1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-17-1998

Smith v. Wilkinsburg

Precedential or Non-Precedential:

Docket 97-3133

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Recommended Citation

"Smith v. Wilkinsburg" (1998). 1998 Decisions. Paper 143.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/143
Filed 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 Circuit 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 employment 

contract on the basis of his age. At the close of the trial, the 

district court refused his request to instruct the jury that it 

could infer intentional discrimination if it disbelieved the 

Borough's asserted reasons for not renewing Smith's

contract. Smith appeals from the judgment entered on the 

jury's adverse verdict, and seeks a new trial, claiming that 

the district court committed reversible error in omitting 

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 given by 

either party within thirty days before or after the contract's 

expiration. On March 23, 1994, a member of the Borough 

Council orally informed Smith, then 61 years old, that the 

Council would not be renewing his contract but that he was 

welcome to reapply for the job along with other applicants. 

Two weeks later, Smith, the Mayor and the Council 

President signed a resolution stating that the Borough 

would not be extending Smith's employment agreement and 

that it would begin interviewing other applicants for the 

position. 

Although Smith told several council members that he was 

interested in retaining his position, he did not formally 

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 Smith 

apply in writing for the Borough Manager position. 

Smith brought suit against the Borough alleging that his 

employment contract had not been renewed on account of 

 2 
his 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 Borough had 

improved markedly during his tenure. In defense of its 

action in failing to renew Smith's contract, the Borough 

elicited testimony from Council members that Smith's 

performance on the job had been inadequate. Smith then 

offered evidence that the Borough had not criticized Smith's 

performance at prior hearings before the Equal 

Employment Opportunity Commission and the 

Pennsylvania Commission on Human Relations and in its 

responses to Smith's interrogatories. Instead, the Borough 

explained that it did not renew Smith's contract because 

Smith had not timely applied for the position.1 

At the court's request, the parties submitted written 

proposed jury instructions and objections to the court's 

proposed charge. Smith, citing our opinion in Sheridan v. 

E.I. DuPont de Nemours & Co., 100 F.3d 1061 (3d Cir. 

1996) (en banc), cert. denied, 117 S. Ct. 2532 (1997), 

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 credible. 

Thereafter, at an in camera charge conference, Smith 

objected to the court's draft charge, noting that it did not 

include his requested instruction on pretext. The court 

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 that." 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. 

_________________________________________________________________ 

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. 

 3 
II 

When reviewing the propriety of a district court's charge 

to the jury, the scope of our review depends on whether the 

party challenging the charge properly preserved his or her 

objection before the trial court. Where the objection is 

properly preserved, our inquiry is whether the charge, 

"taken as a whole, properly apprises the jury of the 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 exercised 

sparingly." Fashauer v. New Jersey Transit Rail Operations, 

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 highly 

prejudicial or if the instructions are such that the 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 scope of our 

review, we will not simply assume that the objection was 

preserved, merely because the Borough failed to raise the 

waiver argument. 

Rule 51 of the Federal Rules of Civil Procedure provides 

that "[n]o party may assign as error the giving or the failure 

to give an instruction unless that party objects thereto 

before the jury retires to consider its verdict, stating 

distinctly the matter objected to and the grounds of the 

objection." Fed. R. Civ. P. 51. Rule 51 plays a critical role 

in both the trial and appellate processes. By requiring 

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 in the 

charge before the jury begins its deliberations. See, e.g., 

Fashauer, 57 F.3d at 1288. When errors are recognized and 

corrected at that early stage, the burden on the courts of 

 4 
appeals is diminished, fewer jury verdicts will have to be 

vacated and fewer cases will need to be tried a second time. 

See id. Unfortunately, though we have been consistent 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. 1985), 

we stated unequivocally 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." Id. at 646. There, because 

counsel had obtained a definitive ruling rejecting his 

proposed instruction, we held that the issue had been 

preserved regardless of counsel's failure to reassert his 

objection following the delivery of the charge to the jury. 

That result was based on our belief that Rule 51 must be 

read in conjunction with Rule 46, which gives litigants an 

automatic exception to any adverse ruling by operation of 

law.2 We concluded that given"the relationship between 

Rule 51 and Rule 46, [ ] counsel was entitled to assume 

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 relationship 

between Rule 51 and Rule 46). 

In case after case, we have held that a definitive ruling 

from the trial court rejecting a requested instruction is 

sufficient to preserve the issue for appeal. See Tait v. Armor 

Elevator Co., 958 F.2d 563, 565 (3d Cir. 1992); Simmons v. 

