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D ock e t 97-3133

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" S mith v . W i l k in s bur g " (1998). 1998 D e cisio n s

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. e du/thir dc ir c uit_1998/143Filed June 17, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-3133

EDWARD C. SMITH, Appellant

v.

BOROUGH OF WILKINSBURG

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil No. 95-1699)

Argued October 27, 1997

Before: SLOVITER, NYGAARD and KRAVITCH,* Circuit Judges

(Opinion Filed June 17, 1998)

Harry R. Ruprecht (Argued) King, Ruprecht & Berman Pittsburgh, PA 15219

Attorney for Appellant

Thomas H.M. Hough (Argued) Barry, Fasulo & Hough, P.C. Pittsburgh, PA 15219

Attorney for Appellee

___________________________________________________ ______________

* Hon. Phyllis A. Kravitch, Senior United States Ci rcuit Judge for the Eleventh Circuit, sitting by designation.OPINION OF THE COURT

SLOVITER, Circuit Judge.

Edward C. Smith, former Manager of the Borough of Wilkinsburg, Pennsylvania, brought suit against the Borough alleging that it had failed to renew his em ployment contract on the basis of his age. At the close of t he trial, the district court refused his request to instruct the jury that it

could infer intentional discrimination if it disbel ieved the Borough's asserted reasons for not renewing Smith's contract. Smith appeals from the judgment entered o n the jury's adverse verdict, and seeks a new trial, clai ming that

the district court committed reversible error in om itting

that instruction.

I

Smith was hired as Borough Manager on June 5, 1989, pursuant to a five-year employment contract. Under the contract, Smith's employment was to be renewed for an additional five years unless written notice was giv en by either party within thirty days before or after the contract's expiration. On March 23, 1994, a member of the Boro ugh Council orally informed Smith, then 61 years old, t hat the Council would not be renewing his contract but that he was welcome to reapply for the job along with other app licants. Two weeks later, Smith, the Mayor and the Council President signed a resolution stating that the Boro ugh would not be extending Smith's employment agreement and that it would begin interviewing other applicants f or the position.

Although Smith told several council members that he was interested in retaining his position, he did not fo rmally submit an application. On February 15, 1995, Thomas Leach, who was 37 years old, was hired as the new Borough Manager. Only after Leach was hired did Smi th apply in writing for the Borough Manager position.

Smith brought suit against the Borough alleging tha t his employment contract had not been renewed on account of

2his age in violation of the Age Discrimination in

Employment Act, 29 U.S.C. S 623 ("ADEA"). At trial, Smith produced evidence that the fiscal health of the Bor ough had improved markedly during his tenure. In defense of its action in failing to renew Smith's contract, the Bo rough elicited testimony from Council members that Smith' s performance on the job had been inadequate. Smith t hen offered evidence that the Borough had not criticize d Smith's performance at prior hearings before the Equal Employment Opportunity Commission and the Pennsylvania Commission on Human Relations and in i ts responses to Smith's interrogatories. Instead, the Borough explained that it did not renew Smith's contract be cause Smith had not timely applied for the position.1

At the court's request, the parties submitted writt en proposed jury instructions and objections to the co urt's proposed charge. Smith, citing our opinion in Sheri dan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061 (3d Cir

. 1996) (en banc), cert. denied, 117 S. Ct. 2532 (199 7), requested that the court instruct the jury that it could infer intentional discrimination if it found the Borough' s reasons for not renewing the contract to be false or not cr edible. Thereafter, at an in camera charge conference, Smit h objected to the court's draft charge, noting that i t did not include his requested instruction on pretext. The c ourt denied Smith's request and overruled his objection, stating:

"it is error for me to instruct on that. . . . for me to give a pretext instruction would be an error, simple as th at." App. at 983. Smith did not renew his objection after the court delivered the charge to the jury.

The jury returned a verdict for the Borough. Smith then filed a motion for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure on the ground that it was error for the district court not to have given the instructions he requested. The court denied the motion and this appeal

followed.

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1. We note, however, that in its answer to Smith's complaint, the Borough listed 18 different areas in which Smith's job performance was "not satisfactory." App. at 3-4.

