1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-14-1996

Sheridan v. EI DuPont de Nemours

Precedential or Non-Precedential:

Docket 94-7509

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Recommended Citation

"Sheridan v. EI DuPont de Nemours" (1996). 1996 Decisions. Paper 26.

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 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 

 

 No. 94-7509 

 

 BARBARA R. SHERIDAN, 

 Appellant 

 v. 

 E.I. DUPONT DE NEMOURS AND COMPANY, 

 JACQUES AMBLARD 

 

 

 On Appeal from the United States District Court 

 for the District of Delaware 

 (D. C. Civil No. 93-cv-00046) 

 

 Argued May 4, 1995 

 Before: SLOVITER, Chief Judge, ALITO, Circuit Judge, 

 and SCHWARZER, District Judge* 

 Reargued en banc May 14, 1996 

 Before: SLOVITER, Chief Judge, BECKER, MANSMANN, GREENBERG, 

 SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, MCKEE, 

 and SAROKIN*, Circuit Judges 

 (Opinion Filed November 14, 1996) 

 

Thomas S. Neuberger (Argued) 

Wilmington, DE 19801-1646 

Martin D. Haverly 

Wilmington, DE 19801 

 Attorneys for Appellant 

________________________ 

* Hon. William W Schwarzer, Senior United States District Judge, 

 United States District Court for the Northern District of 

 California, sitting by designation. 

** Hon. H. Lee Sarokin heard argument but retired from office 

 prior to the issuance of the opinion. 
Raymond M. Ripple (Argued) 

Donna L. Goodman 

E. I. DuPont de Nemours & Co. 

 Legal Department 

Wilmington, DE 19880-0036 

 Attorneys for Appellees 

Nancy Erika Smith 

Neil Mullin 

Lisa Manshel 

Smith Mullin, P.C. 

West Orange, NJ 07052 

David Rocah 

American Civil Liberties Union of N.J. 

Newark, NJ 07102 

 Attorneys for Amicus Curiae 

 American Civil Liberties Union of N.J. in Support of Appellant 

Elaine R. Jones 

Theodore M. Shaw 

Charles Stephen Ralston 

NAACP Legal Defense and Educational Fund, Inc. 

New York, NY 10013 

 Attorneys for Amicus Curiae NAACP Legal Defense 

 and Educational Fund in Support of Appellant 

C. Gregory Stewart 

Gwendolyn Young Reams 

Carolyn L. Wheeler 

Robert J. Gregory 

Equal Employment Opportunity Commission 

Washington, DC 20507 

 Attorneys for Amicus Curiae Equal Employment 

 Opportunity Commission in Support of Appellant 

Alice Ballard 

Samuel & Ballard 

Philadelphia, PA 19102 

Scott A. Burr 

Alan B. Epstein 

Jablon, Epstein, Wolf & Drucker 

Philadelphia, PA 19102 

 Attorneys for Amicus Curiae National Employment 

 Lawyers' Association in Support of Appellant 

Kathryn H. Levering 
Drinker Biddle & Reath 

Philadelphia, PA 19107-3496 

 

 Attorney for Amicus Curiae 

 Lockheed Martin Corp. in Support of Appellees 

 OPINION OF THE COURT 

SLOVITER, Chief Judge. 

 This appeal offers the en banc court the opportunity to 

attempt to clarify the quantum and nature of evidence that will 

permit a jury to find that an employer engaged in impermissible 

employment discrimination. Although we believe that several of 

our opinions in recent years accurately and adequately set forth 

the applicable legal principles, the decision of the district 

court and that of a panel of this court, now withdrawn, require 

us to return to the central issue presented here. 

 I. 

 Barbara Sheridan, a former employee of E.I. DuPont de 

Nemours & Co. (DuPont), filed this action under Title VII of the 

Civil Rights Act of 1964, 42 U.S.C. § 2000e-1 et seq., charging 

DuPont and her former supervisor, Jacques Amblard, with several 

claims of sex discrimination and retaliation. Sheridan, who had 

been an employee of the Hotel du Pont since 1979 and was at the 

time her employment ceased one of the Head Captains of the 

hotel's Green Room, asserted that DuPont discriminated against 

her on the basis of her sex when it failed to promote her to 

Manager of Restaurants in 1991 (Count I), retaliated against her 

for complaining about sex discrimination by putting her on 

probation and taking various disciplinary actions against her 

(Count II), and created intolerable working conditions, 

culminating in her removal from a supervisory position, which 

resulted in her constructive discharge (Count III).

 After discovery, the defendants moved for summary 

judgment which the district court denied. The court held that 

Sheridan had presented a prima facie case of discrimination and 

sufficient evidence to permit a factfinder to believe that 

DuPont's reasons for not promoting her, i.e., that she was not 

qualified for the position of Manager of Restaurants and that she 

had not applied for the position, were pretexts for

discrimination. App. at 57. The court further held that 

Sheridan had presented adequate evidence to survive summary 

judgment on her retaliation claim and to enable a factfinder to 

reasonably believe that her supervisors had intentionally 

fabricated evidence of poor job performance in order to remove 

her from her position as Head Captain and offer her less 

desirable, dead-end jobs. App. at 68. The court concluded that 

"[i]f plaintiff's version of the facts were accepted by a trier 

of fact, it would be reasonable for the trier of fact to conclude 

that resignation was plaintiff's only option." Id.

 Thereafter, the case proceeded to trial. The conduct 

that was the subject of Sheridan's claims straddled the period 
before and after November 21, 1991, the date of the enactment of 

the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 

(1991), which granted a right to a jury trial on Title VII 

intentional discrimination claims for which compensatory or 

punitive damages are sought, id. § 1977A(c), 105 Stat. at 1073 

(codified at 42 U.S.C. § 1981a(c)). The district court ruled 

that the jury would serve as the finder of fact for Sheridan's 

claims that were based on conduct that occurred after that date, 

but that the jury would serve only in an advisory capacity for 

claims based on events that occurred before that date. This 

meant that the jury's verdicts on Count I (failure to promote) 

and the alleged retaliatory acts in Count II that occurred before 

November 21, 1991 were to be advisory, while the jury was to be 

the finder of fact for the remaining alleged acts of retaliation 

and with respect to Count III, Sheridan's claim of constructive 

discharge. 

 The trial occupied six days. During the trial, the 

district court dismissed the claims against Amblard on the ground 

that an employee cannot be sued under Title VII. 

 After deliberating, the jury returned special 

interrogatories. With respect to the promotion claim, the jury 

found that Sheridan was not qualified for the job of Manager of 

Restaurants and therefore found against her on her claim of 

discriminatory failure to promote. With respect to retaliation, 

the jury found that DuPont had not retaliated against Sheridan 

for complaining of sex discrimination. In contrast, the jury did 

find in Sheridan's favor on her claim of constructive discharge. 

It awarded her $17,500 in compensatory damages, over and above 

lost wages, but found that DuPont's actions were not taken "with 

malice or reckless indifference" to her rights, App. at 33, thus 

precluding Sheridan from receiving punitive damages. See 42 

U.S.C. § 1981a (b) (1). Finally, the jury found that Sheridan 

had failed to mitigate her damages by $33,000, that amount to be 

deducted from the total amount of lost wages owed. Because the 

court calculated Sheridan's lost wages to be $51,072, it awarded 

her $18,072, in addition to six months of front pay totalling 

$12,768. The district court adopted as its own the jury's 

findings with respect to the conduct alleged in Counts I and II 

that took place before November 21, 1991. 

 Both parties moved for judgment as a matter of law or 

in the alternative for a new trial. The district court granted 

judgment in DuPont's favor. The court recognized that DuPont had 

proffered as one of the principal reasons for the disciplinary 

actions it had taken against Sheridan her alleged unauthorized 

"comping," i.e., giving away complimentary food and drinks in 

violation of the hotel's policy that they should be registered, 

and Sheridan offered evidence to the contrary, indeed, evidence 

that she was elsewhere on some of the days that DuPont claimed 

she was engaged in "comping" at the hotel. 

 In overturning the jury's verdict on the constructive 

discharge claim in favor of Sheridan, the court stated that even 

if the jury could have reasonably rejected the legitimacy of 

DuPont's investigation of Sheridan's alleged "comping," and thus 

its reasons for discharging her, "the Court is still left 
searching the record for evidence that gender played a 

determinative role in defendant's conduct. . . . The Court . . . 

has failed to locate sufficient evidence from which the jury 

could infer such a finding." Sheridan v. E.I. DuPont de Nemours 

and Co., No. 93-46 (D. Del. July 14, 1994) at 9. The court 

ruled that the evidence Sheridan presented which arguably related 

to her gender, such as the facts that no woman had ever held the 

position of Manager of Restaurants, that a man replaced Sheridan 

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

told Sheridan he would watch her like a "hawk" and a "dog," and 

Amblard's actions in ignoring her and speaking instead to one of 

her male supervisors if one was present, was even in totality 

insufficient to support a reasonable inference that gender was a 

motivating factor in DuPont's actions. Id. at 9-10. 

 The court stated that "[i]n order to demonstrate that 

gender was a motivating factor, plaintiff would have to point to 

some evidence that was the motive of those in the decision making 

process. No such evidence exists in the record." Id. 

at 11-12. The district court accordingly granted DuPont's motion 

for judgment as a matter of law, and ruled conditionally, 

pursuant to Fed. R. Civ. P. 50(c), that if the judgment were 

reversed on appeal, DuPont would be entitled to a new trial 

"because the jury's verdict is contrary to the weight of the 

evidence." Id. at 12 n.11. Sheridan appealed. 

 A panel of this court heard argument on May 4, 1995 and 

issued an opinion that reversed the district court's order 

granting judgment as a matter of law for DuPont on Sheridan's 

constructive discharge claim but was divided as to the 

alternative grant of a new trial, with two judges voting to 

affirm the grant of a new trial and the third voting to remand 

the issue whether a new trial was warranted for reconsideration 

by the district court, using the correct legal principles. SeeSheridan v. 

DuPont, No. 94-7509 (Jan. 31, 1996), vacated, 74 F.3d 

1439 (3d Cir. 1996). The majority and dissenting opinions 

differed in particular in their interpretation of the effect of 

the Supreme Court's opinion in St. Mary's Honor Center v. Hicks, 

509 U.S. 502 (1993), on the inferences that the finder of fact 

may draw from its disbelief of the employer's proffered 

justification for the disciplinary employment action taken 

against Sheridan and the amount and type of evidence needed to 

sustain a jury verdict. 

 Both DuPont and Sheridan petitioned for rehearing and 

the court voted to hear the appeal en banc. As required by our 

Internal Operating Procedures, the opinion of the panel issued 

January 31, 1996 was withdrawn and the court held the en banc 

argument on May 14, 1996. 

 II. 

 DISCUSSION 

 A. 

 Legal Issues 

 The parties disagree both as to the applicable law and 

the weight of the evidence. DuPont argues that the district 

court's decision in its favor should have been affirmed in all 

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

DuPont's decisions were based on gender discrimination was not 

consistent with this court's prior decisions. Thus, DuPont 

challenges and requests that we reconsider our prior decisions 

with respect to the "recurring problem of the shifting burdens" 

in employment discrimination cases, arguing that our decisions do 

not fully incorporate the teaching of the Supreme Court in Hicks. 

It singles out in particular the "underlying decision of the 

Court in [Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994)]." 

DuPont's Petition for Rehearing at 5. 

 Sheridan for her part argues that we have correctly 

interpreted Hicks in our post-Hicks decisions with respect to the 

evidence that would permit a plaintiff claiming employment 

discrimination to prevail, and cites, inter alia, Fuentes, 32 

F.3d 759; Sempier v. Johnson & Higgins, 45 F.3d 724 (3d Cir.), 

cert. denied, 115 S.Ct. 2611 (1995); Waldron v. SL Industries, 56 

F.3d 491 (3d Cir. 1995); and Brewer v. Quaker State Oil Refining 

Corporation, 72 F.3d 326 (3d Cir. 1995). 

 We thus turn, this time en banc, to reexamine what 

DuPont calls "this continuing and perplexing problem of 

interpreting the shifting burden of Hicks." 