City of Philadelphia, 947 F.2d 1042, 1082-83 (3d Cir. 

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 the party 

_________________________________________________________________ 

2. Rule 46 provides in full: 

 Formal exceptions to rulings or orders of the court are 

 unnecessary; but for all purposes for which an exception has 

 heretofore been necessary it is sufficient that a party, at the 

time the 

 ruling or order of the court is made or sought, 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 objection does not 

thereafter 

 prejudice the party. 

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

record that the judge was made aware of the party's

position before the jury retired to consider its verdict' ") 

(quoting Larry v. Muko, Inc. v. Southwestern Pa. Bldg. and 

Const. Trades Council, 670 F.2d 421, 425 (3d Cir. 1982)). 

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 an 

objection to an instruction if the party's objection 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. Crim. P. 30, 

the criminal analogue to Fed. R. Civ. P. 51, we held that 

notwithstanding prior objections and rulings, the failure of 

counsel to state objections to the instructions following the 

delivery of the charge constitutes a waiver. We reasoned 

that Agnes was distinguishable from Bowley because the 

district court in Agnes had not granted an automatic 

exception, which we inferred the district court had done in 

Bowley. However, the statement by the district court in 

Bowley that counsel had "an automatic exception to every 

adverse ruling" was merely a recognition of the interplay 

between Rule 51 and Rule 46. Bowley, 751 F.2d at 641. 

The "automatic exception" arose by operation of law -- not 

because the district court had affirmatively granted one. 

The Agnes court also cited Piechoski v. Grace Lines, Inc., 

409 F.2d 66 (3d Cir. 1969), for the proposition that"Rule 

51 requires counsel to state explicitly any exceptions 

following delivery of the charge." Agnes, 753 F.2d at 301 

n.11. In fact, the Piechoski court simply stated that 

"[c]ounsel is entitled to an opportunity to make objections to 

the charge following its delivery" and, because counsel was 

given that opportunity and never objected to the charge 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 Cement 

Co., 26 F.3d 428 (3d Cir. 1994), where we stated in dictum 

that "As written, Federal Rule of Civil Procedure 51 

explicitly requires that any objections to the court's charge, 

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

charge `before the jury retires to consider its verdict, stating 

distinctly the matter objected to and the grounds of 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 the 

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 was 

misinterpreted in Agnes. In any event, the Seman court 

held that the objection had not been waived because the 

district court had informed counsel that it would not have 

to reassert objections after the delivery of the charge 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. 1997), cert. 

denied, 118 S. Ct. 1052 (1998), that "[w]e have interpreted 

[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. The 

statement was essentially dictum, however, since the 

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 difficult to 

contemplate what objective would be served by requiring 

counsel to restate an objection that had already been raised 

and ruled upon. In our opinion, Agnes and the cases

following it have gone astray and do not reflect the 

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 grounds of 

the objection." Fed. R. Civ. P. 51. Whether that occurs 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 411 (2d ed. 

1995) ("The failure to object [at the close of the charge] may 

 7 
be disregarded if the party's position previously has been 

made clear to the trial judge and it is plain that a further 

objection would be unavailing. This is a risky business, 

however, and cautious counsel will renew all objections to 

the instructions at the close of the charge to be sure that 

those points are preserved.") (citing cases). 

Here, Smith submitted to the district court a written 

proposed instruction distinctly stating his requested 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 ruled and 

explicitly denied Smith's request. As such, the district court 

was fully apprised of Smith's position, and it would serve 

no purpose to require counsel to have formally reasserted 

the objection after the charge had been given to the jury. 

Because the language of Rule 51 requires nothing more, 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 inescapable duty of 

the trial judge to instruct the jurors, fully and correctly, on 

the applicable law of the case, and to guide, direct, 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 Practice 

and Procedure S 2556 at 438 (2d ed. 1995). We agree with 

Smith that the district court's charge left the jury 

inadequately informed of the applicable law. 

In the field of employment discrimination, courts have 

struggled for decades to develop and refine an evidentiary 

framework that fairly balances the interests of the employee 

who challenges her employer's conduct as discriminatory 

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." Chipollini v. 

