1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-23-1995

Miller v Cigna

Precedential or Non-Precedential:

Docket 93-1773

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"Miller v Cigna" (1995). 1995 Decisions. Paper 18.

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 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 N0. 93-1773 

 

 WILLIAM J. MILLER, 

 Appellant 

v. 

 CIGNA CORPORATION; 

 THE INSURANCE COMPANY OF NORTH AMERICA 

 

 On Appeal From the United States District Court 

 For the Eastern District of Pennsylvania 

 (D.C. Civil Action No. 92-05751) 

 

 Argued March 28, 1994 

 BEFORE: STAPLETON, HUTCHINSON and ROTH, Circuit Judges

 Reargued in banc October 18, 1994 

 BEFORE: SLOVITER, Chief Judge, BECKER, STAPLETON 

 MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, 

 NYGAARD, ALITO, ROTH, LEWIS and McKEE, Circuit Judges 

 (Opinion Filed: January 23, l995 ) 

 

 

Stephanie A. Middleton (Argued) 

Gregory B. Tobin 

CIGNA Corporation 

One Liberty Place, 52nd Floor 

1650 Market Street 

P.O. Box 7716 

Philadelphia, PA 19101 

Attorneys for Appellees 

CIGNA Corporation and 

Insurance Company of North America 
Alice W. Ballard (Argued) 

Lynn Malmgren 

Samuel & Ballard 

225 South 15th Street 

Suite 1700 

Philadelphia, PA 19102 

Attorneys for Appellant 

Robert J. Gregory 

Room 7032 

Equal Employment Opportunity 

1801 L. Street N.W. 

Washington, DC 20507 

Attorney Amicus Appellant 

 

 OPINION OF THE COURT

 

STAPLETON, Circuit Judge: 

 This appeal is before the court for rehearing in banc 

to clarify the proper standard for a jury charge in a pretext 

case alleging age discrimination.1 

 Defendant Insurance Company of North America ("INA") 

terminated plaintiff William J. Miller from his job after fifteen 

 

1. The Equal Employment Opportunity Commission participated on 

rehearing as amicus curiae. 
years of employment.2 Miller alleges that he was discriminated 

against on the basis of his age in violation of the Age 

Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34. 

 At trial, the district judge instructed the jury that 

it could return a verdict for Miller only if he proved that age 

was "the sole cause" of INA's decision. After the jury returned 

a verdict in INA's favor, Miller appealed, asserting that the 

district court improperly charged the jury regarding his burden 

of proof. We hold that in ADEA cases that do not qualify for a 

burden shifting charge under Price Waterhouse v. Hopkins, 490 

U.S. 228 (1989), district courts should instruct the jury that 

the plaintiff's burden is to prove that age played a role in the 

employer's decisionmaking process and that it had a determinative 

effect on the outcome of that process. Because Miller should not 

have been required to prove that age was the sole cause of INA's 

decision, we conclude that he is entitled to a new trial. 

 

2. The parties have stipulated that INA, a subsidiary of CIGNA 

Corporation, was the plaintiff's employer at all times relevant 

to this appeal. 
I.

 Miller was hired in 1975 as an assistant to INA's Chief 

Financial Officer. In that position, he directed INA's 

reinsurance operations at the Newark Reinsurance Company, created 

a financial processing service center, and directed the 

production of summary financial documents. After serving as Vice 

President and Director of INA's Special Risk Facility, Miller was 

promoted to Senior Vice President, Field Operations. He created 

a new organization, managed a $200 million budget, and supervised 

over 8,000 employees. At this point in his career, Miller was 

compensated at pay grade sixty-one and his superior consistently 

evaluated his performance as exceeding expectations. 

 After his promotion to Senior Vice President, Miller 

was asked to join a special team of executives called IMPACT. 

IMPACT's mission was to identify major strategic issues and 

market strategies for INA's Property and Casualty Division. 

Caleb Fowler, Chief Financial Officer of the Property and 

Casualty Division, and Richard Hoag, then Chief of Human 

Resources, indicated that they would find Miller a permanent 

position at the conclusion of the project. When IMPACT concluded 

in late 1984, Miller was assigned to a special project on 

reinsurance collection. 

 Upon completing the special project on reinsurance 

collection, Miller was appointed to the position of Senior Vice 

President, Finance and Administration in the Underwriting 
Division. In this position, Miller managed four departments, 

handled complaints from agents and regulatory agencies, prepared 

state filings and annual budgets, and managed a $70 million 

annual budget. 

 In late 1988, Miller's supervisor, Jack Morrison, 

advised Miller that he should search for another job because his 

position might be eliminated. In March of 1989, Miller's new 

superior, Nord Bjorke, informed Miller that his position was 

eliminated and sent him to Richard Hoag to receive a special 

assignment reducing real estate costs in the Property and 

Casualty Division. 

 One year later, Hoag informed Miller that, despite his 

success in reducing real estate costs, his position as "real 

estate czar" was being terminated. Hoag advised Miller that he 

could assist Robert O'Neil, head of the Corporate Real Estate 

Department, with special projects. In November of 1990, Miller 

was informed that this position was being eliminated and that he 

would be terminated at the end of December. At the time he was 

terminated, Miller was fifty-eight years old and had been 

downgraded to pay grade fifty-nine. At no time during 1990 did 

company officials apprise Miller of five vacancies at the company 

for which he might have applied. 

 The first vacancy was for the position of Vice 

President, Filing and Regulation. The company announced that 

Darrell DeMoss, age forty-two, had been selected. Miller had not 

known of the position and contends that he was qualified for it 

because, as Senior Vice President, Finance and Administration, he 
supervised the Filing and Regulation function. INA asserts that 

Miller was not considered because the position required legal 

analysis and Richard Franklin, the hiring manager for this 

position, decided to hire an attorney. Miller notes, however, 

that his name was not included on the list of nonlawyer 

candidates who were considered but disqualified, and that the 

previous Vice President, Filing and Regulation, was not a lawyer. 

 The second vacancy was in the position of General 

Manager of CIGNA Reinsurance Company, United Kingdom. Among the 

desired qualifications were "[w]ork experience with either United 

Kingdom accounting practices or reinsurance accounting practices 

and principles." App. at 712. Miller asserts that this position 

involved the same responsibilities he had when he supervised the 

Newark Reinsurance Company. James Godorecci, who was in charge 

of hiring for the position, acknowledged that he wrote the job 

qualifications with Michael Durkin, age thirty-five, in mind and 

that he never considered Miller for the position. INA contends 

that Miller lacked the desired academic credentials, work 

experience, and knowledge of United Kingdom accounting practices, 

although Miller testified that when he expressed interest in the 

position, Godorecci's superior told Miller he was "over 

qualified." App. at 150. 

 The third vacancy was for the position of Senior Vice 

President, Finance Systems and Administration, in the Claims 

Department. Qualifications desired for the position included: 

broad knowledge and experience in the property and casualty 

business; knowledge of financial measures and objectives; 
demonstrated credibility and the ability to work with other 

managers; skill in influencing managers and implementing 

strategy; and effective verbal and written skills. Miller 

contends he satisfied these requirements because of his 

management experience. James Engle, the hiring manager for this 

position, testified Miller was not qualified because he did not 

have a strong math and statistical background, was not familiar 

with loss control and statistical monitors, and lacked 

credibility among the actuaries. The company asserts that Victor 

DiFelice, age thirty-eight, was better qualified for the job. 

 The fourth vacancy, for the position of Head of 

Strategy Implementation, was filled by Ronald Peters, age fortynine. The company conceded that Miller was qualified for the 

job, but maintained that Peters was better qualified. Although 

it was a temporary assignment, when his work in this position was 

completed Peters was retained by the company. 

 The fifth vacancy was for the position of Vice 

President, Property and Casualty Marketing. Hiring manager 

Thomas Cobb appointed Cynthia Cole-Dougherty, age thirty-eight. 

Job qualifications included an ability to conduct market studies, 

market research, competitive analyses, and segmentation studies. 

INA asserts that, although Cynthia Cole-Dougherty did not have 

insurance experience, one of the primary considerations in the 

hiring decision was a desire to hire from outside both the 

company and the industry. 

 The evidence at trial also focused on the nature of 

INA's hiring and promotion decisionmaking process. Human 
resource personnel testified about the company's formal placement 

process available for positions above pay grade fifty-four ("the 

54+ placement process"). A department manager using the 54+ 

placement process would receive assistance from an assigned human 

resource contact who would act as the manager's agent within the 

company, helping to locate, sort through, and evaluate potential 

candidates for the position. Open positions above grade fiftyfour were not publicly posted and a candidate could only access 

information about these openings through direct management 

contact. The 54+ placement process was not mandatory, however, 

and many of the managers who testified at trial explained that 

they had in fact filled their management vacancy through an 

informal process by assessing their own needs, reflecting on the 

qualifications of their staff members, and initiating contact 

with potential candidates directly. Richard Morrissey, director 

of human resources for CIGNA's property and casualty companies, 

also testified about the company's annual organizational review 

process through which department managers assess the 

qualifications, potential, and development needs of their staff 

with an eye toward identifying and developing future high level 

managers. 