 By the time Hicks reached the Supreme Court, the 

required components of a plaintiff's prima facie case of 

employment discrimination had been established in McDonnell 

Douglas Corporation v. Green, 411 U.S. 792, 802 (1973), and Texas 

Department of Community Affairs v. Burdine, 450 U.S. 248, 253 & 

n.6 (1981), as had been the requirement that the employer was 

obliged to proffer a nondiscriminatory reason for its adverse 

employment action, see McDonnell Douglas, 411 U.S. at 802; 

Burdine, 450 U.S. at 254. Also established was the requirement 

that the burden of persuasion remained at all times with the 

plaintiff. See United States Postal Serv. Bd. of Governors v. 

Aikens, 460 U.S. 711, 716 (1983); Burdine, 450 U.S. at 256. 

Still open, however, and the subject of considerable dispute, was 

the effect of the decision by the trier of fact that the reasons 

given by the employer were not the real reasons for the adverse 

employment action. As the Court noted in Hicks, there were cases 

in the courts of appeals that held that a finding of pretext does 

not mandate a finding of illegal discrimination, see, e.g., EEOC 

v. Flasher Co., 986 F.2d 1312, 1321 (10th Cir. 1992); Galbraith 

v. Northern Telecom, Inc., 944 F.2d 275, 283 (6th Cir. 1991), 

cert. denied, 503 U.S. 945 (1992), and others that held that a 

finding of illegal discrimination was mandated on a finding of 

pretext, see, e.g., Hicks v. St. Mary's Honor Center, 970 F.2d 

487, 492-93 (8th Cir. 1992), reversed, 509 U.S. 502 (1993); King 

v. Palmer, 778 F.2d 878, 879 (D.C.Cir. 1985); Duffy v. Wheeling 

Pittsburgh Steel Corp., 738 F.2d 1393, 1395-96 (3d Cir.), cert. 

denied, 469 U.S. 1087 (1984). 

 In Hicks, a case in which the plaintiff had brought a 

Title VII action alleging that he was demoted and discharged 

because of his race, the court of appeals had concluded that 

"[o]nce plaintiff proved all of [the employer's] proffered 

reasons for the adverse employment actions to be pretextual, 

plaintiff was entitled to judgment as a matter of law." 970 F.2d 
at 492. It was this holding that was reversed by the Supreme 

Court, which held that judgment for the plaintiff is not 

compelled by the disbelief of the employer's reasons. 509 U.S. 

at 511. On the other hand, the Court also explicitly stated that 

a finding that the reasons proffered are pretextual permits the 

factfinder to draw the inference that the defendant intentionally 

discriminated against the plaintiff. Id. 

 In deciding the "ultimate question" of whether the 

employer unlawfully discriminated, the Court stated in the 

following oft-quoted passage that "[t]he factfinder's disbelief 

of the reasons put forward by the defendant (particularly if 

disbelief is accompanied by a suspicion of mendacity) may, 

together with the elements of the prima facie case, suffice to 

show intentional discrimination." Id. The Court explained that 

"rejection of the defendant's proffered reasons, will permit the 

trier of fact to infer the ultimate fact of intentional 

discrimination," and continued: "the Court of Appeals was 

correct when it noted that, upon such rejection, '[n]o additional 

proof of discrimination is required.'" Id. (emphasis in 

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

 Reading these statements in the context of the Court's 

opinion, we have understood Hicks to hold that the elements of 

the prima facie case and disbelief of the defendant's proffered 

reasons are the threshold findings, beyond which the jury is 

permitted, but not required, to draw an inference leading it to 

conclude that there was intentional discrimination. Accordingly, 

in Fuentes we explained that "the factfinder may infer from the 

combination of the plaintiff's prima facie case and its own 

rejection of the employer's proffered non-discriminatory reasons 

that the employer unlawfully discriminated against the plaintiff 

and was merely trying to conceal its illegal act with the 

articulated reasons." 32 F.3d at 764. It followed that a 

plaintiff may survive summary judgment (or in this case judgment 

as a matter of law) if the plaintiff produced sufficient evidence 

to raise a genuine issue of fact as to whether the employer's 

proffered reasons were not its true reasons for the challenged 

employment action. Id. ("[T]o defeat summary judgment when the 

defendant answers the plaintiff's prima facie case with 

legitimate, non-discriminatory reasons for its action, the 

plaintiff must point to some evidence, direct or circumstantial, 

from which a factfinder could reasonably either (1) disbelieve 

the employer's articulated legitimate reasons; or (2) believe 

that an invidious discriminatory reason was more likely than not 

a motivating or determinative cause of the employer's action."). 

 Although we ultimately decided in Fuentes that the 

plaintiff had failed to submit evidence which cast sufficient 

doubt on his employer's proffered reasons for failure to place 

him in the position that he sought, application of the same 

approach in some later cases led us to hold that the plaintiff 

had satisfied his or her burden and raised an issue to be decided 

by the trier of fact. Thus, in Sempier we reversed the district 

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

Discrimination in Employment Act (ADEA) action because Sempier, 

an executive at an insurance brokerage and consulting firm, had 
presented sufficient evidence to create a genuine issue of fact 

as to whether the company's claim that he was forced to retire 

for poor performance was a pretext for age discrimination. 45 

F.3d at 732-33. 

 Shortly thereafter, in Waldron, another ADEA case, we 

again held that summary judgment for the employer was improper 

because the evidence raised a factual question as to whether the 

employer's proffered explanations -- that it had discharged the 

63-year-old plaintiff due to a company reorganization plan and 

dissatisfaction with his work performance -- was an attempt to 

conceal age discrimination. Waldron, 56 F.3d at 502-03. We 

viewed the district court's holding as requiring plaintiffs to 

bear the burden of demonstrating "pretext-plus," a burden we had 

explicitly rejected in Fuentes. Id. at 495. 

 In Brewer, we again cited Fuentes for the proposition 

that a plaintiff will survive summary judgment if s/he can 

produce sufficient evidence that the employer's proffered 

nondiscriminatory reason for its employment action was not the 

true reason. 72 F.3d at 331. Finding the evidence in Brewer's 

case sufficient to permit a jury to believe that the employer's 

claim of poor performance by the 53-year-old salesman was 

pretextual, we reversed the district court's entry of summary 

judgment on Brewer's ADEA claim. Id. 

 The majority of other federal courts of appeals appear 

to have interpreted Hicks in a similar manner to this court's 

precedent. See, e.g., Shaw v. HCA Health Servs. of Midwest, 

Inc., 79 F.3d 99, 100 (8th Cir. 1996) (where defendant did not 

dispute that plaintiff made out a prima facie case and there was 

evidence that defendant had altered performance evaluations of 

plaintiff after firing him, "jury was entitled (although not 

required) to conclude . . . that the reasons given by the 

hospital for firing [plaintiff] were a pretext for age 

discrimination"); Barbour v. Merrill, 48 F.3d 1270, 1277 (D.C. 

Cir. 1995) ("As Hicks explained, a factfinder's rejection of the 

employer's nondiscriminatory reasons, while not sufficient to 

compel a finding of discrimination, nonetheless suffices to 

permit such a finding."), cert. dismissed, 116 S. Ct. 1037 

(1996); EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 

1994) ("A finding of pretextuality allows a juror to reject a 

defendant's proffered reasons for a challenged employment action 

and thus permits the ultimate inference of discrimination."); 

Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1083 (6th 

Cir. 1994) ("Hicks clarified that the only effect of the 

employer's nondiscriminatory explanation is to convert the 

inference of discrimination based upon the plaintiff's prima 

facie case from a mandatory one which the jury must draw, to a 

permissive one the jury may draw, provided that the jury finds 

the employer's explanation `unworthy' of belief."); Anderson v. 

Baxter Healthcare Corp., 13 F.3d 1120, 1124 (7th Cir. 1994) (to 

defeat summary judgment, Title VII plaintiff "must only `produce 

evidence from which a rational factfinder could infer that the 

company lied' about its proffered reasons for his dismissal" 

(citation omitted)); Mitchell v. Data Gen. Corp., 12 F.3d 1310, 

1316 (4th Cir. 1993) (plaintiff can defeat summary judgment by 
"present[ing] evidence sufficient to establish a prima facie 

case, and . . . show[ing] that there is a genuine dispute of 

material fact about [the defendant's] proffered explanation" for 

its action); Washington v. Garrett, 10 F.3d 1421, 1433 (9th Cir. 

1993) ("[A]s St. Mary's recognizes, the factfinder in a Title VII 

case is entitled to infer discrimination from plaintiff's proof 

of a prima facie case and showing of pretext without anything 

more . . . ."). 

 The Equal Employment Opportunity Commission, the 

government agency charged with enforcement of the employment 

discrimination laws and an amicus curiae in this case, has also 

taken the view "that a prima facie case, coupled with a noncredible justification from the employer, is sufficient to 

support a finding of discrimination." EEOC Enforcement Guidance 

on St. Mary's Honor Center v. Hicks, EEOC Comp. Man. (BNA), 

N:3361, 3363 n.3 (Apr. 12, 1994). "As an administrative 

interpretation of the Act by the enforcing agency, these 

Guidelines, while not controlling upon the courts by reason of 

their authority, do constitute a body of experience and informed 

judgment to which courts and litigants may properly resort for 

guidance." Meritor Savings Bank v. Vinson, 477 U.S. 57, 65 

(1986)(internal quotation marks and citations omitted). 

 The attack by DuPont and the dissent on the paradigm we 

and these other courts have constructed in the wake of Hicks is 

multi-faceted. DuPont suggests that there is an inconsistency 

between this court's caselaw, as applied or articulated, and the 

requirement that the ultimate burden of persuasion of intentional 

discrimination must rest with the plaintiff. We find no such 

inconsistency. More important, the Supreme Court itself in Hicksexpressly 

stated that its various statements in that opinion as 

to the burden that plaintiff must bear, i.e. "it is not enough 

. . . to disbelieve the employer," 509 U.S. at 519, and the 

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

discrimination was the real reason," id. at 515, were not 

inconsistent with the statement in the opinion that "rejection of 

the defendant's proffered reasons will permit the trier of fact 

to infer the ultimate fact of intentional discrimination," id. at 

511. Hicks explained that the statement that "rejection of the 

defendant's proffered reasons is enough at law to sustain a 

finding of discrimination" was not inconsistent with its 

placement of the burden of persuasion on the plaintiff because 

"there must be a finding of discrimination." Id. at 511 n.4 

(emphasis throughout discussion in original). Thus, the Supreme 

Court has answered the very claim of inconsistency DuPont 

purports to find in our interpretation of Hicks. 

 Similarly unpersuasive is the dissent's suggestion that 

Fuentes impermissibly gives continuing weight to the presumption 

of discrimination created by the prima facie case even after the 

McDonnell Douglas presumption has dissipated or "burst." This 

argument is based on the mistaken assumption that once the 

presumption of discrimination created initially by the prima 

facie case "drops from the case," Burdine, 450 U.S. at 255 n.10, 

the underlying facts lose their probative value. However, the 

Supreme Court specifically explained in Burdine that "[i]n saying 
that the presumption [of discrimination] drops from the case, we 

do not imply that the trier of fact no longer may consider 

evidence previously introduced by the plaintiff to establish a 

prima facie case. . . . [T]his evidence and inferences properly 

drawn therefrom may be considered by the trier of fact on the 

issue of whether the defendant's explanation is pretextual." Id. 

As long as the jury must make a finding of intentional 

discrimination, there is no reason why the evidence that 

supported the prima facie case coupled with the jury's 

determination that the employer's proffered explanations are 

pretextual is not sufficient to support a verdict of 

discrimination. 

 As Chief Justice, then Justice, Rehnquist earlier had 

explained, the initial presumption of discrimination arises from 

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

presume these acts, if otherwise unexplained, are more likely 

than not based on the consideration of impermissible factors." 

Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978). 

He continued: 

 [W]e are willing to presume this largely 

 because we know from our experience that more 

 often than not people do not act in a totally 

 arbitrary manner, without any underlying 

 reasons, especially in a business setting. 

