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. e du/thir dc ir c uit_1996/26UNITED 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, Circui t Judge, and SCHWARZER, District Judge*

Reargued en banc May 14, 1996

Before: SLOVITER, Chief Judge, BECKER, MANSMAN N, GREENBERG, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, L EWIS, 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 D istrict Judge,

United States District Court for the Northern Di strict of California, sitting by designation. ** Hon. H. Lee Sarokin heard argument but retired f rom 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 Suppor t 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. LeveringDrinker 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 o pportunity to attempt to clarify the quantum and nature of eviden ce that will permit a jury to find that an employer engaged in i mpermissible employment discrimination. Although we believe tha t several of our opinions in recent years accurately and adequat ely set forth the applicable legal principles, the decision of th e district court and that of a panel of this court, now withdr awn, 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 Tit le VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-1 et se q., charging DuPont and her former supervisor, Jacques Amblard, with several

claims of sex discrimination and retaliation. Sher idan, who had been an employee of the Hotel du Pont since 1979 an d was at the time her employment ceased one of the Head Captains of the hotel's Green Room, asserted that DuPont discrimina ted against her on the basis of her sex when it failed to promo te her to Manager of Restaurants in 1991 (Count I), retaliate d against her for complaining about sex discrimination by putting her on probation and taking various disciplinary actions a gainst her (Count II), and created intolerable working conditi ons, culminating in her removal from a supervisory posit ion, which resulted in her constructive discharge (Count III). After discovery, the defendants moved for summary judgment which the district court denied. The cour t held that Sheridan had presented a prima facie case of discri mination and sufficient evidence to permit a factfinder to belie ve that DuPont's reasons for not promoting her, i.e., that she was not qualified for the position of Manager of Restaurant s and that she had not applied for the position, were pretexts for discrimination. App. at 57. The court further hel d that Sheridan had presented adequate evidence to survive summary judgment on her retaliation claim and to enable a f actfinder to reasonably believe that her supervisors had intenti onally fabricated evidence of poor job performance in orde r to remove her from her position as Head Captain and offer her less desirable, dead-end jobs. App. at 68. The court c oncluded that "[i]f plaintiff's version of the facts were accepte d by a trier of fact, it would be reasonable for the trier of fa ct to conclude that resignation was plaintiff's only option." Id. Thereafter, the case proceeded to trial. T he conduct that was the subject of Sheridan's claims straddledthe periodbefore 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 Ti tle VII intentional discrimination claims for which compens atory or punitive damages are sought, id. § 1977A(c), 105 St at. at 1073 (codified at 42 U.S.C. § 1981a(c)). The district c ourt ruled that the jury would serve as the finder of fact for Sheridan's

claims that were based on conduct that occurred aft er that date, but that the jury would serve only in an advisory c apacity for

claims based on events that occurred before that da te. This meant that the jury's verdicts on Count I (failure to promote) and the alleged retaliatory acts in Count II that o ccurred before November 21, 1991 were to be advisory, while the ju ry was to be the finder of fact for the remaining alleged acts o f retaliation and with respect to Count III, Sheridan's claim of constructive discharge. The trial occupied six days. During the t rial, the district court dismissed the claims against Amblardon the ground that an employee cannot be sued under Title VII. After deliberating, the jury returned spec ial interrogatories. With respect to the promotion cla im, the jury found that Sheridan was not qualified for the job o f 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 again st Sheridan for complaining of sex discrimination. In contrast , the jury did

find in Sheridan's favor on her claim of constructi ve discharge. It awarded her $17,500 in compensatory damages, ove r and above lost wages, but found that DuPont's actions were no t 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 th at 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 $51,07 2, 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 Cou nts I and II that took place before November 21, 1991. Both parties moved for judgment as a matte r of law or

in the alternative for a new trial. The district c ourt granted judgment in DuPont's favor. The court recognized t hat DuPont had proffered as one of the principal reasons for the d isciplinary actions it had taken against Sheridan her alleged u nauthorized "comping," i.e., giving away complimentary food anddrinks in violation of the hotel's policy that they should be registered, and Sheridan offered evidence to the contrary, inde ed, evidence that she was elsewhere on some of the days that DuP ont claimed she was engaged in "comping" at the hotel. In overturning the jury's verdict on the c onstructive discharge claim in favor of Sheridan, the court sta ted that even if the jury could have reasonably rejected the legi timacy of DuPont's investigation of Sheridan's alleged "compi ng," and thus its reasons for discharging her, "the Court is stil l leftsearching the record for evidence that gender playe d a

determinative role in defendant's conduct. . . . T he Court . . .

has failed to locate sufficient evidence from which the jury could infer such a finding." Sheridan v. E.I. DuPo nt de Nemours and Co., No. 93-46 (D. Del. July 14, 1994) at 9. T he court ruled that the evidence Sheridan presented which ar guably related to her gender, such as the facts that no woman had ever held the position of Manager of Restaurants, that a man repl aced Sheridan as Head Captain of the Green Room morning shift, th at Amblard had

told Sheridan he would watch her like a "hawk" and a "dog," and Amblard's actions in ignoring her and speaking inst ead to one of her male supervisors if one was present, was even i n 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 demon strate that gender was a motivating factor, plaintiff would hav e to point to

some evidence that was the motive of those in the d ecision making process. No such evidence exists in the record." Id. at 11-12. The district court accordingly granted D uPont's motion for judgment as a matter of law, and ruled conditio nally, pursuant to Fed. R. Civ. P. 50(c), that if the judg ment were reversed on appeal, DuPont would be entitled to a n ew trial "because the jury's verdict is contrary to the weig ht of the evidence." Id. at 12 n.11. Sheridan appealed. A panel of this court heard argument on Ma y 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 v oting to affirm the grant of a new trial and the third votin g to remand

the issue whether a new trial was warranted for rec onsideration by the district court, using the correct legal prin ciples. SeeSheridan v. DuPont, No. 94-7509 (Jan. 31, 1996), vacated, 74 F. 3d 1439 (3d Cir. 1996). The majority and dissenting o pinions differed in particular in their interpretation of t he effect of the Supreme Court's opinion in St. Mary's Honor Cen ter v. Hicks, 509 U.S. 502 (1993), on the inferences that the fin der of fact may draw from its disbelief of the employer's proff ered justification for the disciplinary employment actio n taken against Sheridan and the amount and type of evidenc e needed to sustain a jury verdict. Both DuPont and Sheridan petitioned for re hearing and the court voted to hear the appeal en banc. As req uired by our Internal Operating Procedures, the opinion of the p anel issued January 31, 1996 was withdrawn and the court held t he en banc argument on May 14, 1996.

II.

DISCUSSION

A. Legal Issues The parties disagree both as to the applic able law and the weight of the evidence. DuPont argues that the district

court's decision in its favor should have been affi rmed in all respects. It apparently recognizes that the distri ct court'sfinding that Sheridan had not carried her burden of proving that

DuPont's decisions were based on gender discriminat ion was not consistent with this court's prior decisions. Thus , DuPont challenges and requests that we reconsider our prio r decisions with respect to the "recurring problem of the shift ing burdens" in employment discrimination cases, arguing that ou r decisions do not fully incorporate the teaching of the Supreme C ourt in Hicks. It singles out in particular the "underlying decisi on 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 emp loyment discrimination to prevail, and cites, inter alia, F uentes, 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 reexam ine what DuPont calls "this continuing and perplexing proble m of interpreting the shifting burden of Hicks." By the time Hicks reached the Supreme Cour t, the required components of a plaintiff's prima facie ca se of employment discrimination had been established in M cDonnell Douglas Corporation v. Green, 411 U.S. 792, 802 (19 73), 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 i ts 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 G overnors v. Aikens, 460 U.S. 711, 716 (1983); Burdine, 450 U.S. at 256. Still open, however, and the subject of considerabl e dispute, was the effect of the decision by the trier of fact tha t the reasons given by the employer were not the real reasons for the adverse employment action. As the Court noted in Hicks, th ere were cases in the courts of appeals that held that a finding o f pretext does not mandate a finding of illegal discrimination, se e, 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 C ir. 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 Cente r, 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 ha d brought a Title VII action alleging that he was demoted and d ischarged because of his race, the court of appeals had concl uded that "[o]nce plaintiff proved all of [the employer's] pr offered reasons for the adverse employment actions to be pr etextual, plaintiff was entitled to judgment as a matter of l aw." 970 F.2dat 492. It was this holding that was reversed by t he Supreme