 During trial, the district judge asked counsel if 

Miller's was a "pretext" or "mixed motives" case. This inquiry 

made reference to the distinction between employment 

discrimination cases in which the plaintiff seeks to carry his or 

her burden by showing that the employer's tendered reason for the 
challenged action is a pretext for discrimination3 and cases that 

qualify for a mixed motives, burden shifting instruction under 

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Miller's 

counsel advised the district court that this was a "pretext" 

case. The district judge then "distribute[d] to counsel the 

questions [to be used] to submit the case to the jury." App. at 

610. After reviewing those questions, Miller's counsel stated 

that she had an objection. Counsel asserted that plaintiff's 

burden of proof was to establish that age was "a determining 

factor," i.e., that it "made a difference" in the employer's 

decision. App. at 612. 

 Notwithstanding this objection, the district judge 

instructed the jury as follows: 

 To recover under the pretext theory 

which the plaintiff asserts in this case, the 

plaintiff must establish by a preponderance 

of the evidence that his age was the sole 

cause of defendants' failure to hire him into 

vacancies that became available and to 

terminate his position as a real estate czar 

in the last of those listings that I've put 

on the page that you have; that he was 

qualified and rejected for the positions in 

question solely because of his age. 

* * * 

 

 If the defendants articulate a 

legitimate non-discriminatory reason for his 

rejection, the plaintiff at all times retains 

the ultimate burden of persuading you that 

the defendant intentionally discriminated 

against him because of his age. 

 

3. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792 

(1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 

(1981); St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742 (1993). 
 * * * 

 The plaintiff under the law must prove 

that the discriminatory motive was the sole 

cause of the employment action. 

 In order to prove pretext, the plaintiff 

must show that the defendant's reasons were 

false and that discrimination was the real 

reason, however, if you disbelieve the 

reasons put forth by the defendants to 

justify their decision, you may but are not 

required to find intentional discrimination. 

* * * 

 

 The plaintiff doesn't have to prove that 

the employer hated him . . . . He has to 

prove that plaintiff's age was the sole 

determinative factor in the particular 

employment decision. 

App. at 673-77 (emphasis added). At the conclusion of the 

charge, Miller's counsel renewed her "objection to . . . the 

verdict sheet. . . [and stated that] the question before [the 

jury was] whether age was a determinative factor according to 

[Hazen Paper Co. v. Biggins, 113 S. Ct. 1701 (1993)]." App. at 

683 (emphasis added). The district court declined to alter the 

charge. 

 During its deliberations, the jury sent the following 

message to the district judge: 

 The jury requests clarification on the 

meaning of defendants' employment decisions 

in question # 2. 

 Is the question which we are addressing 

(regarding discrimination based solely on the 

plaintiff's age) focused on: a. Mr. Miller 

not being actively considered -- on the 

candidate slate, or b. Mr. Miller not being 

selected as the person to get the job, for 

each of the jobs "a" through "e"? 
App. at 691. In responding to this inquiry, the district judge 

twice described the issues before the jury in terms of whether 

the relevant decision of INA had been "based solely on Mr. 

Miller's age." App. at 691-92 (emphasis added). After two days 

of deliberations, the jury returned a verdict in favor of INA. 

II.

 We conduct a plenary review when an appellant contends 

that the instructions to the jury, read as a whole, do not state 

the correct legal standard.4 Griffiths v. CIGNA Corp., 988 F.2d 

457, 462 (3d Cir.) (citing Savarese v. Agriss, 883 F.2d 1194, 

1202 (3d Cir. 1989)), cert. denied, 114 S. Ct. 186 (1993). "[W]e 

will reverse if the instructions were capable of confusing and 

thereby misleading the jury." Id. (citing Limbach Co. v. Sheet 

Metal Workers Int'l Ass'n, 949 F.2d 1241, 1259 n.15 (3d Cir. 

1991) (in banc)).5

 

4. The district court had jurisdiction over this matter pursuant 

to 29 U.S.C. §§ 623(a), 626(c)(1) and 28 U.S.C. § 1331. We have 

jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. 

5. INA argues that Miller failed to preserve his objection to 

the jury charge. We disagree. Miller's counsel objected, both 

before and after the district court charged the jury, that 

plaintiff's burden on the issue of causation was to show that age 

was a determinative factor, and not the sole cause of the 

employment decision. See Fed. R. Civ. P. 51; Dunn v. Hovic, 1 

F.3d 1371, 1379 (3d Cir. 1993) (in banc) (holding that the 

purpose of Rule 51 is served when objections to the jury charge 

give the trial judge an opportunity to correct the erroneous 

charge), cert. denied, 114 S. Ct. 650 (1993). 
III.

 Like Title VII which prohibits an employer from taking 

adverse employment actions against an employee "because of such 

individual's race, color, religion, sex, or national origin," 42 

U.S.C. § 2000e-2(a)(1), the ADEA prohibits an employer from 

taking adverse employment actions against an employee "because of 

such individual's age." 29 U.S.C. § 623(a)(1). Not 

surprisingly, the ADEA jurisprudence concerning this prohibition 

has followed the Title VII jurisprudence interpreting the 

analogous prohibition. Trans World Airlines, Inc. v. Thurston, 

469 U.S. 111, 121 (1985); Seman v. Coplay Cement Co., 26 F.3d 

428, 432 n.7 (3d Cir. 1994). A district judge in a case under 

either statute must, of course, instruct the jury in a manner 

consistent with Congress' mandate that the adverse employment 

action must have been taken "because of" the prohibited 

consideration. 

 The nature of the causal connection mandated by the use 

of the phrase "because of" in Title VII was a focus of the 

Supreme Court's opinions in Price Waterhouse v. Hopkins, 490 U.S. 

228 (1989). The members of the Court differed as to whether 

"because of" meant that the forbidden consideration must be a 

"but-for" cause (i.e., one without which the adverse employment 

action would not have been taken) or only that the impermissible 

consideration must have "played a motivating part" in the 

decision to take that action. See id. at 244 (plurality 

opinion); id. at 262-63 (O'Connor, J., concurring in the 
judgment). All members of the Court agreed, however, that 

"because of" did not mean "solely because of." See, e.g., id. at 

241 (plurality opinion); id. at 284 (Kennedy, J., dissenting). 

 Justice Brennan, writing for himself and Justices 

Marshall, Blackmun, and Stevens, took the position that "because 

of" required only a finding that gender or some other prohibited 

consideration played a part in the decision to take the 

challenged action. He explained their position in part as 

follows: 

 We take these words to mean that gender must 

be irrelevant to employment decisions. To 

construe the words "because of" as colloquial 

shorthand for "but-for causation," as does 

Price Waterhouse, is to misunderstand them. 

* * * 

 The critical inquiry . . . is whether gender 

was a factor in the employment decision at 

the moment it was made. Moreover, since we 

know that the words "because of" do not mean 

"solely because of,"7 we also know that Title 

VII meant to condemn even those decisions 

based on a mixture of legitimate and 

illegitimate considerations. When, 

therefore, an employer considers both gender 

and legitimate factors at the time of making 

a decision, that decision was "because of" 

sex and the other, legitimate considerations 

-- even if we may say later, in the context 

of litigation, that the decision would have 

been the same if gender had not been taken 

into account. 

 

 7Congress specifically rejected an 

amendment that would have placed 

the word "solely" in front of the 

words "because of." 110 Cong. Rec. 

2728, 13837 (1964). 
Price Waterhouse, 490 U.S. at 240-41 (emphasis added and altered 

from original) (footnote omitted). 

 Justice Kennedy, writing in dissent for himself, the 

Chief Justice, and Justice Scalia, concluded that "because of" 

required "but-for" cause. In doing so, he likewise rejected the 

suggestion that it was intended to mean "solely because of": 

 By any normal understanding, the phrase 

"because of" conveys the idea that the motive 

in question made a difference to the outcome. 

We use the words this way in everyday speech. 

And assuming, as the plurality does, that we 

ought to consider the interpretive memorandum 

prepared by the statute's drafters, we find 

that this is what the words meant to them as 

well. "To discriminate is to make a 

distinction, to make a difference in 

treatment or favor." 110 Cong. Rec. 7213 

(1964). Congress could not have chosen a 

clearer way to indicate that proof of 

liability under Title VII requires a showing 

that race, color, religion, sex, or national 

origin caused the decision at issue. 

 Our decisions confirm that Title VII is 

not concerned with the mere presence of 

impermissible motives; it is directed to 

employment decisions that result from those 

motives. The verbal formulae we have used in 

our precedents are synonymous with but-for 

causation. 

* * * 

 We are told . . . that but-for cause is 

not required, since the words "because of" do 

not mean "solely because of." Ante, at 241. 

No one contends, however, that sex must be 

the sole cause of a decision before there is 

a Title VII violation. This is a separate 

question from whether consideration of sex 

must be a cause of the decision. Under the 

accepted approach to causation that I have 

discussed, sex is a cause for the employment 

decision whenever, either by itself or in 

combination with other factors, it made a 
difference to the decision. Discrimination 

need not be the sole cause in order for 

liability to arise, but merely a necessary 

element of the set of factors that caused the 

decision, i.e., a but-for cause.

Price Waterhouse, 490 U.S. at 281-82, 284 (additional emphasis 

added). 