 Thus, when all legitimate reasons for 

 rejecting an applicant have been eliminated 

 as possible reasons for the employer's 

 actions, it is more likely than not the 

 employer, who we generally assume acts only 

 with some reason, based his decision on an

 impermissible consideration such as race. 

Id. 

 This court has previously noted the probative 

significance of the factfinder's disbelief in a proffered 

explanation by a party, stating: 

 It has always been understood -- the 

 inference indeed is one of the simplest in

 human experience -- that a party's falsehoodor other fraud in the 

preparation and 

 presentation of his cause, his fabrication or 

 suppression of evidence by bribery or 

 spoliation, is receivable against him as an 

 indication of his consciousness that his case 

 is a weak or unfounded one; and from that 

 consciousness may be inferred the fact itself 

 of the cause's lack of truth and merit. 

McQueeney v. Wilmington Trust Co., 779 F.2d 916, 921-22 (3d Cir. 

1985) (quoting 2 Wigmore § 278(2) (Chadbourne Rev. 1979)). As 

another court recently remarked in the context of an employment 

discrimination case: "Resort to a pretextual explanation is, 

like flight from the scene of a crime, evidence indicating 

consciousness of guilt, which is, of course, evidence of illegal 

conduct." Binder v. Long Island Lighting Co., 57 F.3d 193, 200 
(2d Cir. 1995). 

 We presume that the same logic, albeit unarticulated, 

was the basis for the Supreme Court's statement in Hicks that 

disbelief of the employer's reason will permit the factfinder to 

infer the ultimate fact of discrimination, 509 U.S. at 511, even 

though the presumption of discrimination "drops from the case" 

after the employer proffers a legitimate reason for its actions, 

Burdine, 450 U.S. at 255 n.10. 

 We routinely expect that a party give honest testimony 

in a court of law; there is no reason to expect less of an 

employer charged with unlawful discrimination. If the employer 

fails to come forth with the true and credible explanation and 

instead keeps a hidden agenda, it does so at its own peril. 

Under those circumstances, there is no policy to be served by 

refusing to permit the jury to infer that the real motivation is 

the one that the plaintiff has charged. 

 The dissent concedes that in the usual case after the 

presumption created by the prima facie case has dissipated and 

sufficient evidence of pretext has been adduced, there will be 

sufficient evidence to support a verdict of discrimination. The 

dissent is concerned that in the atypical case this may not be 

so. It posits the situation of a plaintiff who claims multiple 

grounds, all illegal, for the employment action. We see no 

reason to engage in a dialogue of speculation as to how to treat 

such a case, divorced from a factual record, particularly because 

the situation presented by the dissent was not the case in Hicks, 

where the plaintiff claimed race discrimination, was not the case 

in Fuentes, where the plaintiff claimed national origin 

discrimination, nor is it the case before us now, where Sheridan 

claims only sex discrimination. 

 The other situation posited by the dissent for its 

unwillingness to join the otherwise unanimous en banc court is 

that created where an employer "may not wish to disclose his real 

reasons for not promoting B over A." Dissenting Typescript Op. 

at 22 n.8. The persistence in maintaining that the employment 

action was taken because the plaintiff was unqualified or the 

position was being eliminated due to a reduction in force when 

the employer knows that the real reason is nepotism would violate 

the spirit if not the language of Rule 11 of the Federal Rules of 

Civil Procedure. The dissent gives no reason why a plaintiff 

alleging discrimination is not entitled to the real reason for 

the personnel decision, no matter how uncomfortable the truth may 

be to the employer. Surely, the judicial system has little to 

gain by the dissent's approach. 

 The Supreme Court has stated that an employer can meet 

its burden of articulating the reason for its action only through 

the introduction of admissible evidence. Burdine, 450 U.S. at 

255 n.9. Burden-shifting is designed "to sharpen the inquiry 

into the elusive factual question of intentional discrimination." 

Id. at 255 n.8. It follows that the Burdine analysis is rooted 

in the requirement that when the employer advances through 

admissible evidence the reasons for its actions, those must be 

its legitimate reasons. 

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

Of course Hicks did not rely merely on the factfinder's disbelief 

of the explanation proffered by the employer to uphold a verdict 

for the employee. Instead, as we have noted, under Hicks it is 

the combination of the disbelief in the employer's proffered 

explanation, the evidence that supported finding a prima facie 

case, and the jury's finding of intentional discrimination 

following a proper instruction to that effect. 

 Although the dissent states at the outset that its 

approach "does not mean that a plaintiff, in order to reach the 

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

plaintiff must always produce some evidence in addition to what 

is necessary to establish a prima facie case and to show that the 

employer's explanation is pretextual," Dissenting Typescript Op. 

at 2 (emphasis added), the dissent's approach would bring the 

courts of this circuit back to the confusion and uncertainty 

created by the "pretext plus" and "some evidence" language that 

prompted this court to consider this case en banc. 

 In Sheridan's case, the district court had reviewed the 

evidence presented in connection with DuPont's motion for summary 

judgment and found that Sheridan had made out a prima facie case 

for gender discrimination culminating in constructive discharge. 

 Also, the district court had carefully instructed the 

jury on the need to find intentional discrimination before it 

could return a verdict for Sheridan on any of her claims. Early 

in its charge the court had advised the jury that this case 

involves "allegations of intentional sexual discrimination, that 

is, of intentionally treating some people less favorably than 

others because of their gender." App. at 111. Again, in 

connection with the constructive discharge count the court had 

reminded the jury that Sheridan must prove "by a preponderance of 

the evidence that 1) defendant intentionally made plaintiff's 

working conditions so intolerable that a reasonable person would 

feel forced to resign; 2) plaintiff's gender was the sole 

motivating factor in the defendant's conduct; and 3) plaintiff, 

in fact, resigned." App. at 123. The jury's verdict signifies 

that it rejected DuPont's proffered reasons for its employment 

action and believed that the real reason was discrimination. 

 In granting judgment as a matter of law for DuPont, the 

district court stated that "plaintiff would have to point to some 

evidence" that gender was the motive of those in the decision 

making process. It is evident that the district court believed 

that something more was required than was set forth in Hicks and 

our cases. Not only was such a requirement of additional 

evidence rejected in Fuentes where we stated that "if the 

plaintiff has pointed to evidence sufficiently to discredit the 

defendant's proffered reasons, to survive summary judgment the 

plaintiff need not also come forward with additional evidence of 

discrimination beyond his or her prima facie case," 32 F.3d at 

764, but it is also inconsistent with the statement in Hicks that 

upon rejection of the defendants' proffered reasons for the 

action, "no additional proof of discrimination is required." 509 

U.S. at 511 (internal quotation marks omitted). 

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

United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 

711, 716 (1983). We have recognized that "[d]iscrimination 

victims often come to the legal process without witnesses and 

with little direct evidence indicating the precise nature of the 

wrongs they have suffered." Jackson v. University of Pittsburgh, 

826 F.2d 230, 236 (3d Cir. 1987), cert. denied, 484 U.S. 1020 

(1988). Cases charging discrimination are uniquely difficult to 

prove and often depend upon circumstantial evidence. See, e.g., 

Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081-82 (3d 

Cir. 1996); Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 

48 (3d Cir. 1989); Chipollini v. Spencer Gifts, Inc., 814 F.2d 

893, 897 (3d Cir.) (en banc) cert. dismissed, 483 U.S. 1052 

(1987); Dillon v. Coles, 746 F.2d 998, 1003 (3d Cir. 1984). 

"This is true in part because . . . discrimination . . . is often 

subtle." Chipollini, 814 F.2d at 899. "[A]n employer who 

knowingly discriminates . . . may leave no written records 

revealing the forbidden motive and may communicate it orally to 

no one." Id. (quoting LaMontagne v. American Convenience Prods., 

750 F.2d 1405, 1410 (7th Cir. 1984)). 

 The distinct method of proof in employment

discrimination cases, relying on presumptions and shifting 

burdens of articulation and production, arose out of the Supreme 

Court's recognition that direct evidence of an employer's 

motivation will often be unavailable or difficult to acquire. 

See Price Waterhouse v. Hopkins, 490 U.S. 228, 271 (1989) 

(O'Connor, J., concurring) ("[T]he entire purpose of the 

McDonnell Douglas prima facie case is to compensate for the fact 

that direct evidence of intentional discrimination is hard to 

come by."); Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 

121 (1985) ("The shifting burdens of proof set forth in McDonnell 

Douglas are designed to assure that the plaintiff has his day in 

court despite the unavailability of direct evidence." (internal 

quotation marks omitted)); see also International Bhd. of 

Teamsters v. United States, 431 U.S. 324, 359 n.45 (1977) 

(recognizing that burden-shifting rules "are often created . . . 

to conform with a party's superior access to the proof"); 

Chipollini, 814 F.2d at 897; Dillon, 746 F.2d at 1003. 

 Thus, it is not only disbelief in the employer's 

proffered reason that would suffice to sustain the plaintiff's 

case, as the dissent argues. It is the jury's determination that 

the reason given was pretextual together with the evidence that 

supported the prima facie case that will sustain a finding of 

intentional discrimination made after a proper charge. 

 The role of determining whether the inference of 

discrimination is warranted must remain within the province of 

the jury, because a finding of discrimination is at bottom a 

determination of intent. In making that finding, the jury must 

perform its traditional function of assessing the weight of the 

evidence, the credibility of the witnesses through observation of 

both direct testimony and cross-examination at trial, and the 

strength of the inferences that can be drawn from the elements of 

the prima facie case and the evidence that undermines the 

employer's proffered reasons for its actions. This is uniquely 
the role of the factfinder, not the court. See Barber v. CSX 

Distribution Servs., 68 F.3d 694, 700 (3d Cir. 1995)("Evaluation 

of witness credibility is the exclusive function of the jury, and 

where the only evidence of intent is oral testimony, a jury could 

always choose to discredit it." (quoting Bhaya v. Westinghouse 

Elec. Corp., 832 F.2d 258, 262 (3d Cir. 1987), cert. denied, 488 

U.S. 1004 (1989))); see also Aikens, 460 U.S. at 716 ("It is true 

that it is very difficult to prove what the state of a man's mind 

at a particular time is, but if it can be ascertained it is as 

much a fact as anything else." (quoting Edgington v. Fitzmaurice, 

29 Ch. Div. 459, 483 (1885)); Chipollini, 814 F.2d at 899 ("The 

issue of the defendant's intent at the time of the plaintiff's 

discharge is clearly a factual question."). 

 This does not mean that the courts in discrimination 

cases lose their traditional obligation, when faced with a motion 

for judgment as a matter of law, to review the adequacy of the 

showing presented to the factfinder. The district court must 

determine whether the plaintiff has cast sufficient doubt upon 

the employer's proffered reasons to permit a reasonable 

factfinder to conclude that the reasons are incredible, and our 

previous cases have explained in detail the plaintiff's burden in 

this regard. See, e.g., Fuentes, 32 F.3d at 764-65 ("[T]he nonmoving plaintiff must demonstrate such weaknesses, 

implausibilities, inconsistencies, incoherencies, or 

contradictions in the employer's proffered legitimate reasons for 

its action that a reasonable factfinder could rationally find 

them `unworthy of credence . . . .'" (quoting Ezold v. Wolf, 

Block, Schorr & Solis-Cohen, 983 F.2d 509, 531 (3d Cir. 1992), 

cert. denied, 510 U.S. 826 (1993))). But once the court is 

satisfied that the evidence meets this threshold requirement, it 

may not pretermit the jury's ability to draw inferences from the 

testimony, including the inference of intentional discrimination 

drawn from an unbelievable reason proffered by the employer. 

 With these legal principles before us, we turn to the 

district court's order granting judgment for DuPont as a matter 

of law on Sheridan's jury verdict that she was constructively 

discharged as a result of discrimination. We exercise plenary 

review of the district court's order granting DuPont's motion for 

judgment as a matter of law. Seman v. Coplay Cement Co., 26 F.3d 

428, 431 (3d Cir. 1994). 

 B. 