Court, which held that judgment for the plaintiff i s not compelled by the disbelief of the employer's reason s. 509 U.S. at 511. On the other hand, the Court also explicit ly 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 whe ther the employer unlawfully discriminated, the Court statedin the following oft-quoted passage that "[t]he factfinder 's disbelief of the reasons put forward by the defendant (partic ularly if disbelief is accompanied by a suspicion of mendacit y) may, together with the elements of the prima facie case, suffice to

show intentional discrimination." Id. The Court e xplained that "rejection of the defendant's proffered reasons, wi ll permit the

trier of fact to infer the ultimate fact of intenti onal discrimination," and continued: "the Court of Appe als was correct when it noted that, upon such rejection, '[ n]o additional proof of discrimination is required.'" Id. (emphas is 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 th e jury is permitted, but not required, to draw an inference l eading it to

conclude that there was intentional discrimination. Accordingly, in Fuentes we explained that "the factfinder may in fer from the combination of the plaintiff's prima facie case andits own rejection of the employer's proffered non-discrimin atory reasons that the employer unlawfully discriminated against the plaintiff and was merely trying to conceal its illegal act wi th the

articulated reasons." 32 F.3d at 764. It followedthat a plaintiff may survive summary judgment (or in this case judgment as a matter of law) if the plaintiff produced suffi cient 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 judgm ent when the defendant answers the plaintiff's prima facie case with legitimate, non-discriminatory reasons for its acti on, the plaintiff must point to some evidence, direct or ci rcumstantial, 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 li kely 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 failu re to place him in the position that he sought, application of the same approach in some later cases led us to hold that th e plaintiff

had satisfied his or her burden and raised an issue to be decided by the trier of fact. Thus, in Sempier we reversedthe district court's grant of summary judgment for the employer in an Age Discrimination in Employment Act (ADEA) action beca use Sempier, an executive at an insurance brokerage and consulti ng firm, hadpresented sufficient evidence to create a genuine i ssue of fact

as to whether the company's claim that he was force d to retire for poor performance was a pretext for age discrimi nation. 45

F.3d at 732-33. Shortly thereafter, in Waldron, another AD EA case, we again held that summary judgment for the employer w as improper because the evidence raised a factual question as t o whether the employer's proffered explanations -- that it had di scharged the 63-year-old plaintiff due to a company reorganizati on plan and dissatisfaction with his work performance -- was an attempt to conceal age discrimination. Waldron, 56 F.3d at 50 2-03. We viewed the district court's holding as requiring pl aintiffs 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 pro ffered 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 th e employer's claim of poor performance by the 53-year-old salesm an 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 ap peals appear to have interpreted Hicks in a similar manner to th is court's precedent. See, e.g., Shaw v. HCA Health Servs. of Midwest, Inc., 79 F.3d 99, 100 (8th Cir. 1996) (where defend ant did not dispute that plaintiff made out a prima facie case and there was evidence that defendant had altered performance eva luations of plaintiff after firing him, "jury was entitled (alt hough 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 rej ection of the employer's nondiscriminatory reasons, while not suf ficient to compel a finding of discrimination, nonetheless suf fices to permit such a finding."), cert. dismissed, 116 S. C t. 1037 (1996); EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994) ("A finding of pretextuality allows a juror t o reject a defendant's proffered reasons for a challenged empl oyment action and thus permits the ultimate inference of discrimi nation."); Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1 078, 1083 (6th Cir. 1994) ("Hicks clarified that the only effect o f the employer's nondiscriminatory explanation is to conv ert the inference of discrimination based upon the plaintif f'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 Ci r. 1994) (to defeat summary judgment, Title VII plaintiff "must only `produce

evidence from which a rational factfinder could inf er that the company lied' about its proffered reasons for his d ismissal" (citation omitted)); Mitchell v. Data Gen. Corp., 1 2 F.3d 1310, 1316 (4th Cir. 1993) (plaintiff can defeat summary judgment by"present[ing] evidence sufficient to establish a pr ima facie

case, and . . . show[ing] that there is a genuine d ispute of material fact about [the defendant's] proffered exp lanation" for its action); Washington v. Garrett, 10 F.3d 1421, 1 433 (9th Cir. 1993) ("[A]s St. Mary's recognizes, the factfinder in a Title VII case is entitled to infer discrimination from plain tiff's proof of a prima facie case and showing of pretext withou t anything

more . . . ."). The Equal Employment Opportunity Commissio n, the government agency charged with enforcement of the e mployment

discrimination laws and an amicus curiae in this ca se, has also taken the view "that a prima facie case, coupled wi th a noncredible justification from the employer, is suffic ient to support a finding of discrimination." EEOC Enforce ment Guidance on St. Mary's Honor Center v. Hicks, EEOC Comp. Man . (BNA), N:3361, 3363 n.3 (Apr. 12, 1994). "As an administr ative interpretation of the Act by the enforcing agency, these Guidelines, while not controlling upon the courts b y 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 omitt ed). The attack by DuPont and the dissent on th e paradigm we

and these other courts have constructed in the wake of Hicks is multi-faceted. DuPont suggests that there is an in consistency between this court's caselaw, as applied or articul ated, and the requirement that the ultimate burden of persuasion of intentional discrimination must rest with the plaintiff. We fi nd no such inconsistency. More important, the Supreme Court i tself 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, we re not inconsistent with the statement in the opinion that "rejection of the defendant's proffered reasons will permit the t rier of fact

to infer the ultimate fact of intentional discrimin ation," id. at 511. Hicks explained that the statement that "reje ction of the defendant's proffered reasons is enough at law to s ustain a finding of discrimination" was not inconsistent wit h its placement of the burden of persuasion on the plaint iff because "there must be a finding of discrimination." Id. a t 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 su ggestion that Fuentes impermissibly gives continuing weight to th e presumption of discrimination created by the prima facie case e ven after the McDonnell Douglas presumption has dissipated or "bu rst." This argument is based on the mistaken assumption that o nce 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. H owever, the Supreme Court specifically explained in Burdine tha t "[i]n sayingthat the presumption [of discrimination] drops from the case, we do not imply that the trier of fact no longer may c onsider evidence previously introduced by the plaintiff to establish a prima facie case. . . . [T]his evidence and infere nces properly drawn therefrom may be considered by the trier of f act on the issue of whether the defendant's explanation is pre textual." Id. As long as the jury must make a finding of intentio nal discrimination, there is no reason why the evidence that supported the prima facie case coupled with the jur y's determination that the employer's proffered explana tions are pretextual is not sufficient to support a verdict o f

discrimination. As Chief Justice, then Justice, Rehnquist earlier had explained, the initial presumption of discriminatio n arises from the plaintiff's prima facie case of discrimination "because we presume these acts, if otherwise unexplained, are m ore likely than not based on the consideration of impermissibl e 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 m ore often than not people do not act in a tota lly arbitrary manner, without any underlying reasons, especially in a business setting. Thus, when all legitimate reasons for rejecting an applicant have been eliminate d as possible reasons for the employer's actions, it is more likely than not the employer, who we generally assume acts onl y with some reason, based his decision on an impermissible consideration such as race.

Id. This court has previously noted the probat ive significance of the factfinder's disbelief in a pro ffered 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 falseho odor 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 a n indication of his consciousness that his c ase is a weak or unfounded one; and from that consciousness may be inferred the fact its elf

of the cause's lack of truth and merit. McQueeney v. Wilmington Trust Co., 779 F.2d 916, 92 1-22 (3d Cir. 1985) (quoting 2 Wigmore § 278(2) (Chadbourne Rev. 1979)). As another court recently remarked in the context of a n employment discrimination case: "Resort to a pretextual expla nation is, like flight from the scene of a crime, evidence ind icating consciousness of guilt, which is, of course, eviden ce of illegal conduct." Binder v. Long Island Lighting Co., 57 F .3d 193, 200(2d Cir. 1995).

