*

Honorable James C. Paine, Senior U.S. District Judge for

the Southern District of Florida, sitting by designation. 

 1Haynes' allegations regarding the unconstitutionality of

Local Rule 920-2's delegation of authority to the magistrate

judge was not raised before appeal and, thus, will not be heard

United States Court of Appeals,

Eleventh Circuit.

No. 93-9191.

Patricia HAYNES, Plaintiff-Appellant,

v.

W.C. CAYE & COMPANY, INC., Defendant-Appellee.

May 19, 1995.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 1:91-CV-2844-JEC), Julie E. Carnes,

Judge.

Before TJOFLAT, Chief Judge, ANDERSON, Circuit Judge, and PAINE,*

Senior District Judge.

ANDERSON, Circuit Judge:

Patricia Haynes, a white female in her late fifties, brought

this action against her employer W.C. Caye & Co., a Georgia

corporation. Haynes sued pursuant to the Age Discrimination in

Employment Act, 29 U.S.C. § 621 et seq. (ADEA), and the Civil

Rights Act of 1964 as amended, 42 U.S.C. § 2000e et seq. (Title

VII). A bench trial was held before a magistrate judge pursuant to

Local Rule 920-2 which requires that all Title VII cases be

referred at the time of filing to full time magistrate judges under

the authority of 42 U.S.C. Section 2000e-5(f)(5), Local Rule 920-2,

Internal Operating Procedures, Northern District of Georgia.

This opinion will address two of the issues raised by

appellant in this appeal;1

 with respect to each, we set out the
here. Haynes argument that the magistrate judge's credibility

findings are not supported by the record as well as her

contention that the magistrate judge failed to recognize that any

beliefs allegedly held by Caye, Jr. regarding Haynes' performance

were not in good faith are both without merit and warrant no

discussion. 

facts and background necessary for an understanding of our

decision. First, we address Haynes' claim that the district court

improperly denied her a jury trial on her age discrimination claim.

We hold that Haynes consented to trial by the magistrate judge

sitting without a jury. Second, we address Haynes' claim that the

court below erred in its consideration of her Title VII sex

discrimination claim by failing to recognize that certain evidence

could be direct evidence of discrimination. We agree with Haynes

in this regard, and therefore vacate the judgment with regard to

the sex discrimination claim and remand.

I. HAYNES' CLAIM TO A JURY TRIAL ON HER AGE DISCRIMINATION CLAIM

 Haynes argues on appeal that she retains a right to a jury

trial on her age discrimination claim because she filed a valid

jury demand pursuant to Rule 38, Fed.R.Civ.P. Federal Rule of

Civil Procedure 39(a) provides in relevant part:

When trial by jury has been demanded as provided in Rule 38,

the action shall be designated upon the docket as a jury

action. The trial of all issues so demanded shall be by jury,

unless (1) the parties or their attorneys of record, by

written stipulation filed with the court or by an oral

stipulation made in open court and entered in the record,

consent to trial by the court sitting without a jury....

On November 6, 1992, the parties, through their attorneys of

record, signed and filed with the court a Joint Preliminary

Statement and Scheduling Order [R1-15-3] which provided in relevant

part:
 2

Even at that late stage, her objection was vague. 

(c) The legal issues to be tried are as follows:

The issue presented to the Court is whether the Defendant

discriminated against the Plaintiff by reason of age or sex

with respect to compensation, terms, conditions, and

privileges of employment.

The parties' Joint Preliminary Statement and Scheduling Order was

filed on November 6, 1992, almost a year after the case was

referred to the magistrate judge. Immediately thereafter, on

November 19, 1992, the magistrate judge scheduled the case for

trial before him. It is clear that this order was based upon the

parties Joint Preliminary Statement and Scheduling Order, and thus

contemplated a trial before the magistrate judge of both the Title

VII sex discrimination claim and the age claim. Moreover, the

trial was conducted before the magistrate judge with no objection

from Haynes. Haynes did not object to the nonjury trial of her age

claim until after the magistrate judge issued his report and

recommendation; Haynes' first raised the issue in her objections

to the magistrate judge's report and recommendation.2

Under these circumstances, we conclude that Haynes consented

to nonjury trial of both her sex discrimination and her age

discrimination claims before the magistrate judge. The

aforementioned Joint Preliminary Statement and Scheduling Order was

signed by the attorneys of record for both parties and filed with

the court. That Joint Preliminary Statement and Scheduling Order

clearly submitted to the magistrate judge for decision both the sex

claim and the age claim. In the language of the Joint Preliminary

Statement and Scheduling Order itself, "[t]he issue presented to
 3

Other circuits have indicated that the conditions of Rule

39 were met even in situations less obvious than the one at bar. 

For example, the requirements of Rule 39 have been interpreted to

" "encompass orders entered by the court and not objected to.' " 

Sewell v. Jefferson Co. Fiscal Court, 863 F.2d 461, 464 (6th

Cir.1988), cert. denied, 493 U.S. 820, 110 S.Ct. 75, 107 L.Ed.2d

42 (1989) (citation omitted). In addition, failure to object to

a nonjury factfinding proceeding might waive a valid jury demand

as to any claims decided in that proceeding, "at least where it

was clear that the court intended to make fact determinations." 

