1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-31-1996

Sheridan v. DuPont & Co.

Precedential or Non-Precedential:

Docket 94-7509

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"Sheridan v. DuPont & Co." (1996). 1996 Decisions. Paper 254.

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

____________ 

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. 93-00046) 

____________________ 

Argued: May 4, 1995 

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

and SCHWARZER, Senior District Judge* 

(Opinion Filed: January 31, 1996) 

____________________ 

 THOMAS S. NEUBERGER, ESQ. (Argued) 

 200 West Ninth Street, 

 Ninth Street Plaza 

 Wilmington, DE 19801-1646 

 Attorney for Appellant

 RAYMOND M. RIPPLE, ESQ. (Argued) 

 DONNA L. GOODMAN, ESQ. 

 E.I. duPont de Nemours & Company 

 Legal Department 

 1007 Market Street, Dupont Building 

 Wilmington, DE 19880-0036 

 Attorneys for Appellee

 
2 

* The Honorable William W Schwarzer, Senior United States 

District Judge for the Northern District of California, sitting 

by designation. 

 ____________________ 

OPINION OF THE COURT 

____________________ 

ALITO, Circuit Judge: 

 Barbara Sheridan filed this action against her former 

employer, E.I. duPont de Nemours & Co., Inc. ("duPont"), and a 

duPont supervisory employee, Jacques Amblard, under Title VII of 

the Civil Rights Act of 1964, 42 U.S.C. § 2000e-l et seq. She 

asserted several different claims for sex discrimination and 

unlawful retaliation. Before trial, the district court granted 

the defendants' motion in limine to exclude certain evidence. 

During trial, the court dismissed the claims against Amblard on 

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

jury subsequently returned a verdict in favor of Sheridan and 

against duPont on her constructive discharge claim, but the jury 

found for duPont on Sheridan's remaining claims. The district 

court then granted duPont's motion for judgment as a matter of 

law (and in the alternative for a new trial) on the constructive 

discharge claim. 

 Following the great weight of the federal appellate 

decisions concerning employee liability under Title VII, the Age 

Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and 

the Americans with Disabilities Act, 42 U.S.C. § 12111 et seq., 

we affirm the dismissal of the claims against Amblard. Because 

we are bound by our court's decision in Fuentes v. Perskie, 32 
3 

F.3d 759 (3d Cir. 1994), and subsequent decisions following 

Fuentes, we reverse the entry of judgment as a matter of law on 

the constructive discharge claim against duPont, but we affirm 

the granting of a new trial. We also hold that the district 

court did not err in its ruling on duPont's motion in limine. 

I. 

 Barbara Sheridan began working for duPont in 1979 as a 

part-time waitress in the Hotel duPont. Sheridan v. E.I. duPont 

de Nemours and Co., No. 93-46 (D. Del. March 28, 1994) ("Sheridan 

I") at 2. She was subsequently promoted to hostess in the Lobby 

Lounge, group leader in the Lobby Lounge, and captain in the 

Brandywine Room restaurant. Id. at 2-3. In May 1989, she was 

transferred to the Green Room restaurant and was promoted to head 

captain of the breakfast and lunch shifts. In this capacity, she 

reported to Ed Barba, the Green Room restaurant manager. Barba, 

in turn, reported to Nicholas Waller, who managed all the hotel's 

restaurants. Id. at 3. 

 Initially, Sheridan received good employment reviews. 

Her 1990 performance review rated her overall performance as 

"very good," which was the second highest possible rating. App. 

197. She received the highest possible rating in the categories 

of interpersonal relationships, planning, and problem solving. 

Id. Her lowest marks, in the categories of oral and written 

communication and attendance, were respectively "good" and 

"satisfactory." Id. The review summarized her strengths and 

weaknesses as follows: 
4 

Very good guest relations, organized. As a 

team player, strengthening is needed to 

improve the overall relationship with the 

rest of the operation. . . . Since May of 

1989, Barbara's persistence has paid off by 

guest loyalty, staff does not call off sick, 

and overall very good morale from the support 

team. 

App. 198. 

 Sheridan also received several awards and merit 

increases. In May 1990, she received a $948 yearly merit 

increase. She also won a $1000 accomplishment award in December 

of that year. App. 151. The letter that informed her of this 

award stated: 

[t]he enthusiasm you portray in greeting 

customers and providing them service is 

outstanding . . . . [Y]ou project an image 

of quality, service and commitment. . . . 

Your success in creating an environment in 

which high quality customer service 

flourishes is evident by the team spirit of 

your staff. Again, congratulations for this 

well-deserved award and thank you for being a 

role model and a true ambassador for the 

company. 

Id. While other employees received awards for $200 to $500, 

Sheridan was the only restaurant employee to receive a $1000 

award. App. 287. The next month, she was chosen to appear in a 

company video, and in February 1991 she received another merit 

raise of $1188 per year. App. 733-34, 740-41. 

 DuPont claims that Sheridan's performance began to 

deteriorate in early 1991. In February 1991, Ed Barba met with 
5 

Sheridan and discussed various corrective measures. App. 228. 

Two of these measures were maintaining an accurate count sheet to 

insure a fair distribution of "covers" (i.e., tips received from 

the tables) and ending her use of the Green Room bar for grooming 

and smoking. Id. Despite this meeting, Barba later saw Sheridan 

putting on makeup and smoking in the Green Room bar. App. 229, 

305h. 

 According to Nicholas Waller, he met with Sheridan in 

the summer of 1991 to discuss "numerous complaints" about her 

treatment of Green Room employees. App. 960. Waller testified 

that employees had complained that Sheridan had asked them to 

perform personal services, such as parking her car, giving her a 

wake-up call, and taking personal mail to the post office. App. 

963. These employees allegedly told Waller that those who helped 

her with these personal tasks were favored with more "covers." 

Id. Sheridan, however, disputed Waller's recollection of this 

meeting. Sheridan points to Barba's testimony that he was 

unaware of any employee complaints regarding "covers" between 

February and September 1991. App. 298. She also observed that, 

despite the alleged complaints, she received another promotion 

and raise on October 1, 1991. App. 142. 

 During the summer and fall of 1991, the hotel 

streamlined its operating structure. Sheridan I at 5. As part 

of this reorganization, the hotel eliminated the managers of the 

individual restaurants and hired a single new manager for all the 

restaurants. Id. Sheridan applied for this new position, but 

the hotel selected Jeff Maisel. Id. Sheridan felt that she was 
6 

qualified for this position and that she was not promoted because 

of her sex. On at least three occasions, she complained about 

this alleged discrimination to Jacques Amblard, the hotel general 

manager. Id. at 5-6. 

 On October 17, 1991, Maisel met with Sheridan to 

discuss her alleged unfairness in the distribution of "covers," 

her tardiness, and her continued disregard for the hotel's 

grooming policy. App. 206, 885. Subsequent to this meeting, 

duPont claims that the following infractions were recorded: 

Oct. 20: Sheridan was 45 minutes late and 

violated grooming policy. 

Oct. 22: Sheridan was 25 minutes late. 

Oct. 23: Sheridan was 20 minutes late. 

Nov. 3: Sheridan was 17 minutes late and 

violated grooming policy. 

Nov. 3: During a staff meeting, Sheridan 

left premises and was observed with 

another employee in a company van. 

Nov. 7. Sheridan was eating and smoking in 

Green Room bar during service 

hours. 

App. 206. 

 Allegedly because of these continued infractions, 

Maisel placed Sheridan on probation on November 10, 1991. Maisel 

told her that in order to be taken off probation, she would have 

to report to work on time, follow the hotel's grooming and 

smoking policies, and stay in her assigned work area. App. 207. 

Maisel informed her that further infractions or instances of poor 

performance could result in termination. App. 208. 
7 

 Other incidents allegedly took place while Sheridan was 

on probation. When Joe Marshall, the room and service head 

captain, attended her daily staff meeting one day in February 

1992, Sheridan told him to "leave her meeting," App. 219, and 

according to Maisel, who was present, Sheridan was quite rude. 

Id. Later, Sheridan was asked to work on a Sunday, but she 

initially refused. When told that she was required to report, 

she agreed but stated that "after 13 years she deserved to work 

Monday-Friday." App. 220. 

 In late February, the hotel began to investigate 

Sheridan for giving complimentary drinks without ringing up 

complimentary checks, as hotel policy required. App. 221. At 

trial, duPont offered evidence that Sheridan had improperly given 

away large quantities of complimentary drinks, as well as food. 

