case with legitimate, non-discriminatory reasons for its action, the

plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could

reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an

invidious discriminatory reason was more likely than not a motivating or determinative cause of the

employer's action.").

sufficient doubt on his employer's proffered reasons for failure to place him in the position that he

sought, application of the same approach in some later cases led us to hold that the plaintiff had

reversed the district court's grant of summary judgment for the employer in an Age Discrimination in

Employment Act (ADEA) action because Sempier, an executive at an insurance brokerage and

consulting firm, had presented sufficient evidence to create a genuine issue of fact as to whether the

company's claim that he was forced to retire for poor performance was a pretext for age

discrimination. 45 F.3d at 732-33.

employer was improper because the evidence raised a factual question as to whether the employer's

proffered explanations--that it had discharged the 63-year-old plaintiff due to a company

reorganization plan and dissatisfaction with his work performance--was an attempt to conceal age

plaintiffs to bear the burden of demonstrating "pretext-plus," a burden we had explicitly rejected in

Fuentes. Id. at 495.

if s/he can produce sufficient evidence that the employer's proffered nondiscriminatory reason for its

sufficient to permit a jury to believe that the employer's claim of poor performance by the 53-year-old

salesman was pretextual, we reversed the district court's entry of summary judgment on Brewer's

ADEA claim. Id.

Cir.1996) (where defendant did not dispute that plaintiff made out a prima facie case and there was

evidence that defendant had altered performance evaluations of plaintiff after firing him, "jury was

entitled (although not required) to conclude ... that the reasons given by the hospital for firing

[plaintiff] were a pretext for age discrimination"); Barbour v. Merrill, 48 F.3d 1270, 1277

reasons, while not sufficient to compel a finding of discrimination, nonetheless suffices to permit such

defendant's proffered reasons for a challenged employment action and thus permits the ultimate

inference of discrimination."); Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1083 (6th

mandatory one which the jury must draw, to a permissive one the jury may draw, provided that the

jury finds the employer's explanation 'unworthy' of belief."); Anderson v. Baxter Healthcare Corp., 13

F.3d 1120, 1124 (7th Cir.1994) (to defeat summary judgment, Title VII plaintiff "must only 'produce

evidence from which a rational factfinder could infer that the company lied' about its proffered

reasons for his dismissal" (citation omitted)); Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1316 (4th

Cir.1993) (plaintiff can defeat summary judgment by "present[ing] evidence sufficient to establish a

prima facie case, and ... show[ing] that there is a genuine dispute of material fact about [the

defendant's] proffered explanation" for its action); Washington v. Garrett, 10 F.3d 1421, 1433 (9th

discrimination from plaintiff's proof of a prima facie case and showing of pretext without anything

more...."). [FN7]

    FN7. It is of interest that of the four cases from other circuits cited by the dissent as

"strong contrary authority," in three the actual holding was that the plaintiff "failed to

present sufficient evidence to permit a reasonable factfinder to infer that [the defendant's]

not infer pretext or age discrimination from these circumstances."), cert. denied, 511 U.S.

that Isenbergh failed in creating an issue of fact about the dis-believability of the

employer's reason for the hiring decision"). In Rhodes v. Guiberson Oil Tools, 75 F.3d

the court nonetheless found that based on the evidence that the reason given by the

employer was false, "the jury was entitled to find that the reasons given for [plaintiff's]

discharge were pretexts for age discrimination" and "[v]iewing this evidence in the light

most favorable to [plaintiff], a reasonable jury could have found that [the employer]

discriminated against [the plaintiff] on the basis of his age." Id. at 996.

    The Equal Employment Opportunity Commission, the government agency charged with enforcement

of the employment discrimination laws and an amicus curiae in this case, has also taken the view "that

a prima facie case, coupled with a non-credible justification from the employer, is sufficient to

interpretation of the Act by the enforcing agency, these Guidelines, while not controlling upon the

courts by reason of their authority, do constitute a body of experience and informed judgment to

which courts and litigants may properly resort for guidance." Meritor Savings Bank v. Vinson, 477

U.S. 57, 65, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986)(internal quotation marks and citations

omitted).

    The attack by DuPont and the dissent on the paradigm we and these other courts have constructed in

caselaw, as applied or articulated, and the requirement that the ultimate burden of persuasion of

intentional discrimination must rest with the plaintiff. We find no such inconsistency. More important,

burden that plaintiff must bear, i.e. "it is not enough ... to disbelieve the employer," 509 U.S. at 519,

113 S.Ct. at 2754, and the plaintiff must show "both that the reason was false, and that discrimination

opinion that "rejection of the defendant's proffered reasons will permit the trier of fact to infer the

statement that "rejection of the defendant's proffered reasons is enough at law to sustain a finding of

discrimination" was not inconsistent with its placement of the burden of persuasion on the plaintiff

inconsistency DuPont purports to find in our interpretation of Hicks.

continuing weight to the presumption of discrimination created by the prima facie case even after the

McDonnell Douglas presumption has dissipated or "burst." This argument is based on the mistaken

assumption that once the presumption of discrimination created initially by the prima facie case

saying that the presumption [of discrimination] drops from the case, we do not imply that the trier of

fact no longer may consider evidence previously introduced by the plaintiff to establish a prima facie

case.... [T]his evidence and inferences properly drawn therefrom may be considered by the trier of

make a finding of intentional discrimination, there is no reason why the evidence that supported the

prima facie case coupled with the jury's determination that the employer's proffered explanations are

pretextual is not sufficient to support a verdict of discrimination.

    As Chief Justice, then Justice, Rehnquist earlier had explained, the initial presumption of

discrimination arises from the plaintiff's prima facie case of discrimination "because we presume

these acts, if otherwise unexplained, are more likely than not based on the consideration of

impermissible factors." Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943,

2949-50, 57 L.Ed.2d 957 (1978) . He continued:

    [W]e are willing to presume this largely because we know from our experience that more often than

not people do not act in a totally arbitrary manner, without any underlying reasons, especially in a

business setting. Thus, when all legitimate reasons for rejecting an applicant have been eliminated as

possible reasons for the employer's actions, it is more likely than not the employer, who we generally

assume acts only with some reason, based his decision on an impermissible consideration such as

    This court has previously noted the probative significance of the factfinder's disbelief in a proffered

explanation by a party, stating:

    It has always been understood--the inference indeed is one of the simplest in human experience--that

a party's falsehood or other fraud in the preparation and presentation of his cause, his fabrication or

suppression of evidence by bribery or spoliation, is receivable against him as an indication of his

consciousness that his case is a weak or unfounded one; and from that consciousness may be inferred

the fact itself of the cause's lack of truth and merit.

    McQueeney v. Wilmington Trust Co., 779 F.2d 916, 921-22 (3d Cir.1985) (quoting 2 Wigmore § 278

(2) (Chadbourne Rev. 1979)). As another court recently remarked in the context of an employment

discrimination case: "Resort to a pretextual explanation is, like flight from the scene of a crime,

    We presume that the same logic, albeit unarticulated, was the basis for the Supreme Court's statement

"drops from the case" after the employer proffers a legitimate reason for its actions, Burdine, 450 U.S.

at 255 n. 10, 101 S.Ct. at 1095 n. 10.