We presume that the same logic, albeit una rticulated, 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 fro m 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 hone st testimony in a court of law; there is no reason to expect les s of an employer charged with unlawful discrimination. If the employer fails to come forth with the true and credible expl anation and instead keeps a hidden agenda, it does so at its ow n 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 cas e after the presumption created by the prima facie case has dis sipated and sufficient evidence of pretext has been adduced, th ere will be sufficient evidence to support a verdict of discrim ination. The dissent is concerned that in the atypical case this may not be so. It posits the situation of a plaintiff who cla ims multiple grounds, all illegal, for the employment action. W e see no reason to engage in a dialogue of speculation as to how to treat such a case, divorced from a factual record, partic ularly because the situation presented by the dissent was not the case in Hicks, where the plaintiff claimed race discrimination, wa s not the case in Fuentes, where the plaintiff claimed national or igin discrimination, nor is it the case before us now, w here Sheridan claims only sex discrimination. The other situation posited by the dissent for its unwillingness to join the otherwise unanimous en ba nc court is that created where an employer "may not wish to dis close his real reasons for not promoting B over A." Dissenting Ty pescript Op. at 22 n.8. The persistence in maintaining that the employment action was taken because the plaintiff was unqualif ied 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 Fe deral 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 ha s little to gain by the dissent's approach. The Supreme Court has stated that an emplo yer can meet its burden of articulating the reason for its actio n only through the introduction of admissible evidence. Burdine, 450 U.S. at 255 n.9. Burden-shifting is designed "to sharpen t he inquiry into the elusive factual question of intentional di scrimination." Id. at 255 n.8. It follows that the Burdine analys is is rooted in the requirement that when the employer advances through admissible evidence the reasons for its actions, th ose must be its legitimate reasons. The dissent argues that mere disbelief of theemployer's articulated reason is not enough to sust ain a verdict.

Of course Hicks did not rely merely on the factfind er's disbelief of the explanation proffered by the employer to uph old 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 discrim ination 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 addi tion to what is necessary to establish a prima facie case and to show that the employer's explanation is pretextual," Dissenting T ypescript Op. at 2 (emphasis added), the dissent's approach wouldbring the

courts of this circuit back to the confusion and un certainty created by the "pretext plus" and "some evidence" l anguage that prompted this court to consider this case en banc. In Sheridan's case, the district court hadreviewed the evidence presented in connection with DuPont's moti on for summary judgment and found that Sheridan had made out a pri ma facie case for gender discrimination culminating in constructi ve discharge. Also, the district court had carefully ins tructed the jury on the need to find intentional discrimination before it could return a verdict for Sheridan on any of her c laims. Early in its charge the court had advised the jury that t his case involves "allegations of intentional sexual discrim ination, that is, of intentionally treating some people less favo rably than others because of their gender." App. at 111. Aga in, in connection with the constructive discharge count th e court had reminded the jury that Sheridan must prove "by a pr eponderance of the evidence that 1) defendant intentionally made p laintiff's working conditions so intolerable that a reasonable person would feel forced to resign; 2) plaintiff's gender was th e sole motivating factor in the defendant's conduct; and 3 ) plaintiff, in fact, resigned." App. at 123. The jury's verdi ct signifies that it rejected DuPont's proffered reasons for its employment

action and believed that the real reason was discri mination. In granting judgment as a matter of law fo r DuPont, the district court stated that "plaintiff would have to point to some evidence" that gender was the motive of those in th e decision making process. It is evident that the district co urt believed that something more was required than was set forth in Hicks and our cases. Not only was such a requirement of addi tional evidence rejected in Fuentes where we stated that " if the plaintiff has pointed to evidence sufficiently to d iscredit the defendant's proffered reasons, to survive summary j udgment the plaintiff need not also come forward with additiona l 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 r equired." 509 U.S. at 511 (internal quotation marks omitted). As the Supreme Court has noted, "[t]here w ill seldom be`eyewitness' testimony as to the employer's mental processes."

United States Postal Serv. Bd. of Governors v. Aike ns, 460 U.S. 711, 716 (1983). We have recognized that "[d]iscri mination victims often come to the legal process without wit nesses 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 emplo yer 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 Conve nience Prods., 750 F.2d 1405, 1410 (7th Cir. 1984)). The distinct method of proof in employment discrimination cases, relying on presumptions and s hifting burdens of articulation and production, arose out o f the Supreme Court's recognition that direct evidence of an empl oyer's

motivation will often be unavailable or difficult t o acquire. See Price Waterhouse v. Hopkins, 490 U.S. 228, 271 (1989) (O'Connor, J., concurring) ("[T]he entire purpose o f 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 fort h in McDonnell Douglas are designed to assure that the plaintiff h as his day in court despite the unavailability of direct evidence ." (internal quotation marks omitted)); see also International B hd. 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 pr oof"); Chipollini, 814 F.2d at 897; Dillon, 746 F.2d at 10 03. Thus, it is not only disbelief in the empl oyer's proffered reason that would suffice to sustain the plaintiff's case, as the dissent argues. It is the jury's dete rmination that the reason given was pretextual together with the e vidence that supported the prima facie case that will sustain a finding of intentional discrimination made after a proper char ge. The role of determining whether the infere nce 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, t he jury must perform its traditional function of assessing the w eight of the evidence, the credibility of the witnesses through observation of both direct testimony and cross-examination at tria l, and the strength of the inferences that can be drawn from t he elements of the prima facie case and the evidence that undermin es the employer's proffered reasons for its actions. This is uniquelythe role of the factfinder, not the court. See Bar ber 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. W estinghouse Elec. Corp., 832 F.2d 258, 262 (3d Cir. 1987), cert . denied, 488 U.S. 1004 (1989))); see also Aikens, 460 U.S. at 71 6 ("It is true that it is very difficult to prove what the state o f a man's mind at a particular time is, but if it can be ascertain ed 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 disc rimination cases lose their traditional obligation, when facedwith a motion for judgment as a matter of law, to review the adeq uacy 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 reason able

factfinder to conclude that the reasons are incredi ble, and our previous cases have explained in detail the plainti ff'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, o r contradictions in the employer's proffered legitima te reasons for

its action that a reasonable factfinder could ratio nally find them `unworthy of credence . . . .'" (quoting Ezoldv. 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 re quirement, it may not pretermit the jury's ability to draw infere nces from the testimony, including the inference of intentional d iscrimination 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 cons tructively discharged as a result of discrimination. We exerc ise plenary review of the district court's order granting DuPon t's motion for judgment as a matter of law. Seman v. Coplay Cemen t Co., 26 F.3d 428, 431 (3d Cir. 1994).

B.

Factual Issues

We need not recount all of the evidence ad duced at the

trial because we examine the record with the limite d 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, t he verdict winner, and draw all reasonable inferences in her f avor. SeeHofkin v. Provident Life & Accident Ins. Co., 81 F.3d 365, 36 9 (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 wo rking at thehotel as a part-time waitress in 1979, reached that supervisory

position in 1989 following a series of steady promo tions. In addition to those promotions, Sheridan had receivednumerous 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 Quart er Award" for "outstanding" work. She received merit raises in M ay 1990 and February 1991. In July 1990 she received a "Way to Go" award

from the Personnel & Administrative Services Divisi on for "going beyond the call of duty." DuPont's October 29, 199 0 performance review, signed by two supervisors including defenda nt Jacques Amblard, rated Sheridan overall "very good," the se cond highest rating. She was rated "outstanding" for "Interpers onal Relationships," "Planning/Organizing," and "Problem -Solving." Although that report noted that "[a]s a team player

, strengthening is needed to improve the overall rela tionship with the rest of the operation," the report listed one o f her strengths as "[v]ery good guest relations, organize d." 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 low est mark, given for "Attendance/Punctuality/Dependability," w as "Satisfactory." App. at 197-98. In December 1990, Sheridan won a $1,000 ac complishment award. The letter informing her of the award refer red to her as "a role model" and "a true ambassador for the compa ny." App. at 151. Other restaurant employees received awards ra nging from $200-$500, but Sheridan was the only employee to re ceive an award as high as $1000. App. at 287. In January 1991, S heridan was chosen as one of about 20 DuPont employees to appea r in a company video. App. at 734. On October 1, 1991, Sheridan received a promotion and salary increase. DuPont attempted to paint a different pict ure to the jury. Notwithstanding the record evidence of promo tions and commendations, it contended that Sheridan's perform ance began to deteriorate in early 1991. DuPont produced evidenc e that supervisors met with Sheridan, expressed dissatisfa ctions, and directed her to improve in various categories. For example, in February 1991, Ed Barba, then the Green Room's Mana ger, listed "corrective measures" that Sheridan should take, in cluding "maintaining an accurate cover count sheet" to insu re 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. a t 228.