According to a supervisor who participated in the investigation, 

the investigation received "rather consistent feedback from the 

employees of the restaurant" that Sheridan "comped liquor and 

[did] not properly record[] it." App. 1159. An internal duPont 

document memorialized alleged statements by numerous co-workers, 

male and female, to the effect that Sheridan "comped" beverages 

and food without recording that this was being done. App. 222-

226. The most damaging evidence came from a bartender, James 

Dougherty, who stated that he had kept a daily record of the 

drinks that Sheridan had improperly "comped," and that the total 

for the period from November 1, 1991, to February 18, 1992, was 

$921.75. Dougherty testified that his dates were "about 98-

percent accurate." App. 688. There was evidence, however, that 
8 

Sheridan was on jury duty or was not scheduled to work on some of 

the days in question. 

 After the investigation was completed, Maisel and 

others met with Charles Beinkampen, the director of hospitality, 

to determine what to do about Sheridan, and they decided to 

reassign her to a non-supervisory position that did not involve 

the handling of cash. App. 910, 1160. The hotel offered her the 

positions of front desk representative, health spa attendant, or 

banquet server. She was offered these positions without a 

reduction in pay. App. 910. While the hotel also claimed that 

she would be eligible for promotion and raises in any of these 

positions, Sheridan offered conflicting evidence. Rather than 

accepting reassignment, Sheridan resigned in April 1992. 

 Sheridan subsequently filed suit against duPont and 

Amblard, asserting three violations of Title VII of the Civil 

Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Count I of her 

complaint claimed that the hotel had refused to promote her to 

manager of restaurants because of her sex. App. 82-83. Count II 

charged that she had been placed on probation and that other 

disciplinary actions had been taken against her in retaliation 

for her complaints about the hotel's failure to promote her on 

account of her sex. App. 83. Count III alleged that the hotel 

had created intolerable working conditions that resulted in her 

constructive discharge. App. 83-84. 

 The district court denied the defendants' motion for 

summary judgment, holding, among other things, that the evidence 

in the summary judgment record, if believed, was sufficient to 
9 

show that Sheridan had been constructively discharged. App. 68-

69. The court granted in part the defendants' motion in limine 

to exclude certain testimony by Sheridan and two other witnesses. 

The court also ruled that the jury would serve as the finder of 

fact for the claims based on conduct that occurred after November 

21, 1991, the date of the enactment of the Civil Rights Act of 

1991, P.L. 102-166, 105 Stat. 1071 (1991), which granted a right 

to a jury trial on Title VII intentional discrimination claims 

for which compensatory or punitive damages are sought. The court 

ruled that the jury would serve in an advisory capacity for the 

claims based on events that occurred before that date. Thus, the 

court ruled that the jury would return advisory verdicts with 

respect to Count I (failure to promote) and those alleged 

retaliatory acts (Count II) that occurred before November 21, 

1991. The court ruled that the jury would serve as the finder of 

fact with respect to the remaining alleged retaliatory acts and 

with respect to Count III (constructive discharge). During 

trial, the court dismissed the claims against Amblard, holding 

that individual employees are not liable under Title VII. 

 The jury returned special interrogatories. With 

respect to Count I (failure to promote), the jury found that 

Sheridan was not qualified for the job of manager of restaurants. 

App. 31. With respect to Count II (retaliation), the jury found 

that the defendants' actions both before and after November 21 

were not taken in retaliation for Sheridan's complaints about the 

defendants' failure to promote her. App. 32. However, on Count 

III (constructive discharge), the jury found in favor of Sheridan 
10 

and awarded her $17,500 in compensatory damages, exclusive of 

lost wages.0 App. 33. The court adopted as its own the jury's 

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

that took place before November 21. 

 Both parties then moved for judgment as a matter of law 

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

duPont's motion for judgment as a matter of law because it found 

that the evidence was insufficient to allow a reasonable jury to 

conclude that sex played a determinative role in Sheridan's 

constructive discharge. Sheridan v. E.I. duPont de Nemours and 

Co., No. 93-46 (D. Del. July 14, 1994) ("Sheridan II"). The 

court did not dispute the fact that Sheridan had established a 

prima facie case, and the court stated that it was "willing to 

accept that the jury rejected the defense witnesses' claims that 

the investigation into plaintiff's `comping' activities was 

legitimate." Sheridan II at 9. But the court added: "Having 

accepted that proposition . . ., the Court is still left 

searching the record for evidence that gender played a 

determinative role0 in defendant's conduct." Id.

 

0

The court calculated Sheridan's lost wages to be $51,072. 

Sheridan v. E.I. duPont de Nemours and Co., No. 93-46 (D. Del. 

May 20, 1994). However, the jury found that Sheridan had failed 

to mitigate these damages in the amount of $33,000. The court 

thus awarded her the difference -- $18,072 -- in addition to six 

months of front pay in the amount of $12,768. Id. at 8. 

0

This case was tried prior to our decision in Miller v. CIGNA 

Corp., 47 F.3d 586 (3d Cir. 1995) (in banc), in which we held 

that a plaintiff in an Age Discrimination in Employment Act case 

need show only that age was a determinative cause (as opposed to 

the sole cause) of the challenged action. Relying on our prior 

decision in Griffiths v. CIGNA, 988 F.2d 457 (3d Cir.), cert. 

denied, 114 S. Ct. 186 (1993), the district court in this case 
11 

II. 

 A. 1. We first consider Sheridan's argument that the 

district court erred in granting duPont's motion for judgment as 

a matter of law. With respect to this question, we exercise 

plenary review. Seman v. Coplay Cement Co., 26 F.3d 428, 431 (3d 

Cir. 1994). "Such a motion should be granted only if, viewing 

the evidence in the light most favorable to the nonmovant and 

giving it the advantage of every fair and reasonable inference, 

there is insufficient evidence from which a jury reasonably could 

find liability." Lightning Lube, Inc. v. Witco Corp., 4 F.3d 

1153, 1166 (3d Cir. 1993) (citation omitted). "Although judgment 

as a matter of law should be granted sparingly, a scintilla of 

evidence is not enough to sustain a verdict of liability. `The 

question is not whether there is literally no evidence supporting 

the party against whom the motion is directed but whether there 

is evidence upon which the jury could properly find a verdict for 

that party.'" Id. (citation omitted) (quoting Patzig v. O'Neil, 

577 F.2d 841, 846 (3d Cir. 1978)). 

 2. We begin by considering duPont's argument that the 

evidence was insufficient to show that Sheridan was 

constructively discharged. Although the district court did not 

grant judgment as a matter of law on this basis, duPont argues in 

 

instructed the jury that it had to find that Sheridan's gender 

was the sole cause of her constructive discharge, and the jury 

apparently found that this higher standard had been met. But in 

granting duPont's motion for judgment as a matter of law the 

district court held that the evidence of sex discrimination was 

insufficient even under the lesser Miller standard. 
12 

effect that we should affirm the district court on this 

alternative ground. 

 In Goss v. Exxon Office Systems Co., 747 F.2d 885, 887-

88 (3d Cir. 1984), our court recognized the concept of 

"constructive discharge" for Title VII purposes. As we observed, 

"[c]lassifying a termination as a constructive discharge rather 

than a voluntary quit has significant ramifications with resect 

to the scope of relief." Id. at 887. Noting that some courts of 

appeals had apparently "required a finding that the 

discrimination complained of amounted to an intentional course of 

conduct calculated to force the victim's resignation," we 

rejected this approach and adopted "an objective standard" 

requiring a finding that "the employer knowingly permitted 

conditions of discrimination in employment so intolerable that a 

reasonable person subject to them would resign." Id. at 887-88. 

We have applied this test in subsequent cases. See, e.g., Clowes

v. Allegheny Valley Hospital, 991 F.2d 1159 (3d Cir.), cert. 

denied, 114 S. Ct. 441 (1993); Gray v. York Newspapers, Inc., 957 

F.2d 1070 (3d Cir. 1992); Levendos v. Stern Entertainment, Inc., 

860 F.2d 1227 (3d Cir. 1988). We are bound to apply this 

standard here. 