3II

When reviewing the propriety of a district court's charge to the jury, the scope of our review depends on whe ther the party challenging the charge properly preserved his or her objection before the trial court. Where the objecti on is properly preserved, our inquiry is whether the char ge, "taken as a whole, properly apprises the jury of th e issues and the applicable law." Limbach Co. v. Sheet Metal Workers Int'l Ass'n, 949 F.2d 1241, 1259 n.15 (3d Cir. 1991 ) (en banc). Where the objection has been waived, however , our power to review is discretionary and "should be exe rcised sparingly." Fashauer v. New Jersey Transit Rail Ope rations, 57 F.3d 1269, 1289 (3d Cir. 1995) (quoting McAdam v

. Dean Witter Reynolds, Inc., 896 F.2d 750, 770 n.31 (3d Cir. 1990)). When we choose to exercise that discretion, we may reverse only where the error is "fundamental and hi ghly prejudicial or if the instructions are such that th e jury is without adequate guidance on a fundamental question and

our failure to consider the error would result in a miscarriage of justice." Fashauer, 57 F.3d at 1289 (quoting Bereda v. Pickering Creek Indus. Park, Inc., 865 F. 2d 49, 53 (3d Cir. 1989)).

The Borough has not argued that Smith waived his objection to the district court's charge. However, because the waiver issue is central to determining the scop e of our review, we will not simply assume that the objectio n was preserved, merely because the Borough failed to rai se the waiver argument.

Rule 51 of the Federal Rules of Civil Procedure pro vides that "[n]o party may assign as error the giving or the failure to give an instruction unless that party objects th ereto before the jury retires to consider its verdict, st ating distinctly the matter objected to and the grounds o f the objection." Fed. R. Civ. P. 51. Rule 51 plays a cri tical role in both the trial and appellate processes. By requi ring parties to object with specificity before the jury retires, the

rule ensures that the district court is made aware of and given an opportunity to correct any alleged error i n the charge before the jury begins its deliberations. Se e, e.g., Fashauer, 57 F.3d at 1288. When errors are recogniz ed and corrected at that early stage, the burden on the co urts of

4appeals is diminished, fewer jury verdicts will hav e to be

vacated and fewer cases will need to be tried a sec ond time. See id. Unfortunately, though we have been consiste nt in articulating the patent purpose of Rule 51, we have not been as consistent in its application.

In Bowley v. Stotler & Co., 751 F.2d 641 (3d Cir. 1 985), we stated unequivocally that "[i]n this circuit it is clear that by filing and obtaining a ruling on a proposed inst ruction a litigant has satisfied Rule 51." Id. at 646. Ther e, because counsel had obtained a definitive ruling rejecting his proposed instruction, we held that the issue had be en preserved regardless of counsel's failure to reasse rt his objection following the delivery of the charge to t he jury.

That result was based on our belief that Rule 51 mu st be read in conjunction with Rule 46, which gives litig ants an automatic exception to any adverse ruling by operat ion of law.2 We concluded that given"the relationship betw een Rule 51 and Rule 46, [ ] counsel was entitled to as sume that he need not renew objections already ruled on. " Id. at 647. See also United States v. General Motors Corp. , 226 F.2d 745, 750 (3d Cir. 1955) (discussing the relati onship between Rule 51 and Rule 46).

In case after case, we have held that a definitive ruling from the trial court rejecting a requested instruct ion is sufficient to preserve the issue for appeal. See Ta it v. Armor Elevator Co., 958 F.2d 563, 565 (3d Cir. 1992); Sim mons v. City of Philadelphia, 947 F.2d 1042, 1082-83 (3d Ci r. 1991); Waldorf v. Shuta, 896 F.2d 723, 731 n.8 (3d Cir. 1990); cf. United States v. Russell, 134 F.3d 171, 179 n.4 (3d Cir. 1998) ("issue preserved for appeal where t he party

___________________________________________________ ______________

2. Rule 46 provides in full:

Formal exceptions to rulings or orders of t he court are unnecessary; but for all purposes for which an exception has heretofore been necessary it is sufficient t hat a party, at the

time the ruling or order of the court is made or soug ht, makes known to the court the action which the party desires the court to take or the party's objection to the action of the court and the grounds therefor; and, if a party has no opportunity to object to a ruling or order

at the time it is made, the absence of an objec tion does not

thereafter prejudice the party.

5`may not have formally objected but it is clear fro m the

record that the judge was made aware of the party's position before the jury retired to consider its ve rdict' ") (quoting Larry v. Muko, Inc. v. Southwestern Pa. Bl dg. and Const. Trades Council, 670 F.2d 421, 425 (3d Cir. 1 982)). See also 9 James Wm. Moore et al., Moore's Federal Practice S 51.03 (3d ed. 1997) ("Reconciliation of the rules [51 and 46] relieves a party of the need to renew a n objection to an instruction if the party's objectio n has previously been made clear to the trial court.").