 Factual Issues 

 We need not recount all of the evidence adduced at the 

trial because we examine the record with the limited purpose of 

ascertaining whether there was sufficient evidence to withstand 

judgment as a matter of law. In doing so, we must look at the 

evidence in the light most favorable to Sheridan, the verdict 

winner, and draw all reasonable inferences in her favor. SeeHofkin v. 

Provident Life & Accident Ins. Co., 81 F.3d 365, 369 

(3d Cir. 1996). 

 At the time of the events that formed the basis of this 

case, Sheridan was one of five head captains at the hotel, 

occupying the position of Head Captain of the Green Room for the 

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

position in 1989 following a series of steady promotions. In 

addition to those promotions, Sheridan had received numerous 

commendations for her job performance. 

 Focusing on the period immediately before that at 

issue, there was evidence that in May 1989 Sheridan was nominated 

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

"outstanding" work. She received merit raises in May 1990 and 

February 1991. In July 1990 she received a "Way to Go" award 

from the Personnel & Administrative Services Division for "going 

beyond the call of duty." DuPont's October 29, 1990 performance 

review, signed by two supervisors including defendant Jacques 

Amblard, rated Sheridan overall "very good," the second highest 

rating. She was rated "outstanding" for "Interpersonal 

Relationships," "Planning/Organizing," and "Problem-Solving." 

Although that report noted that "[a]s a team player, 

strengthening is needed to improve the overall relationship with 

the rest of the operation," the report listed one of her 

strengths as "[v]ery good guest relations, organized." The 

report stated that "Barbara's persistence has paid off by guest 

loyalty, staff does not call off sick, and overall very good 

morale from the support team." Even Sheridan's lowest mark, 

given for "Attendance/Punctuality/Dependability," was 

"Satisfactory." App. at 197-98. 

 In December 1990, Sheridan won a $1,000 accomplishment 

award. The letter informing her of the award referred to her as 

"a role model" and "a true ambassador for the company." App. at 

151. Other restaurant employees received awards ranging from 

$200-$500, but Sheridan was the only employee to receive an award 

as high as $1000. App. at 287. In January 1991, Sheridan was 

chosen as one of about 20 DuPont employees to appear in a company 

video. App. at 734. On October 1, 1991, Sheridan received a 

promotion and salary increase. 

 DuPont attempted to paint a different picture to the 

jury. Notwithstanding the record evidence of promotions and 

commendations, it contended that Sheridan's performance began to 

deteriorate in early 1991. DuPont produced evidence that 

supervisors met with Sheridan, expressed dissatisfactions, and 

directed her to improve in various categories. For example, in 

February 1991, Ed Barba, then the Green Room's Manager, listed 

"corrective measures" that Sheridan should take, including 

"maintaining an accurate cover count sheet" to insure that 

"covers" (customers) were distributed fairly among the staff, 

following the "grooming policy" which required that she report to 

work on time and in full dress, and refraining from using the 

Green Room as a break room and for smoking. App. at 228. 

Nicholas Waller testified that in the summer of 1991, as Manager 

of Restaurants, he met with Sheridan to discuss alleged 

complaints that Sheridan had asked Green Room employees to help 

her with personal tasks, such as parking her car, giving her a 

wake-up call, or taking her personal mail to the post office, and 

that she had rewarded employees who complied by giving them 

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

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

perceived with her performance, including tardiness and 

continuing disregard for the hotel's grooming policy. App. at 

206, 885. On November 10, 1991, Maisel placed Sheridan on 

probation, ostensibly on the ground that she had not corrected 

her performance. Maisel warned Sheridan that her failure to 

follow the hotel's policies could result in her termination. 

App. at 208. 

 In support of its claim of Sheridan's inadequate 

performance, DuPont introduced various notes and records that 

DuPont had compiled of specific infractions by Sheridan. 

Illustrative of DuPont's complaints is a memo by Barba to the 

file that on one occasion he had observed Sheridan smoking in the 

Green Room Bar and putting on makeup. A report meticulously 

listed other details to support placing Sheridan on probation. 

DuPont contended that even while Sheridan was on probation, she 

continued her inadequate performance. 

 An important part of DuPont's defense for its 

employment actions centered on its claim that Sheridan had 

engaged in "comping," i.e., giving away complimentary food and 

drinks without ringing up complimentary checks. The hotel began 

investigating Sheridan for this activity in late February, 1992, 

and its record of the investigation lists statements of numerous 

co-workers. App. at 222-26. James Dougherty, a bartender who 

was one of DuPont's principal witnesses on "comping," reported to 

DuPont that due to his concerns about numerous "discrepancies" 

and "cash handling problems" with Sheridan, he began to keep 

track of the amount of free liquor Sheridan gave away. He 

recorded that it totaled $921.75 from November 1, 1991 to 

February 18, 1992, with $417.25 worth of drinks given away in 

December alone. App. at 222. Dougherty testified at trial that 

each time he saw Sheridan serve a free drink, he would record the 

date and dollar amount of the drink, and claimed that his dates 

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

 Maisel testified that based on the hotel's internal 

investigation, DuPont decided that Sheridan should be reassigned 

to a non-supervisory position that would not require her to 

handle cash. App. at 910. Sheridan was offered three options: 

front desk receptionist, banquet server, or health club 

attendant, with no diminution of salary. The hotel claimed that 

she would be eligible for advancement in any of those positions, 

although Sheridan offered evidence at trial that suggested 

otherwise. See App. at 473-75, 776. After considering the offer 

for some weeks, Sheridan resigned. 

 Sheridan's testimony at trial portrayed the events 

differently than did DuPont. It was her position that the 

alleged dissatisfaction with her performance stemmed from her 

complaint of sex discrimination which she made in the fall of 

1991, when the hotel reorganized its structure to eliminate the 

individual restaurant managers and to place a new manager over 

all of the restaurants in the hotel. The hotel did not advertise 

the position, considered only five of its own employees for the 

new post (all men), and selected Maisel. DuPont did not consider 

Sheridan for the position, id., and Sheridan complained to 
Amblard at least three times in the period of September and 

October 1991 that she was not promoted due to gender 

discrimination. App. at 51-52. She also testified that around 

this time, Amblard told her repeatedly that he planned to watch 

her "like a dog" and "like a hawk." App. at 748. Sheridan's 

position was that the hotel's recordkeeping of details of her 

daily activity was "nitpicking" in retaliation for her complaints 

of sex discrimination. App. at 1337. She further sought to 

portray Amblard as a sexist and testified that, when she was with 

one of the other male supervisors, he would ignore her and 

instead speak only to the man. App. at 748. 

 In addition to the affirmative evidence of her own 

accomplishments, Sheridan presented evidence at trial that was 

directed to impeaching the credibility of DuPont's witnesses, 

particularly, but not limited to, Dougherty and Maisel. Sheridan 

demonstrated that for two weeks in January 1992, during which 

Dougherty listed three dates when she allegedly dispensed free 

drinks, she had reported for jury duty at the Superior Court. 

App. at 173-79, 540-43. Even a document handwritten by Maisel 

showed that another head captain was scheduled to cover 

Sheridan's shift on those days. App. at 167. Maisel's schedule 

also indicated that Sheridan was not scheduled for work on 

December 23 and 24, 1991, although Dougherty's list included 

these dates among those when Sheridan allegedly required him to 

deliver complimentary drinks. App. at 167, 227, 540. In fact, 

Maisel's written work schedule could be viewed as contradicting 

Dougherty's list as to seven separate dates. 

 In seeking to show the pretextual nature of DuPont's 

articulated reasons, Sheridan noted, inter alia, the temporal 

proximity of her complaints to Amblard of sex discrimination and 

his statements that he would watch her like a "hawk" to the 

subsequent surfacing of dissatisfaction with her performance, the 

meticulous recordkeeping of the details of her daily activities, 

and the hotel's investigations into her alleged "comping." 

 Thus, it is clear that the jury in this case was faced 

with evidence on both sides of the issues raised by the parties. 

The jury's verdict for Sheridan on her constructive discharge 

claim shows that the jury accepted Sheridan's view on this claim 

and rejected DuPont's explanation as pretextual. 

 We have previously cautioned that "[i]n determining 

whether the evidence is sufficient to sustain liability, the 

court may not weigh the evidence, determine the credibility of 

witnesses, or substitute its version of the facts for the jury's 

version." Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 

(3d Cir. 1993). A reasonable jury could have disbelieved 

DuPont's proffered reasons for its actions based on Sheridan's 

evidence and its rejection of the credibility of certain of 

DuPont's principal witnesses, such as Dougherty and Maisel. We 

find no paucity of evidence on which the jury could have based 

its finding for Sheridan on her constructive discharge claim. 

 Under the applicable law, a plaintiff who voluntarily 

resigned may maintain a case of constructive discharge when the 

employer's allegedly discriminatory conduct creates an atmosphere 

that is the constructive equivalent of a discharge. See Gray v. 
York Newspapers, Inc., 957 F.2d 1070, 1079 (3d Cir. 1992). We 

apply an objective test to determine whether "the employer 

knowingly permitted conditions of discrimination in employment so 

intolerable that a reasonable person subject to them would 

resign." Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1084 

(3d Cir. 1996) (quoting Goss v. Exxon Office Systems Co., 747 

F.2d 885, 888 (3d Cir. 1984)). 

 In denying DuPont's motion for summary judgment, the 

district court rejected DuPont's argument that there was no basis 

on which a jury could find that the conditions to which Sheridan 

claimed she was subjected could have reached the level that would 

constitute a constructive discharge. Instead, the court held 

that if Sheridan's version of the facts were accepted by a trier 

of fact, it would be reasonable for the trier of fact to conclude 

that resignation was Sheridan's only option. Thus, when the 

court instructed the jury, it charged that for the jury to find 

that DuPont constructively discharged Sheridan, she must have 

proved by a preponderance of the evidence that DuPont 

"intentionally made [her] working conditions so intolerable that 

a reasonable person would feel forced to resign" and that 

"[Sheridan's] gender was the sole motivating factor in the 

defendant's conduct." App. at 1487. 

 The evidence of the series of investigative activities, 

allegations of improprieties, placement on probation after more 

than a decade of satisfactory performance, and the ultimate 

removal of Sheridan from her supervisory position in the highly 

reputed Green Room to one of three far less prestigious dead-end 

positions, such as the health club attendant, could have been 

viewed by the jury as meeting the criteria of a constructive 

discharge. The jury returned an unqualified verdict finding that 

DuPont had constructively discharged Sheridan and did so based on 

her gender. We cannot hold that Sheridan failed to present 

sufficient evidence to withstand DuPont's motion for judgment as 

a matter of law, and therefore will reverse the district court's 

order to that effect. 

 C. 

 Grant of a New Trial 

 Because the district court's ruling focused primarily 

on its decision to grant DuPont's motion for judgment as a matter 

of law, the court's explanation for its grant of a new trial was 

brief. The court noted in a footnote that it was obliged under 

Fed.R.Civ.P. 50(c) to make a conditional ruling on the 

defendant's motion for a new trial. To comply with that 

requirement, the court stated merely that it "would grant the 

motion for a new trial because the jury's verdict is contrary to 

the weight of the evidence." Sheridan (July 14, 1994) at 12 

n.11. 

 We are unable to ascertain the extent to which this 

ruling was affected by the court's misconception that direct 

evidence of discriminatory intent was necessary to sustain the 

jury's verdict, i.e., its understanding that "[i]n order to 

demonstrate that gender was a motivating factor, plaintiff would 

have to point to some evidence that that was the motive of those 

in the decision-making process." D. Ct. Opinion at 11-12. 
Because such evidence is not a prerequisite to a finding of 

intentional discrimination, we believe the district court should 

reconsider whether a new trial is warranted in light of the 

correct legal principles. 

 It is also unclear whether the district court applied 

the complete test for ruling on a new trial motion. In granting 

that motion, the district court merely concluded that the jury's 

verdict was contrary to the weight of the evidence. Although we 

recognize that a new trial may be granted even if the evidence is 

legally sufficient to support the verdict, Roebuck v. Drexel 

Univ., 852 F.2d 715, 735-36 (3d Cir. 1988), we have nonetheless 

cautioned that a district court should grant a new trial on the 

basis that the verdict was contrary to the weight of the evidence 

"only where a miscarriage of justice would result if the verdict 

were to stand," Williamson v. Consolidated Rail Corp., 926 F.2d 

1344, 1352 (3d Cir. 1991). We have explained that this stringent 

standard is necessary "to ensure that a district court does not 

substitute its `judgment of the facts and the credibility of the 

witnesses for that of the jury. Such an action effects a 

denigration of the jury system and to the extent that new trials 

are granted the judge takes over, if he does not usurp, the prime 

function of the jury as the trier of facts.'" Fineman v. 