Nicholas Waller testified that in the summer of 199 1, as Manager of Restaurants, he met with Sheridan to discuss all eged complaints that Sheridan had asked Green Room emplo yees to help her with personal tasks, such as parking her car, g iving her a wake-up call, or taking her personal mail to the po st office, and that she had rewarded employees who complied by giv ing them additional "covers" in the dining room. App. at 96 0-63. On October 17, 1991, Jeff Maisel, by then the Managerof Restaurants, met with Sheridan to discuss proble ms allegedly

perceived with her performance, including tardiness and continuing disregard for the hotel's grooming polic y. App. at 206, 885. On November 10, 1991, Maisel placed Sher idan on probation, ostensibly on the ground that she had no t corrected her performance. Maisel warned Sheridan that her f ailure to follow the hotel's policies could result in her ter mination. App. at 208. In support of its claim of Sheridan's inad equate performance, DuPont introduced various notes and re cords that DuPont had compiled of specific infractions by Sher idan. Illustrative of DuPont's complaints is a memo by Ba rba to the

file that on one occasion he had observed Sheridan smoking in the Green Room Bar and putting on makeup. A report met iculously listed other details to support placing Sheridan on probation. DuPont contended that even while Sheridan was on pr obation, she continued her inadequate performance. An important part of DuPont's defense for its employment actions centered on its claim that Sheri dan had engaged in "comping," i.e., giving away complimenta ry food and drinks without ringing up complimentary checks. Th e hotel began investigating Sheridan for this activity in late Fe bruary, 1992, and its record of the investigation lists statement s of numerous co-workers. App. at 222-26. James Dougherty, a ba rtender who was one of DuPont's principal witnesses on "comping ," reported to

DuPont that due to his concerns about numerous "dis crepancies" and "cash handling problems" with Sheridan, he bega n to keep track of the amount of free liquor Sheridan gave aw ay. He recorded that it totaled $921.75 from November 1, 1 991 to February 18, 1992, with $417.25 worth of drinks giv en away in December alone. App. at 222. Dougherty testified at trial that each time he saw Sheridan serve a free drink, he wo uld record the date and dollar amount of the drink, and claimed th at 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 requir e her to handle cash. App. at 910. Sheridan was offered th ree 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 tho se positions, although Sheridan offered evidence at trial that su ggested otherwise. See App. at 473-75, 776. After conside ring the offer for some weeks, Sheridan resigned. Sheridan's testimony at trial portrayed th e events differently than did DuPont. It was her position t hat the alleged dissatisfaction with her performance stemme d from her complaint of sex discrimination which she made in t he fall of 1991, when the hotel reorganized its structure to e liminate the individual restaurant managers and to place a new m anager over all of the restaurants in the hotel. The hotel didnot advertise the position, considered only five of its own emplo yees for the new post (all men), and selected Maisel. DuPont di d not consider Sheridan for the position, id., and Sheridan compla ined toAmblard at least three times in the period of Septe mber and

October 1991 that she was not promoted due to gende r discrimination. App. at 51-52. She also testifiedthat around this time, Amblard told her repeatedly that he plan ned to watch her "like a dog" and "like a hawk." App. at 748. Sheridan's position was that the hotel's recordkeeping of deta ils 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, whe n 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 tri al that was directed to impeaching the credibility of DuPont's witnesses, particularly, but not limited to, Dougherty and Mai sel. Sheridan demonstrated that for two weeks in January 1992, du ring which Dougherty listed three dates when she allegedly dis pensed free drinks, she had reported for jury duty at the Super ior Court. App. at 173-79, 540-43. Even a document handwritte n by Maisel showed that another head captain was scheduled to c over Sheridan's shift on those days. App. at 167. Mais el'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 req uired him to deliver complimentary drinks. App. at 167, 227, 54 0. In fact,

Maisel's written work schedule could be viewed as c ontradicting Dougherty's list as to seven separate dates. In seeking to show the pretextual nature o f DuPont's articulated reasons, Sheridan noted, inter alia, th e temporal proximity of her complaints to Amblard of sex discr imination and

his statements that he would watch her like a "hawk " to the subsequent surfacing of dissatisfaction with her pe rformance, the meticulous recordkeeping of the details of her dail y activities, and the hotel's investigations into her alleged "co mping." Thus, it is clear that the jury in this ca se 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 de termining

whether the evidence is sufficient to sustain liabi lity, the court may not weigh the evidence, determine the cre dibility of witnesses, or substitute its version of the facts f or the jury's version." Lightning Lube, Inc. v. Witco Corp., 4 F .3d 1153, 1166 (3d Cir. 1993). A reasonable jury could have disbe lieved DuPont's proffered reasons for its actions based on Sheridan's evidence and its rejection of the credibility of ce rtain of DuPont's principal witnesses, such as Dougherty andMaisel. We find no paucity of evidence on which the jury couldhave based its finding for Sheridan on her constructive discha rge claim. Under the applicable law, a plaintiff who voluntarily resigned may maintain a case of constructive discha rge 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 e mployer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to the m would resign." Aman v. Cort Furniture Rental Corp., 85 F .3d 1074, 1084 (3d Cir. 1996) (quoting Goss v. Exxon Office System s Co., 747 F.2d 885, 888 (3d Cir. 1984)). In denying DuPont's motion for summary jud gment, the district court rejected DuPont's argument that ther e was no basis on which a jury could find that the conditions to w hich Sheridan claimed she was subjected could have reached the le vel that would constitute a constructive discharge. Instead, the court held that if Sheridan's version of the facts were accept ed by a trier of fact, it would be reasonable for the trier of fa ct 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 DuPo nt "intentionally made [her] working conditions so int olerable that a reasonable person would feel forced to resign" an d that "[Sheridan's] gender was the sole motivating factor in the defendant's conduct." App. at 1487. The evidence of the series of investigativ e activities, allegations of improprieties, placement on probatio n after more than a decade of satisfactory performance, and the ultimate removal of Sheridan from her supervisory position i n the highly reputed Green Room to one of three far less prestig ious dead-end positions, such as the health club attendant, couldhave been viewed by the jury as meeting the criteria of a con structive discharge. The jury returned an unqualified verdic t finding that DuPont had constructively discharged Sheridan and d id so based on her gender. We cannot hold that Sheridan failed to present

sufficient evidence to withstand DuPont's motion fo r judgment as a matter of law, and therefore will reverse the dis trict court's

order to that effect.

C.

Grant of a New Trial Because the district court's ruling focuse d primarily on its decision to grant DuPont's motion for judgme nt 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 o bliged 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 "wouldgrant the motion for a new trial because the jury's verdict i s contrary to the weight of the evidence." Sheridan (July 14, 19 94) at 12

n.11.

We are unable to ascertain the extent to w hich this ruling was affected by the court's misconception th at 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, pl aintiff would have to point to some evidence that that was the mo tive of those in the decision-making process." D. Ct. Opinion at 11-12.Because such evidence is not a prerequisite to a fi nding of

intentional discrimination, we believe the district court should reconsider whether a new trial is warranted in ligh t of the correct legal principles.