Lovelace v. Dall, 820 F.2d 223, 227 (7th Cir.1987). 

 4Although only the facts necessary to an understanding of

our decision are set out, the crucial facts are for the most part

taken verbatim from the magistrate judge's report and

recommendation. 

the Court is whether the defendant discriminated against the

plaintiff by reason of age or sex." In context, the language

"presented to the Court" clearly submitted the age claim as well as

the Title VII sex claim to the magistrate judge for a bench trial.

 Although a waiver of a valid jury demand " "is not to be

lightly inferred' ", Dell'Orfano v. Romano, 962 F.2d 199, 202 (2d

Cir.1992) (citation omitted), and waivers should be scrutinized "

"with the utmost care' ". Banff, Ltd. v. Colberts, Inc., 996 F.2d

33, 36 (2d Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 599, 126

L.Ed.2d 564 (1993), we have no difficulty in this case finding a

clear consent to a nonjury trial before the magistrate judge.3

II. HAYNES' CLAIM OF DIRECT EVIDENCE OF DISCRIMINATION IN HER

TITLE VII SEX DISCRIMINATION CASE

A. Facts4 and Proceedings Below

After Charles G. (Pete) Caye, Jr. ("Caye, Jr.") became

president of appellee, he decided to create a position with the

sole function of overseeing collections. The case involves Haynes'

promotion to this new position. Caye, Jr. sought the advice of

long time employee Nelson. Nelson recommended Haynes for the
 5

The courts below did not address Haynes' claim that even if

she were not constructively discharged, she was demoted based on

gender discrimination. This claim should be addressed on remand. 

position, but Caye, Jr. was hesitant to accept the recommendation,

asking Nelson if he thought it would require a man to do the job.

Nelson persisted in his recommendation and a meeting was held

between Caye, Jr., Nelson and Haynes. At the meeting, Caye, Jr.

asked Haynes whether "a sweet little old lady could get tough

enough with the customers and collect the money." Haynes assured

Caye, Jr. that she could handle the job, and the job was offered to

her on a trial basis. During Haynes' tenure in the new position,

Caye, Jr. stated to her: "You know, Pat, I felt that a woman was

not competent enough to do this job, but I think maybe you're

showing me that you can do it." Haynes sought clarification of his

meaning, and Caye, Jr. stated that he meant that women were simply

not tough enough.

Amongst his other findings, the magistrate judge held that

Caye, Jr.'s comments did not constitute direct evidence of

discrimination. The magistrate judge also found that plaintiff had

failed to satisfy her ultimate burden of proving discriminatory

intent and that plaintiff had not been constructively discharged.5

In addition, the magistrate judge assumed arguendo that Caye, Jr.'s

chauvinistic attitudes played some role in the decision, but then,

in conclusory fashion, found that the decision to remove Haynes

from the new position would have been made regardless of these

chauvinistic attitudes. The magistrate judge's report and

recommendation was adopted by the district court.
 6

Because binding precedent clearly indicates that these two

comments are direct evidence, see infra, we need not address

whether Caye, Jr.'s "sweet little old lady" comment also could

constitute direct evidence. Similarly, with respect to Caye,

Jr.'s comments about another position—i.e. Kathy Carr's statement

that she really had to fight for her position because Caye, Jr.,

wanted a man in that role—we need not address whether that could

constitute direct evidence of discrimination in this case. 

B. Analysis

 We conclude, contrary to the magistrate judge's conclusion,

that some of Caye, Jr.'s comments could constitute direct evidence

of discrimination. Because we are unable to ascertain whether or

not, and the extent to which, this error affected the magistrate

judge's other findings, we conclude that it is appropriate to

vacate the judgment of the district court and to remand for further

consideration in light of this opinion.

We conclude that at least two of Caye, Jr.'s comments could

constitute direct evidence of discriminatory intent, his statement

to Haynes that women were simply not tough enough to do the job,

and his earlier suggestion to Nelson that it would require a man to

do the job.6

 The direct evidence in the instant case is

indistinguishable from some of the evidence which the Supreme Court

in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104

L.Ed.2d 268 (1989), considered as direct evidence. One item of

evidence relied upon by the Supreme Court in that case—"one partner

repeatedly commented that he could not consider any woman seriously

as a partnership candidate and believed that women were not even

capable of functioning as senior managers", id. at 236, 109 S.Ct.

at 1783—cannot be distinguished from the evidence in this case.

Indeed, a statement that members of a racial minority in general or
 7

Of course, this case involves and our reference is to a job

with respect to which it is not claimed that gender is a bona

fide occupational qualification (BFOQ). The Supreme Court in

Price Waterhouse referred to the BFOQ situation as analogous; 

there also the burden of persuasion is upon the employer to show

why it must use gender as a criterion. Id. at 247-48, 109 S.Ct.

at 1789. 