 Applying the Goss test and our subsequent precedents, 

we agree with the district court that there was adequate evidence 

to establish a constructive discharge in this case. Sheridan 

offered evidence that, when viewed in the light most favorable to 

her, would support a finding that Dougherty's evidence was 

fabricated. Moreover, Sheridan's situation was aggravated by the 
13 

fact that most of her staff knew about the investigation and 

might interpret her acceptance of a transfer as an acknowledgment 

of guilt. Sheridan also presented evidence from which a 

reasonable trier of fact could infer that the new positions 

offered to her would have represented demotions and that she 

would have effectively lost the opportunity for promotion or pay 

raises. Taken as a whole, the evidence of constructive discharge 

was sufficient. 

 3. We thus turn to the question whether, as the 

district could held, there was insufficient evidence under St. 

Mary's Honor Center v. Hicks, 113 S. Ct. 2742 (1993), to show 

that Sheridan's gender was a determinative cause of the 

constructive discharge. As Sheridan argues, it appears that she 

made out a prima facie case of gender discrimination by showing 

(a) that she is a woman, (b) that she was qualified for the 

position of head captain, (c) that she was constructively 

discharged, and (d) that she was replaced by a man. See, e.g., 

Waldron v. SL Industries, Inc., 56 F.3d 491, 494 (3d Cir. 1995). 

Under Hicks, Sheridan contends, "[t]hat prima facie showing, 

coupled with the jury's ability to find that the reason offered 

[by duPont] was a pretext, permitted the jury to find that sex 

discrimination had occurred." Appellant's Br. at 27 (footnote 

omitted). 

 In Hicks, the plaintiff claimed that he had been 

demoted and discharged because of race. He established a prima 

facie case, the employer offered legitimate reasons for the 

demotion and discharge, and the district court, sitting as the 
14 

trier of fact, found the employer's reasons to be pretextual. 

Hicks v. St. Mary's Honor Center, 756 F. Supp. 1244, 1251 (E.D. 

Mo. 1991). The court noted, however, that the plaintiff bore the 

ultimate burden of proving that race was a determinative factor. 

Id. Finding that the plaintiff had failed to prove that the 

employer's conduct was racially rather than personally motivated, 

the court found in favor of the employer. Id. at 1252. 

 The court of appeals reversed, stating that "[o]nce 

plaintiff proved all of defendants' proffered reasons for the 

adverse employment actions to be pretextual, plaintiff was 

entitled to judgment as a matter of law. . . . No additional 

proof of discrimination is required." Hicks v. St. Mary's Honor 

Center, 970 F.2d 487, 492-93 (8th Cir. 1992). Thus, the court of 

appeals directed the district court to enter judgment in favor of 

the plaintiff. Id. at 493. 

 The Supreme Court granted certiorari to determine 

whether the factfinder's rejection of the employer's proffered 

reasons mandated a finding for the plaintiff. Hicks, 113 S. Ct. 

at 2745. The Court began its analysis with a review of the 

burden-shifting scheme established in McDonnell Douglas Corp. v. 

Green, 411 U.S. 792 (1973). Under this scheme, the establishment 

of a prima facie case creates a presumption that the employer 

unlawfully discriminated against the employee. Hicks, 113 S. Ct. 

at 2747. To overcome this presumption, the employer must 

"`clearly set forth, through the introduction of admissible 

evidence,' reasons for its actions which, if believed by the 

trier of fact, would support a finding that unlawful 
15 

discrimination was not the cause of the employment action." Id.

at 2747 (quoting Texas Dept. of Community Affairs v. Burdine, 450 

U.S. 248, 254-55 & n.8 (1981)). Once the employer satisfies this 

burden, the presumption raised by the prima facie case is 

"rebutted" and "drops from the case." Id. 

 The Court emphasized that once the presumption was 

rebutted, the plaintiff had to carry the ultimate burden of 

proving intentional discrimination at trial. The Court wrote: 

It is important to note . . . that although 

the McDonnell Douglas presumption shifts the 

burden of production to the defendant, "[t]he 

ultimate burden of persuading the trier of 

fact that the defendant intentionally 

discriminated against the plaintiff remains 

at all times with the plaintiff." 

Hicks, 113 S. Ct. at 2747 (quoting Burdine, 450 U.S. at 253). The 

Court continued: 

The defendant's "production" (whatever its 

persuasive effect) having been made, the 

trier of fact proceeds to decide the ultimate 

question: whether plaintiff has proven "that 

the defendant intentionally discriminated 

against [him]" because of his race. 

Hicks, 113 S. Ct. at 2749 (quoting Burdine, 450 U.S. at 253). The 

Court thus held that rejection of the defendant's proffered 

reasons does not compel judgment for the plaintiff. Id.

 Hicks' implications when the defendant moves for 

summary judgment or judgment as a matter of law are less clear. 

Some courts of appeals have held that under Hicks a plaintiff 

will not necessarily survive summary judgment or judgment as a 

matter of law simply because the evidence is sufficient to permit 

a rational factfinder to disbelieve the employer's proffered 
16 

reasons. E.g., Rhodes v. Guiberson Oil Tools, 39 F.3d 537 (5th 

Cir. 1994), reh'g in banc granted, 49 F.3d 127 (5th Cir. 1995); 

Woods v. Friction Materials, Inc., 30 F.3d 255, 260-61 n.3 (1st 

Cir. 1994); Nelson v. Boatmen's Bancshares, Inc., 26 F.3d 796, 

801 (8th Cir. 1994); LeBlanc v. Great American Ins. Co., 6 F.3d 

836, 842-43 (1st Cir. 1993), cert. denied, 114 S. Ct. 1398 

(1994). However, other courts of appeals have disagreed. E.g., 

Collier v. The Budd Company, 66 F.3d 886, 893 n.11 (7th Cir. 

1995); EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 

1994); Washington v. Garrett, 10 F.3d 1421, 1433 (9th Cir. 1993). 

Cf. Barbour v. Merrill, 48 F.3d 1270, 1277 (D.C. Cir. 1995), 

cert. granted on other ground, --- S. Ct. ---, 64 U.S.L.W. 3068 

(1/19/96); id. at 1281 (statement of Williams, J., concurring in 

denial of rehearing in banc). 

 Our court is among those in the latter group. Relying 

on the statement in Hicks that the "rejection of the defendant's 

proffered reasons, will permit the trier of fact to infer the 

ultimate fact of intentional discrimination," 113 S. Ct. 2749, 

our court has taken the position that "`if the plaintiff has 

pointed to evidence sufficient[] to discredit the defendant's 

proffered reasons, to survive summary judgment the plaintiff need 

not also come forward with additional evidence of discrimination 

beyond his or her prima facie case.'" Waldron, 56 F.3d at 495; 

(quoting Fuentes, 32 F.3d at 764) (brackets in Waldron). See 

also Brewer v. Quaker State Oil Refining Corp., --- F.3d ---, 

1995 WL 737890 (3d Cir. Dec. 14, 1995); Sempier v. Johnson & 
17 

Higgins, 45 F.3d 724, 731 (3d Cir.), cert. denied, 115 S. Ct. 

2611 (1995). We are compelled to follow these precedents here. 

 Although these prior cases concerned motions for 

summary judgment rather than motions for judgment as a matter of 

law, we cannot distinguish them on that basis. The legal 

standard applied to a motion for summary judgment mirrors that 

applied to a judgment as a matter of law. Anderson v. Liberty 

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

Catrett, 477 U.S. 317, 323 (1986). It would make no sense to 

allow a plaintiff to defeat summary judgment and proceed to trial 

if the plaintiff's evidence could not sustain a judgment in his 

or her favor. 

 In this case, as the district court recognized, a 

rational trier of fact could have found that duPont's proffered 

reasons for the constructive termination were pretextual. We are 

therefore required under our court's precedents to reverse the 

entry of judgment as a matter of law in favor of duPont. 

 B. While we are bound to follow our court's prior 

interpretation of Hicks and while we acknowledge that that 

interpretation finds support in language in the Hicks opinion,0we 

 

0

Hicks stated: 

The factfinder's disbelief of the reasons put 

forward by the defendant (particularly if 

disbelief is accompanied by a suspicion of 

mendacity) may, together with the elements of 

the prima facie case, suffice to show 

intentional discrimination. Thus, rejection 

of the defendant's proffered reasons, will 

permit the trier of fact to infer the 

ultimate fact of intentional discrimination,4

and the Court of Appeals was correct when it 
18 

question whether that interpretation is consistent with two of 

the fundamental principles on which Hicks rests. 