    We routinely expect that a party give honest testimony in a court of law; there is no reason to expect

less of an employer charged with unlawful discrimination. If the employer fails to come forth with the

true and credible explanation and instead keeps a hidden agenda, it does so at its own peril. Under

those circumstances, there is no policy to be served by refusing to permit the jury to infer that the real

motivation is the one that the plaintiff has charged.

    *The dissent concedes that in the usual case after the presumption created by the prima facie

case has dissipated and sufficient evidence of pretext has been adduced, there will be sufficient

evidence to support a verdict of discrimination. The dissent is concerned that in the atypical case this

may not be so. It posits the situation of a plaintiff who claims multiple grounds, all illegal, for the

employment action. We see no reason to engage in a dialogue of speculation as to how to treat such a

case, divorced from a factual record, particularly because the situation presented by the dissent was

where the plaintiff claimed national origin discrimination, nor is it the case before us now, where

Sheridan claims only sex discrimination.

    The other situation posited by the dissent for its unwillingness to join the otherwise unanimous en

banc court is that created where an employer "may not wish to disclose his real reasons for not

promoting B over A." Dissenting Op. at 1086 n. 8. The persistence in maintaining that the

employment action was taken because the plaintiff was unqualified or the position was being

eliminated due to a reduction in force when the employer knows that the real reason is nepotism

dissent gives no reason why a plaintiff alleging discrimination is not entitled to the real reason for the

personnel decision, no matter how uncomfortable the truth may be to the employer. Surely, the

judicial system has little to gain by the dissent's approach.

    The Supreme Court has stated that an employer can meet its burden of articulating the reason for its

action only through the introduction of admissible evidence. Burdine, 450 U.S. at 255 n. 9, 101 S.Ct.

at 1094 n. 9. Burden-shifting is designed "to sharpen the inquiry into the elusive factual question of

is rooted in the requirement that when the employer advances through admissible evidence the

reasons for its actions, those must be its legitimate reasons.

    The dissent argues that mere disbelief of the employer's articulated reason is not enough to sustain a

combination of the disbelief in the employer's proffered explanation, the evidence that supported

finding a prima facie case, and the jury's finding of intentional discrimination following a proper

instruction to that effect.

    Although the dissent states at the outset that its approach "does not mean that a plaintiff, in order to

reach the trier of fact, must always prove ' pretext plus,' i.e., that the plaintiff must always produce

some evidence in addition to what is necessary to establish a prima facie case and to show that the

employer's explanation is pretextual," Dissenting Op. at 1078 (emphasis added), the dissent's

approach would bring the courts of this circuit back to the confusion and uncertainty created by the

"pretext plus" and "some evidence" language that prompted this court to consider this case en banc.

In Sheridan's case, the district court had reviewed the evidence presented in connection with DuPont's

motion for summary judgment and found that Sheridan had made out a prima facie case for gender

discrimination culminating in constructive discharge.

    Also, the district court had carefully instructed the jury on the need to find intentional discrimination

before it could return a verdict for Sheridan on any of her claims. Early in its charge the court had

advised the jury that this case involves "allegations of intentional sexual discrimination, that is, of

intentionally treating some people less favorably than others because of their gender." App. at 111.

Again, in connection with the constructive discharge count the court had reminded the jury that

Sheridan must prove "by a preponderance of the evidence that 1) defendant intentionally made

plaintiff's working conditions so intolerable that a reasonable person would feel forced to resign; 2)

fact, resigned." App. at 123. The jury's verdict signifies that it rejected DuPont's proffered reasons for

its employment action and believed that the real reason was discrimination.

    In granting judgment as a matter of law for DuPont, the district court stated that "plaintiff would have

to point to some evidence " that gender was the motive of those in the decision-making process. It is

evident that the district court believed that something more was required than was set forth in Hicks

stated that "if the plaintiff has pointed to evidence sufficiently to discredit the defendant's proffered

reasons, to survive summary judgment the plaintiff need not also come forward with additional

the action, "no additional proof of discrimination is required." 509 U.S. at 511, 113 S.Ct. at 2749

(internal quotation marks omitted).

    As the Supreme Court has noted, "[t]here will seldom be 'eyewitness' testimony as to the employer's

mental processes." United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103

S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983). We have recognized that "[d]iscrimination victims often

come to the legal process without witnesses and with little direct evidence indicating the precise

nature of the wrongs they have suffered." Jackson v. University of Pittsburgh, 826 F.2d 230, 236 (3d

Dillon v. Coles, 746 F.2d 998, 1003 (3d Cir.1984) . "This is true in part because ... discrimination ... is

no written records revealing the forbidden motive and may communicate it orally to no one." Id.

The distinct method of proof in employment discrimination cases, relying on presumptions and

shifting burdens of articulation and production, arose out of the Supreme Court's recognition that

plaintiff has his day in court despite the unavailability of direct evidence." (internal quotation marks

1843, 1867 n. 45, 52 L.Ed.2d 396 (1977) (recognizing that burden-shifting rules "are often created ...

to conform with a party's superior access to the proof"); Chipollini, 814 F.2d at 897; Dillon, 746 F.2d

at 1003.

    Thus, it is not only disbelief in the employer's proffered reason that would suffice to sustain the

plaintiff's case, as the dissent argues. It is the jury's determination that the reason given was pretextual

together with the evidence that supported the prima facie case that will sustain a finding of intentional

discrimination made after a proper charge.

    The role of determining whether the inference of discrimination is warranted must remain within the

province of the jury, because a finding of discrimination is at bottom a determination of intent. In

the evidence, the credibility of the witnesses through observation of both direct testimony and

 crossexamination at trial, and the strength of the inferences that can be drawn from the elements of the

prima facie case and the evidence that undermines the employer's proffered reasons for its actions.

F.3d 694, 700 (3d Cir.1995)( "Evaluation of witness credibility is the exclusive function of the jury,

and where the only evidence of intent is oral testimony, a jury could always choose to discredit it.")

is true that it is very difficult to prove what the state of a man's mind at a particular time is, but if it

can be ascertained it is as much a fact as anything else.") (quoting Edgington v. Fitzmaurice, 29 Ch.

the plaintiff's discharge is clearly a factual question.").

    This does not mean that the courts in discrimination cases lose their traditional obligation, when faced

with a motion for judgment as a matter of law, to review the adequacy of the showing presented to the

factfinder. The district court must determine whether the plaintiff has cast sufficient doubt upon the

employer's proffered reasons to permit a reasonable factfinder to conclude that the reasons are

implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered

legitimate reasons for its action that a reasonable factfinder could rationally find them 'unworthy of

the evidence meets this threshold requirement, it may not pretermit the jury's ability to draw

inferences from the testimony, including the inference of intentional discrimination drawn from an

unbelievable reason proffered by the employer.

    With these legal principles before us, we turn to the district court's order granting judgment for

DuPont as a matter of law on Sheridan's jury verdict that she was constructively discharged as a result

of discrimination. We exercise plenary review of the district court's order granting DuPont's motion

B.