 Justice O'Connor, while concurring in the result 

reached in Justice Brennan's plurality opinion, disagreed with 

the plurality's reading of "because of" and agreed with that of 

the dissent: 

 The legislative history of Title VII bears 

out what its plain language suggests: a 

substantive violation of the statute only 

occurs when consideration of an illegitimate 

criterion is the "but-for" cause of an 

adverse employment action. The legislative 

history makes it clear that Congress was 

attempting to eradicate discriminatory 

actions in the employment setting, not mere 

discriminatory thoughts. . . . Senator Case, 

whose views the plurality finds so persuasive 

elsewhere, responded: 

 "The man must do or fail to do 

something in regard to employment. 

There must be some specific 

external act, more than a mental 

act. Only if he does the act 

because of the grounds stated in 

the bill would there be any legal 

consequences." [100 Cong. Rec. 

7254 (1964).] 

 Thus, I disagree with the plurality's dictum 

that the words "because of" do not mean "butfor" causation; manifestly they do. 

Price Waterhouse, 490 U.S. at 262-63. In the course of her 

opinion, Justice O'Connor likened the relevant principles to 

those involved in Village of Arlington Heights v. Metropolitan 
Housing Development Corp., 429 U.S. 252 (1977), where the Court 

held that "the plaintiff was not required 'to prove that the 

challenged action rested solely on racially discriminatory 

purposes.'" 490 U.S. at 268 (emphasis supplied) (quoting Village 

of Arlington Heights, 429 U.S. at 265). 

 Finally, Justice White, who also concurred in the 

judgment of the Court, looked to Mt. Healthy City School District 

Board of Education v. Doyle, 429 U.S. 274 (1977), for guidance in 

interpreting "because of." In the context of a public employer's 

decision not to rehire an employee in part because of his 

exercise of First Amendment rights, the Court had there "rejected 

a rule of causation that focused 'solely on whether protected 

conduct played a part, "substantial" or otherwise, in a decision 

not to rehire.'" Price Waterhouse, 490 U.S. at 259 (quoting Mt. 

Healthy, 429 U.S. at 285). Under the Mt. Healthy approach, the 

plaintiff was required to prove only that "the unlawful motive 

was a substantial factor in the adverse employment action," but 

there could be no liability if the defendant showed that it 

"'would have reached the same decision . . . even in the absence 

of the protected conduct.'" Id. (quoting Mt. Healthy, 429 U.S. 

at 287). A necessary corollary to this approach, according to 

Justice White, was that a plaintiff does not have "to prove that 

the illegitimate factor was the only, principal, or true reason 

for [the employer's] action." Id.

 We find it clear from the opinions in Price Waterhouse, 

and from the legislative history they cite, that Congress, by 

using the phrase "because of," did not mean "solely because of." 
Even if we did not have this guidance, however, we would be 

reluctant to attribute to Congress an intention that an employer 

should be liable if a hiring or discharge decision is based 

solely on an employee's age and not liable if the decision is 

based primarily on the employee's age but also on the fact that 

the employee's supervisor did not like the employee's 

personality, hair color, or some other personal trait or 

conduct.6

 Having concluded that "because of" does not mean 

"solely because of," we now look to the governing precedents to 

determine the proper jury instruction in an employment 

discrimination case that does not qualify for a mixed motives, 

burden shifting charge under Price Waterhouse. 

 

6. We note that a majority of the Courts of Appeals have 

rejected the "sole cause" or "sole factor" formulation in pretext 

cases. See, e.g., Faulkner v. Super Valu Stores, Inc., 3 F.3d 

1419, 1425 & n.3 (10th Cir. 1993); Sarsha v. Sears, Roebuck & 

Co., 3 F.3d 1035, 1038 (7th Cir. 1993); Purcell v. Seguin State 

Bank & Trust Co., 999 F.2d 950, 955 (5th Cir. 1993); Montana v. 

First Fed. Savs. & Loan Assoc., 869 F.2d 100, 105 (2d Cir. 1989); 

Cassino v. Reichhold Chems., Inc., 817 F.2d 1338, 1343-44 (9th 

Cir. 1987), cert. denied, 484 U.S. 1047 (1988); Blackwell v. Sun 

Elec. Corp., 696 F.2d 1176, 1181-82 (6th Cir. 1983); Loeb v. 

Textron, Inc., 600 F.2d 1003, 1019 (1st Cir. 1979). But see

Foster v. University of Arkansas, 938 F.2d 111, 115-16 (8th Cir. 

1991) (upholding a jury instruction that required plaintiff to 

prove the protected characteristic was "the determining" and 

"sole" factor and rejecting the formulation of "a determining 

factor" as improperly eliminating the distinction between 

"pretext" and "mixed motives" cases). We think it unclear what 

effect, if any, the Supreme Court's decision in St. Mary's Honor 

Center v. Hicks, 113 S. Ct. 2742 (1993), will have on the 

standard enunciated by the Court of Appeals for the Eighth 

Circuit. 
IV. 

 The Justices concurring in the judgment in Price 

Waterhouse declined to apply to the situation before them the 

familiar rules for allocating the burdens of production and 

persuasion found in McDonnell Douglas Corp. v. Green, 411 U.S. 

792 (1973), and Texas Department of Community Affairs v. Burdine, 

450 U.S. 248 (1981).7 They viewed those cases as "pretext" cases 

and the case before them as a "mixed motives" case. The Court 

held that, in cases where the plaintiff offers "direct evidence" 

of unlawful discrimination and the evidence as a whole permits a 

conclusion that both permissible and impermissible considerations 

played a role in the employer's decision, the plaintiff need only 

show that the unlawful motive was a substantial motivating factor 

in that decision. If the finder of fact concludes that the 

plaintiff has carried this burden, the burden of persuasion 

 

7. As summarized in Burdine, those rules are: 

 First, the plaintiff has the burden of 

proving by a preponderance of the evidence a 

prima facie case of discrimination. Second, 

if the plaintiff succeeds in proving the 

prima facie case, the burden [of production] 

shifts to the defendant to articulate some 

legitimate, nondiscriminatory reason for the 

employee's rejection. Third, should the 

defendant carry this burden, the plaintiff 

must then have an opportunity to prove by a 

preponderance of the evidence that the 

legitimate reasons offered by the defendant 

were not its true reasons, but were a pretext 

for discrimination. 

Texas Dep't of Community Affairs v. Burdine, 450 U.S. at 252-53 

(internal quotation and citation omitted). 
shifts to the defendant to prove that the unlawful motive was not 

a but-for cause, i.e., that the same action would have been 

taken, because of legitimate considerations, in the absence of 

the unlawful motive. 

 The members of the Court concurring in the judgment in 

Price Waterhouse reached this result by different routes. 

Justices Brennan, Marshall, Blackmun, and Stevens read the 

statute as imposing liability in any situation where the unlawful 

motive was a "motivating" factor, but recognized an "affirmative 

defense" where the employer shows that the same actions would 

have been taken in the absence of the unlawful motive. Price 

Waterhouse, 490 U.S. at 244-45, 250. Justice O'Connor agreed 

with the three dissenters that the statute required but-for cause 

as a predicate to liability, but favored a burden shifting rule 

for cases in which the plaintiff "show[s] by direct evidence that 

an illegitimate criterion was a substantial factor in the 

decision." Id. at 276. In such cases, the burden shifts "to the 

employer to justify its decision," -- "to show that the decision 

would have been the same absent discrimination." Id. (internal 

quotation omitted). "[W]here a plaintiff has made this type of 

strong showing of illicit motivation, the factfinder is entitled 

to presume that the employer's discriminatory animus made a 

difference in the outcome, absent proof to the contrary from the 

employer." Id. Justice White found it unnecessary "to get into 

semantic discussions on whether Mt. Healthy . . . creates an 

affirmative defense." Price Waterhouse, 490 U.S. at 259. He 
agreed with Justice O'Connor, however, that the plaintiff in 

Price Waterhouse had made the requisite showing that sex was a 

substantial factor in the employer's decision and that the 

"burden of persuasion then should have shifted to Price 

Waterhouse to prove" the same decision would have been made 

absent the unlawful motive. Id. at 259-60. 

 For present purposes, there are two important things to 

note about the several opinions in Price Waterhouse. First, a 

majority of the members of the Court did not endorse the 

plurality's view that Title VII imposed liability whenever a 

prohibited factor played a motivating role in the challenged 

decision. Justices O'Connor and White and the three dissenters 

rejected, in the words of Justice White, "a rule of causation 

that focused solely on whether [an impermissible motive] played a 

part, 'substantial' or otherwise, in a decision." 490 U.S. at 

259 (internal quotation omitted). Second, while the holding of 

the Court fashioned a special rule reducing the plaintiff's 

burden of persuasion in a defined category of Title VII 

individual discrimination cases, a majority of the Court endorsed 

views of Title VII that would leave plaintiffs in other 

individual discrimination cases with the burden of showing butfor cause. 

 All members of the Court now seem to agree that a 

showing of but-for causation by the plaintiff is required in ADEA 

cases that do not call for special treatment under Price 

Waterhouse. In Hazen Paper Co., 113 S. Ct. 1701 (1993), the 

plaintiff, like the plaintiff here, claimed that he had been 
discharged because of his age in violation of the ADEA. The 

Supreme Court was called upon to address the relationship between 

the standard of ordinary liability under the ADEA and the 

standard of liability for liquidated damages under the provision 

of that Act authorizing such damages for "willful" violations. 