Spencer Gifts, Inc., 814 F.2d 893, 899 (3d Cir. 1987) (en 

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

the legal process without witnesses and with little direct 

evidence indicating the precise nature of the wrongs they 

have suffered." 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," Trans World 

Airlines v. Thurston, 469 U.S. 111, 121 (1985) (quotation 

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. Waters, 

438 U.S. 567, 577 (1978)). What was developed, of course, 

was the now-familiar burden shifting framework first 

enunciated by the Supreme Court in McDonnell Douglas 

Corp. v. Green, 411 U.S. 792 (1973).3 

If the plaintiff establishes the elements of a prima facie 

case, the employer must articulate a legitimate, nondiscriminatory 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 evidence 

that the articulated reason is a pretext. At all times, the 

plaintiff bears the ultimate burden of proving that

discrimination (here age) was a determinative factor in the 

adverse employment decision. See generally St. Mary's 

Honor Ctr. v. Hicks, 509 U.S. 502 (1993). The plaintiff "may 

succeed in this either directly by persuading the[fact 

finder] that a discriminatory reason more likely motivated 

the employer or indirectly by showing that the employer's 

proffered explanation is unworthy of credence." Texas Dep't 

of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). 

When a jury finds that the employer's proffered justification 

for its actions is pretextual, the jury is permitted, albeit not 

mandated, to return a verdict in the plaintiff's favor. 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 Keller v. Orix Credit 

Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997) (en banc). 

 9 
The rationale for placing so much emphasis on the 

justification proffered by the employer can be found in the 

statement made by Chief Justice, then Justice, Rehnquist 

who wrote that unexplained acts "are more likely than 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 have been 

eliminated as possible reasons for the employer's actions, it 

is more likely than not the employer, who we generally 

assume acts only with some reason, based his decision on 

an impermissible consideration such as race." Id. 

Because "an employer who knowingly discriminates . . . 

may leave no written records revealing the forbidden motive 

and may communicate it orally to no one," Chipollini, 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 offered by 

the employer to explain its conduct. If the employer fails to 

tell the truth, "it does so at its own peril . . . . [and] the jury 

[may] infer that the real motivation is the one that the 

plaintiff has charged." Sheridan, 100 F.3d at 1069.

The jury charge played a central role in our holding in 

Sheridan that a finding of pretext was a permissible basis 

for a verdict of discrimination. We stated: "[i]t is the jury's 

determination that the reason given was pretextual together 

with the evidence that supported the prima facie case that 

will sustain a finding of intentional discrimination made 

after a proper charge." Sheridan, 100 F.3d at 1071 

(emphasis added). 

Notwithstanding the pivotal role played by pretext in the 

ultimate decision of discrimination vel non, the district 

court in the case at bar refused to inform the jurors 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 the 

 evidence that his age was a determining factor in the 

 borough's decision not to renew his employment 

 contract. He need not prove that his age was the sole 

 or exclusive reason for the borough's decision not to 

 10 
 renew the contract. Age is a determining factor, 

 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 was 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 has 

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 required 

more. It stated: 

 If the defendant has met its burden of producing 

 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 about a 

 defendant's burden of production. In that event, 

 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 persuade the jurors by 

 a preponderance of the evidence that the apartment (or 

 job) was denied because of race (or, in other 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 [facts needed 

 to make a prima facie case] have been established and 

 they disbelieve the defendant's explanation.

Cabrera v. Jakabovitz, 24 F.3d 372, 382 (2d Cir. 1994) 

(emphasis added) (citations and footnotes omitted).

This court has not yet addressed this precise issue. 

However, we have steadfastly adhered to the principle that 

the "objective of the charge is to clarify the issues in the 

light of the evidence `to provide aid and guidance for the 

jury.' " Atkinson v. Roth, 297 F.2d 570, 574 (3d Cir. 1961) 

(quotation omitted). The trial court must ensure"that the 

jury be given full and complete instructions by relating the 

law to the relevant evidence in the case." Choy v. Bouchelle, 

436 F.2d 319, 325 (3d Cir. 1970). We have considered this 

such an important function that we have reversed jury 

verdicts because the trial court failed to provide the 

 11 
requisite legal guidelines even when the party failed to 

preserve an objection. Id.; Richardson v. Walsh Constr. Co., 

334 F.2d 334, 338 (3d Cir. 1963); Atkinson, 297 F.2d at 

575; McNello v. John B. Kelly, Inc., 283 F.2d 96, 102 (3d 

Cir. 1960). 

