On Appeal From the United States District Court For the Eastern District of Pennsylvania. (D.C. Civil Action No. 92-05751).
Before: Stapleton, Hutchinson and Roth, Circuit Judges.
STAPLETON, Circuit Judge:
Defendant Insurance Company of North America ["INA"] terminated plaintiff William J. Miller from his job after fifteen years of employment.*fn1 Miller alleges that he was discriminated against on the basis of his age in violation of the Age Discrimination in Employment Act ["ADEA"], 29 U.S.C. §§ 621-34 (1988).
At trial, the district Judge instructed the jury that it could return a verdict for Miller only if he proved that age was "the sole cause" of INA's decision. After the jury returned a verdict in INA's favor, Miller appealed, asserting that the district court improperly charged the jury regarding his burden of proof. We hold that in ADEA cases that do not qualify for a burden shifting charge under Price Waterhouse v. Hopkins, 490 U.S. 228, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989), district courts should instruct the jury that the plaintiff's burden is to prove that age played a role in the employer's decisionmaking process and that it had a determinative effect on the outcome of that process. Since it is not necessary for the plaintiff to prove that age was the sole cause of the employer's decision, we conclude that Miller is entitled to a new trial.
Miller was hired in 1975 as an assistant to INA's Chief Financial Officer. In that position, he directed INA's reinsurance operations at the Newark Reinsurance Company, created a financial processing service center, and directed the production of summary financial documents. After serving as Vice President and Director of INA's Special Risk Facility, Miller was promoted to Senior Vice President, Field Operations. He created a new organization, managed a $200 million budget, and supervised over 8,000 employees. At this point in his career, Miller was compensated at pay grade sixty-one and his superior consistently evaluated his performance as exceeding expectations.
After his promotion to Senior Vice President, Miller was asked to join a special team of other executives called IMPACT. IMPACT's mission was to identify major strategic issues and market strategies for INA's Property and Casualty Division. Caleb Fowler, Chief Financial Officer of the Property and Casualty Division, and Richard Hoag, Chief of Human Resources, told Miller they would find him a permanent position at the Conclusion of the project. When IMPACT concluded in late 1984, Miller was assigned to a special project on reinsurance collection.
Upon completing the special project on reinsurance collection, Miller was appointed to the position of Senior Vice President of the Underwriting Division. In this position, Miller managed four departments, handled complaints from agents and regulatory agencies, prepared state filings and annual budgets, and managed a $70 million annual budget.
In late 1988, Miller's supervisor, Jack Morrison, advised Miller that he should search for another job, both inside and outside the company, because his position might be eliminated. In March of 1989, Miller's position was eliminated. Miller's superior, Nord Bjorke, sent him to Richard Hoag to receive a special assignment reducing real estate costs in the Property and Casualty Division.
One year later, Hoag informed Miller that, despite his success in reducing real estate costs, his position as "real estate czar" was being terminated. Hoag advised Miller that he could assist Robert O'Neil, head of Real Estate in the Corporate Staff, with special projects. In November of 1990, Miller was informed that this position was being eliminated and that he would be terminated at the end of December. At the time he was terminated, Miller was fifty-eight years old and had been downgraded to pay grade fifty-nine. At no time during 1990 was Miller informed about five vacancies at the company for which he might have applied.
The first vacancy was for the position of Vice President, Filing and Regulation. Defendant announced that Darrell DeMoss, age forty-two, had been selected. Miller had not known of the position and contends that he was qualified for it because, as Senior Vice President, Finance and Administration, he supervised the Filing and Regulation function. Defendant asserts that Miller was not considered because the position required legal analysis and Richard Franklin, the hiring manager for this position, decided to hire an attorney. Miller notes, however, that his name was not included on the list of nonlawyer candidates who were considered but disqualified, and that the previous Vice President, Filing and Regulation, was not a lawyer. The second vacancy was in the position of General Manager of CIGNA Reinsurance Company, United Kingdom. Among the desired qualifications were "work experience with either United Kingdom accounting practices or reinsurance accounting practices and principles . . . ." App. at 712. Miller asserts that this position involved the same responsibilities he had when he supervised the Newark Reinsurance Company. James Godorecci, who was in charge of hiring for the position, acknowledged that he wrote the job qualifications with Michael Durkin, age thirty-five, in mind and that he never considered Miller for the position. INA contends that Miller lacked the desired academic credentials, work experience and knowledge of United Kingdom accounting practices.