Armstrong World Indus., Inc., 980 F.2d 171, 211 (3d Cir. 1992) 

(quoting Lind v. Schenley Indus. Inc., 278 F.2d 79, 90 (3d Cir.) 

(en banc), cert denied, 364 U.S. 835 (1960)), cert. denied, 507 

U.S. 921 (1993). 

 Therefore, before imposing on Sheridan the burden and 

expense of a new trial, we will remand to require the district 

court to determine whether, inasmuch as Sheridan was not obliged 

to produce direct evidence of discriminatory intent, the jury's 

verdict for Sheridan was against the great weight of the evidence 

and would effect a miscarriage of justice. 

 We have previously remarked that the district court's 

instruction to the jury placed on Sheridan a higher burden of 

proof than our cases require. See note 2, supra. If there were 

a new trial, Sheridan would not have to prove that discrimination 

was the sole cause of DuPont's action but only that

discrimination was a motivating factor in its decision. SeeMiller v. 

CIGNA Corp., 47 F.3d 586 (3d Cir. 1995) (en banc). 

 Sheridan has raised other trial errors to support her 

motion for a new trial, but we need consider briefly only one. 

Sheridan argues that the district court erred in excluding 

testimony of a female co-worker that Amblard stated, after 

watching a woman in a tight dress walk by, that he "would like to 

grab that," App. at 699-700, 1520, and that on another occasion 

Amblard rejected her offer to park cars at the hotel on the 

ground that she could not park cars because she was a woman. 

App. at 1521. The district court excluded this testimony under 

Federal Rules of Evidence 401 and 403, finding these statements 

"prejudicial and irrelevant." App. at 44. We review a district 

court's rulings concerning the admission of evidence for abuse of 

discretion. Glass v. Philadelphia Elec. Co., 34 F.3d 188, 191 

(3d Cir. 1994). Although Amblard's comments would be relevant 

to determining whether he was biased against women generally and 
therefore the district court took too narrow a view in holding 

that they had no probative value, we cannot conclude that the 

district court abused its discretion in deciding that Amblard's 

statements were more prejudicial than probative of the ultimate 

issue of whether DuPont's employment actions as to Sheridan were 

caused by gender-based animus. We turn then to the final issue 

before us, the court's dismissal of Amblard as a defendant. 

 D. 

 Individual Liability Under Title VII

 Sheridan contends that the district court erred in 

dismissing Jacques Amblard as a defendant on the ground that 

individual employees may not be held liable under Title VII. 

 Title VII provides, in relevant part: 

 It shall be an unlawful employment practice 

 for an employer-- 

 (1) to fail or refuse to hire or to 

 discharge any individual, or otherwise to 

 discriminate against any individual with 

 respect to his compensation, terms, 

 conditions, or privileges of employment, 

 because of such individual's race, color, 

 religion, sex, or national origin . . . . 

42 U.S.C. § 2000e-2(a) (emphasis added). The statute defines 

"employer" as "a person engaged in an industry affecting commerce 

who has fifteen or more employees . . . and any agent of such a 

person." Id. § 2000e(b). 

 Sheridan argues that there is no language in the 

statute excluding individuals, and she looks to the law of agency 

to support the proposition that agents can be held jointly liable 

with employers for wrongs resulting from their tortious conduct. 

She also contends that we should interpret the 1991 amendments, 

which added to the remedies provided in Title VII a provision for 

compensatory and punitive damages, as suggesting that Congress 

intended to hold individual defendants liable because, unlike 

equitable remedies such as reinstatement which are uniquely 

available from an employer, these newly available monetary 

remedies can be forthcoming from an employee. 

 These arguments are not without some force. However, 

the clear majority of the courts of appeals that have considered 

this question have held that individual employees cannot be held 

liable under Title VII. See Williams v. Banning, 72 F.3d 552 

(7th Cir. 1995); Tomka v. Seiler Corp., 66 F.3d 1295, 1313-17 (2d 

Cir. 1995); Gary v. Long, 59 F.3d 1391, 1399 (D.C.Cir.), cert. 

denied, 116 S.Ct. 569 (1995); Grant v. Lone Star Co., 21 F.3d 649 

(5th Cir.), cert. denied, 115 S.Ct. 574 (1994); Miller v. 

Maxwell's Int'l Inc., 991 F.2d 583, 587-88 (9th Cir. 1993), cert. 

denied, 510 U.S. 1109 (1994). Others appear to lean in that 

direction, see, e.g., Lenhardt v. Basic Inst. of Technology, 

Inc., 55 F.3d 377 (8th Cir. 1995)(interpreting parallel state 

statute to preclude employee liability); Birkbeck v. Marvel 

Lighting Corp., 30 F.3d 507, 510-511 & n.1)(4th Cir.)(deciding 

issue under ADEA as to "personnel decisions of a plainly 
delegable character"), cert. denied, 115 S.Ct. 666 (1994), while 

others have either permitted liability in an employee's official 

capacity only, see Cross v. Alabama, 49 F.3d 1490, 1504 (11th 

Cir. 1995); Garcia v. ELF Atochem North America, 28 F.3d 446, 451 

n.2 (5th Cir. 1994), or left the issue an "open question," Ball 

v. Renner, 54 F.3d 664, 668 (10th Cir. 1995). 

 In our independent examination of this issue, we find 

most significant the fact that when Congress amended the statute 

in 1991 to provide a detailed sliding scale of damages ranging 

from $50,000 for an employer of more than 14 and fewer than 101 

employees, to $300,000 for employers with more than 500 

employees, 42 U.S.C. § 1981a(b)(3), it made no reference as to 

the amount of damages, if any, that would be payable by 

individuals. This strongly suggests that Congress did not 

contemplate that such damages would be assessed against 

individuals who are not themselves the employing entity. SeeTomka, 66 

F.3d at 1315; Maxwell's, 991 F.2d at 587 n.2; Ascolese 

v. Southeastern Pa. Transp. Auth., 902 F. Supp. 533, 540 (E.D.Pa. 

1995), modified on other grounds, 925 F. Supp. 351 (1996). 

 Moreover, we note that Congress had previously 

expressed its concern about the impact of Title VII litigation on 

small businesses when it excluded businesses with fewer than 

fifteen employees from the definition of an "employer." It is 

reasonable to infer that Congress's concern in that regard 

applies as well to individuals. See Williams, 72 F.3d at 553; 

Tomka 66 F.3d at 1314 (citing remarks of legislators indicating 

concern with burdens imposed upon small businesses forced to 

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

 For these reasons, as well as some of the others cited 

by the other circuits, we are persuaded that Congress did not 

intend to hold individual employees liable under Title VII. 

 III. 

 CONCLUSION 

 For the foregoing reasons, we will reverse the district 

court's entry of judgment in DuPont's favor on the constructive 

discharge claim, and remand to the district court to reconsider 

DuPont's motion for a new trial. 

 Sheridan v. E.I. DuPont 

No. 94-7509 

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

 I join part IID of the opinion of the court. I also 

agree with the court's disposition of the plaintiff's evidentiary 

argument. See Maj. Op. 37-38. I dissent, however, from parts 

IIA - C of the court's opinion. 

 I. 

 My primary disagreement with the majority concerns the 

test for determining whether a defense motion for summary 

judgment or judgment as a matter of law should be granted in an 
employment discrimination case governed by the procedural scheme 

sanctioned in McDonnell Douglas Corp. v. Green, 411 U.S. 792 

(1973). Like several other courts of appeals, see Maj. Op. 15- 

16, the majority here holds that when the plaintiff has made out 

a prima facie case and has offered enough evidence to support a 

finding that the explanation was pretextual, a defense motion for 

summary judgment or judgment as a matter of law must always be 

denied. However, there is strong contrary authority, which the 

majority does not acknowledge. The in banc Fifth Circuit, by a 

vote of 16 to 1, has rejected the majority's position. Rhodes v. 

Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir. 1996) (in banc). 

So have the First and Eleventh Circuits. Isenbergh v. KnightRidder Newspaper Sales, Inc., 97 F.3d 436, 442-43 (11th Cir. 

1996); Woods v. Friction Materials, Inc., 30 F.3d 255, 260-61 n.3 

(1st Cir. 1994); LeBlanc v. Great American Ins. Co., 6 F.3d 836, 

842-43 (1st Cir. 1993), cert. denied, 114 S.Ct. 1398 (1994). I 

believe that these other courts have analyzed the question more 

accurately than the majority has here. 

 If the majority had merely said that, under the 

circumstances described above, a defense motion for summary 

judgment or judgment as a matter of law must generally be denied, 

I would agree. When a plaintiff makes out a prima facie case and 

there is sufficient evidence in the record to permit a rational 

trier of fact to find that the employer's explanation is untrue, 

a defense motion for summary judgment or judgment as a matter of 

law should usually be denied. But not always, as the majority 

contends. 

 In my view, the correct test is the following: a 

defense motion for summary judgment or judgment as a matter of 

law should be granted when the evidence in the record could not 

persuade a rational trier of fact that intentional discrimination 

on the ground alleged by the plaintiff was a determinative cause 

of the challenged employment action. This does not mean that a 

plaintiff, in order to reach the trier of fact, must always prove 

"pretext plus," i.e., that the plaintiff must always produce some 

evidence in addition to what is necessary to establish a prima 

facie case and to show that the employer's explanation is 

pretextual. On the contrary, in most cases, such additional 

proof is not needed. But I disagree with the majority that proof 

of the elements of the prima facie case and proof of pretext are 

always enough. 

 II. 

 A. The key to the question at issue lies in the nature 

of the "presumption" of discrimination that arises when the 

plaintiff establishes the elements of a prima facie case. In 

Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 

(1981), the Court explained that the "[e]stablishment of the 

prima facie case in effect creates a presumption that the 

employer discriminated against the employee." This presumption 

"places upon the defendant the burden of producing an explanation 

to rebut the prima facie case -- i.e., the burden of producing 
evidence that the adverse employment actions were taken `for a 

legitimate nondiscriminatory reason.'" St. Mary's Honor Ctr. v. 

Hicks, 509 U.S. 502, 506 (1993), (quoting Burdine, 450 U.S. at 

254). But while this presumption shifts the burden of production 

to the defendant, "`[t]he ultimate burden of persuading the trier 

of fact that the defendant intentionally discriminated against 

the plaintiff remains at all times with the plaintiff.'" Hicks, 

509 U.S. at 507 (quoting Burdine, 450 U.S. at 253). "In this 

regard," Hicks observed, "it operates like all presumptions, as 

described in Federal Rule of Evidence 301." 509 U.S. at 507. 

 Critical for present purposes is what happens when the 

defendant satisfies its production burden. Burdine addressed 

this question in the following passage: 

 If the defendant carries this burden of production, 

 the presumption raised by the prima facie case is 

 rebutted, 10/ and the factual inquiry proceeds to a new 

 level of specificity. 

 

 10/ See generally J. Thayer, Preliminary Treatise on 

 Evidence 346 (1898). In saying that the presumption 

 drops from the case, we do not imply that the trier of 

 fact no longer may consider evidence previously 

 introduced by the plaintiff to establish a prima facie 

 case. A satisfactory explanation by the defendant 

 destroys the legally mandatory inference of 

 discrimination arising from the plaintiff's initial 

 evidence. Nonetheless, this evidence and inferences 

 properly drawn therefrom may be considered by the trier 

 of fact on the issue of whether the defendant's 

 explanation is pretextual . . . . 