With respect to the former, Justice O'Connor, writing for a 

unanimous Court, reviewed the case law applicable to disparate 

treatment (i.e., individual discrimination) cases and concluded 

as follows: 

 Whatever the employer's decisionmaking 

process, a disparate treatment claim cannot 

succeed unless the employee's protected trait 

actually played a role in that process and 

had a determinative influence on the outcome. 

Id. at 1706. 

 With respect to the standard of liability for 

liquidated damages, the Court held: 

 We therefore reaffirm that the Thurston

definition of "willful" -- that the employer 

either knew or showed reckless disregard for 

the matter of whether its conduct was 

prohibited by the statute -- applies to all 

disparate treatment cases under the ADEA. 

Once a "willful" violation has been shown, 

the employee need not additionally . . . 

prove that age was the predominant rather 

than a determinative factor in the employment 

decision. 

Id. at 1710. 

 We find support in Hazen Paper for our earlier 

conclusion that "because of" does not mean "solely because of." 

If an ADEA plaintiff need not show that age was "the predominant 

factor" in order to establish liability for liquidated damages, 
surely such a plaintiff does not have to show that age was the 

sole cause of the challenged decision in order to establish a 

right to normal forms of relief. We also believe Hazen Paper

provides an authoritative answer to our second inquiry. A 

plaintiff in an ADEA case who does not qualify for a burden 

shifting instruction under Price Waterhouse has the burden of 

persuading the trier of fact by a preponderance of the evidence 

that there is a "but-for" causal connection between the 

plaintiff's age and the employer's adverse action -- i.e., that 

age "actually played a role in [the employer's decisionmaking] 

process and had a determinative influence on the outcome" of that 

process. Hazen Paper, 113 S. Ct. at 1706. 

V.

 We find further support for our holding in the Supreme 

Court's decision in St. Mary's Honor Center v. Hicks, 113 S. Ct. 

2742 (1993). That decision makes clear that the trier of fact in 

a pretext case is not limited to a choice between finding that 

the alleged discriminatory motive or the employer's 

nondiscriminatory explanation was the sole cause of the 

employment action. At the time we decided Griffiths v CIGNA 

Corp., 988 F.2d 457 (3d Cir.), cert. denied, 114 S. Ct. 186 

(1993),8 it was possible to view all pretext cases as presenting 

 

8. INA insists that our decision in Griffiths mandated the "sole 

cause" instructions given by the district court in this case. 

INA's reading of Griffiths would be inconsistent with a long line 

of decisions of this court, including our in banc decision in 

Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir.) 

(holding that an ADEA plaintiff "need not prove that age was the 
only two possibilities: the fact finder could conclude either 

that the plaintiff had succeeded in proving that the employer's 

explanation was a pretext for discrimination, or that the 

plaintiff had failed to so prove. Under this view, if the 

plaintiff proved the employer's proffered reason was pretextual, 

the trier of fact presumed, as a matter of law, that the 

impermissible cause alleged by plaintiff was the sole cause of 

the employer's decision. 

 St. Mary's instructs that this bipolar view of pretext 

cases is inaccurate. A finding that the employer's 

nondiscriminatory explanation is a pretext permits, but does not 

require, the trier of fact to conclude that the employer 

discriminated against the plaintiff based on the ground alleged. 

St. Mary's Honor Ctr. v. Hicks, 113 S. Ct. 2742, 2749 (1993). 

 In St. Mary's, the plaintiff, an African-American, had 

been demoted and ultimately discharged by his employer. He 

brought suit under Title VII, asserting that the employer's 

actions were the result of racial animus. The employer insisted 

it took these actions because the plaintiff on a number of 

(..continued) 

employer's sole or exclusive consideration, but must prove that 

age made a difference in the decision"), cert. dismissed, 483 

U.S. 1052 (1987); see also Bellissimo v. Westinghouse Elec. 

Corp., 764 F.2d 175, 179 n.1 (3d Cir. 1985) (finding the 

requirement of proving that the improper motive was "'the 

determinative factor' [to be] inconsistent with the 'but-for' 

causation test"), cert. denied, 475 U.S. 1035 (1986). To the 

extent language in Griffiths can be read to suggest that the 

charge in this case was appropriate, it is hereby overruled. 

 
occasions had permitted his subordinates to break institutional 

rules, and on one occasion had threatened his superior. See

Hicks v. St. Mary's Honor Ctr., 756 F. Supp. 1244, 1246-48 (E.D. 

Mo. 1991). The district court, as the trier of fact, found that 

the threatening conduct and rules violations had occurred, but 

concluded that neither these events nor the plaintiff's race was 

the real reason for plaintiff's demotion and discharge. Rather, 

the district court concluded that "although [the] plaintiff ha[d] 

proven the existence of a crusade to terminate him, he [had] not 

proven that the crusade was racially rather than personally 

motivated." Id. at 1252. 

 The court of appeals, viewing pretext cases as bipolar, 

ruled that, once the plaintiff proved the employer's proffered 

reasons were pretextual, he was entitled to judgment as a matter 

of law. Hicks v. St. Mary's Honor Ctr., 970 F.2d 487, 492 (8th 

Cir. 1992). The Supreme Court reversed, concluding that the 

trier of fact's rejection of the employer's proffered reason for 

its action did not compel the conclusion that race was the sole 

cause of the employment decision. St. Mary's Honor Ctr., 113 S. 

Ct. at 2749-51. Rather, the record evidence supported three 

possible causes: race, threats and violations of the employer's 

rules, and personal animosity. The Supreme Court ruled that the 

trier of fact was entitled to draw from the record evidence 

whatever inferences that evidence would support. Since the 

district court concluded that the explanation advanced by the 

employer was a pretext, it could have further inferred that there 

was an impermissible motive to hide. It was not required to do 
so, however. If the district court inferred that personal 

animosity was the cause of the demotion and discharge, that, too, 

was permissible. 

 We think it clear from the Supreme Court's opinion in 

St. Mary's that the trier of fact in a pretext case, where the 

record will support it, may choose not to accept either party's 

litigating position as reflecting the whole truth. This may, as 

in St. Mary's, take the form of a conclusion that the adverse 

action was taken for a reason other than the reasons urged by the 

parties. It may also take the form of a conclusion that the 

alleged discrimination and the employer's nondiscriminatory 

explanation both played a role in the employer's decision. If 

the plaintiff, for example, argues that he or she was discharged 

because of age and the employer insists that it was because of 

the plaintiff's record of absenteeism, the trier of fact may 

conclude that the plaintiff's absenteeism record played a part, 

but that the plaintiff would not have been fired if he or she 

were twenty years younger. 

 In some cases, the evidence may be such that the use of 

"sole factor" or "sole cause" to describe the plaintiff's burden 

would be harmless error. We perceive no reason, however, why a 

trial court would choose to use those phrases in any case. Even 

in those rare cases where the evidence appears to present the 

jury with only a bipolar choice, such phrases misstate the law 

and hold a potential for creating a misunderstanding in the minds 

of the jury that may outlive their service in that particular 

case. 
 In most age discrimination cases that get to the jury, 

the record will support an inference that both a legitimate and 

an illegitimate reason played a role in the employer's decision 

and the charge must provide for the possibility that the jury 

will find the employer's decision to be the product of more than 

one consideration. In those cases, the court must charge, in 

accordance with Hazen Paper, that the plaintiff's burden is to 

show that the prohibited consideration played a role in the 

decisionmaking process and that it had a determinative influence 

on the outcome of that process.9

 

9. We are here, of course, describing cases in which the 

challenged action of the employer may be the product of two or 

more motives. It is important to understand, however, that these 

cases do not fall within the legal category of "mixed motives" 

cases reserved for special treatment under Price Waterhouse. As 

we explained more fully in Griffiths, 988 F.2d at 470, and Hook 

v. Ernst & Young, 28 F.3d 366, 373-76 (3d Cir., May, 1994), 

"mixed motives" cases are cases not only where the record would 

support a conclusion that both legitimate and illegitimate 

factors played a role in the employer's decision, but where the 

plaintiff's evidence of discrimination is sufficiently "direct" 

to shift the burden of proof to the employer on the issue of 

whether the same decision would have been made in the absence of 

the discriminatory animus. The term of art "mixed motive" is 

thus misleading because it describes only a small subset of all 

employment discrimination cases in which the employer may have 

had more than one motive. Under Price Waterhouse, the correct 

wording of a causation instruction to a jury differs depending on 

whether the case before the court is a "mixed motives" or a 

"pretext" case as those categories are defined in that case. 

Only in a "mixed motives" ADEA case is the plaintiff entitled to 

an instruction that he or she need show only that the forbidden 

motive played a role, i.e., was "a motivating factor." Even 

then, the instruction must be followed by an explanation that the 

defendant may escape liability by showing that the challenged 

action would have been taken in the absence of the forbidden 

motive. See Griffiths v. CIGNA Corp., 988 F.2d at 472. In all 

other ADEA disparate treatment cases, the jury should be 

instructed that the plaintiff may meet his or her burden only by 

showing that age played a role in the employer's decisionmaking 
VI.

