28 F.3d 366 (3rd Cir. 1994), 92-3724, Hook v. Ernst & Young

Docket Nº:92-3724.
Citation:28 F.3d 366
Party Name:Debra V. HOOK, an individual, Appellant, v. ERNST & YOUNG, a partnership, Appellee.
Case Date:June 28, 1994
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 366

28 F.3d 366 (3rd Cir. 1994)

Debra V. HOOK, an individual, Appellant,


ERNST & YOUNG, a partnership, Appellee.

No. 92-3724.

United States Court of Appeals, Third Circuit

June 28, 1994

Argued Aug. 4, 1993.

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Louis M. Tarasi, Jr., Joseph J. Hinchliffe (argued), Tarasi & Johnson, Pittsburgh, PA, for appellant.

Paul A. Manion, Mary-Jo Rebelo, Manion, McDonough & Lucas, Pittsburgh, PA, and Kathryn A. Oberly, Associate Gen. Counsel, Thomas L. Riesenberg, Asst. Gen. Counsel (argued), Ernst & Young, Washington, DC and Elizabeth B. Healy, Associate Gen. Counsel, Ernst & Young, New York City, for appellee.

Present: STAPLETON, HUTCHINSON and ROTH, Circuit Judges.


HUTCHINSON, Circuit Judge.

Appellant, Debra Hook ("Hook"), appeals a judgment the United States District Court for the Western District of Pennsylvania entered on a jury verdict for her former employer appellee Ernst & Young. Hook claims Ernst & Young intentionally discriminated against her on the basis of sex in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C.A. Secs. 2000e to 2000e-17 (West 1981 & Supp.1993), when it

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terminated her employment. On appeal, she contends that she was entitled to a mixed-motives burden shifting jury instruction under the 1991 amendments to Title VII and Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), and therefore the court erred in charging the jury that it was her burden to show that sex was a "determinative" rather than a "motivating" factor in the decision to terminate her.

More specifically, Hook argues section 107(a) of the Civil Rights Act of 1991 ("the 1991 Act"), codified at 42 U.S.C.A. Sec. 2000e-2(m) (West Supp.1993), automatically entitles Title VII plaintiffs who make out a prima facie case of illegal discrimination on a pretext theory to a motivating factor mixed-motives instruction. If a mixed-motives instruction is not required when a Title VII plaintiff's case depends on pretext, Hook argues in the alternative that she was entitled to a mixed-motives instruction because the evidence in this case showed the discriminatory animus Price Waterhouse requires.

We conclude that section 107 does not govern this case because that section does not apply to conduct occurring prior to its enactment in 1991. We also conclude that Hook has not produced the kind of evidence that would entitle her to a mixed motives, burden shifting instruction under Price Waterhouse.

Finally, we reject Hook's argument that a mixed-motives instruction is required whenever there is circumstantial evidence sufficient to establish a prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). We think a holding to that effect would be in conflict with the teaching of the United States Supreme Court in St. Mary's Honor Center v. Hicks, --- U.S. ----, ----, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993). That case holds that a plaintiff who seeks to establish illegal discrimination on a pretext theory must persuade the factfinder not only that illegal discrimination or bias was present but also that it was a cause of the act on which her Title VII claim is based. In contrast, a Price Waterhouse mixed-motives instruction, which requires evidence sufficient to show discriminatory animus more directly, implies cause and shifts to the employer the burden of persuading the factfinder its bias had, in fact, no causal connection with its act against the protected employee. Thus, in a mixed-motives case the employer must negate causation, i.e., persuade the factfinder it would have acted as it did even if it were not invidiously prejudiced. Therefore, we will affirm the district court's order entering judgment for Ernst & Young on the jury's verdict against Hook.