450 U.S. at 255 & n.10. 

 Hicks similarly explained that, if the defendant meets 

its production burden, "the McDonnell Douglas framework -- with 

its presumptions and burdens -- is no longer relevant" and should 

not be "resurrect[ed.]" 509 U.S. at 510. "The presumption, 

having fulfilled its role of forcing the defendant to come 

forward with some response, simply drops out of the picture," and 

"the trier of fact proceeds to decide the ultimate question: 

whether plaintiff has proven that the defendant intentionally 

discriminated against him [on the ground alleged.']" Hicks, 509 

U.S. at 510-11 (quoting Burdine, 450 U.S. at 253). 

 B. I interpret these passages to mean that the 

McDonnell Douglas presumption is governed by the "bursting 

bubble" theory associated with Professor James Bradley Thayer. 

See 2 McCormick on Evidence § 344 at 462 (4th ed. 1992). Under 

this theory, "the only effect of a presumption is to shift the 

burden of producing evidence with regard to the presumed fact. 

If that evidence is produced by the adversary, the presumption is 

spent and disappears." Id. The case then proceeds "as though 

there had never been a presumption at all." 1 Weinstein's 

Evidence ¶300[01] at 300-4 (1996)(footnote omitted). 
 That Burdine and Hicks regarded the McDonnell Douglaspresumption 

as governed by this theory is suggested by the 

following. First, Burdine states that the term "presumption" 

properly "`refers only to a device for allocating the production 

burden,'" 450 U.S. at 254 n.8 (emphasis added) (citation omitted) 

-- the orthodox "bursting bubble" view. Second, both Burdine and 

Hicks employ classic "bursting bubble" language to describe what 

happens to a presumption if the defendant satisfies its 

production burden: the presumption then "drops from the case," 

"drops out of the picture," is "no longer relevant," and 

should not be "resurrect[ed]." Third, Burdine's footnote 10, 

which was quoted above, appears to set out the pure "bursting 

bubble" theory: once the presumption is burst, all that remains 

is "the plaintiff's initial evidence" and "inferences properly 

drawn therefrom." 450 U.S. at 255 n.10. In addition, this 

footnote begins with a citation to Thayer, who stated that once 

the opponent of a presumption offers sufficient counterproof, 

"[all is then turned into an ordinary question of evidence, and 

the two or three general facts presupposed in the rule of 

presumption take their place with the rest, and operate, with 

their own natural force, as a part of the total mass of probative 

matter." James B. Thayer, Preliminary Treatise on Evidence 346 

(1898). Finally, both Burdine and Hicks invoke Federal Rule of 

Evidence 301, which has generally been interpreted as embodying 

the "bursting bubble" theory. See e.g., McKenna v. Pacific Rail 

Serv., 32 F.3d 820, 829-30 (3d Cir. 1994); id. at 841 (Mansmann, 

J., dissenting); A.C. Aukerman Co. v. R.L. Chaides Constr., 960 

F.2d 1020, 1037-1038 (Fed. Cir. 1992); In re Yoder Co., 758 F.2d 

1114, 1120 & n.13 (6th Cir. 1985); Legille v. Dann, 544 F.2d 1, 

5-7 (D.C. Cir. 1976); 10 Moore's Federal Practice § 301.04 [4.-1] 

at III-22 (1995-96 Supp.); 1 Weinstein's Evidence 301-9; 9 

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

 In McKenna, supra, all of the panel members agreed that 

the McDonnell Douglas presumption and Federal Rule of Evidence 

301 embody the "bursting bubble" theory. Writing for the 

majority, Judge Lewis concluded that the McDonnell Douglaspresumption is 

governed by Federal Rule of Evidence 301 and that 

under this rule "the introduction of evidence to rebut a 

presumption destroys that presumption, leaving only that evidence 

and its inferences to be judged against the competing evidence 

and its inferences to determine the ultimate question at issue." 

32 F.3d at 830. Judge Lewis then went on to hold that the same 

rule applies under the New Jersey Law Against Discrimination. 

Id. In dissent, Judge Mansmann agreed that the "bursting bubble" 

theory applies to federal claims, but contended that the New 

Jersey presumption has a more durable effect. Specifically, she 

wrote that "the federal rule `bursts the bubble' of the 

presumption, while the New Jersey rule creates an issue for the 

jury." Id. at 841 (Mansmann, J., dissenting). With respect to 

their analysis of federal law, I think that both the McKennamajority and 

dissent were right. 

 C. The version of Rule 301 that was proposed by the 

Advisory Committee and promulgated by the Supreme Court rejected 

the "bursting bubble" theory in favor of the theory advocated by 
Professor Edmund M. Morgan and others. Proposed Rule of 

Evidence 301 and Advisory Committee Note, 56 F.R.D. 183, 208 

(1973). Under this proposed rule, a presumption would have 

shifted the burden of persuasion. Id. 

 Congress, however, rejected this proposal. The House 

of Representatives instead adopted a rule that represented an 

"intermediate position" between the "Thayer" and "Morgan" 

theories. H.R. Rep. No. 93-650, 93d Cong., 1st Sess. 7 (1973), 

reprinted in 1974 U.S.C.C.A.N. 7075, 7081. The House rule 

provided that "a presumption imposes on the party against whom it 

is directed the burden of going forward with the evidence, and, 

even though met with contradicting evidence, is sufficient proof 

of the fact presumed to be considered by the trier of fact." 120 

Cong. Rec. 2370 (1974). 

 In the Senate, the Advisory Committee and the Judicial 

Conference's Standing Committee on Practice and Procedure 

advocated a return to the originally proposed version of Rule 

301. Dismissing the House compromise as conceptually unsound, 

the committee argued that "[t]he basic choice is between the socalled `bursting bubble' theory and one shifting the burden of 

persuasion." Reporter's Memorandum, for the Advisory Committee 

on Evidence and the Standing Committee, to the Senate Judiciary 

Committee, reprinted in 1 Weinstein's Evidence at 301-3. The 

Senate rejected the House approach and passed the present version 

of Rule 301. S. Rep. No. 93-1277, 93d Cong., 2d Sess. , 

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

(1974). 

 The Advisory Committee and the Committee on Rules of 

Practice and Procedure then turned to the Conference Committee 

and again urged the adoption of the originally proposed version 

of Rule 301, arguing once more that "[b]asically the choice to be 

made in treating the effect to be given presumptions lies between 

giving them only the effect of a `bursting bubble' and giving 

them the greater effect of imposing a burden of disproof once 

evidence has established the conditions that call the presumption 

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

the Conference Committee recommended adoption of the Senate 

version, Conf. Rep. No. 93-1597, 93d Cong., 2d Sess. (1974), 

reprinted in 1974 U.S.C.C.A.N. 7098, 7099, and this

recommendation was enacted. 120 Cong. Rec. 40,070, 40,897 

(1974). 

 Rule 301 states: 

 In all civil actions and proceedings not otherwise 

 provided for by Act of Congress or by these rules, a 

 presumption imposes on the party against whom it is 

 directed the burden of going forward with evidence to 

 rebut or meet the presumption, but does not shift to 

 such party the burden of proof in the sense of the risk 

 of nonpersuasion, which remains throughout the trial 

 upon the party on whom it was originally cast. 

 Like the members of the McKenna panel and the other 

previously mentioned authorities, I think that the most 

reasonable interpretation of Rule 301 is that it incorporates the 
"bursting bubble" theory. The text of the rule supports this 

conclusion since it does not even hint that a presumption does 

anything but shift the burden of production. If Congress had 

intended for a presumption to have any further effect, such as 

guaranteeing that the presumed fact would not be rejected at the 

summary-judgment or judgment-as-a-matter-of-law stage, I think 

that Congress would have said so in the text of the rule. I do 

not think that Congress would have left it for the courts to 

divine, without any clue in the language of the rule, that a 

presumption should have such an important additional effect. 

 Furthermore, the legislative history suggests that 

Congress, advised that it was compelled to choose between the 

Thayer and Morgan approaches, adopted "the pure Thayer rule." 1 

Weinstein's Evidence at 301-9. Professors Wright and Graham 

disagree with this position based on a passage in the Conference 

Report. See 21 Charles A. Wright and Kenneth W. Graham, Jr., 

Federal Practice and Procedure §§ 5120 at 547 & n.27, 5126 at 

609-10 & nn.23-24 (1977). Discussing the consequences that 

follow when the adverse party meets its production burden, the 

Conference Report states: 

 If the adverse party does offer evidence contradicting 

 the presumed fact, the court cannot instruct the jury 

 that it may presume the existence of the presumed fact 

 from proof of the basic facts. The court may, however, 

 instruct the jury that it may infer the existence of 

 the presumed fact from proof of the basic facts. 

Conf. Rep. 93-1597, supra, at , reprinted in 1974 U.S.C.C.A.N. 

at 7099 (emphasis deleted; emphasis added). Because the 

highlighted sentence discusses jury instructions, Professors 

Wright and Graham view it as showing that the Conference 

Committee contemplated that a presumption, even if met with 

enough counterproof to satisfy the adverse party's production 

burden, would nevertheless serve to take the factual question to 

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

 Like the Sixth Circuit, In re Yoder Co., 758 F.3d at 

1119-20 n.13, I do not find this interpretation compelling. The 

Sixth Circuit wrote: 

 The emphasized portion of this quotation is not 

 inconsistent with the bursting bubble theory. . . . 

 The statement that the jury may be instructed to 

 consider an inference is most naturally read as 

 permitting such an instruction when called for by the 

 existence of a logical inference. 

Id. (emphasis in original). This reading is at least as 

reasonable as the alternative offered by Professors Wright and 

Graham, and I am therefore unwilling, based solely on the 

statement in question, to conclude that Rule 301 was intended to 

give presumptions an important effect not mentioned in the text 

of the rule. 

 I must acknowledge that a passage in Hicks may be read 

as supporting Professors Wright and Graham's argument, at least 

with respect to the McDonnell Douglas presumptions. Hicksstated: 
 The factfinder's disbelief of the reasons put forward 

 by the defendant (particularly if disbelief is 

 accompanied by a suspicion of mendacity) may, together 

 with the elements of the prima facie case, suffice to 

 show intentional discrimination. Thus, rejection of 

 the defendant's proffered reasons will permit the trier 

 of fact to infer the ultimate fact of intentional 

 discrimination,4/ and the Court of Appeals was correct 

 when it noted that, upon such rejection, "[n]o 

 additional proof of discrimination is required." 

 

 

 4/ Contrary to the dissent's confusion-producing 

 analysis, post, at 535-536, there is nothing whatever 

 inconsistent between this statement and our later 

 statements that (1) the plaintiff must show "both that 

 the reason was false, and that discrimination was the 

 real reason," infra, at 515, and (2) "it is not enough 

 . . . to disbelieve the employer," infra, at 519. Even 

 though (as we say here) rejection of the defendant's 

 proffered reasons is enough at law to sustain a finding 

 of discrimination, there must be a finding of 

 discrimination. 

509 U.S. at 511 (all emphases in original) (ellipsis in 

original). 

 Read in isolation, this passage may seem to suggest 

that the facts underlying the prima facie case plus the rejection 

of the employer's explanation are always sufficient to take the 

case to the jury. This is the interpretation adopted in Fuentes 

v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994), and by the majority 

here. See Maj. Op. 11-12. However, like the First, Fifth, and 

Eleventh Circuits, I do not think that this reading is compelled. 

See Isenbergh, 97 F.3d at 442-45; Rhodes, 75 F.3d at 993-95; 

Woods, 30 F.3d at 260-61 n.3. Instead, I believe that this 

passage can reasonably be interpreted as simply rejecting the 

"pretext plus" approach that Justice Souter attributed to the 

Court in his dissent (509 U.S. at 535 (Souter, J., dissenting)) 

to which the Court referred. 509 U.S. at 511 n.4. Under the 

"pretext plus" approach, as summarized in the law review article 

that Justice Souter cited, "the plaintiff must produce some 

additional evidence other than the evidence supporting the prima 

facie case and other than the fact of the defendant's deception." 

