Ida Mary Lewis v. University of Pittsburgh and University of Pittsburgh Book Center

725 F.2d 910, 1984 U.S. App. LEXIS 25603, 33 Empl. Prac. Dec. (CCH) 34,135, 33 Fair Empl. Prac. Cas. (BNA) 1091

• Court: Court of Appeals for the Third Circuit
• Decided: February 9, 1984
• Docket: 83-5052
• Status: Published

Opinions

OPINION OF THE COURT

GARTH, Circuit Judge:

Plaintiff Ida Mary Lewis brought suit against the University of Pittsburgh and its Bookstore under section 706 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 (1976), and under 42 U.S.C. §§ 1981, 1983 (1976), claiming that she was denied a promotion because of her race. Her claims under sections 1981 and 1983 were heard by a jury, and her Title VII claim was decided in a bench trial by the district court judge. Both factfinders found for defendants on the merits. We affirm.

I.

Ida Mary Lewis, a black woman, has been employed at the Book Center of the University of Pittsburgh since 1965. In 1967, she was promoted from clerk to Buyer in the Trade Book Department. She again became a clerk in 1975 when one Buyer position in the Trade Book Department was eliminated in a budgetary move.¹

In October, 1976, Lewis applied for a vacant position as Assistant Buyer in the Trade Book Department. The position instead went to Jean Aiello, a white woman who had been employed with the Bookstore since 1972. Lewis alleged that she was better qualified for the position than Aiello and that the reason she was denied promotion was because she is black.

As the district court findings reveal, Lewis was 58 years old, had graduated from Perry High School in 1942, and from Carnegie Institute of Technology (now Carnegie Mellon University) in 1947 with a Bachelor’s degree in History and English. She then enrolled at the University of Pittsburgh, receiving her Master’s degree in History in 1950. She returned to Carnegie in 1961 and received a Master’s degree in Library Science. In the fall of 1964, Ms. Lewis began studying for her Ph.D. in History. She was forced to abandon that plan, however, due to lack of finances and the illness of her parents.

Ms. Aiello, on the other hand, graduated from high school in 1970. Following graduation, she enrolled in the University of Pittsburgh for two years, but had to withdraw for financial reasons. Ms. Lewis had previous experience as a Buyer, while Aiello worked at the Book Center as a sales clerk.

The defendants contended that Lewis was denied the position as Assistant Buyer because she had a poor history of work habits, bookkeeping, and inventory control practices. These contentions were supported by the testimony of Russell Kierz-kowski and Dwight Fong, the two current Buyers for the Trade Book Department. Kierzkowski stated that, when Lewis had previously been a Buyer (prior to 1975), Lewis had neglected to return unused books to the publishers on time, with the result that they had to be sold at a loss. Kierz-kowski testified that he personally interviewed and assigned Aiello to help him eliminate the backlog of unused books. He claimed that even after the backlog had been eliminated, Lewis again failed to complete returns properly, and Aello was assigned to do the work for a second time.

Kierzkowski also stated that Lewis had not adequately kept stock control cards in her files, and had not conducted regular inventory checks to see which books should be reordered. Mr. Fong testified that, at approximately the same time, he discovered that the paperback technical books had also not been returned or reordered, and that much of the inventory was discolored, worn, and dusty. The district court judge’s findings with respect to some of these matters are set forth in the margin.²

The basic question which was presented at trial, therefore, was whether, despite Lewis’ superior paper credentials, she was denied promotion because of her alleged lapses as described by Messrs. Fong and Kierzkowski, or whether the decision was based on race.

The jury’s verdict on the section 1981 and section 1983 claims was in the form of special interrogatories:

1. Was plaintiff, Ida Mary Lewis, qualified in October, 1976, for the position of Assistant Buyer in the Trade Book Department?

ANSWER: YES.

2. Was plaintiff, Ida Mary Lewis, more qualified in October, 1976, for the position of Assistant Buyer in the Trade Book Department than Jean Aiello?

ANSWER: YES.

3. Would plaintiff, Ida Mary Lewis, have been promoted to the position of Assistant Buyer but for the fact that she is black?

ANSWER: NO.

Thus, the jury, while finding Lewis to have qualifications superior to those of Aiello, nonetheless found that Lewis was not denied promotion because of her race.