Applying these principles, it is clear that the jury must be 

given the legal context in which it is to find and apply the 

facts. It is difficult to understand what end is served by 

reversing the grant of summary judgment for the employer 

on the ground that the jury is entitled to infer 

discrimination from pretext, as we instructed in Fuentes 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 need not, that 

the plaintiff 's ultimate burden of demonstrating intentional 

discrimination by a preponderance of the evidence can be 

met if they find that the facts needed to make up the prima 

facie case have been established and they disbelieve 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 justification for its 

decision. The first portion of the charge to which the 

Borough points instructed the jury that it could discredit a 

witness's testimony if it found inconsistencies or 

discrepancies therein. This, however, merely instructed the 

jurors as to when they may disbelieve a witness. It said 

nothing about what the jury may do or infer once the jurors 

had decided to disbelieve the employer's proffered reason. 

The second instruction that could be read to support the 

Borough's position informed the jury that it could consider 

direct or circumstantial evidence and provided examples, 

including a departure from the employer's standard 

_________________________________________________________________ 

4. This does not mean that the instruction should include the technical 

aspects of the McDonnell Douglas burden shifting, a charge reviewed as 

unduly confusing and irrelevant for a jury. See Loeb v. Textron, Inc., 600 

F.2d 1003, 1016 (1st Cir. 1979); Messina v. Kroblin Transp. Sys., 903 

F.2d 1306 (10th Cir. 1990). 

 12 
practices, suspect decision making methods, a history of 

discrimination, a hostile work environment or statistical 

proof of discrimination. This instruction is inadequate for 

those employees who have little or no circumstantial 

evidence of the type alluded to by the district court, the 

very plaintiffs for whom the McDonnell Douglas framework 

was developed. Under this instruction, the jurors who 

found no evidence fitting the examples of circumstantial 

evidence referred to in the charge but who disbelieved the 

employer's explanation could reasonably conclude that 

there was no evidence on which they would be permitted 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 discrimination 

arising from pretext is grounded in the common sense 

notion that any party's false testimony may be taken as 

evidence of its having fabricated its case, Sheridan, 100 

F.3d at 1069, this does not mean that the jury will know 

without being told that its disbelief in the employer's 

proffered reason may be evidence that, coupled with

evidence establishing plaintiff's prima facie case, will 

support a finding of intentional discrimination. While it 

may appear to us, looking from the perspective of our 

knowledge of the reported opinions, that the evidentiary 

framework that evolved is nothing more than common 

sense, the jury comes to its task without that background 

or history. If the district courts are not required to instruct 

the jurors that they may use the evidence that supported 

plaintiff 's prima facie case coupled with their rejection of 

the reasons offered by the employer for the employment 

decision to conclude that the employer intentionally 

discriminated, then all our carefully honed language 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 into its 

present form and the inordinate amount of ink that has 

been spilled over the question of how a jury may use its 

finding of pretext, it would be disingenuous to argue that it 

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

the answer to the question of whether a jury is allowed to 

infer discrimination from pretext eluded many of the 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 that they 

are students of the law. The task of the jury, to apply 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 obvious 

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 inferences of 

discrimination may be drawn from the evidence 

establishing plaintiff's prima facie case and the pretextual 

nature of the employer's proffered reasons for its actions. It 

does not denigrate the intelligence of our jurors to suggest 

that they need some instruction in the permissibility of 

drawing that inference. 

Former Chief Judge Biggs of this court has explained 

that the rule that the district court must give a requested 

instruction in accordance with a party's contention and 

consistent with the evidence unless the subject matter has 

been covered adequately elsewhere in the charge, see 

generally Wright & Miller S 2556 at 444, is based on the 

unacceptability of leaving "entirely to the jury the 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 instruction left 

the jury, although there was evidence that the Borough's 

explanation for its action varied. It had advised the EEOC 

and the Pennsylvania Commission on Human Relations 

that it didn't renew Smith's employment contract because 

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 reasons did 

not compel the jury to disbelieve the Borough, the 

inconsistency was sufficient for a reasonable jury to view it 

 14 
as evidence of pretext leading to an inference of 

discrimination if the jury had been adequately charged. 

We do not intend for today's holding to suggest that 

Smith has presented a particularly strong case or that the 

jury necessarily would have found it persuasive even with 

a proper instruction. Nevertheless, the rule we announce 

today will be equally applicable in future discrimination 

cases and, thus, it is with an eye to the future that we 

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

We conclude, therefore, that the district court erred 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 case 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 verdict 

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