 8To the same effect, see Price Waterhouse, 490 U.S. at 276,

109 S.Ct. at 1804 (O'Connor, J., concurring) ("Once a Title VII

plaintiff has demonstrated by direct evidence that discriminatory

animus played a significant or substantial role in the employment

decision, the burden shifts to the employer to show that the

decision would have been the same absent discrimination."). 

women in general are simply not competent enough to do a particular

job would seem to be a classic example of direct evidence.7 With

respect to the quoted evidence and other similar evidence, the

Supreme Court held that once a plaintiff "shows that gender played

a motivating part in an employment decision, the defendant may

avoid a finding of liability only by proving that it would have

made the same decision even if it had not allowed gender to play

such a role." Id. at 244-45, 109 S.Ct. at 1787-88.8

In Caban-Wheeler v. Elsea, 904 F.2d 1549 (11th Cir.1990), a

white plaintiff had occupied the position of director of a

particular program in the Fulton County Health Department. She was

terminated, and brought a discrimination claim. This court held

that a statement by one of the black decision makers that "the ...

program needed a black director," id. at 1555, constituted direct

evidence of discrimination.

Following Price Waterhouse and Caban-Wheeler, we conclude that

the above-identified comments by Caye, Jr. in the instant case

could constitute direct evidence of discrimination. See also

Thompkins v. Morris Brown College, 752 F.2d 558, 561, 563-64 (11th
Cir.1985) (statement by decisionmaker that he saw no need for a

woman to have a second job constituted direct evidence of

discriminatory intent); Bell v. Birmingham Linen Service, 715 F.2d

1552, 1557 (11th Cir.1983), cert. denied, 467 U.S. 1204, 104 S.Ct.

2385, 81 L.Ed.2d 344 (1984); Wilson v. City of Aliceville, 779

F.2d 631 (11th Cir.1986) (citing Miles v. M.N.C. Corp., 750 F.2d

867, 873-76 (11th Cir.1985) for proposition that racial slurs made

by employment decisionmakers can constitute direct evidence of

discrimination).

 In a discrimination case in which a plaintiff adduces direct

evidence of discrimination, the trial judge must initially make a

credibility finding as to whether or not plaintiff's proffered

direct evidence of discrimination is to be believed. CabanWheeler, 904 F.2d at 1555 (quoting Thompkins, 752 F.2d at 1564).

The trial court must also make a finding of fact as to whether or

not the decision maker "relied upon sex-based considerations in

coming to its decision." Price Waterhouse, 490 U.S. at 242, 109

S.Ct. at 1786. In other words, the fact finder must determine

whether "gender played a motivating part in an employment

decision." Id. at 244, 109 S.Ct. at 1787. See also id. at 276,

109 S.Ct. at 1804 (O'Connor, J., concurring) (Once plaintiff "has

demonstrated by direct evidence that discriminatory animus played

a significant or substantial role in the employment decision, the

burden shifts to the employer to show that the decision would have

been the same absent discrimination."). If the trial court both

credits the direct evidence and finds that the evidence played a

substantial role in the employment decision at issue, then the
 9

The court below will have to determine, inter alia, whether

Caye, Jr., put aside his chauvinistic attitudes such that they

did not play a substantial role in the decision. For example,

the opinion that women are simply not tough enough came in the

context of Caye, Jr.'s indication of efforts to overcome such

chauvinistic attitudes. 

defendant can avoid liability only by proving that it would have

made the same decision even if it had not allowed such

discrimination to play a role. Id. at 243-46, 109 S.Ct. at 1787-

88.

It is clear in this case that the court below did make a

credibility finding that the above-identified direct evidence of

discrimination was credible. However, it is also clear that the

court below erroneously failed to treat the aforesaid comments of

Caye, Jr., as direct evidence of discrimination. Because we cannot

ascertain the extent to which this error affected the court's other

crucial findings, we vacate the judgment of the district court with

respect to Haynes' gender discrimination claim, and remand for

further consideration in light of this opinion. For example, the

court on remand must take into consideration the direct evidence of

discrimination along with all the other evidence, and then make

findings of fact as to whether such direct evidence played a

substantial role in Caye, Jr.'s decision to remove Haynes from the

new position.9

 If the court finds in the affirmative, i.e., that

gender discrimination played a substantial role, then appellee may

avoid liability only by proving its affirmative defense; in other

words, after plaintiff has proved intentional discrimination,

appellee "may avoid a finding of liability only by proving that it

would have made the same decision even if it had not allowed gender
to play such a role." Price Waterhouse, 490 U.S. at 244-45, 109

S.Ct. at 1787-88. The court should make full findings of fact in

that regard.

III. CONCLUSION

For the foregoing reasons, the judgment in favor of appellee

on Haynes' age discrimination claims is affirmed, but the judgment

on the sex discrimination claim is vacated and the case is remanded

for further proceedings consistent with this opinion.

AFFIRMED in part, VACATED in part, and REMANDED.