As required by the statute, the district court judge entered separate findings of fact on the Title VII claim.³ He concluded that:

[Lewis] failed to prove by a preponderance of the evidence that the reasons for the denial of the promotion as articulated by Messrs. Fong and Kierzkowski were a mere “cover up” or pretext for a racially discriminatory intent. Ms. Lewis would have been denied the promotion even if she were not black. Her poor work history, not her race, was the cause or motivating factor of the denial.

App. at 47 (emphasis in original). He therefore granted judgment to defendants on the Title VII claim and entered judgment for defendants on Lewis’ 1981 and 1983 claims based upon the jury’s response to Interrogatory No. 3.

II.

Lewis has raised a number of issues on this appeal. After carefully examining the record and her contentions, we conclude that the district court did not err in entering judgment for the defendants on all claims. One issue, however, requires discussion. Lewis charges that the trial judge was incorrect in instructing the jury as to the level of causation required for her to succeed on her claims. We are satisfied, as was the district court, that Title VII and sections 1981 and 1983 all require a showing of “but for” causation in an employment discrimination suit.

A.

To establish employment discrimination, it must be shown that the employer bore a racially discriminatory animus against the employee, and that this animus manifested itself in some challenged action, whether it be dismissal, failure to promote, or failure to hire. See, e.g., International Brotherhood of Teamsters v. United States, 431 U.S. 324, 334-35, 97 S.Ct. 1843, 1854, 52 L.Ed.2d 396 (1977) (“ultimate factual issues are ... simply whether there was a pattern or practice of .. . disparate treatment and, if so, whether the differences were racially premised”); General Electric Co. v. Gilbert, 429 U.S. 125, 137 n. 14, 97 S.Ct. 401, 409 n. 14, 50 L.Ed.2d 343 (1976) (Plaintiffs “who seek to establish discrimination have the traditional civil litigation burden of establishing that the acts they complain of constituted discrimination in violation of Title VII”); Massarsky v. General Motors Corp., 706 F.2d 111, 117 (3d Cir.1983) (“plaintiff alleging disparate treatment .. . bears the ultimate burden of persuading [the trier of fact] that his treatment was caused by purposeful or intentional discrimination”).

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court announced the manner in which discrimination must be established: (1) the employee must show a prima facie case of discrimination,⁴ (2) once a prima facie case has been shown, the burden shifts to employer to articulate some non-discriminatory reason for the challenged action, (3) if such a facially legitimate reason is proffered, the employee must then bear the burden of demonstrating that the reason given by his employer is in fact merely a pretext, i.e. a fiction which obscures the reality of racial discrimination.

It is important to recognize that McDonnell Douglas does not in any way relieve the employee of his basic burden of proof. As the Court explained in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), “[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. ... The McDonnell Douglas division of intermediary burdens serves to bring the litigants and the court expeditiously and fairly to this ultimate question.” Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. At each stage in the procedure, the issues are winnowed and narrowed, and the factual inquiry proceeds to a new level of specificity. Id. at 255, 101 S.Ct. at 1094. When the litigation reaches the third and last stage, the plaintiffs burden in showing that the proffered justification is merely a pretext “merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination.” Id. at 256, 101 S.Ct. at 1095.

It is in this third step of the McDonnell Douglas analysis that the issue of causation is most directly posed. The Supreme Court took great pains to emphasize in McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976) that nothing has altered the plaintiffs burden in showing that intentional “but for” discrimination exists. In focusing on “but for” causation, the Supreme Court stated that:

The use of the term “pretext” in this context does not mean, of course, that the Title VII plaintiff must show that he would have in any event been rejected or discharged solely on the basis of his race, without regard to the alleged deficiencies [in work-related performance]; ... no more need be shown than that race was a “but for” cause.

Id. at 282 n. 10, 96 S.Ct. at 2579 n. 10 (emphasis added).