Three of our cases appear to deviate from this interpretation. In United States v. Agnes, 753 F.2d 293, 301 n.11 (3d Cir. 1985), a case interpreting Fed. R. Cr im. P. 30, the criminal analogue to Fed. R. Civ. P. 51, we hel d that notwithstanding prior objections and rulings, the f ailure of counsel to state objections to the instructions fol lowing the delivery of the charge constitutes a waiver. We rea soned that Agnes was distinguishable from Bowley because the district court in Agnes had not granted an automati c exception, which we inferred the district court had done in Bowley. However, the statement by the district cour t in Bowley that counsel had "an automatic exception to every adverse ruling" was merely a recognition of the int erplay between Rule 51 and Rule 46. Bowley, 751 F.2d at 64 1. The "automatic exception" arose by operation of law -- not because the district court had affirmatively grante d one.

The Agnes court also cited Piechoski v. Grace Lines , Inc., 409 F.2d 66 (3d Cir. 1969), for the proposition tha t"Rule 51 requires counsel to state explicitly any excepti ons following delivery of the charge." Agnes, 753 F.2d at 301 n.11. In fact, the Piechoski court simply stated th at "[c]ounsel is entitled to an opportunity to make ob jections to the charge following its delivery" and, because cou nsel was given that opportunity and never objected to the ch arge at issue, the objection was deemed waived. Piechoski, 409 F.2d at 70 (emphasis added). Piechoski is thus slim authority for Agnes.

The second case in this line is Seman v. Coplay Cem ent Co., 26 F.3d 428 (3d Cir. 1994), where we stated in dictum that "As written, Federal Rule of Civil Procedure 5 1 explicitly requires that any objections to the cour t's charge,

6to be preserved for appeal, must be taken at the cl ose of the

charge `before the jury retires to consider its ver dict, stating distinctly the matter objected to and the grounds o f the objection.' " Id. at 436 (emphasis added) (quoting Fed. R. Civ. P. 51). The underscored portion of this quote is simply wrong. Rule 51 "as written" requires merely that th e specific objection be made "before the jury retires ." It says nothing about it being at the close of the charge. Tellingly, the only cases that the Seman panel relied upon for this proposition were Agnes and Bowley -- as that case w as misinterpreted in Agnes. In any event, the Seman co urt held that the objection had not been waived because the

district court had informed counsel that it would n ot have to reassert objections after the delivery of the ch arge if the court had previously ruled. Id.

Third, and most recently, we stated in Ryder v. Westinghouse Elec. Corp., 128 F.3d 128 (3d Cir. 199 7), cert. denied, 118 S. Ct. 1052 (1998), that "[w]e have int erpreted [Rule 51] explicitly to require that any objections to the jury charge be made at the close of the charge." Id. at 135. For that proposition, the court cited only Seman. Id. T he statement was essentially dictum, however, since th e defendant had not, at any time, adequately objected to the specific instruction on appeal. Ryder, 128 F.3d at 135 n.9.

Given the purpose underlying Rule 51, it is difficu lt to contemplate what objective would be served by requi ring counsel to restate an objection that had already be en raised and ruled upon. In our opinion, Agnes and the cases following it have gone astray and do not reflect th e otherwise consistently applied law of this circuit. We reaffirm then, that "[i]n this circuit it is clear that by filing and obtaining a ruling on a proposed instruction a litigant has satisfied Rule 51." Bowley, 751 F.2d at 646.

Of course, to preserve an issue for appeal, counsel must state "distinctly the matter objected to and the gr ounds of the objection." Fed. R. Civ. P. 51. Whether that oc curs in an objection to the charge, in a request to charge, or otherwise, however, should not be determinative of the waiver issue. See 9A Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure S 2553 at 41 1 (2d ed. 1995) ("The failure to object [at the close of the charge] may

7be disregarded if the party's position previously h as been

made clear to the trial judge and it is plain that a further objection would be unavailing. This is a risky busi ness, however, and cautious counsel will renew all object ions to the instructions at the close of the charge to be s ure that those points are preserved.") (citing cases).

Here, Smith submitted to the district court a writt en proposed instruction distinctly stating his request ed charge and the authority therefor. Upon reading the draft of the district court's charge, counsel objected at the in camera charge conference to the omission of his requested instruction and again cited the authority on which his

instruction was derived. The district court then ru led and explicitly denied Smith's request. As such, the dis trict court was fully apprised of Smith's position, and it woul d serve no purpose to require counsel to have formally reas serted the objection after the charge had been given to th e jury. Because the language of Rule 51 requires nothing mo re, we conclude that the issue was preserved. We turn then to the merits of Smith's appeal.