    [5] We need not recount all of the evidence adduced at the trial because we examine the record

with the limited purpose of ascertaining whether there was sufficient evidence to withstand judgment

as a matter of law. In doing so, we must look at the evidence in the light most favorable to Sheridan,

    [6] At the time of the events that formed the basis of this case, Sheridan was one of five head

captains at the hotel, occupying the position of Head Captain of the Green Room for the breakfast and

lunch shifts. Sheridan, who began working at the hotel as a part-time waitress in 1979, reached that

supervisory position in 1989 following a series of steady promotions. In addition to those promotions,

Sheridan had received numerous commendations for her job performance.

    Focusing on the period immediately before that at issue, there was evidence that in May 1989

Sheridan was nominated by her peers and received an "Employee of the Quarter Award" for

"outstanding" work. She received merit raises in May 1990 and February 1991. In July 1990 she

received a "Way to Go" award from the Personnel & Administrative Services Division for "going

supervisors including defendant Jacques Amblard, rated Sheridan overall "very good," the second

highest rating. She was rated "outstanding" for "Interpersonal Relationships," "Planning/Organizing,"

and "Problem- Solving." Although that report noted that "[a]s a team player, strengthening is needed

to improve the overall relationship with the rest of the operation," the report listed one of her strengths

as "[v]ery good guest relations, organized." The report stated that "Barbara's persistence has paid off

by guest loyalty, staff does not call off sick, and overall very good morale from the support team."

Even Sheridan's lowest mark, given for "Attendance/Punctuality/Dependability," was "Satisfactory."

App. at 197-98.

    In December 1990, Sheridan won a $1,000 accomplishment award. The letter informing her of the

award referred to her as "a role model" and "a true ambassador for the company." App. at 151. Other

restaurant employees received awards ranging from $200-$500, but Sheridan was the only employee

to receive an award as high as $1000. App. at 287. In January 1991, Sheridan was chosen as one of

about 20 DuPont employees to appear in a company video. App. at 734. On October 1, 1991,

Sheridan received a promotion and salary increase.

    DuPont attempted to paint a different picture to the jury. Notwithstanding the record evidence of

promotions and commendations, it contended that Sheridan's performance began to deteriorate in

early 1991. DuPont produced evidence that supervisors met with Sheridan, expressed dissatisfactions,

and directed her to improve in various categories. For example, in February 1991, Ed Barba, then the

Green Room's Manager, listed "corrective measures" that Sheridan should take, including

"maintaining an accurate cover count sheet" to insure that "covers" (customers) were distributed fairly

among the staff, following the "grooming policy" which required that she report to work on time and

in full dress, and refraining from using the Green Room as a break room and for smoking. App. at

228. Nicholas Waller testified that in the summer of 1991, as Manager of Restaurants, he met with

Sheridan to discuss alleged complaints that Sheridan had asked Green Room employees to help her

with personal tasks, such as parking her car, giving her a wake-up call, or taking her personal mail to

the post office, and that she had rewarded employees who complied by giving them additional

"covers" in the dining room. App. at 960-63.

    On October 17, 1991, Jeff Maisel, by then the Manager of Restaurants, met with Sheridan to discuss

problems allegedly perceived with her performance, including tardiness and continuing disregard for

the hotel's grooming policy. App. at 206, 885. On November 10, 1991, Maisel placed Sheridan on

probation, ostensibly on the ground that she had not corrected her performance. Maisel warned

Sheridan that her failure to follow the hotel's policies could result in her termination. App. at 208.

In support of its claim of Sheridan's inadequate performance, DuPont introduced various notes and

records that DuPont had compiled of specific infractions by Sheridan. Illustrative of DuPont's

complaints is a memo by Barba to the file that on one occasion he had observed Sheridan smoking in

the Green Room Bar and putting on makeup. A report meticulously listed other details to support

she continued her inadequate performance. [FN9]

    FN8. These included, for example, for a short period in 1991: Oct.

20: Sheridan arrived at work 45 minutes late and without her makeup on, in violation of

grooming policy; Oct. 22: reported to work 25 minutes late; Oct. 23: reported to work 20

minutes late; Nov. 3: was 17 minutes late, and not wearing makeup; Nov. 3: Sheridan

was observed with another employee in the company van during a staff meeting; Nov. 7:

Sheridan was seen eating and smoking in the Green Room Bar with another employee

during service hours. App. at 206.

    FN9. Specifically, DuPont contends that in February 1992, Sheridan spoke rudely at a

staff meeting to Joe Marshall, the Room and Service Head Captain. It also presented

evidence that once when Sheridan was asked to work on a Sunday, she initially refused,

but then agreed to work, although she allegedly told Maisel that "[s]he felt after 13 years

she deserved to work Monday-Friday." App. at 220.

    *An important part of DuPont's defense for its employment actions centered on its claim that

Sheridan had engaged in "comping," i.e., giving away complimentary food and drinks without ringing

up complimentary checks. The hotel began investigating Sheridan for this activity in late February,

1992, and its record of the investigation lists statements of numerous co-workers. App. at 222-26.

James Dougherty, a bartender who was one of DuPont's principal witnesses on "comping," reported to

DuPont that due to his concerns about numerous "discrepancies" and "cash handling problems" with

Sheridan, he began to keep track of the amount of free liquor Sheridan gave away. He recorded that it

totaled $921.75 from November 1, 1991 to February 18, 1992, with $417.25 worth of drinks given

away in December alone. App. at 222. Dougherty testified at trial that each time he saw Sheridan

serve a free drink, he would record the date and dollar amount of the drink, and claimed that his dates

were about "98-percent accurate." App. at 688.

    Maisel testified that based on the hotel's internal investigation, DuPont decided that Sheridan should

be reassigned to a non-supervisory position that would not require her to handle cash. App. at 910.

Sheridan was offered three options: front desk receptionist, banquet server, or health club attendant,

with no diminution of salary. The hotel claimed that she would be eligible for advancement in any of

those positions, although Sheridan offered evidence at trial that suggested otherwise. See App. at 473-

75, 776. After considering the offer for some weeks, Sheridan resigned.

    Sheridan's testimony at trial portrayed the events differently than did DuPont. It was her position that

the alleged dissatisfaction with her performance stemmed from her complaint of sex discrimination

which she made in the fall of 1991, when the hotel reorganized its structure to eliminate the individual

restaurant managers and to place a new manager over all of the restaurants in the hotel. The hotel did

not advertise the position, considered only five of its own employees for the new post (all men), and

selected Maisel. DuPont did not consider Sheridan for the position, id., and Sheridan complained to

Amblard at least three times in the period of September and October 1991 that she was not promoted

due to gender discrimination. App. at 51-52. She also testified that around this time, Amblard told her

repeatedly that he planned to watch her "like a dog" and "like a hawk." App. at 748. Sheridan's

position was that the hotel's recordkeeping of details of her daily activity was "nitpicking" in

retaliation for her complaints of sex discrimination. App. at 1337. She further sought to portray

Amblard as a sexist and testified that, when she was with one of the other male supervisors, he would

ignore her and instead speak only to the man. App. at 748.