 The first of these is that, under the McDonnell Douglas

scheme, the ultimate burden of persuasion rests at all times with 

the plaintiff. See Hicks, 113 S. Ct. at 2747. The second is 

that the "presumption" of discrimination that is created when the 

plaintiff makes out the elements of a prima facie case is 

governed by the "bursting bubble" theory. Under this theory, 

a presumption disappears when sufficient 

counterproof is offered. The trier may still 

find the presumed fact, but only if the 

natural probative force of the basic facts 

that brought the presumption into play is 

sufficient to support such a finding (or the 

evidence as a whole supports it). Otherwise, 

the presumed fact may not be found, and the 

presumption does not protect this 

possibility. 

 

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

additional proof of discrimination is 

required." 

 ____________________________________________ 

 

4. Contrary to the dissent's confusionproducing analysis, post, at 2761-2762, there 

is nothing whatever inconsistent between this 

statement and our later statements that (1) 

the plaintiff must show "both that the reason 

was false, and that discrimination was the 

real reason," infra, at 2752, and (2) "it is 

not enough . . . to disbelieve the employer," 

infra, at 2754. Even though (as we say 

here) rejection of the defendant's proffered 

reasons is enough at law to sustain a finding 

of discrimination, there must be a finding of 

discrimination. 

113 S. Ct. at 2749 & n.4. 
19 

1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal 

Evidence, § 71 at 334 (1994); see also, e.g., 2 McCormick on 

Evidence, § 344 at 462-63 (4th ed. 1992).0

 From these principles, it seems to follow that once a 

defendant satisfies its production burden and the McDonnell 

Douglas presumption "bursts," a court should no longer accord 

that framework or its elements any special significance but 

should instead focus directly on the central issue in the case --

intentional discrimination. Thus, in deciding whether a 

defendant is entitled to summary judgment or judgment as a matter 

of law, the court should focus directly on the question whether 

there is sufficient evidence in the record to persuade a 

reasonable factfinder that intentional discrimination on the 

 

0

That Hicks regards the McDonnell Douglas presumption as a 

"bursting bubble" presumption is shown by the following passages: 

"If the defendant carries this burden of 

production, the presumption raised by the 

prima facie case is rebutted," Burdine, 450 

U.S. at 255, and "drops from the case," id.

at 255 n.10. 

113 S. Ct. at 2747 (emphasis added). 

If . . . the defendant has succeeded in 

carrying its burden of production, the 

McDonnell Douglas framework -- with its 

presumptions and burdens -- is no longer 

relevant. . . . The presumption, having 

fulfilled its role of forcing the defendant 

to come forward with some response, simply 

drops out of the picture. [Burdine, 450 

U.S.] at 255. 

Id. at 2749 (emphasis added). See also McKenna v. Pacific Rail 

Service, 32 F.3d 820, 829 (3d Cir. 1994); Gomez v. Allegheny 

Health Services, Inc., 71 F.3d 1079 (3d Cir. 1995). 
20 

ground alleged by the plaintiff was a determinative cause of the 

challenged employment action. This approach, which focuses 

directly on the question of intentional discrimination, rather 

than continuing to view the record through the lens of McDonnell 

Douglas, appears to be what the Supreme Court had in mind when it 

said in Hicks that after the defendant satisfies its burden of 

production "the McDonnell Douglas framework -- with its 

presumptions and burdens -- is no longer relevant" and should not 

be "resurrect[ed]." 113 S. Ct. at 2749. 

 Our court, however, has outlined a different approach. 

Instead of recognizing that the McDonnell Douglas framework is 

"no longer relevant" once the defendant has met its production 

burden, our approach continues to accord a special place to a 

central element of that framework -- the defendant's proffered 

explanation. According to our cases, a plaintiff at this stage 

may defeat a summary judgment motion "by either (i) discrediting 

the proffered reasons, either circumstantially or directly, or 

(ii) adducing evidence, whether circumstantial or direct, that 

discrimination was more likely than not a motivating or 

determinative cause of the adverse employment action." Fuentes, 

32 F.3d at 764 (emphasis in original). If the plaintiff relies 

on the first method, our cases require the use of a complicated 

standard for determining whether the plaintiff's reasons have 

been sufficiently discredited. Under this standard, a plaintiff 

cannot defeat summary judgment "simply by arguing that the 

factfinder need not believe the defendant's proffered legitimate 

explanations," but the plaintiff need not "adduce evidence 
21 

directly contradicting the defendant's proffered legitimate 

explanations." Id. at 764. "Rather, the non-moving plaintiff 

must demonstrate such weaknesses, implausibilities, 

inconsistencies, incoherencies, or contradictions in the 

employer's proffered legitimate reasons for its action that a 

reasonable factfinder could rationally find them `unworthy of 

credence.'" Id. at 765 (citation omitted). "[T]he plaintiff 

cannot simply show that the employer's decision was wrong or 

mistaken," but "[o]f course, a decision foolish, imprudent, or 

incompetent by comparison to the employer's usual mode of 

operation can render it implausible, inconsistent, contradictory, 

or weak." Id. at 765 & n.8. Moreover, when the employer asserts 

that the challenged action was taken for several reasons, the 

evidence "must allow a factfinder reasonably to infer that each

of the employer's proffered nondiscriminatory reasons . . . was 

either a post hoc fabrication or otherwise did not actually 

motivate the employment action." Id. (citations omitted). But 

"[i]f the defendant proffers a bagful of legitimate reasons, and 

the plaintiff manages to cast substantial doubt on a fair number 

of them, the plaintiff may not need to discredit the remainder." 

Id. at 764 n.7. 

 Although elaborate, Fuentes' discussion of proof that 

tends to discredit the defendant's reason(s) still does not fully 

capture the relationship between such proof and the plaintiff's 

ultimate burden of establishing intentional discrimination. As 

we will try to show below, the degree to which evidence 

discrediting an employer's explanation tends to show 
22 

discrimination on the ground alleged by the plaintiff depends on 

a number of other factors that will vary from case to case. 

Accordingly, we believe that, once the defendant in a McDonnell 

Douglas case has shouldered the production burden, the court, in 

ruling on a defense motion for summary judgment or judgment as a 

matter of law, should inquire directly whether, based on all of 

the evidence in the record when viewed in the light most 

favorable to the plaintiff, a reasonable trier of fact could find 

that discrimination on the ground alleged was, more likely than 

not, a determinative cause of the action at issue. This inquiry 

will require an assessment of four categories of evidence. 

 First, there is the inference of discrimination that 

naturally arises from the elements of the prima facie case. The 

strength of this inference, however, will vary from case to case. 

In some cases, it will be substantial. (An example is the 

McDonnell Douglas case itself, in which a black man had engaged 

in a civil rights protest against the employer who denied him a 

position in 1964 in favor of a white applicant.) In other cases, 

however, the inference of discrimination that naturally arises 

from the elements of the prima facie case will be weak. (An 

example is the age discrimination case in which one middle-aged 

person is hired, promoted, etc., instead of another somewhat 

older middle-aged person. See, e.g., Barber v. CSX Distribution 

Services, 68 F.3d 694 (3d Cir. 1995).) We think that it is clear 

that the inference of discrimination naturally arising from the 

elements of a prima facie case will not always be enough to take 

a plaintiff to trial or to sustain a plaintiff's verdict. 
23 

 Second, there is the inference of discrimination that 

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

proffered reason(s). 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 cause for 

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

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

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

obviously it may be inferred that the real reason for the 

discharge was "a." But if an employee was discharged for either 

reason "a," reason "b," or reason "c," then ruling out reason "b" 

does not permit an 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 generally Miller v. CIGNA Corp., 47 F.3d 586, 597 

(3d Cir. 1995) (in banc) (trier of fact may conclude that adverse 

employment action "was taken for a reason other than the reasons 

urged by the parties"). Perhaps the clearest of these cases are 

those in which the plaintiff challenges a single adverse 

employment action based on two or more alternative grounds. For 

example, an employee may claim that he or she did not get a 

promotion (1) because of gender and (2) because of handicap. If 

the record in such a case contains strong evidence of handicap 

discrimination, rejection of the employer's proffered reason (let 

us say inferior qualifications) will not by itself permit an 

inference that the employer's true reason was gender 

discrimination. 
24 

 The degree to which a trier of fact can reasonably 

conclude that there was discrimination on the ground claimed by 

the plaintiff also depends upon the degree to which the trier of 

fact can reasonably reject the employer's reason(s). (It is 

important to bear in mind that acceptance or rejection of an 

employer's reasons need not be an all-or-nothing proposition.) 