 In this case, the district court's repeated reference 

to "sole cause" and "sole factor" was not harmless error. Miller 

alleged that because of his age, he was not selected for various 

open high level management positions for which he was qualified 

and that thereafter he was terminated. For each of the open 

positions his employer offered evidence to show that Miller was 

not qualified or that he was less qualified than the candidate 

ultimately selected. Based on the evidence presented at trial, a 

jury could well have concluded that both Miller's and the 

employer's explanations were accurate--that Miller was qualified 

for one or more of the open positions, that the employer's 

promotion and hiring decisionmaking process contained a bias in 

favor of younger employees, and that Miller's credentials did not 

sufficiently distinguish him from the competing candidates to 

overcome this bias. 

 For example, with respect to the vacancy for general 

manager with CIGNA Reinsurance Company, United Kingdom (the 

"CIGNA UK position"), the manager responsible for filling that 

position testified that he wrote the job description with Michael 

Durkin, the successful candidate, in mind; that Durkin had most 

of the qualities needed for that position; and that Durkin had 

more experience than Miller in reinsurance and accounting work. 

(..continued) 

process and that it had a determinative effect on the outcome of 

that process. 
A jury who credited the employer's evidence could therefore 

conclude that Durkin's promotion was a legitimate hiring 

decision. However, Miller testified that he had extensive 

reinsurance experience as well as substantially more management 

experience and skills than Durkin -- one of the qualifications 

for the position. Durkin had managed a staff of only twenty 

employees, while Miller had managed much larger groups. Miller 

also testified that when he expressed interest in the CIGNA UK 

position the president of that division told him he was 

"overqualified." Miller also offered evidence that Durkin had 

obtained his reinsurance experience in part through his manager's 

desire to cross-train and develop him for this type of managerial 

promotion. Miller additionally points out that many of the INA 

managers responsible for the hiring decisions at issue, including 

the manager who filled the CIGNA UK position, testified that they 

eschewed the company's formal inter-departmental placement 

process available for positions above grade fifty-four for an 

informal and personal decisionmaking process. This testimony 

lends credence to Miller's theory that the promotion and hiring 

decisions for upper level management positions were susceptible 

to age-animus. Accordingly, a jury crediting Miller's evidence 

could infer that the decision not to consider or select him for 

the CIGNA UK position was based on age. 

 Because INA's and Miller's explanations were not 

inherently contradictory, however, it would have been possible 

for the jury to find that the company considered both Miller's 

qualifications and his age, and that both factored into the 
relevant hiring decisions. Thus, the jury could have reasonably 

concluded that Miller was less than ideally qualified for a 

particular position and that this was a factor in INA's 

decisionmaking process. At the same time, it could reasonably 

have concluded that INA's decisionmakers were biased in favor of 

younger workers and a younger person with Miller's credentials 

would have been assigned to the post. 

 The ADEA's protection against age discrimination is not 

limited to perfectly qualified employees. As the court observed 

in Shager v. Upjohn Co., 913 F.2d 398, 403 (7th Cir. 1990): "The 

statute does not protect merely the older worker who is perfect 

from the standpoint of his employer; such a worker needs no 

protection except from irrational employers, and they are rare. 

It protects, as a practical matter, the imperfect older worker 

from being treated worse than the imperfect younger one." Cf.

Mardell v. Harleysville Life Ins. Co., 31 F.3d 1221, 1233 (3d 

Cir. 1994) ("[N]either Title VII nor ADEA strips a wrongdoing 

employee of his or her entitlement to protection against unlawful 

discrimination."). Despite his imperfect credentials, Miller 

should have prevailed if he would not have been passed over but 

for his age. The district court's "sole cause" charge did not 

permit the jury to find in Miller's favor on this basis. It 

follows that Miller is entitled to a new trial. 

VII. 

 We hold that in an ADEA case which does not qualify for 

a burden shifting instruction under Price Waterhouse, a district 
court should instruct the jury that the plaintiff must prove by a 

preponderance of the evidence that age played a role in the 

employer's decisionmaking process and that it had a determinative 

effect on the outcome of that process.10 Since the district 

court instructed that age must be shown to be the sole cause of 

the employer's decision and since the record would support a 

conclusion that, while other factors played a role, age was a 

determinative factor, we will reverse and remand for a new trial. 

 Miller v. CIGNA Corporation; The 

Insurance Company of North America, No. 93-1773 

 

10. In the course of this opinion, we have relied on Title VII 

cases because the development of the relevant case law under the 

two statutes prior to the Civil Rights Act of 1991 followed 

parallel courses. Section 107 of the 1991 Civil Rights Act, 

codified at 42 U.S.C. § 2000e-2(m), provides that "an unlawful 

employment practice is established when the complaining party 

demonstrates that [a prohibited consideration] was a motivating 

factor for any employment practice, even though other factors 

also motivated the practice." The substantive provisions of the 

1991 Act that amended Title VII did not amend the ADEA, and 

Miller does not contend that section 107 is applicable to ADEA 

cases. 

GREENBERG, Circuit Judge, concurring in part and concurring in 

the judgment. 

 To put it succinctly, the question before us is the 

effect of Hazen Paper Co. v. Biggins, ____ U.S. ____, 113 S.Ct. 

1701 (1993), and St. Mary's Honor Center v. Hicks, ____ U.S. 

____, 113 S.Ct. 2742 (1993), on our holding in Griffiths v. CIGNA 

Corp., 988 F.2d 457 (3d Cir.), cert. denied, ____ U.S. ____, 114 

S.Ct. 186 (1993), that there are two types of cases under the 
ADEA -- mixed motives cases and pretext cases -- and that in the 

latter, the plaintiff must show that age was the determinative 

factor in the adverse employment decision. The majority 

correctly concludes that "in ADEA cases that do not qualify for a 

burden shifting charge under Price Waterhouse . . . district 

courts should instruct the jury that the plaintiff's burden is to 

prove that age played a role in the employer's decisionmaking 

process and that it had a determinative effect on the outcome of 

that process." Typescript at 3. I thus join in the Introduction 

and Parts I, II, VI and VII of the majority Opinion. I write 

separately for three reasons: First, I cannot accept portions of 

the majority's analysis in Parts III, IV and V. Second, the area 

of employment discrimination law is cursed with elusive terms 

like "mixed motives" and "pretext," and with numerous 

presumptions, inferences and burden-shifting rules. Those terms 

and rules historically often have taken on lives of their own, 

independent of their connection to the underlying theories of 

liability that gave them birth. Thus, a "mixed motives" case is 

not about mixed motives, and a "pretext" case has little to do 

with pretext. I believe the time has come to clarify the current 

status of theories of ADEA liability, and to dispense with 

unhelpful monikers whenever possible. Thus, unlike the in banc 

majority, I would dispense altogether with the terms "pretext" 

and "mixed motives" and hold explicitly that the same standard 

applies to all disparate treatment cases. Finally, I believe 
that the entire debate over "but-for" causation makes something 

out of nothing, and that district courts should feel free to 

instruct juries in all ADEA cases that a plaintiff does not 

succeed unless but-for causation is shown. 

I. 

 In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 

S.Ct. 1817 (1973), the Supreme Court first set forth the order of 

proof in disparate treatment cases, and the Court elaborated upon 

and explained the framework in Texas Dep't of Community Affairs 

v. Burdine, 450 U.S. 248, 101 S.Ct. 1089 (1981). In the later 

case, the Court described the process as follows: 

 First, the plaintiff has the burden of 

proving by the preponderance of the evidence 

a prima facie case of discrimination. 

Second, if the plaintiff succeeds in proving 

the prima facie case, the burden shifts to 

the defendant 'to articulate some legitimate, 

nondiscriminatory reason for the employee's 

rejection.' [McDonnell Douglas], at 802, 93 

S.Ct. at 1824. Third, should the defendant 

carry this burden, the plaintiff must then 

have an opportunity to prove by a 

preponderance of the evidence that the 

legitimate reasons offered by the defendant 

were not its true reasons, but were a pretext 

for discrimination. Id. at 804, 93 S.Ct., at 

1825. 

Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093. Burdine

repeatedly speaks about the employer's "true" reason for the 

discharge, see id. at 256, 101 S.Ct. at 1095, and therefore, the 

opinion was cast in either-or terms. Post-Burdine cases 
reaffirmed this proposition. See, e.g., N.L.R.B. v. 

Transportation Management Corp., 462 U.S. 393, 400 n.5, 103 S.Ct. 

2469, 2473 n.5 (1983) (in Burdine, "[t]he Court discussed only 

the situation in which the issue is whether either illegal or 

legal motives, but not both, were the 'true' motives behind the 

decision"); United States Postal Service Bd. of Governors v. 

Aikens, 460 U.S. 711, 717, 718, 103 S.Ct. 1478, 1483 (1983) ("a 

plaintiff prevail[s] when at the third stage of a Title VII trial 

he demonstrates that the legitimate, nondiscriminatory reason 

given by the employer is in fact not the true reason for the 

employment decision") (Blackmun, J., concurring). Thus, the prePrice Waterhouse jurisprudence "assumed . . . that a single 

impulse moves the employer who discriminates," see Theodore Y. 

Blumoff & Harold S. Lewis, Jr., The Reagan Court and Title VII: 

A Common-Law Outlook on a Statutory Task, 69 N.C.L. Rev. 1, 47 

(1990), and that all disparate treatment claims could be analyzed 

under Burdine's either-or pretext framework. This did not mean 

that the Court foreclosed liability when more than one cause 

motivated the adverse employment decision, but only that the 

employment discrimination cases coming before the Court were 

argued under the Burdine pretext framework. 