    In addition to the affirmative evidence of her own accomplishments, Sheridan presented evidence at

trial that was directed to impeaching the credibility of DuPont's witnesses, particularly, but not limited

to, Dougherty and Maisel. Sheridan demonstrated that for two weeks in January 1992, during which

Dougherty listed three dates when she allegedly dispensed free drinks, she had reported for jury duty

at the Superior Court. App. at 173-79, 540-43. Even a document handwritten by Maisel showed that

another head captain was scheduled to cover Sheridan's shift on those days. App. at 167. Maisel's

schedule also indicated that Sheridan was not scheduled for work on December 23 and 24, 1991,

although Dougherty's list included these dates among those when Sheridan allegedly required him to

deliver complimentary drinks. App. at 167, 227, 540. In fact, Maisel's written work schedule could be

viewed as contradicting Dougherty's list as to seven separate dates.

    In seeking to show the pretextual nature of DuPont's articulated reasons, Sheridan noted, inter alia,

the temporal proximity of her complaints to Amblard of sex discrimination and his statements that he

would watch her like a "hawk" to the subsequent surfacing of dissatisfaction with her performance,

the meticulous recordkeeping of the details of her daily activities, and the hotel's investigations into

her alleged "comping."

    *Thus, it is clear that the jury in this case was faced with evidence on both sides of the issues

raised by the parties. The jury's verdict for Sheridan on her constructive discharge claim shows that

the jury accepted Sheridan's view on this claim and rejected DuPont's explanation as pretextual.

We have previously cautioned that "[i]n determining whether the evidence is sufficient to sustain

liability, the court may not weigh the evidence, determine the credibility of witnesses, or substitute its

version of the facts for the jury's version." Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d

Cir.1993). A reasonable jury could have disbelieved DuPont's proffered reasons for its actions based

on Sheridan's evidence and its rejection of the credibility of certain of DuPont's principal witnesses,

such as Dougherty and Maisel. We find no paucity of evidence on which the jury could have based its

finding for Sheridan on her constructive discharge claim.

    Under the applicable law, a plaintiff who voluntarily resigned may maintain a case of constructive

discharge when the employer's allegedly discriminatory conduct creates an atmosphere that is the

Cir.1992). We apply an objective test to determine whether "the employer knowingly permitted

conditions of discrimination in employment so intolerable that a reasonable person subject to them

    In denying DuPont's motion for summary judgment, the district court rejected DuPont's argument that

there was no basis on which a jury could find that the conditions to which Sheridan claimed she was

subjected could have reached the level that would constitute a constructive discharge. Instead, the

court held that if Sheridan's version of the facts were accepted by a trier of fact, it would be

reasonable for the trier of fact to conclude that resignation was Sheridan's only option. Thus, when the

court instructed the jury, it charged that for the jury to find that DuPont constructively discharged

Sheridan, she must have proved by a preponderance of the evidence that DuPont "intentionally made

[her] working conditions so intolerable that a reasonable person would feel forced to resign" and that

"[Sheridan's] gender was the sole motivating factor in the defendant's conduct." App. at 1487.

The evidence of the series of investigative activities, allegations of improprieties, placement on

probation after more than a decade of satisfactory performance, and the ultimate removal of Sheridan

from her supervisory position in the highly reputed Green Room to one of three far less prestigious

dead-end positions, such as the health club attendant, could have been viewed by the jury as meeting

the criteria of a constructive discharge. The jury returned an unqualified verdict finding that DuPont

had constructively discharged Sheridan and did so based on her gender. We cannot hold that Sheridan

failed to present sufficient evidence to withstand DuPont's motion for judgment as a matter of law,

and therefore will reverse the district court's order to that effect.

C.

    Because the district court's ruling focused primarily on its decision to grant DuPont's motion for

judgment as a matter of law, the court's explanation for its grant of a new trial was brief. The court

defendant's motion for a new trial. To comply with that requirement, the court stated merely that it

"would grant the motion for a new trial because the jury's verdict is contrary to the weight of the

evidence." Sheridan (July 14, 1994), 1994 WL 828309 at 12 n. 11.

    We are unable to ascertain the extent to which this ruling was affected by the court's misconception

that direct evidence of discriminatory intent was necessary to sustain the jury's verdict, i.e., its

understanding that "[i]n order to demonstrate that gender was a motivating factor, plaintiff would

have to point to some evidence that that was the motive of those in the decision- making process."

discrimination, we believe the district court should reconsider whether a new trial is warranted in light

of the correct legal principles.

    [7] It is also unclear whether the district court applied the complete test for ruling on a new trial

motion. In granting that motion, the district court merely concluded that the jury's verdict was

contrary to the weight of the evidence. Although we recognize that a new trial may be granted even if

the evidence is legally sufficient to support the verdict, Roebuck v. Drexel Univ., 852 F.2d 715, 735-

36 (3d Cir.1988), we have nonetheless cautioned that a district court should grant a new trial on the

basis that the verdict was contrary to the weight of the evidence "only where a miscarriage of justice

would result if the verdict were to stand," Williamson v. Consolidated Rail Corp., 926 F.2d 1344,

1352 (3d Cir.1991). We have explained that this stringent standard is necessary "to ensure that a

district court does not substitute its 'judgment of the facts and the credibility of the witnesses for that

of the jury. Such an action effects a denigration of the jury system and to the extent that new trials are

granted the judge takes over, if he does not usurp, the prime function of the jury as the trier of facts.' "

    Therefore, before imposing on Sheridan the burden and expense of a new trial, we will remand to

require the district court to determine whether, inasmuch as Sheridan was not obliged to produce

direct evidence of discriminatory intent, the jury's verdict for Sheridan was against the great weight of

the evidence and would effect a miscarriage of justice.

    We have previously remarked that the district court's instruction to the jury placed on Sheridan a

higher burden of proof than our cases require. See note 2, supra. If there were a new trial, Sheridan

would not have to prove that discrimination was the sole cause of DuPont's action but only that

Cir.1995) (en banc).

    [8] [9] Sheridan has raised other trial errors to support her motion for a new trial, but we need

consider briefly only one. Sheridan argues that the district court erred in excluding testimony of a

female co-worker that Amblard stated, after watching a woman in a tight dress walk by, that he

"would like to grab that," App. at 699-700, 1520, and that on another occasion Amblard rejected her

offer to park cars at the hotel on the ground that she could not park cars because she was a woman.

403, finding these statements "prejudicial and irrelevant." App. at 44. We review a district court's

rulings concerning the admission of evidence for abuse of discretion. Glass v. Philadelphia Elec. Co.,

determining whether he was biased against women generally and therefore the district court took too

narrow a view in holding that they had no probative value, we cannot conclude that the district court

abused its discretion in deciding that Amblard's statements were more prejudicial than probative of

the ultimate issue of whether DuPont's employment actions as to Sheridan were caused by genderbased

Amblard as a defendant.

    FN10. We are concerned that the district court failed to make explicit its reasoning under

(3d Cir.1994). We note that we will not do so routinely, and expect that the requirements

of the Federal Rules will be followed by the courts in this circuit. Should there be a new

trial, the district court will have the opportunity to reconsider this ruling.

    FN11. Sheridan has failed to preserve her claim that other testimony by another coworker

was improperly excluded. We also reject her claim based on defense counsel's use

of a peremptory strike allegedly based in part on the age of a 68-year-old black member

of the jury venire and her claim that defense counsel improperly vouched for the

credibility of certain witnesses during closing argument to the jury.

D.

[10] Sheridan contends that the district court erred in dismissing Jacques Amblard as a defendant

on the ground that individual employees may not be held liable under Title VII.