It is also unclear whether the district co urt applied the complete test for ruling on a new trial motion. In granting that motion, the district court merely concluded th at the jury's verdict was contrary to the weight of the evidence. Although we recognize that a new trial may be granted even if t he 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 o f the evidence "only where a miscarriage of justice would result i f the verdict were to stand," Williamson v. Consolidated Rail Cor p., 926 F.2d 1344, 1352 (3d Cir. 1991). We have explained that this stringent standard is necessary "to ensure that a district co urt does not substitute its `judgment of the facts and the credi bility of the witnesses for that of the jury. Such an action eff ects a denigration of the jury system and to the extent th at new trials are granted the judge takes over, if he does not us urp, the prime function of the jury as the trier of facts.'" Fine man v. Armstrong World Indus., Inc., 980 F.2d 171, 211 (3dCir. 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 t he district court to determine whether, inasmuch as Sheridan wa s not obliged to produce direct evidence of discriminatory intent , the jury's verdict for Sheridan was against the great weight o f the evidence and would effect a miscarriage of justice. We have previously remarked that the distr ict 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 decis ion. 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 briefl y only one. Sheridan argues that the district court erred in ex cluding 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 anot her occasion Amblard rejected her offer to park cars at the hote l on the ground that she could not park cars because she was a woman. App. at 1521. The district court excluded this tes timony under Federal Rules of Evidence 401 and 403, finding thes e statements "prejudicial and irrelevant." App. at 44. We revi ew a district court's rulings concerning the admission of evidenc e 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 andtherefore the district court took too narrow a viewin holding

that they had no probative value, we cannot conclud e that the district court abused its discretion in deciding th at 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 de fendant.

D. Individual Liability Under Title VII

Sheridan contends that the district court erred in dismissing Jacques Amblard as a defendant on the gr ound that individual employees may not be held liable under T itle VII. Title VII provides, in relevant part: It shall be an unlawful employment practic e 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 statu te defines "employer" as "a person engaged in an industry affe cting commerce who has fifteen or more employees . . . and any age nt 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 tort ious 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 th at Congress

intended to hold individual defendants liable becau se, unlike equitable remedies such as reinstatement which are uniquely available from an employer, these newly available m onetary remedies can be forthcoming from an employee. These arguments are not without some force . However, the clear majority of the courts of appeals that ha ve considered this question have held that individual employees c annot be held liable under Title VII. See Williams v. Banning, 7 2 F.3d 552 (7th Cir. 1995); Tomka v. Seiler Corp., 66 F.3d 129 5, 1313-17 (2d Cir. 1995); Gary v. Long, 59 F.3d 1391, 1399 (D.C.C ir.), 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); Mil ler 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 lea n in that direction, see, e.g., Lenhardt v. Basic Inst. of Te chnology, Inc., 55 F.3d 377 (8th Cir. 1995)(interpreting para llel 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 pl ainlydelegable character"), cert. denied, 115 S.Ct. 666 (1994), while

others have either permitted liability in an employ ee'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 que stion," Ball v. Renner, 54 F.3d 664, 668 (10th Cir. 1995). In our independent examination of this iss ue, we find most significant the fact that when Congress amende d the statute in 1991 to provide a detailed sliding scale of dama ges ranging from $50,000 for an employer of more than 14 and fe wer than 101 employees, to $300,000 for employers with more than 500 employees, 42 U.S.C. § 1981a(b)(3), it made no refe rence as to the amount of damages, if any, that would be payabl e by individuals. This strongly suggests that Congress did not contemplate that such damages would be assessed aga inst individuals who are not themselves the employing en tity. SeeTomka, 66 F.3d at 1315; Maxwell's, 991 F.2d at 587 n.2; Ascol ese 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 previo usly expressed its concern about the impact of Title VII litigation on

small businesses when it excluded businesses with f ewer than fifteen employees from the definition of an "employ er." 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 legislator s indicating concern with burdens imposed upon small businesses forced to defend against Title VII suits); Miller, 991 F.2d a t 587. For these reasons, as well as some of the others cited by the other circuits, we are persuaded that Congre ss did not intend to hold individual employees liable under Ti tle 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 t o reconsider

DuPont's motion for a new trial.

Sheridan v. E.I. DuPont

No. 94-7509

ALITO, Circuit Judge, concurring in part and dissen ting in part.

I join part IID of the opinion of the cour t. 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 s ummary judgment or judgment as a matter of law should be g ranted in anemployment discrimination case governed by the proc edural 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 defe nse motion for summary judgment or judgment as a matter of law mus t always be denied. However, there is strong contrary authorit y, which the majority does not acknowledge. The in banc Fifth C ircuit, by a vote of 16 to 1, has rejected the majority's positi on. Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir. 199 6) (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 2 55, 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. 139 8 (1994). I believe that these other courts have analyzed the q uestion more accurately than the majority has here. If the majority had merely said that, unde r the circumstances described above, a defense motion for summary judgment or judgment as a matter of law must genera lly be denied, I would agree. When a plaintiff makes out a prima facie case and there is sufficient evidence in the record to permi t a rational trier of fact to find that the employer's explanati on is untrue, a defense motion for summary judgment or judgment a s a matter of law should usually be denied. But not always, as t he majority

contends. In my view, the correct test is the follow ing: a defense motion for summary judgment or judgment as a matter of law should be granted when the evidence in the reco rd could not persuade a rational trier of fact that intentional discrimination on the ground alleged by the plaintiff was a determ inative cause of the challenged employment action. This does not mean that a plaintiff, in order to reach the trier of fact, mus t always prove "pretext plus," i.e., that the plaintiff must alway s produce some evidence in addition to what is necessary to establ ish a prima facie case and to show that the employer's explanat ion is pretextual. On the contrary, in most cases, such a dditional proof is not needed. But I disagree with the major ity that proof of the elements of the prima facie case and proof o f 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]stablishme nt of the prima facie case in effect creates a presumption th at 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 o f producingevidence that the adverse employment actions were t aken `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 persua ding the trier of fact that the defendant intentionally discrimina ted against the plaintiff remains at all times with the plainti ff.'" Hicks, 509 U.S. at 507 (quoting Burdine, 450 U.S. at 253). "In this regard," Hicks observed, "it operates like all pres umptions, as

described in Federal Rule of Evidence 301." 509 U. S. at 507. Critical for present purposes is what happ ens when the defendant satisfies its production burden. Burdine addressed this question in the following passage: If the defendant carries this burden of pr oduction, the presumption raised by the prima facie case is rebutted, 10/ and the factual inquiry proc eeds to a new level of specificity.

10/ See generally J. Thayer, Preliminary T reatise on Evidence 346 (1898). In saying that the p resumption drops from the case, we do not imply that the trier of fact no longer may consider evidence previ ously introduced by the plaintiff to establish a prima facie case. A satisfactory explanation by the d efendant destroys the legally mandatory inference o f discrimination arising from the plaintiff' s initial evidence. Nonetheless, this evidence and inferences properly drawn therefrom may be consideredby the trier

of fact on the issue of whether the defend ant's explanation is pretextual . . . .