The evidence in a particular case may be such as to justify only 

a marginal or partial disbelief or belief of the employer's 

reason(s). For example, a trier of fact might be justified in 

believing that it is more probable than not (but barely so) that 

the employer's explanation is false. Or, a trier of fact might 

be justified in believing that it is more probable than not (but 

barely so) that the employer's explanation is true. In addition, 

a trier of fact might be justified in believing that the reason 

asserted by the employer was not the sole cause but was a partial 

cause (say a 20%, 40%, 60%, or 80% cause) for the challenged 

action. See, e.g., id. Or, if the employer asserts multiple 

reasons, the evidence might be such as to justify belief (to some 

degree) of some reasons but not others. All other things being 

equal, the more strongly and completely the trier of fact can 

rationally rule out the employer's reason(s), the more justified 

it is to conclude that there was discrimination on the ground 

alleged -- and vice versa. 

 Third, disbelief of the employer's proffered reason(s) 

may also give rise to an inference that the employer was trying 

to conceal discrimination on the ground that the plaintiff 

claims. But the strength of this inference, too, will vary based 
25 

on the facts. Its strength will depend on whether there is 

evidence in the record of some other possible explanation that 

the employer might not want to disclose (e.g., in our prior 

hypothetical, handicap discrimination). In addition, its 

strength will obviously be proportional to the extent and 

strength of the trier of fact's disbelief of the employer's 

reason(s). 

 The fourth category of evidence that may remain after 

the McDonnell Douglas presumption "bursts" consists of any other 

relevant evidence of discrimination on the ground asserted. 

"[S]tray remarks in the workplace" that are insufficient to make 

out a Price Waterhouse case are an example. See Price Waterhouse 

v. Hopkins, 490 U.S. 228, 277 (1989) (O'Connor, J., concurring). 

 Based on the two fundamental principles noted at the 

outset -- i.e., that the plaintiff always bears the ultimate 

burden of proving intentional discrimination on the ground 

alleged and that the McDonnell Douglas presumption "bursts" -- it 

appears that when the defendant satisfies its production burden 

and the court must decide whether to grant summary judgment or 

judgment as a matter of law for the defendant, the court should 

decide whether in the particular case at hand the evidence in all 

of these four categories taken together could persuade a 

reasonable trier of fact by a preponderance of the evidence that 

discrimination on the ground alleged was a determinative cause of 

the challenged action. 

 If we were free in this case to apply this mode of 

analysis, we would discuss the evidence in some detail. For 
26 

present purposes, however, we think that it suffices to say that 

we are inclined to agree with the district court's evaluation of 

the proof. However, since we are not free to employ this mode of 

analysis, we are required, as previously noted, to reverse the 

entry of judgment as a matter of law in duPont's favor. 

III. 

 We must therefore consider whether the district court 

also erred when it granted duPont's motion for a new trial. Such 

a motion may be granted even if the evidence is legally 

sufficient to support the verdict. Roebuck v. Drexel University, 

852 F.2d 715, 735 (3d Cir. 1988). A new trial is appropriate so 

long as the district court could "reasonably conclude[] that a 

miscarriage of justice would occur if the jury's verdict were 

left [to] stand." Klein v. Hollings, 992 F.2d 1285, 1290 (3d 

Cir. 1993) (quoting Williamson v. Consolidated Rail Corp., 926 

F.2d 1344, 1348 (3d Cir. 1991)) (citing Shanno v. Magee Indus. 

Enters., Inc., 856 F.2d 562, 567 (3d Cir. 1988)). A trial 

court's decision to grant a new trial based on the weakness of 

the prevailing party's evidence is generally reviewed for an 

abuse of discretion. Greate Bay Hotel & Casino v. Tose, 34 F.3d 

1227, 1235 (3d Cir. 1994); 9A Wright & Miller, Federal Practice 

and Procedure § 2540 at 378 (1995). The trial court deserves 

this deference because it is better able to weigh the evidence 

presented at trial. However, when it is argued that the district 

court's order was based on the application of incorrect legal 

precepts, we exercise plenary review with respect to that 
27 

contention. See generally Greate Bay Hotel, 34 F.3d at 1235; 

Rotondo v. Keene Corp., 956 F.2d 436, 438 (3d Cir. 1992). 

 In this case, the district court applied the correct 

legal standard when it granted duPont's motion. The court 

recognized that "[a] new trial cannot be granted . . . merely 

because the court would have weighed the evidence differently and 

reached a different conclusion." Sheridan II at 12 (quoting 

Markovich v. Bell Helicopter Textron, Inc., 805 F. Supp. 1231, 

1235 (E.D. Pa.), aff'd, 977 F.2d 568 (3d Cir. 1992)). Instead, 

the court stated, a new trial may be granted on the ground that 

the verdict was against the weight of the evidence when the 

failure to do so would result in injustice or shock the 

conscience of the court. Moreover, in assessing the evidence, 

the court recognized that disbelief of duPont's proffered reason 

was evidence of discrimination. Accordingly, we hold that the 

district court applied the correct legal precepts in ruling on 

duPont's new trial motion, and we therefore review this decision 

for an abuse of discretion. 

 Like the district court, we find little evidence of sex 

discrimination. Although there is evidence that management may 

have treated Sheridan unfairly, there is scant evidence that this 

was because she was a woman. Sheridan's testimony that Amblard 

would not address her in the company of her male supervisor and 

that he told her he would watch her like a "hawk" indicates 

little more than personal dislike. Although a man was promoted 

to manager of restaurants and a man replaced Sheridan as head 

captain of the Green Room, the record indicates that at all 
28 

relevant times, two of the other four head captain positions at 

the hotel were filled by women. Sheridan II at 10. Based on 

this evidence, we cannot find that the district court abused its 

discretion in granting a new trial on the constructive discharge 

claim.0

IV. 

 We next consider whether the district court erred in 

dismissing the claims against Amblard, the hotel general manager, 

on the ground that Title VII does not impose liability on 

individual employees. App. 847-48. Title VII states that 

[i]t shall be an unlawful employment practice 

for an employer -- 

 

0

The dissenting opinion concludes that the district court's new 

trial ruling was tainted by its decision on the motion for 

judgment as a matter of law. We disagree. In ruling on the 

motion for a new trial, the district court assumed that its order 

granting judgment as a matter of law would be reversed and, in 

the alternative, still granted the motion for a new trial. 

Sheridan II at 12 & n.11. We therefore do not agree that the new 

trial decision is undermined by our reversal of the order 

granting judgment as a matter of law. 

 The dissenting opinion also suggests that the district 

court may have failed to apply the complete test in ruling on the 

motion for a new trial. The dissent apparently is concerned that 

the district judge did not make an explicit finding that allowing 

the verdict to stand would effect a miscarriage of justice. 

Although such a finding would have been helpful for our review, 

the district court did recognize that a motion for a new trial 

should be granted on the ground that the verdict is against the 

weight of the evidence only "`when the failure to do so would 

result in injustice, or would shock the conscience of the 

court.'" Id. at 12 (citation omitted). We do not see how this 

statement differs in any material way from the test set forth in 

the dissenting opinion, and we think that a finding that this 

standard had been satisfied was certainly implicit in the court's 

decision to grant the motion for a new trial. We therefore do 

not agree that the court misapplied the test governing the motion 

for a new trial. 
29 

 (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)(1). The term "employer" 

means a person engaged in an industry 

affecting commerce who has fifteen or more 

employees . . ., and any agent of such a 

person . . . . 

42 U.S.C. § 2000e(b). 

 Sheridan argues that these provisions permitted her to 

assert claims against Amblard. She notes that § 2000e(b) defines 

the term "employer" to include "any agent" of an employer, and 

she contends that Amblard was an "agent" of duPont. She also 

observes that under the Civil Rights Act of 1991, a Title VII 

plaintiff may now obtain relief -- compensatory damages -- that a 

defendant such as Amblard is in a position to provide. See 42 

U.S.C. § 1981a(a)(1). 

 Arguments such as Sheridan's have been considered by 

many of the other courts of appeals in cases under Title VII, as 

well as the Age Discrimination in Employment Act ("ADEA") and the 

Americans with Disabilities Act ("ADA"), which contain 

definitions of an "employer," 29 U.S.C. § 630(b) and 42 U.S.C. 