Title VII provides, in relevant part:

It shall be an unlawful employment practice for an employer--

    (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any

individual with respect to his compensation, terms, conditions, or privileges of employment, because

of such individual's race, color, religion, sex, or national origin....

42 U.S.C. § 2000e-2(a) (emphasis added). The statute defines "employer" as "a person engaged in an

industry affecting commerce who has fifteen or more employees ... and any agent of such a person."

    Sheridan argues that there is no language in the statute excluding individuals, and she looks to the law

of agency to support the proposition that agents can be held jointly liable with employers for wrongs

resulting from their tortious conduct. She also contends that we should interpret the 1991

amendments, which added to the remedies provided in Title VII a provision for compensatory and

punitive damages, as suggesting that Congress intended to hold individual defendants liable because,

unlike equitable remedies such as reinstatement which are uniquely available from an employer, these

newly available monetary remedies can be forthcoming from an employee.

    These arguments are not without some force. However, the clear majority of the courts of appeals that

have considered this question have held that individual employees cannot be held liable under Title

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

30 F.3d 507, 510- 511 & n. 1 (4th Cir.) (deciding issue under ADEA as to "personnel decisions of a

Cir.1995).

    In our independent examination of this issue, we find most significant the fact that when Congress

amended the statute in 1991 to provide a detailed sliding scale of damages ranging from $50,000 for

an employer of more than 14 and fewer than 101 employees, to $300,000 for employers with more

any, that would be payable by individuals. This strongly suggests that Congress did not contemplate

that such damages would be assessed against individuals who are not themselves the employing

(1996).

    Moreover, we note that Congress had previously expressed its concern about the impact of Title VII

from the definition of an "employer." It is reasonable to infer that Congress's concern in that regard

of legislators indicating concern with burdens imposed upon small businesses forced to defend against

Title VII suits); Miller, 991 F.2d at 587.

    For these reasons, as well as some of the others cited by the other circuits, we are persuaded that

Congress did not intend to hold individual employees liable under Title VII.

For the foregoing reasons, we will reverse the district court's entry of judgment in DuPont's favor on

the constructive discharge claim, and remand to the district court to reconsider DuPont's motion for a

new trial.

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

I join part IID of the opinion of the court. I also agree with the court's disposition of the plaintiff's

evidentiary argument. See Maj. Op. at 1075- 77. I dissent, however, from parts IIA--C of the court's

opinion.

I.

    My primary disagreement with the majority concerns the test for determining whether a defense

motion for summary judgment or judgment as a matter of law should be granted in an employment

Maj. Op. at 1066-67) the majority here holds that when the plaintiff has made out a prima facie case

and has offered enough evidence to support a finding that the explanation was pretextual, a defense

motion for summary judgment or judgment as a matter of law must always be denied. However, there

is strong contrary authority, which the majority does not acknowledge. The in banc Fifth Circuit, by a

vote of 16 to 1, has rejected the majority's position. Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993

other courts have analyzed the question more accurately than the majority has here.

    If the majority had merely said that, under the circumstances described above, a defense motion for

summary judgment or judgment as a matter of law must generally be denied, I would agree. When a

plaintiff makes out a prima facie case and there is sufficient evidence in the record to permit a rational

trier of fact to find that the employer's explanation is untrue, a defense motion for summary judgment

or judgment as a matter of law should usually be denied. But not always, as the majority contends.

In my view, the correct test is the following: a defense motion for summary judgment or judgment as

a matter of law should be granted when the evidence in the record could not persuade a rational trier

of fact that intentional discrimination on the ground alleged by the plaintiff was a determinative cause

of the challenged employment action. This does not mean that a plaintiff, in order to reach the trier of

fact, must always prove "pretext plus," i.e., that the plaintiff must always produce some evidence in

addition to what is necessary to establish a prima facie case and to show that the employer's

pretext are always enough.

II.

    A. The key to the question at issue lies in the nature of the "presumption" of discrimination that arises

the "[e]stablishment of the prima facie case in effect creates a presumption that the employer

discriminated against the employee." This presumption "places upon the defendant the burden of

producing an explanation to rebut the prima facie case--i.e., the burden of producing evidence that the

Burdine, 450 U.S. at 254, 101 S.Ct. at 1094). But while this presumption shifts the burden of

production to the defendant, " '[t]he ultimate burden of persuading the trier of fact that the defendant

intentionally discriminated against the plaintiff remains at all times with the plaintiff.' " Hicks, 509

    Critical for present purposes is what happens when the defendant satisfies its production burden.

Burdine addressed this question in the following passage:

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

rebutted,10 and the factual inquiry proceeds to a new level of specificity.

    FN10 See generally J. Thayer, Preliminary Treatise on Evidence 346 (1898). In saying

that the presumption drops from the case, we do not imply that the trier of fact no longer

may consider evidence previously introduced by the plaintiff to establish a prima facie

case. A satisfactory explanation by the defendant destroys the legally mandatory

inference of discrimination arising from the plaintiff's initial evidence. Nonetheless, this

evidence and inferences properly drawn therefrom may be considered by the trier of fact

on the issue of whether the defendant's explanation is pretextual....

450 U.S. at 255 & n. 10, 101 S.Ct. at 1095 & n. 10.

framework--with its presumptions and burdens--is no longer relevant" and should not be "resurrect

defendant to come forward with some response, simply drops out of the picture," and "the trier of fact

proceeds to decide the ultimate question: whether plaintiff has proven that the defendant intentionally

discriminated against him [on the ground alleged.]" Hicks, 509 U.S. at 510-11, 113 S.Ct. at 2749

(quoting Burdine, 450 U.S. at 253, 101 S.Ct. at 1093-94).

the burden of producing evidence with regard to the presumed fact. If that evidence is produced by the

adversary, the presumption is spent and disappears." Id. The case then proceeds "as though there had

never been a presumption at all." 1 Weinstein's Evidence ¶ 300[01] at 300-4 (1996)(footnote omitted).

Burdine 's footnote 10, which was quoted above, appears to set out the pure "bursting bubble" theory:

once the presumption is burst, all that remains is "the plaintiff's initial evidence" and "inferences

begins with a citation to Thayer, who stated that once the opponent of a presumption offers sufficient

counterproof, "[a]ll is then turned into an ordinary question of evidence, and the two or three general

facts presupposed in the rule of presumption take their place with the rest, and operate, with their own

Moore's Federal Practice § 301.04 [4.-1] at III-22 (1995-96 Supp.); 1 Weinstein's Evidence 301-9; 9

Wigmore on Evidence § 2491(2) (3d ed. 1940).

    FN2. Burdine, 450 U.S. at 254 n. 10, 101 S.Ct. at 1095 n. 10.

    FN3. Hicks, 509 U.S. at 511, 113 S.Ct. at 2749.

    FN4. Id. at 510, 113 S.Ct. at 2748-49.

    FN5. Id.

Federal Rule of Evidence 301 embody the "bursting bubble" theory. Writing for the majority, Judge

301 and that under this rule "the introduction of evidence to rebut a presumption destroys that

presumption, leaving only that evidence and its inferences to be judged against the competing

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

In dissent, Judge Mansmann agreed that the "bursting bubble" theory applies to federal claims, but

contended that the New Jersey presumption has a more durable effect. Specifically, she wrote that

"the federal rule 'bursts the bubble' of the presumption, while the New Jersey rule creates an issue for

Supreme Court rejected the "bursting bubble" theory in favor of the theory advocated by Professor

Note, 56 F.R.D. 183, 208 (1973). Under this proposed rule, a presumption would have shifted the

burden of persuasion. Id.