III

It is black letter law that "[i]t is the inescapabl e duty of the trial judge to instruct the jurors, fully and c orrectly, on the applicable law of the case, and to guide, direc t, and assist them toward an intelligent understanding of the legal

and factual issues involved in their search for the truth." 9A Charles Alan Wright and Arthur Miller, Federal P ractice and Procedure S 2556 at 438 (2d ed. 1995). We agree with Smith that the district court's charge left the jur y inadequately informed of the applicable law.

In the field of employment discrimination, courts h ave struggled for decades to develop and refine an evid entiary framework that fairly balances the interests of the employee who challenges her employer's conduct as discrimina tory and the interests of the employer faced with such a suit. In numerous cases the courts have recognized that an employee bringing such a suit faces difficulties in amassing proof because discrimination "is often subtle." Chi pollini v. Spencer Gifts, Inc., 814 F.2d 893, 899 (3d Cir. 198 7) (en

8banc). As we stated, "[d]iscrimination victims ofte n come to

the legal process without witnesses and with little direct evidence indicating the precise nature of the wrong s they have suffered." Sheridan, 100 F.3d at 1071 (quoting Jackson v. University of Pittsburgh, 826 F.2d 230, 236 (3d Cir. 1987)).

In order "to assure that the plaintiff has his day in court despite the unavailability of direct evidence," Tra ns World Airlines v. Thurston, 469 U.S. 111, 121 (1985) (quo tation omitted), courts developed "a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination." United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983) (quoting Furnco Constr. Corp. v. Wa ters, 438 U.S. 567, 577 (1978)). What was developed, of c ourse, was the now-familiar burden shifting framework firs t enunciated by the Supreme Court in McDonnell Dougla s Corp. v. Green, 411 U.S. 792 (1973).3

If the plaintiff establishes the elements of a prim a facie case, the employer must articulate a legitimate, no ndiscriminatory reason for its employment decision. Once such a justification is proffered, the burden then reverts to the plaintiff to prove by a preponderance of the ev idence that the articulated reason is a pretext. At all ti mes, the plaintiff bears the ultimate burden of proving that discrimination (here age) was a determinative facto r in the adverse employment decision. See generally St. Mary 's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). The plain tiff "may succeed in this either directly by persuading the[f act finder] that a discriminatory reason more likely mo tivated the employer or indirectly by showing that the empl oyer's proffered explanation is unworthy of credence." Tex as Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). When a jury finds that the employer's proffered jus tification for its actions is pretextual, the jury is permitte d, albeit not mandated, to return a verdict in the plaintiff's fa vor. See Hicks, 509 U.S. at 511.

___________________________________________________ ______________

3. Although McDonnell Douglas arose under Title VII , we have consistently applied its general framework to cases arising under other discrimination statutes including the ADEA. See Kel ler v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997) (en banc).

9The rationale for placing so much emphasis on the

justification proffered by the employer can be foun d in the statement made by Chief Justice, then Justice, Rehn quist who wrote that unexplained acts "are more likely th an not based on the consideration of impermissible factors ." Furnco Constr. Corp., 438 U.S. at 577. He continued , "when all legitimate reasons for rejecting an applicant h ave been eliminated as possible reasons for the employer's a ctions, it is more likely than not the employer, who we genera lly assume acts only with some reason, based his decisi on on an impermissible consideration such as race." Id.

Because "an employer who knowingly discriminates .

. . may leave no written records revealing the forbidde n motive and may communicate it orally to no one," Chipollin i, 814 F.2d at 899 (quotation omitted), it is only natural that the

focus of a discrimination trial in accordance with McDonnell Douglas will be the veracity of the justification o ffered by the employer to explain its conduct. If the employe r fails to tell the truth, "it does so at its own peril . . . . [and] the jury [may] infer that the real motivation is the one tha t the plaintiff has charged." Sheridan, 100 F.3d at 1069.

The jury charge played a central role in our holdin g in Sheridan that a finding of pretext was a permissibl e basis for a verdict of discrimination. We stated: "[i]t i s the jury's determination that the reason given was pretextual together with the evidence that supported the prima facie ca se that will sustain a finding of intentional discriminatio n made after a proper charge." Sheridan, 100 F.3d at 1071 (emphasis added).