§12111(5), that mirror that of Title VII. Many of these courts 

appear to have completely rejected the concept of employee 

liability. See, e.g., Tomka v. Seiler Corp., 66 F.3d 1295, 1313-

17 (2d Cir. 1995) (Title VII); Gary v. Long, 59 F.3d 1391, 1399 

(D.C. Cir.) (Title VII), cert. denied, 116 S. Ct. 569 (1995); 
30 

Equal Employment Opportunity Commission v. AIC Security 

Investigations, LTD., 55 F.3d 1276, 1279-82 (7th Cir. 1995) 

(ADA); Cross v. State of Alabama, 49 F.3d 1490, 1504 (11th Cir. 

1995) (Title VII) (citing Busby v. City of Orlando, 931 F.2d 764, 

772 (11th Cir. 1991) (Title VII)); Smith v. Lomax, 45 F.3d 402, 

403 n.4 (11th Cir. 1995) (Title VII and ADEA); Grant v. Lone Star 

Co., 21 F.3d 649, 653 (5th Cir.) (Title VII),0 cert. denied, 115 

S. Ct. 574 (1994); Miller v. Maxwell's Int'l Inc., 991 F.2d 583, 

587 (9th Cir. 1993) (Title VII and ADEA), cert. denied, 114 S. 

Ct. 1049 (1994).0

 

0

An earlier Fifth Circuit case that seemed to reach a contrary 

result, Hamilton v. Rodgers, 791 F.2d 439 (5th Cir. 1986), has 

been held to be "nonauthoritative." Harvey v. Blake, 913 F.2d 

226, 228 n.1 (5th Cir. 1990). 

0

In addition, the Fourth Circuit has rejected such claims against 

employees based on "personnel decisions of a plainly delegable 

character." Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510-

11 & n.1 (4th Cir.), cert. denied, 115 S. Ct. 666 (1994); see

also Paroline v. Unisys Corp., 879 F.2d 100, 104 (4th Cir. 1989) 

(employee may be individually liable for sexual harassment), 

vacated in part on other grounds, 900 F.2d 27 (4th Cir. 1990) (in 

banc). The law in the Sixth and Tenth Circuits is less clear. 

For the Sixth Circuit, see, e.g., Jones v. Continental Corp., 789 

F.2d 1225, 1231 (6th Cir. 1986) (statement, in discussion of 

award of attorney's fees, that Title VII claims may be asserted 

against employees); Romain v. Kurek, 772 F.2d 281 (6th Cir. 

1985); York v. Tennessee Crushed Stone Ass'n, 684 F.2d 360 (6th 

Cir. 1982); see generally Winston v. Hardee's Food Systems, Inc., 

903 F. Supp. 1151 (W.D. Ky. 1995) (noting absence of controlling 

Sixth Circuit authority, collecting cases, and holding no 

employee liability under Title VII); Johnson v. University 

Surgical Group, 871 F. Supp. 979, 981-86 (S.D. Ohio 1994) (noting 

absence of controlling Sixth Circuit authority, collecting cases, 

and holding employee may be liable under Title VII). For the 

Tenth Circuit, see, e.g., Ball v. Renner, 54 F.3d 664, 668-69 

(10th Cir. 1995) (holding employee not individually liable at 

least where he or she does not exercise employer-like functions); 

Lankford v. City of Hobart, 27 F.3d 477, 480 (10th Cir. 1994) (no 

employee liability); Brownlee v. Lear Siegler Management Services 

Corp., 15 F.3d 976, 978 (10th Cir.) (dictum that employees may be 

liable under ADEA), cert. denied, 114 S. Ct. 2743 (1994); Sauers 
31 

 Among other things, the decisions rejecting employee 

liability note that Title VII's definition of an "employer" 

predates the Civil Rights Act of 1991; that before the passage of 

that Act, Title VII did not permit compensatory or punitive 

damages; and that the equitable remedies, including back pay, 

that were then available were directed against the employer. AIC 

Security Investigations, LTD., 55 F.3d at 1281; Miller, 991 F.2d 

at 587 n.2; Grant, 21 F.3d at 652-53. From these facts, it has 

been inferred that prior to 1991, an employee could not be sued, 

and it has been noted that Congress did not indicate any desire 

to change this rule when it passed the 1991 Act. Id. On the 

contrary, it has been argued that the statutory scheme of the 

1991 Act affirmatively indicates that Congress assumed that 

employees would not be sued under Title VII. In passing the 1991 

Act, Congress limited damages available based upon the size of 

the defendant. Under § 1981a(b)(3), 

 

v. Salt Lake County, 1 F.3d 1122, 1124-25 (10th Cir. 1993) 

(holding that claim against employee must be deemed to be in 

official capacity). The First and Eighth Circuits have not yet 

addressed the issue. See Lenhardt v. Basic Institute of 

Technology, Inc., 55 F.3d 377, 380 (8th Cir. 1995) (not reaching 

issue of employee liability under Title VII, but interpreting 

similar state statute to preclude employee liability); Weeks v. 

State of Maine, 871 F. Supp. 515, 516 (D. Me. 1994) (noting lack 

of First Circuit precedent). Also, numerous district court 

decisions from this circuit have reached the same conclusion and 

found no employee liability, see, e.g., Ascolese v. SEPTA, 902 F. 

Supp. 533 (E.D. Pa. 1995); Clark v. Commonwealth of Pennsylvania, 

885 F. Supp. 694 (E.D. Pa. 1995); Caplan v. Fellheimer Eichen 

Braverman & Kaskey, 882 F. Supp. 1529 (E.D. Pa. 1995); Verde v. 

City of Philadelphia, 862 F. Supp. 1329 (E.D. Pa. 1994), although 

several other courts have reached the opposite result, see, e.g., 

Doe v. William Shapiro, Esq., P.C., 852 F. Supp. 1246 (E.D. Pa. 

1994); Dreisbach v. Cummins Diesel Engines, Inc., 848 F. Supp. 

593 (E.D. Pa. 1994). 
32 

[t]he sum of the amount of compensatory 

damages awarded . . . shall not exceed . . . 

(A) in the case of a respondent who has 

more than 14 and fewer than 101 

employees . . . $50,000; 

(B) in the case of a respondent who has 

more than 100 and fewer than 201 

employees . . . $100,000; 

(C) in the case of a respondent who has 

more than 200 and fewer than 501 

employees . . . $200,000; and 

(D) in the case of a respondent who has 

more than 500 employees . . . $300,000. 

42 U.S.C. § 1981a(b)(3). This section, it has been argued, 

suggests that Congress did not contemplate a respondent who was 

not an employer. See AIC Security, 55 F.3d. at 1281; Miller, 991 

F.2d at 587 n.2; see also Ascolese v. SEPTA, 902 F. Supp. at 540-

41. While reasonable arguments in favor of the contrary position 

can be made, see Miller, 991 F.2d at 588-90 (Fletcher, J., 

dissenting); Tomka, 66 F.3d at 1318-24 (Parker, J., dissenting), 

we follow the great weight of authority from other courts of 

appeals and hold that an employee cannot be sued. We therefore 

affirm the dismissal of Sheridan's claims against Amblard. 

V. 

 We next consider whether the district court erred in 

granting in part duPont's motion in limine to preclude certain 

evidence. Sheridan had sought to introduce testimony by coworker Mary Deptula regarding a suggestive remark that was 

allegedly made by Amblard when he saw a woman in a tight dress. 

Deptula would also have testified that one day when she 
33 

volunteered to park cars, Amblard told her that she could not do 

so because she was a woman. App. 1520-21. The district court 

found these statements to be "prejudicial and irrelevant" and 

granted the defendants' motion in limine to exclude testimony 

concerning them under Federal Rules of Evidence 401 and 403. App. 

44. 

 We generally review district court rulings concerning 

Rule 403 for an abuse of discretion. Glass v. Philadelphia 

Electric Co., 34 F.3d 188, 191 (3d Cir. 1994). However, when the 

district court "failed to explain its grounds for [deciding] a 

Rule 403 [motion] and its reasons for doing so are not otherwise 

apparent from the record, . . . we may undertake to examine the 

record and perform the required balancing ourselves." United 

States v. Himelwright, 42 F.3d 777, 781 (3d Cir. 1994) (citations 

omitted). 