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

1775 (1989), changed the employment discrimination liability 

landscape, but not in the way the in banc majority suggests. In 

my view, the majority confuses Price Waterhouse's general holding 
that plaintiffs may obtain relief despite their inability to fit 

their proofs into Burdine's pretext framework, with the standard 

for causation in cases that do proceed under Burdine. The 

majority correctly points out that "[a]ll members of the [Price 

Waterhouse] Court agreed . . . that 'because of' did not mean 

'solely because of.'" Typescript at 12. But the quotations from 

the Price Waterhouse opinions demonstrate only that in that case, 

all members of the Court agreed that plaintiffs were not without 

a remedy if their proofs did not fit into the classic Burdine

mold. Rather, all members of the Court agreed that when there is 

no one true reason behind the discharge, the employer in certain 

circumstances still could be liable. The Price Waterhouse

dissent suggested interpreting Burdine so that it could cover all 

claims of disparate treatment. But a majority of the Court chose 

to retain Burdine's framework for pretext cases, and to provide a 

separate theory of liability, together with a separate order of 

proof, to apply in cases involving both legitimate and 

illegitimate reasons for the adverse employment action. 

 Thus, Price Waterhouse does not support the conclusion 

that in a pretext case, a plaintiff need not prove that age was 

the determinative factor in the employment decision. Quite the 

contrary, a majority of the justices explicitly reaffirmed 

Burdine's assumption that in a pretext case, as opposed to a 

mixed motives case, the illicit reason must be the determinative 

cause. Crucial passages in the various opinions, that the in 
banc majority does not cite, demonstrate that a majority of the 

Price Waterhouse court viewed Burdine's "one or the other" 

description of pretext liability as still viable in cases 

proceeding under a pretext theory. Writing for himself as well 

as Justices Marshall, Blackmun and Stevens, Justice Brennan 

distinguished Burdine as follows: 

 Where a decision was the product of a mixture 

of legitimate and illegitimate motives . . . 

it simply makes no sense to ask whether the 

legitimate reason was 'the "true reason"' 

(Brief for Petitioner 20 (emphasis added)) 

for the decision -- which is the question 

asked by Burdine. See Transportation 

Management, supra, at 400, n.5, 103 S.Ct., at 

2473, n.5. Oblivious to this last point, the 

dissent would insist that Burdine's framework 

perform work that it was never intended to 

perform. It would require a plaintiff who 

challenges an adverse employment decision in 

which both legitimate and illegitimate 

considerations played a part to pretend that 

the decision, in fact, stemmed from a single 

source -- for the premise of Burdine is that 

either a legitimate or an illegitimate set of 

considerations led to the challenged 

decision. To say that Burdine's evidentiary 

scheme will not help us decide a case 

admittedly involving both kinds of 

considerations is not to cast aspersions on 

the utility of that scheme in the 

circumstances for which it was designed. 

Price Waterhouse, 490 U.S. at 247, 109 S.Ct. at 1788-89 

(plurality opinion). Moreover, in discussing the standards for 

proving liability in a mixed motives case, the plurality pointed 

out that "[i]f the plaintiff fails to satisfy the factfinder that 

it is more likely than not that a forbidden characteristic played 

a part in the employment decision, then she may prevail only if 
she proves, following Burdine, that the employer's stated reason 

for its decision is pretextual." Id. at 247, 109 S.Ct. at 1789 

n.12 (plurality opinion). Justice White similarly drew this 

distinction: 

 The Court has made clear that 'mixed-motives' 

cases, such as the present one, are different 

from pretext cases such as McDonnell Douglas

and Burdine. In pretext cases, 'the issue is 

whether either illegal or legal motives, but 

not both, were the "true" motives behind the 

decision.' NLRB v. Transportation Management 

Corp., 462 U.S. 393, 400 n.5, 103 S.Ct. 2469, 

2473 n.5 (1983). In mixed-motives cases, 

however, there is no one 'true' motive behind 

the decision. 

Id. at 260, 109 S.Ct. at 1796 (White, J., concurring). 

 In fact, the Price Waterhouse plurality's theory of 

employment discrimination liability necessarily assumed that a 

plaintiff proceeding under a mixed motives theory could not 

succeed under a pretext theory. This is because of the 

following: In a pretext case, the defendant responds to the 

plaintiff's prima facie case by offering legitimate 

nondiscriminatory reasons for the discharge. The plaintiff then 

must prove that those reasons are pretextual. If a plaintiff 

cannot prove that the proffered reasons for the discharge were 

not in fact real reasons, then by definition the plaintiff has 

failed to demonstrate pretext, and has failed the third prong of 

the Burdine test. Assume, however, that the district court is 

convinced that even though the defendant's proof has gone 

unrebutted, the plaintiff nonetheless has proven that age played 
a role in the adverse employment decision. That is a scenario in 

which both legitimate and illegitimate factors played a role in 

the decision. Here, the Price Waterhouse scenario comes into 

play, and even though the claim fails under Burdine, the 

defendant would have the burden of disproving but-for causation. 

 Thus, Price Waterhouse is important not because it said 

anything about the standard for showing pretext liability but 

because it constituted the first time the Supreme Court 

explicitly decided that Burdine liability, while alive and well, 

did not provide the only framework for imposing liability. I 

believe, then, that the in banc majority is wrong to suggest that 

the Price Waterhouse majority used "mixed motives" as a "term of 

art" that describes "only a small subset of all employment 

discrimination in which the employer may have had more than one 

motive." Typescript at 26 n.9. To be sure, there is language in 

the various Price Waterhouse opinions addressing the evidence the 

plaintiff must adduce to prove that the illicit criterion played 

a role in the decision. But, at least in Price Waterhouse, the 

nature of the evidence that can be used "to satisfy the 

factfinder that it is more likely than not that a forbidden 

characteristic played a part in the employment decision," Price 

Waterhouse, 490 U.S. at 247 n.12, 109 S.Ct. at 1789 n.12, is a 

question separate and apart from how a plaintiff can proceed when 

he or she is unable to prove pretext. In fact, in the wake of 

Price Waterhouse, a number of courts have addressed the nature of 
the proofs required to shift the burden in an employment 

discrimination case, and have arrived at differing results. That 

is hardly surprising, since Price Waterhouse does not address 

that question. Compare White v. Federal Express Corp., 939 F.2d 

157, 160 (4th Cir. 1991) ("To show discrimination in a mixed 

motive case . . . a plaintiff . . . may carry its burden under 

ordinary principles of proof by any sufficiently probative direct 

or indirect evidence") with Brown v. East Mississippi Elec. Power 

Ass'n, 989 F.2d 858, 861 (5th Cir. 1993) ("[w]hen a plaintiff 

presents credible direct evidence that discriminatory animus in 

part motivated or was a substantial factor in the contested 

employment action, the burden of proof shifts to the employer . . 

. .") (emphasis added). For our part, we have held that "[a]t a 

bare minimum, a plaintiff seeking to advance a mixed motive case 

will have to adduce circumstantial evidence 'of conduct or 

statements by persons involved in the decision-making process 

that may be viewed as directly reflecting the alleged 

discriminatory attitude'." Griffiths, 988 F.2d at 470 (quoting 

Ostrowski v. Atlantic Mut. Ins. Cas., 968 F.2d 171, 182 (2d Cir. 

1992)). 

 In short, then, a majority of the justices in Price 

Waterhouse held that Title VII provides two theories of 

liability: (1) pretext, or Burdine analysis, under which an 

employee only wins by showing that the employer's proffered 

reason for the adverse employment decision was pretextual and 
that, in fact, the decision was based solely on illegitimate 

factors; (2) mixed motives cases, in which the trier of fact 

concludes that both licit and illicit motives played a role in 

the employment decision, and where the burden shifts to the 

employer to prove that it would have made the same decision 

absent the illegitimate motive. This means that the in banc 

majority's conclusion that "we would be reluctant to attribute to 

Congress an intention that an employer should be liable if a 

hiring or discharge decision is based solely on an employee's age 

and not liable if the decision is based primarily on the 

employee's age but also on the fact that the employee's 

supervisor did not like the employee's personality, hair color, 

or some other personal trait or conduct," Typescript at 16, 

really states the obvious. Other than perhaps the appellant in 

Price Waterhouse, few contended or contend that a plaintiff would 

always lose under the ADEA if age was not the determinative 

factor. The question is how to analyze claims alleging both 

legitimate and illegitimate motives. 

II. 

 The in banc majority's description of Price Waterhouse

derives not from the opinions in the Price Waterhouse majority, 

but from the Price Waterhouse dissent's characterization of the 

Court's holding.11 Justice Kennedy's dissent in Price Waterhouse

 

11. It is evident that we decided Griffiths correctly, as 

Griffiths was after Price Waterhouse but before Hazen. Of 
sought to recast the Court's analytical grounding away from the 

theory underlying the plaintiff's case and in terms of the type 

of evidence the plaintiff had adduced to prove disparate 

treatment. Writing for himself, the Chief Justice and Justice 

Scalia, Justice Kennedy began by describing his view of the 

court's holding: 

 I read the opinions as establishing that in a 

limited number of cases Title VII plaintiffs, 

by presenting direct and substantial evidence 

of discriminatory animus, may shift the 

burden of persuasion to the defendant to show 

that an adverse employment decision would 

have been supported by legitimate reasons. 