Notwithstanding the pivotal role played by pretext in the ultimate decision of discrimination vel non, the di strict court in the case at bar refused to inform the juro rs of that role. At the heart of the district court's charge, the court instructed the jury as follows:

[T]he dispositive fact that you must decide is whether Mr. Smith has proven by a preponderance of t he evidence that his age was a determining fact or in the borough's decision not to renew his employme nt contract. He need not prove that his age was the sole or exclusive reason for the borough's decisi on not to

10renew the contract. Age is a determining fac tor,

however, if Mr. Smith's contract would have been renewed except for his age.

App. at 1053. The court repeatedly emphasized that the jury's task was to determine whether Smith's age wa s a determinative factor in the Borough's decision not to renew his employment contract. App. at 1054-55, 1058.

Although we acknowledge that the Seventh Circuit ha s signified its approval of an instruction similar to that given here, see, e.g., Achor v. Riverside Golf Club, 117 F.3d 339 (7th Cir. 1997), the Second Circuit has expressly r equired

more. It stated:

If the defendant has met its burden of prod ucing evidence that, if taken as true, would rebut the prima facie case, a threshold matter to be decided by the judge, the jury need not be told anything ab out a defendant's burden of production. In that ev ent, whether or not the facts of the plaintiff 's prima facie case are disputed, the jury needs to be told two things: (1) it is the plaintiff 's burden to persuad e the jurors by a preponderance of the evidence that the apa rtment (or job) was denied because of race (or, in othe r cases, because of some other legally invalid reason ), and (2) the jury is entitled to infer, but need not infer, that this burden has been met if they find that the [f acts needed to make a prima facie case] have been establ ished and they disbelieve the defendant's explanation.

Cabrera v. Jakabovitz, 24 F.3d 372, 382 (2d Cir. 19 94) (emphasis added) (citations and footnotes omitted).

This court has not yet addressed this precise issue

. However, we have steadfastly adhered to the princip le that the "objective of the charge is to clarify the issu es in the light of the evidence `to provide aid and guidance for the jury.' " Atkinson v. Roth, 297 F.2d 570, 574 (3d Ci r. 1961) (quotation omitted). The trial court must ensure"th at the jury be given full and complete instructions by rel ating the law to the relevant evidence in the case." Choy v. Bouchelle, 436 F.2d 319, 325 (3d Cir. 1970). We have considere d this such an important function that we have reversed ju ry verdicts because the trial court failed to provide the

11requisite legal guidelines even when the party fail ed to

preserve an objection. Id.; Richardson v. Walsh Con str. Co., 334 F.2d 334, 338 (3d Cir. 1963); Atkinson, 297 F.2 d at 575; McNello v. John B. Kelly, Inc., 283 F.2d 96, 1 02 (3d Cir. 1960).

Applying these principles, it is clear that the jur y must be given the legal context in which it is to find and apply the

facts. It is difficult to understand what end is se rved by reversing the grant of summary judgment for the emp loyer on the ground that the jury is entitled to infer discrimination from pretext, as we instructed in Fu entes v. Perskie, 32 F.3d 759, 764-65 (3d Cir. 1994), if the jurors are never informed that they may do so. Accordingly , we join the Second Circuit in holding that the jurors must be instructed that they are entitled to infer, but nee d not, that the plaintiff 's ultimate burden of demonstrating i ntentional discrimination by a preponderance of the evidence c an be met if they find that the facts needed to make up t he prima facie case have been established and they disbeliev e the employer's explanation for its decision.4

The Borough contends that, even without Smith's requested instruction, the court's charge read as a whole adequately informed the jury what it was permitted to do if it disbelieved the Borough's proffered justificatio n for its decision. The first portion of the charge to which the Borough points instructed the jury that it could di scredit a witness's testimony if it found inconsistencies or discrepancies therein. This, however, merely instru cted the jurors as to when they may disbelieve a witness. It said nothing about what the jury may do or infer once th e jurors had decided to disbelieve the employer's proffered reason.

The second instruction that could be read to suppor t the Borough's position informed the jury that it could consider direct or circumstantial evidence and provided exam ples, including a departure from the employer's standard

___________________________________________________ ______________

4. This does not mean that the instruction should i nclude the technical aspects of the McDonnell Douglas burden shifting, a charge reviewed as unduly confusing and irrelevant for a jury. See Loe b v. Textron, Inc., 600 F.2d 1003, 1016 (1st Cir. 1979); Messina v. Kroblin Transp. Sys., 903 F.2d 1306 (10th Cir. 1990).