 In this case, we need not decide the appropriate 

standard of review because we conclude that under either standard 

the district court properly excluded the testimony under Rule 

403. Amblard's comments had little probative value as to whether 

he had a gender-based animus against Sheridan and whether this 

animus was a determinative factor in any of the actions taken. 

See Hook v. Ernst & Young, 28 F.3d 366, 369, 376 (3d Cir. 1994). 

On the other hand, these comments raise a substantial danger of 

unfair prejudice. Thus, we hold that the district court properly 

excluded Deptula's testimony under Rule 403. 

 Sheridan also sought to admit testimony by co-worker 

April Akers that Amblard complimented many of the men on the 
34 

staff but never complimented Sheridan or the other women. App. 

1515; see also Pl.'s Br. at 38-39. The defendants, however, 

claim that Sheridan never sought to admit this portion of Akers's 

deposition testimony into evidence. Defs.' Br. at 28 n. 6. 

Sheridan has not provided a record citation showing that she 

attempted to introduce this evidence. Sheridan's only reference 

is to a court order precluding Akers from testifying as to (1) 

Sheridan's qualifications and job performance and (2) rumors that 

Sheridan was stealing from the hotel. App. 43. In this order, 

the court did not address the testimony by Akers that Sheridan 

now seeks to admit. Thus, we do not believe that Sheridan raised 

this claim at trial, and in any event she has not properly 

presented this argument on appeal. See Third Circuit Local 

Appellate Rule 28.1(a)(i)(1). 

 VI. 

 Sheridan's final two arguments do not require extended 

discussion. Sheridan contends that defense counsel's use of a 

peremptory challenge based on the age of a member of the venire 

violated equal protection. For the reasons explained in our 

opinion in Pemberthy v. Beyer, 19 F.3d 857, 870 & n.18 (3d Cir.), 

cert. denied, 115 S. Ct. 439 (1994), we hold that this strike was 

permissible. 

 Sheridan also maintains that defense counsel improperly 

vouched for the credibility of certain witnesses during summation 

and that the district court should have instructed the jury to 

disregard those statements. However, assuming for the sake of 
35 

argument that defense counsel's remarks were objectionable, we 

hold that a new trial on Sheridan's denial-of-promotion and 

retaliation claims is not warranted. 

VII. 

 For the reasons stated, we reverse the district court's 

entry of judgment in favor of duPont on the constructive 

discharge claim, but we affirm the court's decision to grant 

duPont's motion for a new trial on that claim. We affirm the 

judgment against Sheridan on her claims against Amblard and her 

denial-of-promotion and retaliation claims. We also hold that 

the district court properly granted duPont's in limine motion to 

exclude evidence, and we remand this case to the district court 

for further proceedings consistent with this opinion. 
36 

Sheridan v. E.I. duPont de Nemours & Co., No. 94-7509 

SLOVITER, Chief Judge, concurring in the judgment reversing the 

entry of judgment as a matter of law and dissenting from the 

judgment affirming the grant of a new trial. 

I.

 Although I join in the majority's conclusion that the 

judgment as a matter of law on Sheridan's constructive discharge 

claim should be reversed, I cannot join in much of its language 

in doing so, particularly its suggestion that this court has 

taken a wrong path in its series of opinions interpreting the 

Supreme Court's opinion in St. Mary's Honor Center v. Hicks, 113 

S. Ct. 2742 (1993). 

 In Hicks, the Court was faced with a holding of a court 

of appeals that a factfinder's rejection of the defendant's 

proffered reason for its adverse employment action compels a 

judgment for the plaintiff. In concluding that it does not, the 

Court also explicitly stated that such a finding permits the 

factfinder to draw the inference that the defendant intentionally 

discriminated against the plaintiff. Thus, we have read Hicks to 

establish that the disbelief of the defendant's proffered reasons 

is the threshold finding, beyond which the jury is permitted but 

not required to draw the inference of intentional discrimination. 

See 113 S. Ct. at 2749. In Fuentes v. Perskie, 32 F.3d 759, 764 

(3d Cir. 1994), from which the majority seeks to disassociate, we 

stated that a plaintiff survives summary judgment by producing 
37 

sufficient evidence to raise a genuine issue of fact as to 

whether the employer's proffered reasons were not its true 

reasons for the challenged employment action. 

 As the majority recognizes, numerous other courts have 

likewise interpreted the Supreme Court's decision in Hicks. See

e.g., Barbour v. Merrill, 48 F.3d 1270, 1277 (D.C. Cir. 1995) 

("According to Hicks, a plaintiff need only establish a prima 

facie case and introduce evidence sufficient to discredit the 

defendant's proffered nondiscriminatory reasons; at that point, 

the factfinder, if so persuaded, may infer discrimination."), 

petition for cert. filed, 64 U.S.L.W. 3068 (U.S. Jul. 3, 1995) 

(No. 95-27); EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 

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

defendant's proffered reasons for a challenged employment action 

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

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

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

employer's nondiscriminatory explanation is to convert the 

inference of discrimination based upon the plaintiff's prima 

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

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

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

Baxter Healthcare Corp., 13 F.3d 1120, 1123-24 (7th Cir. 1994) 

("The Court [in Hicks] explicitly states that the plaintiff may

prevail in a discrimination case by establishing a prima facie 

case and by showing that the employer's proffered nondiscriminatory reasons for her demotion or discharge are 
38 

factually false."); Washington v. Garrett, 10 F.3d 1421, 1433 

(9th Cir. 1993) ("[A]s St. Mary's recognizes, the factfinder in a 

Title VII case is entitled to infer discrimination from 

plaintiff's proof of a prima facie case and showing of pretext 

without anything more . . . ."). 

 Instead of following this precedent, the majority would 

require, at least in some cases, evidence beyond that 

establishing the prima facie case and supporting the factfinder's 

rejection of the defendant employer's proffered reasons in order 

to find that plaintiff has met his or her burden of showing 

intentional discrimination. The majority offers no guidance as 

to what specific additional evidence would be required, but 

rather would allow the district court to base its determination 

on its own evaluation of the following four considerations: 1) 

the strength of the inference of discrimination arising from the 

elements of the prima facie case; 2) the degree to which an 

inference of discrimination drawn from the rejection of the 

employer's proffered reasons is justified; 3) the strength of the 

inference "that the employer was trying to conceal 

discrimination," and 4) any other evidence of discrimination on 

the ground asserted. 

 However, the imposition of such an additional 

evidentiary requirement is directly contrary to the Supreme 

Court's statement in Hicks that "rejection of the defendant's 

proffered reasons, will permit the trier of fact to infer the 

ultimate fact of intentional discrimination, and . . . upon such 

rejection, `[n]o additional proof of discrimination is 
39 

required.'" 113 S. Ct. at 2749 (emphasis in original) (citation 

omitted). Although the majority sees a conflict between this 

statement and the requirement that the plaintiff must prove 

intentional discrimination, the Court in Hicks believed 

otherwise, stating that "there is nothing whatever inconsistent 

between this statement and our later statements that (1) the 

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

discrimination was the real reason,' and (2) 'it is not enough 

. . . to disbelieve the employer'." Id. at 2749 n.4 (citations 

omitted) (emphasis in original). The Court explained that "even 

though . . . rejection of the defendant's proffered reasons is 

enough at law to sustain a finding of discrimination, there must 

be a finding of discrimination." Id. (emphasis in original). 

 The reasons why the factfinder should be entitled to 

infer intentional discrimination from this evidence appear from 

the relevant caselaw. We have repeatedly acknowledged the 

difficulty of proving intentional discrimination in Title VII 

cases. See, e.g., Chipollini v. Spencer Gifts, Inc., 814 F.2d 

893, 897 (3d Cir.)(in 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. As the Supreme Court has 

recognized, "[t]here will seldom be `eyewitness' testimony as to 

the employer's mental processes." United States Postal Serv. Bd. 

of Govs. v. Aikens, 460 U.S. 711, 716 (1983). We have tied the 

Supreme Court's establishment of a distinct method of proof in 

employment discrimination cases, that relies on presumptions and 
40 

shifting burdens of production, to the Court's recognition that 

direct evidence of an employer's motivation will often be 

unavailable or difficult to acquire. See Chipollini, 814 F.2d at 

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

 The initial presumption of discrimination arises from 

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

presume these acts, if otherwise unexplained, are more likely 

than not based on the consideration of impermissible factors." 