We find no indication in any decisions of the Supreme Court, or of any other court, that signals any deviation from the use of the “but for” test of causation.⁵ Accord, Mack v. Cape Elizabeth School Board, 553 F.2d 720 (1st Cir.1977); see League of United Latin American Citizens (LULAC) v. City of Salinas Fire Department, 654 F.2d 557 (9th Cir.1981). The effort by the dissent to suggest a test other than the Supreme Court’s “but for” test is not persuasive. See Dissenting Opinion, Typescript at 5-6. Judge Adams, writing in dissent, cites to United States v. Hayes International Corp, 6 FEP Cases (BNA) 1328 (N.D.Ala.1973), aff’d without opinion, 507 F.2d 1279 (5th Cir.1975), in support of his argument. However, that case was decided and affirmed prior to the Supreme Court’s pronouncement in 1976 of the “but for” test found in Santa Fe. Moreover, in operation, the Hayes “any part” standard, although not artfully articulated, can be explained as part of the “but for” analysis. Judge Adams’ dissent also cites to Brodin, The Standard of Causation in Mixed-Motive Title VII Actions: A Social Policy Perspective, 82 Colum.L.Rev. 292 (1982). The Bro-din article, however, concludes with a test for causation no different than the Supreme Court’s test, and the test that we adopt here, since Brodin would require that the employee show that the “same decision” would not have been reached absent racial animus.

B.

Lewis argues that she need only show that race was a “substantial” or “motivating” factor leading to the defendants’ decision not to promote her to assistant buyer.⁶ In support for this proposition, Lewis cites, inter alia, Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) (alleging abridgement of first amendment rights by government employer).

In Mt. Healthy, however, Justice Rehnquist specifically rejected the proposition that, under § 1983, it was enough to show that protected constitutional activity was a “substantial factor” leading to the challenged action. Id. at 285, 97 S.Ct. at 575. Mt. Healthy merely found that, after an initial showing that protected activity was a “substantial” or “motivating factor,” the burden shifted to defendants to show that the same action would have occurred even in the absence of such activity. Id. at 287, 97 S.Ct. at 576. It therefore did not deviate from the requirement of “but for” causation; rather, its only effect was to allocate and specify burdens of proof. In Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), the Court stated that “[p]roof that the decision by the Village was motivated in part by a racially discriminatory purpose would not necessarily have required invalidation of the challenged decision. Such a proof would, however, have shifted to the Village the burden of establishing that the same decision would have resulted even had the impermissible purpose not been considered.” Id. at 270 n. 21, 97 S.Ct. at 566 n. 21.

Lewis also calls to our attention Whiting v. Jackson State University, 616 F.2d 116 (5th Cir.1980), and Niederhuber v. Camden County Vocational & Technical School District Board of Education, 495 F.Supp. 273 (D.N.J.1980), aff’d 671 F.2d 496 (3d Cir. 1981), as support for the test which she argues should be employed. Niederhuber’s analysis does not differ from Mt. Healthy’s, on which it relies. Whiting, which referred to Arlington Heights but not to Mt. Healthy, noted that in proving pretext under the third part of the McDonnell Douglas analysis, “Title VII is not violated simply because an impermissible factor plays some part in the employer’s decision. The forbidden taint need not be the sole basis for the action to warrant relief, but it must be a significant factor.” Id. at 121 (emphasis in original). Lewis contends that this language adopts a test which is less stringent than the traditional “but for” requirement.

We do not read Whiting as departing from the “but for” causation requirement. By definition, a “significant” factor is one which makes a difference in the result. Conversely, if an action would have been taken regardless of race, any discriminatory factor could hardly be called “significant.” We can discern little difference in the result between a “significant factor” test and the “but for” test. Indeed, as the term “significant factor” is employed in Whiting, we would deem it to be the functional equivalent of the “but for” test which the Supreme Court has preferred. For ourselves, we too prefer the Supreme Court’s concept of “but for,” as we regard it as the more analytically measurable, and a concept which can be employed more easily by a jury. At any rate, nothing in Whiting supports Lewis’ argument that race as “a substantial” or “a motivating factor” has supplanted “but for” causation as the test by which her claims must be measured.

III.

With Santa Fe Trail and our understanding of Lewis’ argument as a background, we turn to a consideration of the instructions given to the jury in Lewis’ case. Lewis, in an in chambers colloquy,⁷ argued that “the standard is that the consideration of race must only be a significant or a contributing ... or a substantial reason.” App. at 453. The district court judge in his causation charge, however, instructed the jury in terms of “but for” causation, i.e. “... but for the fact that Miss Lewis is black, would she have been promoted.” App. at 531-32; see also App. at 522-23, 527-28. In so instructing the jury, the district court judge also referred to race in terms of “the determinative factor.” Lewis has seized upon that expression as vitiating the court’s entire charge, and complains that the charge which should have been given would have required Lewis to prove that race was only a “substantial” or “motivating” factor. App’t Br. at 20.