    Congress, however, rejected this proposal. The House of Representatives instead adopted a rule that

represented an "intermediate position" between the "Thayer" and "Morgan" theories. H.R.Rep. No.

93-650, 93d Cong., 1st Sess. 7 (1973), reprinted in 1974 U.S.C.C.A.N. 7075, 7081. The House rule

provided that "a presumption imposes on the party against whom it is directed the burden of going

forward with the evidence, and, even though met with contradicting evidence, is sufficient proof of

the fact presumed to be considered by the trier of fact." 120 Cong.Rec. 2370 (1974).

In the Senate, the Advisory Committee and the Judicial Conference's Standing Committee on Practice

House compromise as conceptually unsound, the committee argued that "[t]he basic choice is between

*the so-called 'bursting bubble' theory and one shifting the burden of persuasion." Reporter's

Memorandum, for the Advisory Committee on Evidence and the Standing Committee, to the Senate

Judiciary Committee, reprinted in 1 Weinstein's Evidence at 301-3. The Senate rejected the House

reprinted in 1974 U.S.C.C.A.N. 7051, 7056; 120 Cong.Rec. 37,085 (1974).

    The Advisory Committee and the Committee on Rules of Practice and Procedure then turned to the

arguing once more that "[b]asically the choice to be made in treating the effect to be given

presumptions lies between giving them only the effect of a 'bursting bubble' and giving them the

greater effect of imposing a burden of disproof once evidence has established the conditions that call

the presumption into operation." See 1 Weinstein's Evidence at 301-7. However, the Conference

Committee recommended adoption of the Senate version, Conf. Rep. No. 93-1597, 93d Cong., 2d

Sess. (1974), reprinted in 1974 U.S.C.C.A.N. 7098, 7099, and this recommendation was enacted. 120

Cong.Rec. 40,070, 40,897 (1974).

Rule 301 states:

    In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a

presumption imposes on the party against whom it is directed the burden of going forward with

evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the

sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was

originally cast.

text of the rule supports this conclusion since it does not even hint that a presumption does anything

but shift the burden of production. If Congress had intended for a presumption to have any further

effect, such as guaranteeing that the presumed fact would not be rejected at the summary-judgment or

judgment-as-a-matter-of-law stage, I think that Congress would have said so in the text of the rule. I

do not think that Congress would have left it for the courts to divine, without any clue in the language

of the rule, that a presumption should have such an important additional effect.

    Furthermore, the legislative history suggests that Congress, advised that it was compelled to choose

between the Thayer and Morgan approaches, adopted "the pure Thayer rule." 1 Weinstein's Evidence

at 301-9. Professors Wright and Graham disagree with this position based on a passage in the

that follow when the adverse party meets its production burden, the Conference Report states:

    If the adverse party does offer evidence contradicting the presumed fact, the court cannot instruct the

    Conf.Rep. 93-1597, reprinted in 1974 U.S.C.C.A.N. at 7099 (emphasis deleted; emphasis added).

Because the highlighted sentence discusses jury instructions, Professors Wright and Graham view it

as showing that the Conference Committee contemplated that a presumption, even if met with enough

counterproof to satisfy the adverse party's production burden, would nevertheless serve to take the

factual question to the jury. 21 Wright and Graham, supra, § 5126 at 610 n. 23.

compelling. The Sixth Circuit wrote:

    The emphasized portion of this quotation is not inconsistent with the bursting bubble theory.... The

statement that the jury may be instructed to consider an inference is most naturally read as permitting

Id. (emphasis in original). This reading is at least as reasonable as the alternative offered by

Professors Wright and Graham, and I am therefore unwilling, based solely on the statement in

mentioned in the text of the rule.

The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is

accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case,

suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will

permit the trier of fact to infer the ultimate fact of intentional discrimination,4 and the Court of

Appeals was correct when it noted that, upon such rejection, "[n]o additional proof of discrimination

is required."

    FN4 Contrary to the dissent's confusion-producing analy sis, post, at 535-536, there is

nothing whatever inconsistent between this statement and our later statements that (1) the

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

509 U.S. at 511, 113 S.Ct. at 2749 (all emphases in original) (ellipsis in original).

    Read in isolation, this passage may seem to suggest that the facts underlying the prima facie case plus

the rejection of the employer's explanation are always sufficient to take the case to the jury. This is the

See Maj. Op. at 1065-66. However, like the First, Fifth, and Eleventh Circuits, I do not think that this

260-61 n. 3. Instead, I believe that this passage can reasonably be interpreted as simply rejecting the

"pretext plus" approach that Justice Souter attributed to the Court in his dissent (509 U.S. at 535, 113

2749 n. 4. Under the "pretext plus" approach, as summarized in the law review article that Justice

Souter cited, "the plaintiff must produce some additional evidence other than the evidence supporting

the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional

discrimination," what the Court may have meant is that the trier of fact is permitted to draw such an

inference--in the sense that the trier of fact is not precluded by any legal rule, such as "pretext plus,"

from doing so--if such an inference is factually warranted. The same interpretation may be given to

the Court's subsequent statement that "upon [the] rejection [of the defendant's proffered reason] '[n]o

proof is required' " in that there is no blanket legal requirement of such proof, as there would be under

the "pretext plus" approach. Similarly, the "rejection of the defendant's proffered reasons is enough at

other blanket legal requirement, such as proving the "plus," is needed. I favor this interpretation

"bursting bubble" theory, it follows that the majority's blanket rule barring summary judgment or

judgment as a matter of law in favor of the defendant is unsound. It is well recognized that under the

pure "bursting bubble" theory, once a presumption is destroyed, the proponent of the presumption has

no guarantee that its case will go to the trier of fact. One treatise states that the previously presumed

fact may then be found "only if the natural probative force of the basic facts that brought the

presumption into play is sufficient to support such a finding (or the evidence as a whole supports it).

(emphasis added). Another observes: "The opponent of the presumption may still not be entitled to a

directed verdict, but if its motion is denied, the ruling will have nothing to do with the existence of a

ordinary question of evidence." Thayer, Preliminary Treatise at 346.

III.

counterproof, the test to be applied in ruling on a defense motion for summary judgment or judgment

as a matter of law is clear: the motion should be granted if all of the evidence in the record and the

inferences that may be drawn from that evidence could not persuade a rational trier of fact that

intentional discrimination on the ground alleged by the plaintiff was a determinative cause of the

challenged action. This test follows from the following three rules:

defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff."

    2. This burden requires proof that discrimination on the ground alleged was a determinative cause of

    3. Summary judgment and judgment as a matter of law are proper where a trier of fact could not

rationally return a verdict in favor of the opposing party. Anderson v. Liberty Lobby, Inc., 477 U.S.

317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).

    Putting these rules together, it is apparent that a defense motion for summary judgment or judgment

as a matter of law should be granted where a trier of fact could not rationally find based on the record

(and giving no further consideration to the presumption as such) that discrimination on the ground

alleged was a determinative cause of the challenged action.