12practices, suspect decision making methods, a histo ry of

discrimination, a hostile work environment or stati stical proof of discrimination. This instruction is inadeq uate for those employees who have little or no circumstantia l evidence of the type alluded to by the district cou rt, the very plaintiffs for whom the McDonnell Douglas fram ework was developed. Under this instruction, the jurors w ho found no evidence fitting the examples of circumsta ntial evidence referred to in the charge but who disbelie ved the employer's explanation could reasonably conclude th at there was no evidence on which they would be permit ted to base a plaintiff 's verdict. This conclusion would, of course,

be incorrect as a matter of law but would be understandable in light of the instruction.

Third, the district court instructed the jury that it could make inferences based on common experiences and common sense. Although the inference of discriminat ion arising from pretext is grounded in the common sens e notion that any party's false testimony may be take n as evidence of its having fabricated its case, Sherida n, 100 F.3d at 1069, this does not mean that the jury will know without being told that its disbelief in the employ er's proffered reason may be evidence that, coupled with evidence establishing plaintiff's prima facie case, will support a finding of intentional discrimination. Wh ile it may appear to us, looking from the perspective of o ur knowledge of the reported opinions, that the eviden tiary framework that evolved is nothing more than common sense, the jury comes to its task without that back ground or history. If the district courts are not required to instruct the jurors that they may use the evidence that supp orted plaintiff 's prima facie case coupled with their re jection of the reasons offered by the employer for the employm ent decision to conclude that the employer intentionall y discriminated, then all our carefully honed languag e will

have been an exercise in irrelevance.

In light of the decades it has taken for the courts to shape and refine the McDonnell Douglas standard int o its present form and the inordinate amount of ink that has been spilled over the question of how a jury may us e its finding of pretext, it would be disingenuous to arg ue that it

13is nothing more than a matter of common sense. Inde ed,

the answer to the question of whether a jury is all owed to infer discrimination from pretext eluded many of th e federal courts of this country for a substantial period of time. As we stated in Atkinson, "If it is to be assumed that jurors have ordinary intelligence, it may not be assumed t hat they are students of the law. The task of the jury, to a pply the rules of law as given by the court below, certainly cannot be satisfactorily accomplished . . . in the abstract." 297 F.2d at 574 (overturning the verdict because, inter alia , the trial court failed to include in its charge the rather ob vious direction that negligence cannot be imputed to the passengers).

Without a charge on pretext, the course of the jury 's deliberations will depend on whether the jurors are smart enough or intuitive enough to realize that inferenc es of discrimination may be drawn from the evidence establishing plaintiff's prima facie case and the p retextual nature of the employer's proffered reasons for its actions. It does not denigrate the intelligence of our jurors t o suggest that they need some instruction in the permissibili ty of drawing that inference.

Former Chief Judge Biggs of this court has explaine d that the rule that the district court must give a r equested instruction in accordance with a party's contention and consistent with the evidence unless the subject mat ter has been covered adequately elsewhere in the charge, se e generally Wright & Miller S 2556 at 444, is based o n the unacceptability of leaving "entirely to the jury th e task of particularizing the legal standard and working out the alternatives possible under the facts." See McNello , 283

F.2d at 102. That was the task the court's instruct ion left the jury, although there was evidence that the Boro ugh's explanation for its action varied. It had advised t he EEOC and the Pennsylvania Commission on Human Relations that it didn't renew Smith's employment contract be cause he failed to file a formal application, in contrast to its explanation at trial which emphasized Smith's poor job performance. While this variation in articulated re asons did not compel the jury to disbelieve the Borough, the inconsistency was sufficient for a reasonable jury to view it

14as evidence of pretext leading to an inference of

discrimination if the jury had been adequately char ged.

We do not intend for today's holding to suggest tha t Smith has presented a particularly strong case or t hat the jury necessarily would have found it persuasive eve n with a proper instruction. Nevertheless, the rule we ann ounce today will be equally applicable in future discrimi nation cases and, thus, it is with an eye to the future th at we

must fashion a rule in the context of the facts of this case.

We conclude, therefore, that the district court err ed in refusing to instruct the jury that it was permitted but not required to infer intentional discrimination if it found that Smith had proven the elements of his prima facie ca se and if it disbelieved the Borough's explanation for not having

renewed Smith's contract.

IV

Based on the foregoing, we will vacate the jury's v erdict for the Borough and remand the case to the district court

for a new trial.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

15