Catherine J. Lanctot, The Defendant Lies and the Plaintiff Loses: 

The Fallacy of the `Pretext-Plus' Rule in Employment 

Discrimination Cases, 43 Hastings L.J. 57, 87-88 (1991). The 

previously quoted passage from Hicks may be interpreted to mean 

that such additional proof (i.e., the "plus" in "pretext plus") 

is not always required. Accordingly, when the Court wrote (509 

U.S. at 511) that "rejection of the defendant's proffered reasons 

will permit the trier of fact to infer the ultimate fact of 

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

in the sense that the trier of fact is not precluded by any legal 

rule, such as "pretext plus," from doing so -- if such an 

inference is factually warranted. The same interpretation may be 

given to the Court's subsequent statement that "upon [the] 

rejection [of the defendant's proffered reason] `[n]o additional 

proof of discrimination is required,'" 509 U.S. at 511. "`No 

additional proof is required'" in that there is no blanket legal 

requirement of such proof, as there would be under the "pretext 

plus" approach. Similarly, the "rejection of the defendant's 

proffered reasons is enough at law to sustain a finding of 

discrimination" (id. at 511 n.4) in the sense that no other 

blanket legal requirement, such as proving the "plus," is needed. 

I favor this interpretation because it is consistent with my 

conclusion, discussed above, that Rule 301 presumptions in 

general and the McDonnell Douglas presumption in particular are 

governed by the "bursting bubble" theory. 

 D. If it is true, as I believe, that the McDonnell 

Douglas presumption is governed by the pure "bursting bubble" 

theory, it follows that the majority's blanket rule barring 

summary judgment or judgment as a matter of law in favor of the 

defendant is unsound. It is well recognized that under the pure 

"bursting bubble" theory, once a presumption is destroyed, the 

proponent of the presumption has no guarantee that its case will 

go to the trier of fact. One treatise states that the previously 

presumed fact may then be found "only if the natural probative 

force of the basic facts that brought the presumption into play 

is sufficient to support such a finding (or the evidence as a 

whole supports it). Otherwise, the presumed fact may not be 

found, and the presumption does not protect this possibility." 1 

Christopher B. Mueller and Laird C. Kirkpatrick, Federal Evidence§ 70 at 

332 (1994) (emphasis added). Another observes: "The 

opponent of the presumption may still not be entitled to a 

directed verdict, but if its motion is denied, the ruling will 

have nothing to do with the existence of a presumption." 2 

McCormick on Evidence, § 344 at 462. See also 21 Wright and 

Graham, Federal Practice § 5122 at 564. In Thayer's words, after 

the presumption is spent, "[a]ll is then turned into an ordinary 

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

 

 III. 

 

 Once it is recognized that the McDonnell Douglaspresumption 

disappears in the face of sufficient counterproof, 

the test to be applied in ruling on a defense motion for summary 

judgment or judgment as a matter of law is clear: the motion 

should be granted if all of the evidence in the record and the 

inferences that may be drawn from that evidence could not 

persuade a rational trier of fact that intentional discrimination 

on the ground alleged by the plaintiff was a determinative cause 

of the challenged action. This test follows from the following 

three rules: 

 1. In a McDonnell Douglas case, "[t]he ultimate burden 

of persuading the trier of fact that the defendant intentionally 
discriminated against the plaintiff remains at all times with the 

plaintiff." Burdine, 450 U.S. at 253; see also Hicks, 509 U.S. 

at 507. 

 2. This burden requires proof that discrimination on 

the ground alleged was a determinative cause of the challenged 

action. Miller v. CIGNA Corp., 47 F.3d 586 (3d Cir. 1995) (in 

banc). 

 3. Summary judgment and judgment as a matter of law 

are proper where a trier of fact could not rationally return a 

verdict in favor of the opposing party. Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 250-51 (1986); Celotex Corp. v. 

Catrett, 477 U.S. 317, 322-323 (1986). 

 Putting these rules together, it is apparent that a 

defense motion for summary judgment or judgment as a matter of 

law should be granted where a trier of fact could not rationally 

find based on the record (and giving no further consideration to 

the presumption as such) that discrimination on the ground 

alleged was a determinative cause of the challenged action. 

 The majority, however, takes the position that such a 

motion must be denied whenever there is enough evidence to 

support a finding that the explanation offered by the employer is 

untrue. See Maj. Op. 13. This position can be correct only if 

proof that is sufficient to justify disbelief of the employer's 

explanation (the majority's test) will always be enough to 

justify a finding by a rational trier of fact that discrimination 

on the ground alleged was a determinative cause of the challenged 

action. Unless this relationship invariably holds true -- and I 

will show below that it does not (see part VI, infra) -- the 

majority's blanket rule is wrong. 

 V. 

 

 Before turning directly to that question, however, it 

is helpful to examine the types of evidence of discrimination 

that may exist in the record of a discriminatory-treatment case 

after the McDonnell Douglas presumption is burst and sufficient 

evidence to show pretext is offered. This evidence may be 

grouped into four categories. 

 A. First, there are the facts that the plaintiff 

proved to make out the prima facie case and the inferences to 

which those facts naturally give rise. In some cases, the 

"natural probative force" of these facts is substantial, but in 

others it is relatively weak. "The burden of establishing a 

prima facie case of disparate treatment is not onerous," Burdine, 

450 U.S. at 253, and "evidence sufficient to make out a prima 

facie case is not always sufficient to support the ultimate 

finding of intentional discrimination. . . . Where the evidence 

behind the prima facie showing is strong, it may, standing alone, 

justify a finding of intentional discrimination. . . . But where 

the prima facie case is based on minimal evidence, it cannot." 

United States v. Redondo-Lemos, 27 F.3d 439, 442 (9th Cir. 1994). 

 An example which the prima facie case gives rise to 

only a weak inference of discrimination is the age discrimination 

case in which a somewhat younger person is hired, promoted, 
retained, etc. instead of a slightly older person. Under our 

cases, a plaintiff in an age discrimination suit can make out a 

prima facie case by showing that he or she (1) was over 40 years 

of age at the time in question, (2) applied for and was minimally 

qualified for the job, (3) but was rejected (4) in favor of a 

person who was "`sufficiently younger to permit an inference of 

age discrimination.'" Barber v. CSX Distribution Services, 68 

F.3d 694, 698 (3d Cir. 1995), quoting Fowle v. C & C Cola, 868 

F.2d 59, 61 (3d Cir. 1989). With respect to the final element of 

this formulation, we have held that an eight-year gap is enough 

and have suggested that a five-year difference may suffice. 

Barber, 68 F.3d at 695. Thus, I believe that a plaintiff 

claiming that he or she was denied a promotion due to age 

discrimination could make out a prima facie case under our 

circuit law by showing, for example, that he or she (1) was 43 

years old at the time in question, (2) had the minimum requisite 

qualifications, (3) and applied for the job, but that (4) the 

employer instead chose a 35-year old. 

 I agree that these facts permit an inference of age 

discrimination, but I do not think that a reasonable person could 

give these facts, standing alone, much weight. A way to test 

this hypothesis is to ask: if you knew nothing more about this 

promotion decision, how much would you bet that, when all the 

facts were revealed, the reason for the decision would turn out 

to be age discrimination? I think that few people would be 

willing to wager much on this bet -- precisely because the 

natural probative force of the few facts needed to establish the 

prima facie case is slight. 

 A similar situation can arise in cases of alleged 

national origin or religious discrimination. In order to make 

out a prima facie case of discrimination on these grounds, a 

plaintiff must show that he or she (1) is a member of a national 

origin group or adherent of a religion, (2) applied or was 

considered for the position or benefit, and (3) was at least 

minimally qualified, but (4) the position or benefit went to a 

person of another national origin or religion. See, e.g., Vitug 

v. Multistate Tax Comm'n, 88 F.3d 506, 515 (7th Cir. 1996) 

(plaintiff established a prima facie case by showing that he was 

a qualified Filipino Catholic and that promotion went to "a nonFilipino and born-again Christian"). How strong an inference of 

national origin or religious discrimination naturally arises from 

such a bare showing? 

 Suppose that all that you knew about an employment 

decision was that the employer rejected an applicant who traced 

his or her national origin to one country and instead chose 

another person who did not trace his or her national origin to 

that particular country. How confident would you be that the 

reason for the decision, when all the facts were revealed, would 

turn out to be national origin discrimination? 

 Or suppose that all that you knew about an employment 

decision was that the employer rejected a minimally qualified 

Protestant, Catholic, Jew, Muslim, or adherent of another 

religion in favor of another employee of a different religion. 

How confident would you be that the reason for the decision, when 
all the facts were revealed, would be intentional discrimination 

on the basis of religion? In my view, most rational people, 

without knowing more, would have little confidence that the real 

reason would turn out to be national origin or religious 

discrimination, and I therefore submit that these bare facts 

naturally give rise to only a slight inference of discrimination. 

And, although I will not belabor the point by posing further 

examples, I think that the natural probative force of the prima 

facie case is sometimes weak in race and gender cases as well. 

In short, I submit that the natural probative force of the facts 

underlying the prima facie case varies from case to case and that 

in some cases that force will be too weak on its own to sustain a 

finding of discrimination. 

 B. Second, there is the inference of discrimination 

that may often be drawn from the ruling out of the employer's 

explanation. The degree to which such an inference is justified, 

however, is inversely proportional to the degree to which the 

record contains evidence of a third possible explanation for the 

challenged employment action. For example, if it is certain that 

an employee was discharged for either reason "a" or reason "b" 

and no other, and if reason "b" can be ruled out, then obviously 

it may be inferred that the real reason for the discharge was 

"a." But if an employee was discharged for either reason "a," 

reason "b," or reason "c," then ruling out reason "b" does not 

necessarily permit a strong inference that reason "a" was the 

real reason. 

 Cases in which the record contains strong evidence of a 

third explanation for the challenged action are by no means 

unknown. See Miller v. CIGNA Corp., 47 F.3d 586, 597 (3d Cir. 

1995). Perhaps the clearest examples are cases in which the 

plaintiff challenges a single adverse employment action based on 

two or more alternative grounds, a rather common tactic. See, 

e.g., Roxas v. Presentation College, 90 F.3d 310 (8th Cir. 1996) 

(plaintiff alleged race, national origin, gender, and age 

discrimination); Lawrence v. Nat'l Westminster Bank of N.J., 1996 

WL 589189, No. 95-5603 (3d Cir. Oct. 15, 1996); Rabinovitz v. 

Pena, 89 F.3d 482 (7th Cir. 1996) (age, religion, and 

retaliation); Ford v. Bernard Finesan Dev. Ctr., 81 F.3d 304 (2d 

Cir. 1996) (race, age, and gender); Hartsel v. Keys, 87 F.3d 795 

(6th Cir. 1996) petition for cert. filed, 65 U.S.L.W. 3267 (U.S. 

Sept. 24, 1996) (No. 96-486) (age, gender, and retaliation); 

Evans v. Technologies Applications & Ser. Co., 80 F.3d 954 (4th 

Cir. 1996), (age and gender); Austin v. Owens-Brockway Glass 

Container, Inc., 78 F.3d 875 (4th Cir. 1996), petition for cert. 

filed, 65 U.S.L.W. 3181 (U.S. Aug. 28, 1996) (No. 96-337) (gender 

and disability); Americanos v. Carter, 74 F.3d 138 (7th Cir. 

1996), cert. denied, 116 S.Ct. 1853 (1996) (age, gender, and 

national origin); Castillo v. Frank, 70 F.3d 382 (5th Cir. 1995) 

(age, gender, and national origin); Meinecke v. 

H & R Block, 66 F.3d 77 (5th Cir. 1995) (age and gender); Johnson 

v. Office of Senate Fair Employment Practices, 35 F.3d 1566 (Fed. 

Cir. 1994) (gender and religion); Dashnaw v. Pena, 12 F.3d 1112, 

1114 (D.C. Cir. 1994), cert. denied, 115 S.Ct. 417 (1994) (age, 

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

 To take one of the many possible combinations of 

claims, an employee might contend that he or she did not get a 

promotion (1) because of gender and (2) because of disability. 

If the record in such a case contains strong evidence of 

disability discrimination, rejection of the employer's 

explanation (let us say, inferior qualifications) will not by 

itself permit a strong inference that the employer's true reason 

was gender discrimination. 