    The majority, however, takes the position that such a motion must be denied whenever there is

enough evidence to support a finding that the explanation offered by the employer is untrue. See Maj.

Op. at 1066. This position can be correct only if proof that is sufficient to justify disbelief of the

employer's explanation (the majority's test) will always be enough to justify a finding by a rational

trier of fact that discrimination on the ground alleged was a determinative cause of the challenged

action. Unless this relationship invariably holds true--and I will show below that it does not ( see part

VI, infra )--the majority's blanket rule is wrong.

IV.

    Before turning directly to that question, however, it is helpful to examine the types of evidence of

be grouped into four categories.

    *A. First, there are the facts that the plaintiff proved to make out the prima facie case and the

inferences to which those facts naturally give rise. In some cases, the "natural probative force" [FN7]

of these facts is substantial, but in others it is relatively weak. "The burden of establishing a prima

"evidence sufficient to make out a prima facie case is not always sufficient to support the ultimate

finding of intentional discrimination.... Where the evidence behind the prima facie showing is strong,

it may, standing alone, justify a finding of intentional discrimination.... But where the prima facie case

is based on minimal evidence, it cannot." United States v. Redondo-Lemos, 27 F.3d 439, 442 (9th

Cir.1994). An example which the prima facie case gives rise to only a weak inference of

discrimination is the age discrimination case in which a somewhat younger person is hired, promoted,

retained, etc. instead of a slightly older person. Under our cases, a plaintiff in an age discrimination

suit can make out a prima facie case by showing that he or she (1) was over 40 years of age at the

time in question, (2) applied for and was minimally qualified for the job, (3) but was rejected (4) in

favor of a person who was " 'sufficiently younger to permit an inference of age discrimination.' "

868 F.2d 59, 61 (3d Cir.1989). With respect to the final element of this formulation, we have held that

an eight-year gap is enough and have suggested that a five-year difference may suffice. Barber, 68

F.3d at 695. Thus, I believe that a plaintiff claiming that he or she was denied a promotion due to age

discrimination could make out a prima facie case under our circuit law by showing, for example, that

he or she (1) was 43 years old at the time in question, (2) had the minimum requisite qualifications,

(3) and applied for the job, but that (4) the employer instead chose a 35-year-old.

FN7. 1 Mueller and Kirkpatrick, Federal Evidence § 70 at 333.

    I agree that these facts permit an inference of age discrimination, but I do not think that a reasonable

person could give these facts, standing alone, much weight. A way to test this hypothesis is to ask: if

you knew nothing more about this promotion decision, how much would you bet that, when all the

facts were revealed, the reason for the decision would turn out to be age discrimination? I think that

few people would be willing to wager much on this bet--precisely because the natural probative force

of the few facts needed to establish the prima facie case is slight.

    A similar situation can arise in cases of alleged national origin or religious discrimination. In order to

make out a prima facie case of discrimination on these grounds, a plaintiff must show that he or she

(1) is a member of a national origin group or adherent of a religion, (2) applied or was considered for

the position or benefit, and (3) was at least minimally qualified, but (4) the position or benefit went to

515 (7th Cir.1996) (plaintiff established a prima facie case by showing that he was a qualified Filipino

Catholic and that promotion went to "a non-Filipino and born-again Christian"). How strong an

inference of national origin or religious discrimination naturally arises from such a bare showing?

Suppose that all that you knew about an employment decision was that the employer rejected an

applicant who traced his or her national origin to one country and instead chose another person who

did not trace his or her national origin to that particular country. How confident would you be that the

reason for the decision, when all the facts were revealed, would turn out to be national origin

discrimination?

    Or suppose that all that you knew about an employment decision was that the employer rejected a

minimally qualified Protestant, Catholic, Jew, Muslim, or adherent of another religion in favor of

another employee of a different religion. How confident would you be that the reason for the decision,

when all the facts were revealed, would be intentional discrimination on the basis of religion? In my

reason would turn out to be national origin or religious discrimination, and I therefore submit that

these bare facts naturally give rise to only a slight inference of discrimination. And, although I will

not belabor the point by posing further examples, I think that the natural probative force of the prima

facie case is sometimes weak in race and gender cases as well. In short, I submit that the natural

probative force of the facts underlying the prima facie case varies from case to case and that in some

cases that force will be too weak on its own to sustain a finding of discrimination.

    B. Second, there is the inference of discrimination that may often be drawn from the ruling out of the

employer's explanation. The degree to which such an inference is justified, however, is inversely

proportional to the degree to which the record contains evidence of a third possible explanation for the

challenged employment action. For example, if it is certain that an employee was discharged for

either reason "a" or reason "b" and no other, and if reason "b" can be ruled out, then obviously it may

be inferred that the real reason for the discharge was "a." But if an employee was discharged for either

reason "a," reason "b," or reason "c," then ruling out reason "b" does not necessarily permit a strong

inference that reason "a" was the real reason.

    Cases in which the record contains strong evidence of a third explanation for the challenged action are

clearest examples are cases in which the plaintiff challenges a single adverse employment action

(age, national origin, religion, and race); Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035 (7th Cir.1993)

(age and gender).

    To take one of the many possible combinations of claims, an employee might contend that he or she

did not get a promotion (1) because of gender and (2) because of disability. If the record in such a

case contains strong evidence of disability discrimination, rejection of the employer's explanation (let

us say, inferior qualifications) will not by itself permit a strong inference that the employer's true

reason was gender discrimination.

    The degree to which a trier of fact can reasonably conclude that there was discrimination on the

ground claimed by the plaintiff also depends upon the degree to which the trier of fact can reasonably

reject the employer's reason(s). (It is important to bear in mind that acceptance or rejection of an

employer's reasons need not be an all-or-nothing proposition.) The evidence in a particular case may

be such as to justify only a marginal or partial disbelief or belief of the employer's reason(s). For

example, a trier of fact might be justified in believing that it is more probable than not (but barely so)

that the employer's explanation is false. Or, a trier of fact might be justified in believing that it is more

probable than not (but barely so) that the employer's explanation is true. In addition, a trier of fact

but was a partial cause (say a 20%, 40%, 60%, or 80% cause) for the challenged action. Or, if the

employer asserts multiple reasons, the evidence might be such as to justify belief (to some degree) of

some reasons but not others. All other things being equal, the more strongly and completely the trier

of fact can rationally rule out the employer's reason(s), the more justified it is to conclude that there

was discrimination on the ground alleged--and vice versa.

    C. Third, disbelief of the employer's explanation may also give rise to an inference that the employer

was trying to conceal discrimination on the ground that the plaintiff claims. But the strength of this

inference, too, will vary based on the facts. Its strength will depend on whether there is evidence in

the record of some other possible explanation that the employer might not want to disclose (e.g., in

proportional to the extent and strength of the trier of fact's disbelief of the employer's reason(s).

FN8. Or imagine a situation when the employer promotes A (a white male) over B (a

white female) because A was related to the employer. The employer may not wish to

disclose his real reasons for not promoting B because the news as to his criteria for

promoting B over A would likely hurt his reputation and lower employee morale. "[A]n

employer may offer a pretextual reason for a personnel decision that is nonetheless

tie worker effort to perceptions of fairness).