450 U.S. at 255 & n.10. Hicks similarly explained that, if the def endant meets its production burden, "the McDonnell Douglas frame work -- with its presumptions and burdens -- is no longer releva nt" and should not be "resurrect[ed.]" 509 U.S. at 510. "The pre sumption, 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 int entionally 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 tha t the McDonnell Douglas presumption is governed by the "b ursting bubble" theory associated with Professor James Brad ley Thayer. See 2 McCormick on Evidence § 344 at 462 (4th ed. 1 992). Under this theory, "the only effect of a presumption is t o shift the burden of producing evidence with regard to the pre sumed 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 Wein stein's Evidence ¶300[01] at 300-4 (1996)(footnote omitted)

.That Burdine and Hicks regarded the McDonn ell Douglaspresumption

as governed by this theory is suggested by the following. First, Burdine states that the term "pr esumption" properly "`refers only to a device for allocating t he production burden,'" 450 U.S. at 254 n.8 (emphasis added) (cit ation omitted) -- the orthodox "bursting bubble" view. Second, bo th 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 fo otnote 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 "inferenc es properly

drawn therefrom." 450 U.S. at 255 n.10. In additi on, this footnote begins with a citation to Thayer, who stat ed that once the opponent of a presumption offers sufficient cou nterproof, "[all is then turned into an ordinary question of e vidence, and the two or three general facts presupposed in the r ule of presumption take their place with the rest, and ope rate, with their own natural force, as a part of the total mas s of probative matter." James B. Thayer, Preliminary Treatise on Evidence 346 (1898). Finally, both Burdine and Hicks invoke Fed eral 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 8 41 (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 3 01-9; 9 Wigmore on Evidence § 2491(2) (3d ed. 1940). In McKenna, supra, all of the panel member s agreed that the McDonnell Douglas presumption and Federal Rule of Evidence 301 embody the "bursting bubble" theory. Writing f or 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 re but a presumption destroys that presumption, leaving only that evidence and its inferences to be judged against the competi ng evidence and its inferences to determine the ultimate questi on at issue." 32 F.3d at 830. Judge Lewis then went on to hold t hat the same rule applies under the New Jersey Law Against Discr imination. Id. In dissent, Judge Mansmann agreed that the "bu rsting bubble" theory applies to federal claims, but contended tha t the New Jersey presumption has a more durable effect. Spec ifically, she

wrote that "the federal rule `bursts the bubble' of the presumption, while the New Jersey rule creates an i ssue for the jury." Id. at 841 (Mansmann, J., dissenting). Wit h respect to their analysis of federal law, I think that both th e McKennamajority and dissent were right. C. The version of Rule 301 that was propo sed by the Advisory Committee and promulgated by the Supreme C ourt rejected the "bursting bubble" theory in favor of the theory advocated byProfessor Edmund M. Morgan and others. Proposed Ru le of

Evidence 301 and Advisory Committee Note, 56 F.R.D. 183, 208 (1973). Under this proposed rule, a presumption wo uld have shifted the burden of persuasion. Id. Congress, however, rejected this proposal. The House of Representatives instead adopted a rule that repr esented an "intermediate position" between the "Thayer" and "M organ" theories. H.R. Rep. No. 93-650, 93d Cong., 1st Ses s. 7 (1973), reprinted in 1974 U.S.C.C.A.N. 7075, 7081. The Hou se rule provided that "a presumption imposes on the party a gainst whom it is directed the burden of going forward with the ev idence, and, even though met with contradicting evidence, is suf ficient 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 Pro cedure advocated a return to the originally proposed versi on of Rule 301. Dismissing the House compromise as conceptual ly unsound, the committee argued that "[t]he basic choice is be tween the socalled `bursting bubble' theory and one shifting th e burden of persuasion." Reporter's Memorandum, for the Adviso ry Committee on Evidence and the Standing Committee, to the Sena te Judiciary Committee, reprinted in 1 Weinstein's Evidence at 3 01-3. The Senate rejected the House approach and passed the p resent version of Rule 301. S. Rep. No. 93-1277, 93d Cong., 2d Se ss. , reprinted in 1974 U.S.C.C.A.N. 7051, 7056; 120 Cong . Rec. 37,085 (1974). The Advisory Committee and the Committee o n Rules of

Practice and Procedure then turned to the Conferenc e Committee and again urged the adoption of the originally prop osed version of Rule 301, arguing once more that "[b]asically th e choice to be made in treating the effect to be given presumption s lies between giving them only the effect of a `bursting bubble' and giving them the greater effect of imposing a burden of dis proof once

evidence has established the conditions that call t he presumption into operation." See 1 Weinstein's Evidence at 301 -7. However, the Conference Committee recommended adoption of th e 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 o therwise provided for by Act of Congress or by thes e rules, a presumption imposes on the party against w hom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does no t shift to such party the burden of proof in the sens e of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally c ast.

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 in corporates the"bursting bubble" theory. The text of the rule sup ports this

conclusion since it does not even hint that a presu mption does anything but shift the burden of production. If Co ngress had intended for a presumption to have any further effe ct, such as guaranteeing that the presumed fact would not be re jected at the summary-judgment or judgment-as-a-matter-of-law sta ge, 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 rul e, that a presumption should have such an important additiona l effect. Furthermore, the legislative history sugge sts that Congress, advised that it was compelled to choose b etween the Thayer and Morgan approaches, adopted "the pure Tha yer rule." 1 Weinstein's Evidence at 301-9. Professors Wright a nd Graham disagree with this position based on a passage in t he Conference Report. See 21 Charles A. Wright and Kenneth W. Gr aham, Jr.,

Federal Practice and Procedure §§ 5120 at 547 & n.2 7, 5126 at 609-10 & nn.23-24 (1977). Discussing the consequen ces that follow when the adverse party meets its production burden, the Conference Report states: If the adverse party does offer evidence c ontradicting the presumed fact, the court cannot instru ct the jury that it may presume the existence of the p resumed fact from proof of the basic facts. The court may, however, instruct the jury that it may infer the ex istence 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). Becaus e the highlighted sentence discusses jury instructions, P rofessors Wright and Graham view it as showing that the Confe rence 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 factua l question to the jury. 21 Wright and Graham, supra, § 5126 at 6 10 n.23. Like the Sixth Circuit, In re Yoder Co., 7 58 F.3d at 1119-20 n.13, I do not find this interpretation compelling. The

Sixth Circuit wrote: The emphasized portion of this quotation i s not inconsistent with the bursting bubble theo ry. . . . The statement that the jury may be instruc ted to consider an inference is most naturally re ad as permitting such an instruction when calledfor by the existence of a logical inference.

Id. (emphasis in original). This reading is at lea st 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 wa s intended to give presumptions an important effect not mentionedin the text

of the rule. I must acknowledge that a passage in Hicks may be read as supporting Professors Wright and Graham's argume nt, at least with respect to the McDonnell Douglas presumptions. Hicksstated:The factfinder's disbelief of the reasons put forward

by the defendant (particularly if disbelie f is accompanied by a suspicion of mendacity) m ay, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, re jection of the defendant's proffered reasons will per mit the trier

of fact to infer the ultimate fact of inte ntional discrimination,4/ and the Court of Appeals was correct when it noted that, upon such rejection, " [n]o additional proof of discrimination is requ ired."

4/ Contrary to the dissent's confusion-pr oducing analysis, post, at 535-536, there is nothi ng whatever

inconsistent between this statement and ou r later statements that (1) the plaintiff must sho w "both that the reason was false, and that discriminat ion was the real reason," infra, at 515, and (2) "it i s not enough . . . to disbelieve the employer," infra, at 519. Even though (as we say here) rejection of the d efendant's proffered reasons is enough at law to sust ain a finding of discrimination, there must be a finding of

discrimination.

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

original).

Read in isolation, this passage may seem t o 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 adopt ed 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 a t 993-95; Woods, 30 F.3d at 260-61 n.3. Instead, I believe t hat this passage can reasonably be interpreted as simply rej ecting the "pretext plus" approach that Justice Souter attribu ted 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 r eview article that Justice Souter cited, "the plaintiff must prod uce some additional evidence other than the evidence support ing the prima

facie case and other than the fact of the defendant 's deception." Catherine J. Lanctot, The Defendant Lies and the Pl aintiff Loses: The Fallacy of the `Pretext-Plus' Rule in Employmen t Discrimination Cases, 43 Hastings L.J. 57, 87-88 (1 991). The previously quoted passage from Hicks may be interpr eted to mean that such additional proof (i.e., the "plus" in "pr etext plus") is not always required. Accordingly, when the Cour t wrote (509 U.S. at 511) that "rejection of the defendant's pro ffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination," what the Court may hav e meant isthat the trier of fact is permitted to draw such an inference --

in the sense that the trier of fact is not preclude d by any legal rule, such as "pretext plus," from doing so -- if s uch an inference is factually warranted. The same interpr etation may be given to the Court's subsequent statement that "upo n [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 d efendant's proffered reasons is enough at law to sustain a fin ding of discrimination" (id. at 511 n.4) in the sense that no other blanket legal requirement, such as proving the "plu s," is needed. I favor this interpretation because it is consisten t with my conclusion, discussed above, that Rule 301 presumpt ions in general and the McDonnell Douglas presumption in pa rticular 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 "bursti ng 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 u nder the pure "bursting bubble" theory, once a presumption is des troyed, 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 natura l probative force of the basic facts that brought the presumpti on into play is sufficient to support such a finding (or the evi dence as a whole supports it). Otherwise, the presumed fact m ay not be found, and the presumption does not protect this po ssibility." 1 Christopher B. Mueller and Laird C. Kirkpatrick, Fe deral Evidence§ 70 at 332 (1994) (emphasis added). Another observes: "T he opponent of the presumption may still not be entitl ed to a directed verdict, but if its motion is denied, the ruling will have nothing to do with the existence of a presumpt ion." 2 McCormick on Evidence, § 344 at 462. See also 21 W right and Graham, Federal Practice § 5122 at 564. In Thayer' s words, after the presumption is spent, "[a]ll is then turned int o an ordinary question of evidence." Thayer, Preliminary Treati se at 346.