I. Factual & Procedural History

Arthur Young & Co. ("Arthur Young"), a major accounting firm, hired Hook in June of 1989 as a tax senior, its lowest supervisory position. Hook had a law degree and work experience with another major accounting firm but was not a certified public accountant ("CPA"). At her job interview, Hook inquired when she might be eligible for promotion. James Chemel ("Chemel"), the director of the section which would employ Hook, stated that she would be promoted to tax manager within six months.

On October 1, 1989, Arthur Young merged with Ernst & Whinney to become Ernst & Young. After the merger, Chemel told Hook that the merger prevented him from promoting her to tax manager within the six months he had promised. Ernst & Young soon replaced Chemel with John McCann ("McCann"). He told Hook that Ernst & Young preferred CPA's for promotion to that position. A little later the staff in Ernst & Young's Pittsburgh office received a memorandum. It stated that any person who sought promotion to tax manager had to pass the CPA examination. This new policy had a grandfather clause excusing employees like Hook from the CPA requirement.

Ernst & Young rates its employees on a scale of one to five. Five indicates the employee "consistently excels" but one indicates "unacceptable" performance. As Hook continued at Ernst & Young, her performance reviews started to go downhill. In her first

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written evaluation in April of 1990 Hook received four "2s," three "3s," and one "4." At her next evaluation in April of 1991 Hook received three "1s," two "2s," and one "3" from Chemel. She received equally low ratings from McCann, her supervisor when she was terminated.

During the 1990 economic down-turn, Ernst & Young suffered a considerable loss of business and decided to reduce its workforce. Between March and June of 1990 it fired seven members of its tax staff, six men and one woman. In February 1991 Ernst & Young continued to contract its workforce and fired two more professionals from its tax staff.

In April 1991 McCann informed Hook she would be terminated because her projects were subject to "time overruns" and "she was the least good of those who were left." Joint Appendix ("Jt.App.") at 452A. Two other tax professionals, one male and one female, were also fired at the same time.

Ernst & Young continued to cut back through early 1992 and many employees left the firm voluntarily. Of the fifty-five professionals Ernst & Young had employed in its Pittsburgh tax department at the time of the merger in October 1989, only twenty-two remained by November 1992. Sixteen of the thirty-three employees who were gone had been dismissed; four of the sixteen were women.

In December 1991 Hook sued Ernst & Young under Title VII alleging it intentionally discriminated against her because of sex when it terminated her. 1 At trial, Hook testified to three comments she found offensive. From them she seeks to infer that her supervisor, McCann, had a sexually discriminatory animus. She testified that on one occasion a client asked her how she could get out of her blouse because it buttoned in the back, to which McCann is said to have replied that he had buttoned it for her that morning. On a separate occasion, McCann allegedly told Hook she should "get [her] legs and ass over" to the client. Jt.App. at 148A. Hook testified McCann made one other "demeaning" remark but she was unable to recall the exact words, only the embarrassment it caused her.

Hook testified her work was of high quality. She also testified that Peter Stipanovich, another tax manager who was retained, was less qualified than she was and said two Ernst & Young partners had admitted she was better than Stipanovich. Her testimony that the Ernst & Young partners agreed with her about Stipanovich's relative merit was uncorroborated, and the Ernst & Young supervisors who testified all said Stipanovich was an able professional with good credentials. In particular, Adam S. Monks ("Monks"), an Ernst & Young partner, testified that Stipanovich was "very knowledgable [sic] about and is considered one of the most knowledgable [sic] in the office" on taxation of partnerships. Id. at 383A. Similarly, Chemel testified that Stipanovich was "above average" in competence, ability and work performance. Id. at 402A. The record also shows Stipanovich was a CPA with a degree from the University of Pennsylvania's Wharton School of Business.

After the close of all evidence, in conference with the parties, the court proposed the following jury charge:

The question for you, members of the jury, is whether plaintiff's sex was a determinative factor in the discharge of plaintiff.... Plaintiff need not prove that her sex was the sole factor motivating the defendant. However, plaintiff must prove that she would not have been discharged if the fact that she is a woman had not been taken into account.


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