    D. The fourth category consists of any other relevant evidence of discrimination on the ground

L.Ed.2d 268 (1989) (O'Connor, J., concurring). When evidence falling into this category is present, it

should always be taken into account in determining whether a defense motion for summary judgment

accomplish, as I will show below. See infra at 1087-88. But of course, many McDonnell Douglas

cases lack evidence of this sort.

V.

    Having surveyed the types of evidence of discrimination that are relevant for present purposes, I

return to the question whether there will always be enough evidence to support a verdict of

burst and sufficient evidence of pretext has been adduced. To ensure that I am not misunderstood, I

emphasize again that I think that under these circumstances there will usually be sufficient evidence--

but not always. Specifically, where the natural probative force of the facts offered to prove the prima

facie case is weak, where there is strong evidence in the record that the challenged employment action

was attributable to some factor other than the discriminatory ground alleged by the plaintiff or the

explanation offered by the employer, and where there is no other evidence that the action was due to

discrimination on the ground alleged, the evidence of discrimination on that ground may be

insufficient to sustain a verdict and thus insufficient to defeat summary judgment or judgment as a

Page 28 of 31 100 F.3d 1061

2/27/2003 http://web2.westlaw.com/result/text.wl?RP=/Find/default.wl&RS=WLW2.83&VR=2.0&S ...

matter of law.

    Here is an example. A man with a disability applies for a promotion, but the promotion is given to a

denied promotion sued for gender and disability discrimination). The plaintiff establishes a prima

facie case of gender discrimination by showing that he is a man, he was qualified for the job, he

applied, but it was given to a woman. There is no other evidence of gender discrimination against

men; indeed, there is evidence that the decisionmaker was a man and that the great majority of the

employees in the job category at issue were men. The employer says that the woman was chosen

holes. In addition and most important, there is strong, direct evidence that the decisionmaker was

biased against the plaintiff because of his disability. Among other things, there is testimony that, when

the decisionmaker learned that the plaintiff had applied for the promotion, the decisionmaker made

insulting and derogatory remarks about the plaintiff's disability.

    Is there enough evidence in this case to convince a rational trier of fact that the promotion decision

was based on gender discrimination? I think not, and if I am right, then the majority's blanket test is

disproven. Consider the evidence in each of the four categories that I previously described. The facts

underlying the prima facie case of gender discrimination--basically that the plaintiff was qualified but

a woman was given the job instead--have little natural probative force for the purpose of showing

gender discrimination; a qualified man might be rejected in favor of a woman for many other reasons.

As for the evidence that the employer's explanation (the woman's supposedly better qualifications)

was untrue, ruling out the employer's explanation still leaves both gender and disability discrimination

as possible explanations, and in light of the strong evidence of disability discrimination, does little to

show gender discrimination. Likewise, while the employer's conduct in proffering a false explanation

permits an inference that the employer's real reason was one that it wished to hide, that inference does

little to show that the employer's real reason was gender discrimination because there is strong

evidence of another explanation (disability discrimination) that the employer would also have a

motive to conceal. Therefore, I submit that the evidence in this hypothetical case is insufficient to

support a reasonable finding of gender discrimination and that that theory should be weeded from the

case before the plaintiff's claim of disability discrimination is sent to the trier of fact.

The majority's test, however, would require that the gender discrimination claim be sent to the trier of

fact as well. Indeed, if the plaintiff had added claims of age, race, national origin, and religious

discrimination and was able to do the minimum necessary to establish a prima facie case on all of

those grounds, all of those claims would have to be sent to the trier of fact as well. I do not think that

such results can be squared with the cardinal rules that the plaintiff in a discriminatory treatment case

must prove intentional discrimination on each ground alleged and that summary judgment or

judgment as a matter of law must be granted if the record does not rationally support a judgment for

FN9. The majority's test would of course be correct if a plaintiff, in order to establish a

prima facie case, were required to prove facts that are sufficient to support a finding of

discrimination on the ground alleged. At least under our circuit law, however, the

establishment of a prima facie case does not demand such a heightened showing.

VI.

Recognition of what I believe is the correct test would clarify the analysis of discriminatory-treatment

cases and would avoid analytical difficulties that the majority's test creates. I will discuss two of these

difficulties here.

A. The first concerns cases in which the employer offers a multi-part explanation for the challenged

that the challenged action was taken for several reasons, the evidence "must allow a factfinder

reasonably to infer that each of the employer's proffered nondiscriminatory reasons ... was either a

post hoc fabrication or otherwise did not actually motivate the employment action...." 32 F.3d at 764

"[i]f the defendant proffers a bagful of legitimate reasons, and the plaintiff manages to cast substantial

doubt on a fair number of them, the plaintiff may not need to discredit the remainder." Id. at 764 n. 7

(emphasis added).

bagful"? What is a "fair number" of a "bagful"? If the employer offers three reasons, each of which, it

says, was equally important in the challenged decision, how many must the plaintiff knock down? All

of them? Or will two suffice? (I assume that one would not be a "fair number.") What if the employer says that

 reason one was the most important, counting for, say, 40%, and that reasons two and three each counted for

 30%? Would it be enough for the plaintiff to refute reason one? If so, would refuting reason two by itself also

 suffice? Why? I don't know, and I don't think that it is possible to provide a satisfactory answer to questions

 of this sort within the framework of the majority's test. By contrast, these problems disappear if what I contend

 is the correct test is used. No matter how many reasons the employer offers and no matter what combination

 of reasons the plaintiff succeeds in knocking down, the dispositive question remains the same: taking into

 account all of the evidence in the record, including whatever inferences and deductions can rationally be

 drawn from the rejection of some (or all) of the employer's proffered reasons, is there enough proof to permit

 a rational trier of fact to find that intentional discrimination on the ground alleged was a determinative cause

 of the challenged action?

    B. The second analytical difficulty concerns the ability of a plaintiff to survive summary judgment or

    Why can't a plaintiff potentially satisfy his or her burden by combining some evidence from each of these

 categories? For example, if a plaintiff can almost, but not quite, show enough "weaknesses, implausibilities,

 inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons" to come

    In sum, I submit that the majority's test is both wrong and unwieldy and that the correct test is simply

 whether a rational trier of fact could find, based on the record, that discrimination on the ground alleged was

 a determinative cause of the challenged employment action.

VII.

    Applying this test, I agree with the district judge's analysis of the record. The record shows great personal

 friction between the plaintiff and her supervisors regarding matters such as grooming, smoking, tardiness,

 and giving away free food and beverages, but the district judge saw little if any evidence of any kind that

 could reasonably link this personal animosity to the plaintiff's gender. The district judge wrote that she was

 "left searching the record for evidence that gender played a determinative role in defendant's conduct."

    In reaching the opposite conclusion, the majority apparently relies on the following: (a) "no woman had

 ever held the position of Manager of Restaurants," (b) "a man replaced Sheridan as Head Captain of the

 Green Room morning shift," (c) "Amblard had told Sheridan he would watch her like a 'hawk' and a 'dog',"

 and (d) Amblard "ignor[ed] her and [spoke] instead to one of her male supervisors if one was present." Maj.

 Op. at 1064. But factor (a) gives rise to only a weak inference of gender discrimination because the plaintiff