III.

Once it is recognized that the McDonnell D ouglaspresumption disappears in the face of sufficient counterproof, the test to be applied in ruling on a defense motio n for summary judgment or judgment as a matter of law is clear: t he motion should be granted if all of the evidence in the rec ord and the inferences that may be drawn from that evidence cou ld not persuade a rational trier of fact that intentional discrimination on the ground alleged by the plaintiff was a determ inative cause of the challenged action. This test follows from t he following

three rules: 1. In a McDonnell Douglas case, "[t]he ul timate burden of persuading the trier of fact that the defendant intentionallydiscriminated against the plaintiff remains at all times with the

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

at 507. 2. This burden requires proof that discr imination 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 mat ter of law are proper where a trier of fact could not rational ly return a verdict in favor of the opposing party. Anderson v . Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986); Celotex C orp. v. Catrett, 477 U.S. 317, 322-323 (1986). Putting these rules together, it is appare nt that a defense motion for summary judgment or judgment as a matter of law should be granted where a trier of fact could n ot rationally find based on the record (and giving no further con sideration to the presumption as such) that discrimination on the ground alleged was a determinative cause of the challengedaction. The majority, however, takes the position that such a motion must be denied whenever there is enough evid ence to support a finding that the explanation offered by t he employer is untrue. See Maj. Op. 13. This position can be cor rect only if proof that is sufficient to justify disbelief of th e employer's explanation (the majority's test) will always be en ough 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, infr a) -- 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 disc rimination that may exist in the record of a discriminatory-tr eatment case after the McDonnell Douglas presumption is burst an d sufficient evidence to show pretext is offered. This evidence may be grouped into four categories. A. First, there are the facts that the pl aintiff proved to make out the prima facie case and the inf erences to which those facts naturally give rise. In some cas es, the "natural probative force" of these facts is substan tial, but in others it is relatively weak. "The burden of estab lishing a prima facie case of disparate treatment is not oner ous," Burdine, 450 U.S. at 253, and "evidence sufficient to make o ut 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, s tanding 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 (9 th Cir. 1994). An example which the prima facie case give s rise to only a weak inference of discrimination is the age discrimination case in which a somewhat younger person is hired, p romoted,retained, etc. instead of a slightly older person. Under our

cases, a plaintiff in an age discrimination suit ca n 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 andwas 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 fi nal element of this formulation, we have held that an eight-year g ap is enough and have suggested that a five-year difference may suffice. Barber, 68 F.3d at 695. Thus, I believe that a pla intiff claiming that he or she was denied a promotion due to age discrimination could make out a prima facie case un der our circuit law by showing, for example, that he or she (1) was 43 years old at the time in question, (2) had the mini mum requisite qualifications, (3) and applied for the job, but th at (4) the employer instead chose a 35-year old. I agree that these facts permit an inferen ce of age discrimination, but I do not think that a reasonabl e person could give these facts, standing alone, much weight. A w ay to test this hypothesis is to ask: if you knew nothing more about this promotion decision, how much would you bet that, wh en all the facts were revealed, the reason for the decision wo uld turn out to be age discrimination? I think that few people would be willing to wager much on this bet -- precisely beca use 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 or der to make out a prima facie case of discrimination on these g rounds, a plaintiff must show that he or she (1) is a member of a national origin group or adherent of a religion, (2) appliedor was considered for the position or benefit, and (3) was at least minimally qualified, but (4) the position or benefi t 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 showin g that he was a qualified Filipino Catholic and that promotion we nt to "a nonFilipino and born-again Christian"). How strong an inference of national origin or religious discrimination natural ly arises from such a bare showing? Suppose that all that you knew about an employment decision was that the employer rejected an applican t who traced his or her national origin to one country and inste ad chose another person who did not trace his or her nationa l origin to that particular country. How confident would you b e that the reason for the decision, when all the facts were re vealed, 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 a nother religion in favor of another employee of a differen t religion. How confident would you be that the reason for the decision, whenall the facts were revealed, would be intentional d iscrimination

on the basis of religion? In my view, most rationa l people, without knowing more, would have little confidence that the real reason would turn out to be national origin or reli gious discrimination, and I therefore submit that these b are facts naturally give rise to only a slight inference of d iscrimination. And, although I will not belabor the point by posin g further examples, I think that the natural probative force of the prima facie case is sometimes weak in race and gender cas es 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 ow n to sustain a finding of discrimination. B. Second, there is the inference of disc rimination 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 explan ation for the challenged employment action. For example, if it i s certain that an employee was discharged for either reason "a" or reason "b" and no other, and if reason "b" can be ruled out, t hen obviously it may be inferred that the real reason for the dis charge 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, 5 97 (3d Cir. 1995). Perhaps the clearest examples are cases in which the plaintiff challenges a single adverse employment ac tion based on two or more alternative grounds, a rather common ta ctic. See, e.g., Roxas v. Presentation College, 90 F.3d 310 (8 th Cir. 1996) (plaintiff alleged race, national origin, gender, a nd age discrimination); Lawrence v. Nat'l Westminster Bank of N.J., 1996 WL 589189, No. 95-5603 (3d Cir. Oct. 15, 1996); Rab inovitz v. Pena, 89 F.3d 482 (7th Cir. 1996) (age, religion, a nd 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 reta liation); Evans v. Technologies Applications & Ser. Co., 80 F .3d 954 (4th Cir. 1996), (age and gender); Austin v. Owens-Brock way Glass Container, Inc., 78 F.3d 875 (4th Cir. 1996), petit ion for cert. filed, 65 U.S.L.W. 3181 (U.S. Aug. 28, 1996) (No. 9 6-337) (gender and disability); Americanos v. Carter, 74 F.3d 138 (7th Cir. 1996), cert. denied, 116 S.Ct. 1853 (1996) (age, ge nder, and national origin); Castillo v. Frank, 70 F.3d 382 (5 th Cir. 1995) (age, gender, and national origin); Meinecke v. H & R Block, 66 F.3d 77 (5th Cir. 1995) (age and ge nder); 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. Sea rs, Roebuck &Co., 3 F.3d 1035 (7th Cir. 1993) (age and gender).