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

assume that the same logic, albeit unarticulated, was the basis 

for the Supreme Court's statement in Hicks that disbelief of the 

employer's reason will permit the factfinder to infer the 

ultimate fact of discrimination, see Hicks, 113 S. Ct. at 2749, 

even though the presumption "drops from the case" after the 

defendant proffers a legitimate reason. Texas Dept. of Community 

Affs. v. Burdine, 450 U.S. 248, 255 & n.10 (1981). 

 The fact that the issue arises here in the context of a 

motion for judgment as a matter of law rather than for summary 

judgment should make no difference. Because a finding of 

intentional discrimination generally depends heavily on 

assessments of the credibility of witnesses and those credibility 

assessments are traditionally left to the jury, it follows that 

the jury must be permitted to draw the inference of intentional 

discrimination from its negative credibility finding. See Barber 

v. CSX Distribution Servs., 68 F.3d 694, 700 (3d Cir. 1995) 

("Evaluation of witness credibility is the exclusive function of 

the jury, and where the only evidence of intent is oral 
41 

testimony, a jury could always choose to discredit it." (quoting 

Bhaya v. Westinghouse Elec. Corp., 832 F.2d 258, 262 (3d Cir. 

1987))). See also Aikens, 460 U.S. at 716 ("It is true that it 

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

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

fact as anything else." (quoting Edgington v. Fitzmaurice, 29 Ch. 

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

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

discharge is clearly a factual question."). 

 The majority seems to believe that this court's focus 

on the credibility of the defendant's proffered explanation 

impermissibly gives continuing weight to the presumption of 

discrimination created by the prima facie case even after the 

McDonnell-Douglas presumption "bursts." However, I see nothing 

that undermines the "bursting" of the presumption. The 

McDonnell-Douglas prima facie case is used only to move the 

plaintiff's case past the pleadings stage. Once defendant has 

satisfied its burden under Burdine to articulate a 

nondiscriminatory reason for the employment decision, and 

plaintiff has cast doubt on that reason, the case then moves from 

the summary judgment stage to the factfinder. It is at that 

stage that the credibility of the defendant's proffered 

explanation may play a significant - even a determinative - role. 

 As the Court stated in Hicks, "[t]he factfinder's 

disbelief of the reasons put forward by the defendant 

(particularly if disbelief is accompanied by a suspicion of 

mendacity) may, together with the elements of the prima facie 
42 

case, suffice to show intentional discrimination." 113 S. Ct. at 

2749. Fuentes and our later cases have reasonably concluded from 

this statement that a plaintiff who has made out a prima facie 

case may defeat an adverse judgment by the court by producing 

evidence from which a factfinder might discredit the defendant's 

proffered reasons. 

 The majority is mistaken in its view that basing a 

finding of intentional discrimination on the jury's rejection of 

the employer's explanation together with the facts supporting the 

prima facie case is inconsistent with the bursting of the 

presumption. In Burdine itself, the Supreme Court made clear 

that "[i]n saying that the presumption drops from the case, we do 

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

previously introduced by the plaintiff to establish a prima facie 

case. . . . [T]his evidence and inferences properly drawn 

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

whether the defendant's explanation is pretextual." Burdine, 450 

U.S. at 255 n.10. 

 Much of the majority's discussion is predicated on its 

concern that an employer may proffer a false reason for its 

actions, not to conceal the discrimination alleged but rather to 

conceal a different form of discrimination or some other unlawful 

conduct. The courts should not base their decisions on such a 

hypothesis. We routinely expect a party to give honest testimony 

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

defendant charged with unlawful discrimination. If a defendant 

fails to come forward with the true and credible explanation, 
43 

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. 

 In sum, I continue to believe that this court's 

interpretation of Hicks, as stated in Fuentes, Waldron v. SL 

Indus., Inc., 56 F.3d 491 (3d Cir. 1995), Sempier v. Johnson & 

Higgins, 45 F.3d 724 (3d Cir.), cert. denied, 115 S. Ct. 2611 

(1995), and most recently in Brewer v. Quaker State Oil Ref. 

Corp., No. 95-3101, 1995 WL 737890 (3d Cir. Dec. 19, 1995), is 

true to the language and holding of Hicks and the principles upon 

which it rests. 

 This does not mean that the courts in discrimination 

cases lose their traditional obligation to review the sufficiency 

of the showing on which summary judgment may be based or, if the 

issue is judgment as a matter of law, the adequacy of the showing 

plaintiff made to the factfinder. In both such instances, the 

district court must determine whether the plaintiff has cast 

sufficient doubt upon the employer's proffered reasons to permit 

a reasonable factfinder to conclude that the reasons are 

incredible. See, e.g., Fuentes, 32 F.3d at 764-765; Ezold v. 

Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 523, 531, 533 

(3d Cir. 1992), cert. denied, 114 S. Ct. 88 (1993). But once the 

court is satisfied that the evidence meets this threshold 

requirement, it may not pretermit the jury's ability to draw 

inferences from the testimony, including the inference of 

intentional discrimination drawn from an unbelievable reason 
44 

proffered by the employer. For these reasons, I agree that the 

judgment for duPont as a matter of law must be reversed.0

II. 

 However, I respectfully disagree that we should affirm 

the order granting a new trial and instead would remand so that 

the district court can reconsider that issue. The district 

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

inasmuch as its ruling focused primarily on its decision to grant 

defendant's motion for judgment as a matter of law. The court 

noted in a footnote that it was obliged under Rule 50(c) to make 

a conditional ruling on the defendant's motion for a new trial. 

To comply with that requirement, the court stated merely that it 

"would grant the motion for a new trial because the jury's 

verdict is contrary to the weight of the evidence." D. Ct. 

Opinion at 12 n.11. 

 The majority would affirm the grant of a new trial, 

noting that the court "applied the correct legal precepts." 

Majority Opinion at 28. I am less confident than the majority 

that this is so. If the majority is suggesting that the district 

 

0

As to the dismissal of the claims against Amblard on the ground 

that Title VII does not impose personal liability on individual 

employees, although I find the reasoning of Judge Fletcher and 

Judge Parker convincing, see Miller v. Maxwell's Int'l Inc., 991 

F.2d 583, 588-90 (9th Cir. 1993) (Fletcher, J., dissenting); 

Tomka v. Seiler Corp., 66 F.3d 1295, 1318-24 (2d Cir. 1995) 

(Parker, J., dissenting), the majority correctly notes that the 

great weight of authority from other courts of appeals is 

otherwise, and I see no purpose to dissent from the court's 

judgment on this issue. 
45 

court made no error of law in its post-trial rulings, this 

statement would be inconsistent with our ruling that the district 

court made a substantial error of law in its understanding of the 

quantum of evidence that is needed to uphold a jury's verdict. 

The district court based its grant of judgment as a matter of law 

on its understanding that "[i]n order to demonstrate that gender 

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

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

process. No such evidence exists in the record." D. Ct. Opinion 

at 11-12. This substantial legal error is the basis for our 

decision today to reverse the district court's grant of judgment 

as a matter of law. 

 The district court was clearly operating under the 

misconception that direct evidence of discriminatory intent was 

necessary to sustain the jury's verdict. It seems likely that 

the court's conclusion that specific evidence of gender 

discrimination was necessary led ineluctably to its conditional 

new trial ruling. However, because such evidence is not a 

prerequisite to a finding of discrimination, I believe the 

district court should be given the opportunity to reconsider 

whether a new trial is warranted in light of the correct legal 

principles. 

 I believe it is also unclear whether the district court 

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

granting that motion, the district court merely concluded that 

the jury's verdict was contrary to the weight of the evidence. I 

recognize that a new trial may be granted even if the evidence is 
46 

legally sufficient to support the verdict. Roebuck v. Drexel 

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

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

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

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

were to stand." Williamson v. Consol. Rail Corp., 926 F.2d 1344, 

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

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

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

witnesses for that of the jury.'" Fineman v. Armstrong World 

Indus., Inc., 980 F.2d 171, 211 (3d Cir. 1992) (quoting Lind v. 

Schenley Indus. Inc., 278 F.2d 79, 90 (3d Cir. 1960)), cert. 

denied, 113 S. Ct. 1285 (1993). "Such an action effects a 

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

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

function of the jury as the trier of facts." Id.

 Therefore, before imposing on Sheridan the burden and 

expense of a new trial, I would remand to require the district 

court to determine whether, inasmuch as Sheridan was not obliged 

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

verdict for Sheridan was against the great weight of the evidence 

and would effect a miscarriage of justice. 
47