Had the district court judge charged the jury that race must be “the determinative factor” without more, Lewis’ position might have been more substantial than we find it to be.⁸ In this case, however, the district court did charge much more. On at least three occasions, the judge stated and restated the basic “but for” test mandated by the Supreme Court.

The basic instruction on causation was as follows:

The defendants intended to or purposefully discriminated against plaintiff only if her race was the determinative factor in their failure to promote the plaintiff. This means that the defendants refused to promote the plaintiff because she was black, and that but for the fact that she was black, the plaintiff would have been promoted.

If the defendants failed to promote the plaintiff for any other reason than her race, then you cannot find that the defendants intentionally and purposefully discriminated against the defendant [sic] because of her race.

The consideration of race need not be the sole basis for the decision not to award the position to plaintiff, but it must be the determinative factor in the decision. If you find that Defendants did not intentionally and purposefully discriminate against the plaintiff because of her race, by failing to promote her, then you must find for the defendant.

App. at 522-23 (emphasis added).

Later, the judge added:

In summary, you must find for the plaintiff if you find that the plaintiff has proved by a preponderance of the evidence that, one, she was better qualified for the position of assistant buyer in the trade book department than Miss Aiello, and, two, that the determinative factor of the defendant’s decision to deny Miss Lewis the promotion was her race. In other words, but for the fact that Miss Lewis is black, she would have gotten the promotion. . ..

App. at 527-28.

The district court judge stressed the point one last time near the end of his instructions:

Remember, ladies and gentlemen, what a polestar is. A polestar is a conspicuous star like the North Star. The basic question that you must answer in this case is, but for the fact that Miss Lewis is black, would she have been promoted. All the rest of the case revolves around that polestar.

App. at 531-32.

Thus, the district court emphasized and reemphasized the requirement that, whatever else the jury found, it had to decide whether Lewis would have been promoted “but for” the fact that she was black. The charge, therefore, although using the term “the determinative factor,” did not rely on either “the determinative factor” or “a determinative factor” as the dispositive inquiry, for either is subsumed within the question posed by Interrogatory No. 3: “Would plaintiff, Ida Mary Lewis, have been promoted to the position of Assistant Buyer but for the fact that she is black?” Nor, understandably, was the jury required to make such a determination, for as the charge reveals, it was the “but for” test of causation which the district court judge commanded the jury to employ.

Every mention of the term “the determinative factor” in the judge’s charge was accompanied by, and concluded with, a meticulous description of the “but for” test. Not only did the district court judge properly instruct the jury as to the “but for” test required by the Supreme Court during the liability aspect of his charge, but he also returned to the “but for” feature of his instructions after he had concluded charging on damages. It was at the end of his charge on damages that he repeated once again that the polestar and the basic question to be answered is “but for the fact that Miss Lewis is black, would she have been promoted. All the rest of the case revolves around that polestar.” Indeed, the crucial causation interrogatory was framed in those terms.

Whether or not the district court judge used the term “the determinative factor,” therefore, is not so important as how he explained that term. It is of course the substance of the instruction rather than the form which determines its correctness. In an analogous context, the First Circuit in Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir.1979) (suit under Age Discrimination in Employment Act), approved use of “the determining factor” in a district court’s charge. It did so by recognizing that “the determining factor” was to be combined with the “but for” test as the correct measure of causation. The court stated:

[T]he court should [instruct] the jury that for plaintiff to prevail he had to prove by a preponderance of the evidence that his age was the “determining factor” in his discharge in the sense that “but for” his employer’s motive to discriminate against him ... he would not have been discharged.