To take one of the many possible combinati ons of claims, an employee might contend that he or she di d not get a promotion (1) because of gender and (2) because of disability. If the record in such a case contains strong eviden ce of disability discrimination, rejection of the employe r's explanation (let us say, inferior qualifications) w ill 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 re asonably conclude that there was discrimination on the groun d 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 reject ion of an employer's reasons need not be an all-or-nothing pr oposition.) 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 j ustified in believing that it is more probable than not (but ba rely so) that the employer's explanation is false. Or, a trier o f 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 tha t 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 c hallenged action. Or, if the employer asserts multiple reaso ns, the evidence might be such as to justify belief (to som e degree) of some reasons but not others. All other things bein g equal, the more strongly and completely the trier of fact can rationally rule out the employer's reason(s), the more justifi ed it is to conclude that there was discrimination on the groun d alleged --

and vice versa. C. Third, disbelief of the employer's exp lanation may also give rise to an inference that the employer wa s trying to conceal discrimination on the ground that the plain tiff claims. But the strength of this inference, too, will vary based on the facts. Its strength will depend on whether there i s evidence in the record of some other possible explanation that the employer might not want to disclose (e.g., in my prior hypot hetical, disability discrimination). In addition, its stren gth will obviously be proportional to the extent and strengt h of the trier of fact's disbelief of the employer's reason(s). D. The fourth category consists of any ot her 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 Wa terhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O'Connor, J., co ncurring). 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 d iscrimination that are relevant for present purposes, I return to the question whether there will always be enough evidence to sup port a verdict of discrimination on the ground alleged by the plai ntiff after the McDonnell Douglas presumption has burst and suf ficient evidence of pretext has been adduced. To ensure th at I am not misunderstood, I emphasize again that I think that under these circumstances there will usually be sufficient evid ence -- but not always. Specifically, where the natural probat ive force of the facts offered to prove the prima facie case is weak, where there is strong evidence in the record that the cha llenged employment action was attributable to some factor o ther than the discriminatory ground alleged by the plaintiff or t he explanation offered by the employer, and where there is no othe r evidence that the action was due to discrimination on the gr ound alleged, the evidence of discrimination on that ground may b e insufficient

to sustain a verdict and thus insufficient to defea t summary judgment or judgment as a matter of law. Here is an example. A man with a disabili ty applies for a promotion, but the promotion is given to a wo man without a disability. See, e.g., Antol v. Perry, 82 F.3d 129 1 (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 wa s a man and that the great majority of the employees in the job category at issue were men. The employer says that the woman w as chosen because her qualifications were better, but the pla intiff shows that this explanation is full of holes. In additio n and most important, there is strong, direct evidence that th e decisionmaker was biased against the plaintiff beca use of his disability. Among other things, there is testimony that, when the decisionmaker learned that the plaintiff had ap plied for the promotion, the decisionmaker made insulting and der ogatory remarks about the plaintiff's disability. Is there enough evidence in this case to c onvince a rational trier of fact that the promotion decision was based on gender discrimination? I think not, and if I am ri ght, then the majority's blanket test is disproven. Consider the evidence in each of the four categories that I previously descr ibed. The facts underlying the prima facie case of gender dis crimination -- basically that the plaintiff was qualified but a wo man was given the job instead -- have little natural probative fo rce for the purpose of showing gender discrimination; a qualifi ed man might be rejected in favor of a woman for many other reas ons. As for the evidence that the employer's explanation (the w oman's supposedly better qualifications) was untrue, rulin g out the employer's explanation still leaves both gender anddisability discrimination as possible explanations, and in lig ht of the strong evidence of disability discrimination, does little to showgender discrimination. Likewise, while the employe r's conduct in

proffering a false explanation permits an inference that the employer's real reason was one that it wished to hi de, that inference does little to show that the employer's r eal reason was gender discrimination because there is strong evide nce 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 tha t that theory should be weeded from the case before the plaintiff 's claim of disability discrimination is sent to the trier of f act. The majority's test, however, would requir e that the gender discrimination claim be sent to the trier of fact as well. Indeed, if the plaintiff had added claims of age, r ace, national origin, and religious discrimination and was able t o do the minimum necessary to establish a prima facie case o n 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 dis criminatory treatment case must prove intentional discriminatio n on each ground alleged and that summary judgment or judgmen t as a matter of law must be granted if the record does not ratio nally support a judgment for the non-moving part on each such gro und. See, e.g., Deborah C. Malamud, The Last Minuet: Dispara te Treatment After Hicks, 93 Mich. L. Rev. 2229, 2306-2311 (1995 ).

VII. Recognition of what I believe is the corre ct test would clarify the analysis of discriminatory-treatment ca ses and would avoid analytical difficulties that the majority's t est 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 factfin der reasonably to infer that each of the employer's proffered nond iscriminatory 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). Ho wever, Fuentesqualifies this statement by adding that "[i]f the defendant proffers a bagful of legitimate reasons, and the pl aintiff 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 offer s three reasons, each of which, it says, was equally import ant in the challenged decision, how many must the plaintiff kn ock down? All of them? Or will two suffice? (I assume that one would not be a "fair number.") What if the employer says that rea son one was the most important, counting for, say, 40%, and tha t reasons twoand three each counted for 30%? Would it be enough for the

plaintiff to refute reason one? If so, would refut ing reason two by itself also suffice? Why? I don't know, and I don't think that it is possible to provide a satisfactory answe r to questions of this sort within the framework of the majority's test. By contrast, these problems disappear if w hat I contend is the correct test is used. No matter how many re asons the employer offers and no matter what combination of r easons the plaintiff succeeds in knocking down, the dispositiv e question remains the same: taking into account all of the ev idence in the record, including whatever inferences and deduction s 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 dis crimination on the ground alleged was a determinative cause of the challenged

action? B. The second analytical difficulty conce rns the ability of a plaintiff to survive summary judgment or judgment as a matter of law by combining the evidence that nece ssarily remains after the McDonnell Douglas presumption has burst and sufficient evidence of pretext has been offered (th e facts underlying the prima facie case and the inferences that logically flow from the rejection of the employer's explanati on) with any

other direct and circumstantial evidence of discrim ination 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, eit her circumstantially or directly, or (ii) adducing evid ence, whether circumstantial or direct, that discrimination was m ore likely than not a motivating or determinative cause of the adverse employment action." Fuentes, 32 F.3d at 764 (empha sis in original). Why can't a plaintiff potentially satisfy his or her burden by combining some evidence from each of thes e categories? For example, if a plaintiff can almost, but not qui te, show enough "weaknesses, implausibilities, inconsistenci es, incoherencies, or contradictions in the employer's proffered legitimate reasons" to come within the first part o f this test, id. at 765, why can't the plaintiff make it over th e hump by adding a bit of evidence from the second part, i.e. , other direct

or circumstantial evidence of discrimination? Fuen tes doesn't explain, and I don't think that any good explanatio n is possible. In sum, I submit that the majority's test is both wrong and unwieldy and that the correc t test is simply whether a rational trier of fact could find, based on the record, that discrimination on the ground alleged w as a determinative cause of the challenged employment ac tion.

VIII.

Applying this test, I agree with the distr ict judge's analysis of the record. The record shows great per sonal friction between the plaintiff and her supervisors regarding matters such as grooming, smoking, tardiness, and giving away fr ee food andbeverages, but the district judge saw little if any evidence of

any kind that could reasonably link this personal a nimosity to the plaintiff's gender. The district judge wrote t hat she was "left searching the record for evidence that gender played a

determinative role in defendant's conduct." In reaching the opposite conclusion, the m ajority apparently relies on the following: (a) "no woman h ad 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 g ender discrimination because the plaintiff was found to b e unqualified for the position of Manager of Restaurants. Factor (b) likewise gives rise to only a weak inference since two of th e other four head captains were women. Factor (c) does not prov ide a link to gender; nor does factor (d). Is all of this eviden ce taken together enough to persuade a rational factfinder t hat the reason for the animosity between the plaintiff and her sup ervisors was gender rather than sheer personal antipathy? The d istrict judge concluded that it was not, and I am inclined to agr ee with her analysis. I also agree with the district judge's con ditional grant of a new trial. The district judge applied t he correct legal standard. She recognized that "[a] new trial cannot be granted . . . merely because the court would have w eighed the evidence differently and reached a different conclu sion." Sheridan II at 12 (quoting Markovich v. Bell Helico pter 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 tria l may be granted on the ground that the verdict was against the weight of the evidence only when the failure to do so would r esult in injustice or shock the conscience of the court. Id . Moreover, in assessing the evidence, the court recognized tha t disbelief of defendant's proffered reason was evidence of discri mination. Accordingly, I believe that the district judge appl ied the correct legal precepts in ruling on defendant's newtrial motion,

and because I do not think that she abused her disc retion in granting the motion, I would affirm.