The shift in the burden of persuasion occurs 

only where a plaintiff proves by direct 

evidence that an unlawful motive was a 

substantial factor actually relied upon in 

making the decision. . . . In sum, the court 

alters the evidentiary framework of McDonnell 

Douglas and Burdine for a closely defined set 

of cases. 

Price Waterhouse, 490 U.S. at 280, 109 S.Ct. at 1806 (Kennedy, 

J., dissenting). Thus, in the dissent's view, the court did not 

draw a distinction between pretext cases and mixed motives cases 

but rather between direct evidence cases and circumstantial 

evidence cases.12 More than that, the dissent appeared to 

(..continued) 

course, Price Waterhouse constituted the first stage in a process 

that ultimately saw the Supreme Court abandoning the notion that 

there are different theories of disparate treatment liability. 

12. The dissent disagreed with this distinction as well: "Our 

opinions make plain that Burdine applies to all individual 

disparate-treatment cases, whether the plaintiff offers direct 

proof that discrimination motivated the employer's actions or 

chooses the indirect method of showing that the employer's 

proffered justification is false, that is to say, a pretext. See 

Aikens, supra, at 714 n.3, 103 S.Ct. at 1481 n.3 ('As in any 
criticize the plurality opinion for the latter's assumption that 

pretext analysis requires proof of sole cause: 

 The plurality tries to reconcile its approach 

with Burdine by announcing that it applies 

only to a 'pretext' case, which it defines as 

a case in which the plaintiff attempts to 

prove that the employer's proffered 

explanation is itself false. . . . This 

ignores the language of Burdine, which states 

that a plaintiff may succeed in meeting her 

ultimate burden of persuasion 'either 

directly by persuading the court that a 

discriminatory reason more likely motivated 

the employer or indirectly by showing that 

the employer's proffered explanation is 

unworthy of credence.' 450 U.S., at 256, 101 

S.Ct., at 1095 (emphasis added). Under the 

first of these two alternative methods, a 

plaintiff meets her burden if she can 

'persuade the court that the employment 

decision more likely than not was motivated 

by a discriminatory reason.' United States 

Postal Service Bd. of Governors v. Aikens, 

460 U.S. 711, 717-18 (1983) (Blackmun, J., 

concurring). 

Price Waterhouse, 490 U.S. at 287-88, 109 S.Ct. at 1810. The 

dissent's view is totally compatible with the in banc majority's 

(and my) conclusion that in all but a limited number of cases, 

the holding of Price Waterhouse is irrelevant. See id. at 280, 

109 S.Ct. at 1806 (Kennedy, J., dissenting) ("In sum, the Court 

alters the evidentiary framework of McDonnell Douglas and Burdine

for a closely defined set of cases."). Indeed, I believe it is 

(..continued) 

lawsuit, the plaintiff may prove his case by direct or 

circumstantial evidence.')". Price Waterhouse, 490 U.S. at 288, 

109 S.Ct. at 1810 (Kennedy, J., dissenting). 
impossible to square the Price Waterhouse majority's framework 

with the language of subsequent Supreme Court cases. 

 The Price Waterhouse dissent explicitly criticized the 

Court for unnecessarily complicating disparate treatment analysis 

by dividing it into various theories. See Price Waterhouse, 490 

U.S. at 279, 109 S.Ct. at 1806 (Kennedy, J., dissenting) 

("Continued adherence to the evidentiary scheme established in 

[McDonnell Douglas and Burdine] is a wiser course than creation 

of more disarray in an area of the law already difficult for the 

bench and bar."). Just four years later, that view became the 

majority. In Hazen Paper Co. v. Biggins, ____ U.S. ____, 113 

S.Ct. 1701 (1993), the Court clarified the standards for proving 

disparate treatment under the ADEA. In no uncertain terms, the 

Court held that: 

 Whatever the employer's decisionmaking 

process, a disparate treatment claim cannot 

succeed unless the employee's protected trait 

actually played a role in that process and 

had a determinative influence on the outcome. 

Id. at ____, 113 S.Ct. at 1706. One thing is clear from this 

language: In no disparate treatment case must a plaintiff prove 

that the illicit motive was the determinative factor. It 

necessarily follows that the Court's distinction in Price 

Waterhouse between pretext cases and mixed motives cases no 

longer proves a viable rationale for the Price Waterhouse's 

burden-shifting approach. This is because in light of Hazen, a 

plaintiff need not prove that age was the determinative factor to 
prove liability in a pretext case -- rather, under the language 

of Hazen, a plaintiff could succeed under Burdine without proving 

that the employer's reasons are wholly pretextual. And, if the 

reasons are not wholly pretextual, some of them must be true. 

Further still, if some of the employer's reasons are true, 

pretext cases sometimes involve mixed motives. Thus, after 

Hazen, the burden-shifting approach of Price Waterhouse -- if it 

survives at all -- must rest not on the distinction between cases 

involving mixed motives and cases involving pretexts for 

discrimination, but rather on the distinction between 

circumstantial evidence cases and direct evidence cases -- the 

distinction drawn by Justice Kennedy in his Price Waterhouse

dissent. Thus, in my view, this court should not continue to 

refer to the term "mixed motives" and then define it as meaning 

something other than mixed motives. See Typescript at 26 n.9. 

Instead, we simply should abandon the term altogether. 

 Along with abandoning the notion of an independent 

category of "mixed motives" cases, Hazen is important for another 

reason as well -- it signalled discomfort with the Burdine scheme 

of apportioning burdens and presumptions, and consequently, with 

the entire notion of "pretext" liability. In this regard, the 

Court foreshadowed its decision in St. Mary's by pointing out 

that "inferring age-motivation from the implausibility of the 

employer's explanation may be problematic in cases where other 

unsavory motives, such as pension interference, were present." 
Id. at ____, 113 S.Ct. at 1708. Hence, the Court expressed 

wariness about the "one or the other" approach of the pretext 

cases. The Court supported this critique by pointing to language 

in pretext cases tending to show that liability could be imposed 

under the ADEA even when age was not a motivating factor: 

 Although some language in our prior decisions 

might be read to mean that an employer 

violates the ADEA whenever its reason for 

firing an employee is improper in any 

respect, see McDonnell Douglas Corp. v. 

Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 

(1973) (creating proof framework applicable 

to ADEA) (employer must have 'legitimate, 

nondiscriminatory reason' for action against 

employee), this reading is obviously 

incorrect. For example, it cannot be true 

that an employer who fires an older black 

worker because the worker is black thereby 

violates the ADEA. The employee's race is an 

improper reason, but it is improper under 

Title VII, not the ADEA. 

Hazen, ____ U.S. at ____, 113 S.Ct. at 1707. Thus, with the 

criticism of Burdine generally, and with the Court's holding that 

in all disparate treatment cases the plaintiff need only prove 

that the illicit factor had a determinative effect on the 

outcome, the Court strongly signalled the end of pretext 

liability as a distinct theory of disparate treatment liability. 

 St. Mary's made the point even more explicit, and 

abandoned the notion of pretext liability altogether. In that 

case, the Supreme Court rejected the view that when a plaintiff 

proves an employer's proffered reasons for the adverse employment 

action is pretextual, the plaintiff automatically wins. Rather, 
in a disparate treatment case, the plaintiff must prove 

intentional discrimination, and the concept of affirmative proof 

is analytically distinct from proving other explanations wrong. 

St. Mary's qualified this by saying 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 with the elements of the prima facie 

case, suffice to show intentional discrimination." Id. at ____, 

113 S.Ct. at 2749. And, as the in banc majority recognizes, "[a] 

finding that the employer's nondiscriminatory explanation is a 

pretext permits, but does not require, the trier of fact to 

conclude that the employer discriminated against the plaintiff 

based on the ground alleged." Typescript at 23. But by focusing 

on what St. Mary's says about "sole cause," the majority misses 

the real significance of St. Mary's, and may perpetuate 

misreadings of the case both in our own case law and in the 

commentary. 

 If we interpret St. Mary's purely within the pretext 

paradigm, as the in banc majority appears to do,13 the case can 

be read to say that in all disparate treatment cases proceeding 

within the Burdine framework, the plaintiff must, at a minimum, 

prove pretext. After all, that is how Burdine described the 

 

13. See typescript at 24 ("We think it clear from the Supreme 

Court's opinion in St. Mary's that the trier of fact in a pretext

case where the record will support it, may choose not to accept 

either party's litigating position as reflecting the whole 

truth.") (emphasis added). 
three-pronged test. And, we recently held in Armbruster v. 

Unisys Corp., 32 F.3d 768, 782 (3d Cir. 1994), that in a post-St. 

Mary's pretext case "a plaintiff who claims invidious 

discrimination but lacks overt evidence of discriminatory animus 

must point to evidence tending to show the defendant's 

explanation is pretextual." (Emphasis added). If that is true, 

however, we very nearly are back at sole cause again. This is 

because the plaintiff is being forced not only to make an 

affirmative showing but also affirmatively to disprove facts. 