The third vacancy was for the position of Senior Vice President, Finance Systems and Administration, in the Claims Department. Qualifications desired for the position included: broad knowledge and experience in the Property and Casualty business; knowledge of financial measures and objectives; credibility and the ability to work with other managers; skill in influencing managers and implementing strategy; and effective verbal and written skills. Miller contends he satisfied these requirements because of his management experience. James Engle, the hiring manager for this position, testified Miller was not qualified because he did not have a strong math and statistical background, and was not familiar with loss control and statistical monitors. The company asserts that Victor DiFelice, age thirty-eight, was better qualified for the job.
The fourth vacancy, for the position of Head of Strategy Implementation, was filled by Ronald Peters, age forty-nine. The company conceded that Miller was qualified for the job, but maintained that Peters was better qualified.
The fifth vacancy was for the position of Vice President, Property and Casualty Marketing. Hiring manager Thomas Cobb appointed Cynthia Cole-Dougherty, age thirty-eight. Job qualifications included an ability to conduct market studies, market research, competitive analyses and segmentation studies. INA asserts that, although Cynthia Cole-Dougherty did not have insurance experience, one of the primary considerations in the hiring decision was a desire to hire from outside both the company and the industry.
During trial, the district Judge asked counsel if Miller's was a "pretext" or "mixed motives" case. This inquiry made reference to the distinction between employment discrimination cases in which the plaintiff seeks to carry his or her burden by showing that the employer's tendered reason for the challenged action is a pretext for discrimination*fn2 and cases that qualify for a mixed motives, burden shifting instruction under Price Waterhouse v. Hopkins, 490 U.S. 228, 104 L. Ed. 2d 268, 109 S. Ct. 1775. Miller's counsel advised the district court that this was a "pretext" case. The district Judge then "distributed to counsel the questions [to be used] to submit the case to the jury. . . ." App. at 610. After reviewing those questions, Miller's counsel stated that she had an objection. Counsel cited Hazen Paper Co. v. Biggins, 123 L. Ed. 2d 338, 113 S. Ct. 1701 (1993), and asserted that plaintiff's burden of proof under that case was to establish that age was "a determining factor," i.e., that it "made a difference" in the employer's decision. App. at 612.
Notwithstanding this objection, the district Judge instructed the jury as follows:
To recover under the pretext theory which the plaintiff asserts in this case, the plaintiff must establish by a preponderance of the evidence that his age was the sole cause of defendants' failure to hire him into vacancies that became available and to terminate his position as a real estate czar in the last of those listings that I've put on the page that you have; that he was qualified and rejected for the positions in question solely because of his age.
If the defendants articulate a legitimate non-discriminatory reason for his rejection, the plaintiff at all times retains the ultimate burden of persuading you that the defendant intentionally discriminated against him because of his age.
The plaintiff under the law must prove that the discriminatory motive was the sole cause of the employment action.
In order to prove pretext, the plaintiff must show that the defendant's reasons were false and that discrimination was the real reason, however, if you disbelieve the reasons put forth by the defendants to justify their decision, you may but are not required to find intentional discrimination.
The plaintiff doesn't have to prove that the employer hated him . . . . He has to prove that plaintiff's age was the sole determinative factor in the particular employment decision.
App. at 673-77 (emphasis added). At the Conclusion of the charge, Miller's counsel renewed her "objection to . . . the verdict sheet. . . [and stated that] the question before them is whether age was a determinative factor according to Biggins." App. at 683 (emphasis added). The district court declined to alter the charge.
During its deliberations, the jury sent the following message to the district Judge:
The jury requests clarification on the meaning of defendants' employment ...