 The degree to which a trier of fact can reasonably 

conclude that there was discrimination on the ground claimed by 

the plaintiff also depends upon the degree to which the trier of 

fact can reasonably reject the employer's reason(s). (It is 

important to bear in mind that acceptance or rejection of an 

employer's reasons need not be an all-or-nothing proposition.) 

The evidence in a particular case may be such as to justify only 

a marginal or partial disbelief or belief of the employer's 

reason(s). For example, a trier of fact might be justified in 

believing that it is more probable than not (but barely so) that 

the employer's explanation is false. Or, a trier of fact might 

be justified in believing that it is more probable than not (but 

barely so) that the employer's explanation is true. In addition, 

a trier of fact might be justified in believing that the reason 

asserted by the employer was not the sole cause but was a partial 

cause (say a 20%, 40%, 60%, or 80% cause) for the challenged 

action. Or, if the employer asserts multiple reasons, the 

evidence might be such as to justify belief (to some degree) of 

some reasons but not others. All other things being equal, the 

more strongly and completely the trier of fact can rationally 

rule out the employer's reason(s), the more justified it is to 

conclude that there was discrimination on the ground alleged -- 

and vice versa. 

 C. Third, disbelief of the employer's explanation may 

also give rise to an inference that the employer was trying to 

conceal discrimination on the ground that the plaintiff claims. 

But the strength of this inference, too, will vary based on the 

facts. Its strength will depend on whether there is evidence in 

the record of some other possible explanation that the employer 

might not want to disclose (e.g., in my prior hypothetical, 

disability discrimination). In addition, its strength will 

obviously be proportional to the extent and strength of the trier 

of fact's disbelief of the employer's reason(s). 

 D. The fourth category consists of any other relevant 

evidence of discrimination on the ground asserted. "[S]tray 

remarks in the workplace" that are insufficient to make out a 

Price Waterhouse case are an example. See Price Waterhouse v. 

Hopkins, 490 U.S. 228, 277 (1989) (O'Connor, J., concurring). 

When evidence falling into this category is present, it should 

always be taken into account in determining whether a defense 

motion for summary judgment or judgment as a matter of law should 

be granted -- something that the Fuentes test does not 

accomplish, as I will show below. See infra at 28-29. But of 

course, many McDonnell Douglas cases lack evidence of this sort. 

 
 VI. 

 Having surveyed the types of evidence of discrimination 

that are relevant for present purposes, I return to the question 

whether there will always be enough evidence to support a verdict 

of discrimination on the ground alleged by the plaintiff after 

the McDonnell Douglas presumption has burst and sufficient 

evidence of pretext has been adduced. To ensure that I am not 

misunderstood, I emphasize again that I think that under these 

circumstances there will usually be sufficient evidence -- but 

not always. Specifically, where the natural probative force of 

the facts offered to prove the prima facie case is weak, where 

there is strong evidence in the record that the challenged 

employment action was attributable to some factor other than the 

discriminatory ground alleged by the plaintiff or the explanation 

offered by the employer, and where there is no other evidence 

that the action was due to discrimination on the ground alleged, 

the evidence of discrimination on that ground may be insufficient 

to sustain a verdict and thus insufficient to defeat summary 

judgment or judgment as a matter of law. 

 Here is an example. A man with a disability applies 

for a promotion, but the promotion is given to a woman without a 

disability. See, e.g., Antol v. Perry, 82 F.3d 1291 (3d Cir. 

1996)(man who was denied promotion sued for gender and disability 

discrimination). The plaintiff establishes a prima facie case of 

gender discrimination by showing that he is a man, he was 

qualified for the job, he applied, but it was given to a woman. 

There is no other evidence of gender discrimination against men; 

indeed, there is evidence that the decisionmaker was a man and 

that the great majority of the employees in the job category at 

issue were men. The employer says that the woman was chosen 

because her qualifications were better, but the plaintiff shows 

that this explanation is full of holes. In addition and most 

important, there is strong, direct evidence that the 

decisionmaker was biased against the plaintiff because of his 

disability. Among other things, there is testimony that, when 

the decisionmaker learned that the plaintiff had applied for the 

promotion, the decisionmaker made insulting and derogatory 

remarks about the plaintiff's disability. 

 Is there enough evidence in this case to convince a 

rational trier of fact that the promotion decision was based on 

gender discrimination? I think not, and if I am right, then the 

majority's blanket test is disproven. Consider the evidence in 

each of the four categories that I previously described. The 

facts underlying the prima facie case of gender discrimination -- 

basically that the plaintiff was qualified but a woman was given 

the job instead -- have little natural probative force for the 

purpose of showing gender discrimination; a qualified man might 

be rejected in favor of a woman for many other reasons. As for 

the evidence that the employer's explanation (the woman's 

supposedly better qualifications) was untrue, ruling out the 

employer's explanation still leaves both gender and disability 

discrimination as possible explanations, and in light of the 

strong evidence of disability discrimination, does little to show 
gender discrimination. Likewise, while the employer's conduct in 

proffering a false explanation permits an inference that the 

employer's real reason was one that it wished to hide, that 

inference does little to show that the employer's real reason was 

gender discrimination because there is strong evidence of another 

explanation (disability discrimination) that the employer would 

also have a motive to conceal. Therefore, I submit that the 

evidence in this hypothetical case is insufficient to support a 

reasonable finding of gender discrimination and that that theory 

should be weeded from the case before the plaintiff's claim of 

disability discrimination is sent to the trier of fact. 

 The majority's test, however, would require that the 

gender discrimination claim be sent to the trier of fact as well. 

Indeed, if the plaintiff had added claims of age, race, national 

origin, and religious discrimination and was able to do the 

minimum necessary to establish a prima facie case on all of those 

grounds, all of those claims would have to be sent to the trier 

of fact as well. I do not think that such results can be squared 

with the cardinal rules that the plaintiff in a discriminatory 

treatment case must prove intentional discrimination on each 

ground alleged and that summary judgment or judgment as a matter 

of law must be granted if the record does not rationally support 

a judgment for the non-moving part on each such ground. See, 

e.g., Deborah C. Malamud, The Last Minuet: Disparate Treatment 

After Hicks, 93 Mich. L. Rev. 2229, 2306-2311 (1995). 

 VII. 

 Recognition of what I believe is the correct test would 

clarify the analysis of discriminatory-treatment cases and would 

avoid analytical difficulties that the majority's test creates. 

I will discuss two of these difficulties here. 

 A. The first concerns cases in which the employer 

offers a multi-part explanation for the challenged action. The 

Fuentes opinion, which the majority follows, first states that, 

when an employer asserts that the challenged action was taken for 

several reasons, the evidence "must allow a factfinder reasonably 

to infer that each of the employer's proffered nondiscriminatory 

reasons . . . was either a post hoc fabrication or otherwise did 

not actually motivate the employment action . . . ." 32 F.3d at 

764 (emphasis in original) (citations omitted). However, Fuentesqualifies 

this statement by adding that "[i]f the defendant 

proffers a bagful of legitimate reasons, and the plaintiff 

manages to cast substantial doubt on a fair number of them, the 

plaintiff may not need to discredit the remainder." Id. at 764 

n.7 (emphasis added). 

 I am not sure what these rules mean. What is the 

difference between "several reasons" and "a bagful"? What is a 

"fair number" of a "bagful"? If the employer offers three 

reasons, each of which, it says, was equally important in the 

challenged decision, how many must the plaintiff knock down? All 

of them? Or will two suffice? (I assume that one would not be a 

"fair number.") What if the employer says that reason one was 

the most important, counting for, say, 40%, and that reasons two 
and three each counted for 30%? Would it be enough for the 

plaintiff to refute reason one? If so, would refuting reason two 

by itself also suffice? Why? I don't know, and I don't think 

that it is possible to provide a satisfactory answer to questions 

of this sort within the framework of the majority's test. 

 By contrast, these problems disappear if what I contend 

is the correct test is used. No matter how many reasons the 

employer offers and no matter what combination of reasons the 

plaintiff succeeds in knocking down, the dispositive question 

remains the same: taking into account all of the evidence in the 

record, including whatever inferences and deductions can 

rationally be drawn from the rejection of some (or all) of the 

employer's proffered reasons, is there enough proof to permit a 

rational trier of fact to find that intentional discrimination on 

the ground alleged was a determinative cause of the challenged 

action? 

 B. The second analytical difficulty concerns the 

ability of a plaintiff to survive summary judgment or judgment as 

a matter of law by combining the evidence that necessarily 

remains after the McDonnell Douglas presumption has burst and 

sufficient evidence of pretext has been offered (the facts 

underlying the prima facie case and the inferences that logically 

flow from the rejection of the employer's explanation) with any 

other direct and circumstantial evidence of discrimination that 

the plaintiff may be able to find. Under Fuentes, a plaintiff 

may defeat summary judgment or judgment as a matter of law by 

"either (i) discrediting the proffered reasons, either 

circumstantially or directly, or (ii) adducing evidence, whether 

circumstantial or direct, that discrimination was more likely 

than not a motivating or determinative cause of the adverse 

employment action." Fuentes, 32 F.3d at 764 (emphasis in 

original). 

 Why can't a plaintiff potentially satisfy his or her 

burden by combining some evidence from each of these categories? 

For example, if a plaintiff can almost, but not quite, show 

enough "weaknesses, implausibilities, inconsistencies, 

incoherencies, or contradictions in the employer's proffered 

legitimate reasons" to come within the first part of this test, 

id. at 765, why can't the plaintiff make it over the hump by 

adding a bit of evidence from the second part, i.e., other direct 

or circumstantial evidence of discrimination? Fuentes doesn't 

explain, and I don't think that any good explanation is possible. 

 In sum, I submit that the majority's

test is both wrong and unwieldy and that the correct test is 

simply whether a rational trier of fact could find, based on the 

record, that discrimination on the ground alleged was a 

determinative cause of the challenged employment action. 

 VIII. 

 Applying this test, I agree with the district judge's 

analysis of the record. The record shows great personal friction 

between the plaintiff and her supervisors regarding matters such 

as grooming, smoking, tardiness, and giving away free food and 
beverages, but the district judge saw little if any evidence of 

any kind that could reasonably link this personal animosity to 

the plaintiff's gender. The district judge wrote that she was 

"left searching the record for evidence that gender played a 

determinative role in defendant's conduct." 

 In reaching the opposite conclusion, the majority 

apparently relies on the following: (a) "no woman had ever held 

the position of Manager of Restaurants," (b) "a man replaced 

Sheridan as Head Captain of the Green Room morning shift," (c) 

"Amblard had told Sheridan he would watch her like a `hawk' and a 

`dog'," and (d) Amblard "ignor[ed] her and [spoke] instead to one 

of her male supervisors if one was present." Maj. Op. 7. But 

factor (a) gives rise to only a weak inference of gender 

discrimination because the plaintiff was found to be unqualified 

for the position of Manager of Restaurants. Factor (b) likewise 

gives rise to only a weak inference since two of the other four 

head captains were women. Factor (c) does not provide a link to 

gender; nor does factor (d). Is all of this evidence taken 

together enough to persuade a rational factfinder that the reason 

for the animosity between the plaintiff and her supervisors was 

gender rather than sheer personal antipathy? The district judge 

concluded that it was not, and I am inclined to agree with her 

analysis. 

 I also agree with the district judge's conditional 

grant of a new trial. The district judge applied the correct 

legal standard. She recognized that "[a] new trial cannot be 

granted . . . merely because the court would have weighed the 

evidence differently and reached a different conclusion." 

Sheridan II at 12 (quoting Markovich v. Bell Helicopter Textron,Inc., 805 

F. Supp. 1231, 1235 (E.D. Pa.), aff'd, 977 F.2d 568 (3d 

Cir. 1992)). Instead, the court stated, a new trial may be 

granted on the ground that the verdict was against the weight of 

the evidence only when the failure to do so would result in 

injustice or shock the conscience of the court. Id. Moreover, 

in assessing the evidence, the court recognized that disbelief of 

defendant's proffered reason was evidence of discrimination. 

Accordingly, I believe that the district judge applied the 

correct legal precepts in ruling on defendant's new trial motion, 

and because I do not think that she abused her discretion in 

granting the motion, I would affirm.