See Armbruster, 32 F.3d at 783 ("After St. Mary's, it seems clear 

. . . that the trier of fact cannot find for the plaintiff merely 

because it disbelieves the defendant's proffered explanation; it 

must also be persuaded that the employment decision was the 

result of the bias that can be inferred from the falsity of the 

defendant's explanation.") (emphasis added); id. ("an ultimate 

finding of illegal discrimination in a pretext case requires 

evidence showing a prima facie case and evidence showing 

pretext") (second alteration added); see also Michael A. 

Zubrensky, Despite the Smoke, There Is No Gun: Direct Evidence 

Requirements in Mixed-Motives Employment Law After Price 

Waterhouse v. Hopkins, 46 Stan. L. Rev. 959, 964 (1994) 

("plaintiffs [must] disprove unstated reasons for the employment 

decision"). But, as Hazen makes clear, in no disparate treatment 

case must a plaintiff prove that the illicit factor was the sole 

or determinative cause of the adverse employment action. 
Therefore, to read St. Mary's as requiring a plaintiff to prove 

pretext is to misread the case. 

 The point of St. Mary's was not to place a dual 

burden on plaintiffs, but rather to treat disparate treatment 

discrimination cases -- after the plaintiff has established a 

prima facie case and after the defendant has met its burden of 

production -- just like any other case where the plaintiff bears 

the burden of proof. See also Gehring v. Case Corp., No. 94-1371, 

1994 WL 715285 at *1 (7th Cir. Dec. 18, 1994) ("Once the judge 

finds that the plaintiff has made the minimum necessary 

demonstration (the 'prima facie case') and that the defendant has 

produced an age neutral explanation . . . the only remaining 

question . . . the jury need answer is whether the plaintiff is a 

victim of intentional discrimination.") After the plaintiff and 

the defendant have met their initial burdens, the entire Burdine

procedure no longer is of any relevance (apart from the fact that 

the procedure provided a mechanism to get evidence before the 

court). Id. To be sure, the plaintiff may attempt to prove 

intentional discrimination solely by focusing on the falsity of 

the defendant's explanations, see St. Mary's, U.S. at ____ 

n.4, 113 S.Ct. at 2749 n.4, but that only means that if a jury 

disbelieves the defendant's argument, it may believe the 

opposite. Nothing in that proposition is peculiar to age 

discrimination claims. In other words, the plaintiff certainly 

is not required to rebut the defendant's proffered reasons 
completely, if he or she nonetheless is able to establish that 

the illicit motive was a but-for cause of the adverse employment 

decision. See St. Mary's, ____ U.S. at ____, 113 S.Ct. at 2749 

n.4 ("there must be a finding of discrimination"); id. at ____, 

113 S.Ct. at 2751 (employee must prove "that the employer has 

unlawfully discriminated"); id. at ____, 113 S.Ct. at 2752 

("proving the employer's reason false becomes part of (and often 

considerably assists) the greater enterprise of proving that the 

real reason was intentional discrimination"); id. at ____, 113 

S.Ct. at 2753-54 ("[O]nce the defendant has responded to the 

plaintiff's prima facie case, 'the district court has before it 

all the evidence it needs to decide' not (as the dissent would 

have it) whether the defendant's response is credible, but 

'whether the defendant intentionally discriminated against the 

plaintiff.'") (citation omitted). 

 The problem probably arose with St. Mary's assumption 

that proving pretext is easier than affirmatively proving 

intentional discrimination. St. Mary's assumed that when the 

factfinder is focussed purely on whether the defendant's 

proffered reasons are true, the plaintiff is somehow getting off 

the hook. In some cases that may be true. But that assumption 

certainly is incorrect as a general proposition. Rather, it may 

be much more difficult to disprove an employer's explanation than 

to point to evidence tending to show that even if the employer's 
explanation is partly correct, the illicit motive also caused the 

action. 

 But putting that incorrect assumption aside, the real 

point of St. Mary's was to focus the factfinder in all disparate 

treatment cases away from the question of pretext and instead on 

the question of whether intentional discrimination took place. 

St. Mary's is important because it tells district courts to 

dispense with abstract pretext analysis altogether except insofar 

as it sheds light on whether intentional discrimination took 

place. As in all cases, there must be evidence in the record to 

support a finding in favor of the plaintiff on the ultimate 

question. As Hazen makes clear, when the plaintiff is not 

required to prove sole cause, it should not matter at all that a 

legitimate reason played a role in the process. Thus, once the 

defendant has met its proffer, the jury should be instructed that 

it should consider evidence of the prima facie case, evidence of 

legitimate explanations, evidence bearing on the credibility of 

those explanations, and all other relevant evidence in the case 

to determine whether the employer discriminated against the 

plaintiff. 

 By abandoning sole cause as the basis for pretext 

liability, Hazen makes clear that there is no separate category 

of mixed motives cases. By turning the focus in "pretext" cases 

away from evidence of pretext, St. Mary's makes clear that there 

is no separate category of pretext cases. What we are left with 
is one broad category of disparate treatment cases that, except 

for the limited category of Price Waterhouse cases, should be 

treated alike.14

III. 

 This brings me to the question of causation. The 

majority goes to great lengths to show that plaintiffs must prove 

but-for causation in order to prevail, but the ultimate test it 

announces neglects all mention of but-for causation. See

Typescript at 25-26, Typescript at 29. Contrary to the 

majority's intimations, all the justices in Price Waterhouse

itself agreed on this point. I believe that the majority is 

incorrect when it states that in Price Waterhouse, "Justices 

Brennan, Marshall, Blackmun, and Stevens read the statute as 

imposing liability in any situation where the unlawful motive was 

a 'motivating' factor." Typescript at 18. While the Price 

Waterhouse plurality pointed out that "Hopkins argues that once 

she made this showing [that the unlawful motive was a motivating 

factor] she was entitled to a finding that Price Waterhouse had 

discriminated against her on the basis of sex," it quickly 

 

14. In light of Hazen and St. Mary's, I agree with the 

majority's conclusion that Price Waterhouse cases are "cases not 

only where the record would support a conclusion that both 

legitimate and illegitimate factors played a role in the 

employer's decision, but where the plaintiff's evidence of 

discrimination is sufficiently 'direct' to shift the burden of 

proof to the employer on the issue of whether the same decision 

would have been made in the absence of the discriminatory 

animus." Typescript at 26 n.9. 
rejected that argument. Price Waterhouse, 490 U.S. at 244 n.10, 

109 S.Ct. at 1787 n.10. Justice Brennan really was concerned 

with burdens and presumptions; his point was that if the 

defendant could not prove its affirmative defense, the trier of 

fact could presume that but-for causation had been proven. See 

id. at 246 n.11, 109 S.Ct. at 1788 n.11 ("[W]here an employer is 

unable to prove its claim that it would have made the same 

decision in the absence of discrimination, we are entitled to 

conclude that gender did make a difference to the outcome.") 

(plurality opinion); see also id. at 249, 109 S.Ct. at 1790 ("A 

court that finds for a plaintiff under this standard has 

effectively concluded that an illegitimate motive was a 'but-for' 

cause of the employment decision.") (plurality opinion); id. at 

281, 109 S.Ct. at 1807 ("The theory of Title VII liability the 

plurality adopts . . . essentially incorporates the but-for 

standard.") (Kennedy, J., dissenting). In other words, all the 

justices always have agreed that a plaintiff cannot win in an age 

discrimination suit if but-for causation is not proved; the 

disagreement in Price Waterhouse involves the much different 

question of who bears the burden of proof and what can be 

inferred when those burdens are not met. Id. at 281, 109 S.Ct. 

at 1807 ("The importance of today's decision is not the standard 

of causation it employs, but its shift to the defendant of the 

burden of proof.") (Kennedy, J., dissenting). 
 The in banc majority's belief that "but-for" causation 

is surrounded in controversy has induced it to shy away from the 

concept in articulating a jury charge -- even though the majority 

opinion at one point explicitly recognizes that the Hazen test 

translates into but-for causation, see Typescript at 21 ("A 

plaintiff in an ADEA case . . . has the burden of persuading the 

trier of fact . . . that there is a 'but-for' causal connection 

between the plaintiff's age and the employer's adverse action . . 

. ." I believe this unnecessarily complicates matters. Cf. 

Gehring, 1994 WL 715285 at * 2 ("'determining factor' is not a 

term in common usage, and it therefore does not illuminate the 

essential concepts. Putting unusual terms in jury instructions 

does little beyond confusing the jurors"). Thus, while it is 

true that in all non-Price Waterhouse cases, the test is whether 

the "plaintiff [has proven] by a preponderance of the evidence 

that age played a role in the employer's decisionmaking process 

and that it had a determinative effect on the outcome of that 

process," Typescript at 29, the jury also may be instructed that 

this technically worded test translates into but-for causation. 

Gehring, 1994 WL 715285 at * 3 ("one attractive formulation" is 

that the jury should be instructed to decide "whether the 

employer would have fired [demoted, laid off] the employee if the 

employee had been younger than 40 and everything else had 

remained the same") (alteration in original). In Price 

Waterhouse cases, as defined in note 10 of the in banc majority's 
opinion, the jury should be instructed that if the defendant 

fails to meet its burden of showing that it would have made the 

same decision in the absence of the illicit motive, it must 

conclude that the plaintiff has proven but-for causation.