Id. at 1019 (emphasis added). See Laugesen v. Anaconda Co., 510 F.2d 307, 317 (6th Cir.1975) (discriminatory factor must have “made a difference in determining whether [employee] was to be retained or discharged”). In Bentley v. Stromberg-Carl-son Corp., 638 F.2d 9 (2nd Cir.1981), the court stated that:

Although we ... saw no significant difference between the Laugesen formulation [discrimination must “make a difference” in the decision] and the “determining factor” charge enunciated in Loeb v. Textron, Inc. ... we did not mean to suggest approval of an instruction that stated only that the jury must find age to be a “determining” factor without clarifying that term. Instead ... a plaintiff must prove that age was a “determining factor in his discharge in the sense that ‘but for’ his employer’s motive to discriminate against him because of his age, he would not have been discharged.”

Id. at 11-12 (quoting Loeb, 600 F.2d at 1019).

Here, the district court not once— but at least three times — explained and clarified the “but for” test and its use of “the determinative factor.” By doing so, the district court correctly and clearly conformed to the requirements and clarifications specified by Santa Fe, Loeb, and Bentley.9

Moreover, it is well established that in framing jury instructions, particularly where no specific requests are of record, the district court has wide latitude. E.g. United States v. Quick, 128 F.2d 832 (3d Cir. 1942); see also United States v. Logan, 717 F.2d 84 at 93 (3d Cir.1983) (Garth, J., dissenting). He may accept the language submitted by counsel or may substitute his own language in framing instructions, provided always of course that the substance is correct. Here, where the record does not reveal plaintiff’s actual requested charge (see supra note 6) and where the plaintiff’s requested charge must be gleaned from an equivocal colloquy with the court, it nevertheless is apparent that the district court judge did not err in explaining and charging the correct test to be employed by the jury.

We have also examined Lewis’ other arguments made on appeal and find them without merit.¹⁰

IV.

Our review of the district court’s charge reveals that the district court properly instructed the jury in terms of the Supreme Court’s “but for” test. Thus, it was not error for the district court to decline to charge the plaintiff’s requested test of “substantial” or “motivating” factor. Nor did the district court err in the use of the term “determinative factor” in its clarification of the “but for” test. For these reasons, the judgments of the district court dated December 10, 1982 (pertaining to the sections 1981 and 1983 (jury) claims) and January 1, 1983 (pertaining to Lewis’ Title VII claim) will be affirmed.

1 . Lewis was offered the position of Buyer in the Text Book Department which she rejected because of her desire to remain in the Trade Book Department.

2 . The district court found that:

During the time Ms. Lewis was attaining degrees she held several jobs in the field of books. She worked as a typist in a library, an assistant librarian, a librarian and a salesperson in several bookstores. She spent four years in New York City working in two libraries, two bookstores and the French Embassy during that period. No explanation was offered by Ms. Lewis as to why she changed jobs so much and so often. In December, 1965, Ms. Lewis was hired by the University of Pittsburgh to work as a salesclerk in the Pitt Book Center.

From December, 1965, until July, 1966, Ms. Lewis worked as a clerk in the Text Book Department of the Book Center. In July, 1966, she moved to the General Trade Book Department, working as a clerk until July, 1967, when she was promoted to the position of buyer of technical books, [footnote: Technical books are books dealing with very specialized, narrow scientific or technical subjects such as physics, economics and engineering. Trade books are popular books and include fiction as well as non-fiction.] Ms. Lewis was the technical book buyer until February, 1975, at which time the technical book department was merged into the trade section causing her job to be phased out. After her position was eliminated, Ms. Lewis was offered a buyer’s position in the text book department, which she refused, stating that her interests and skills were in the technical book area. She then became a sales clerk in the trade department, the position she currently holds.

The incident which precipitated this lawsuit occurred in October, 1976. An assistant buyer’s position in the Trade Book Department became available. A notice of this opening was posted in the Book Center and five women applied, including Ms. Lewis. The selection committee consisted of Mr. Dwight Fong and Mr. Russell Kierzkowski, the two trade book department buyers. Mr. Fong is a Chinese-American. Mr. Kierzkow-ski is of Polish origin and married to a Mexican national. All five job applicants were employees of the Center.

The selection process was simple since Messrs. Fong and Kierzkowski knew all the applicants. Each applicant was interviewed for five to ten minutes by the two men. They simply informed the prospective applicant of the duties and responsibilities which went with the job. Mr. Fong testified that he also had checked the job applications submitted by each applicant when she originally sought a job at the Book Center. Mr. Kierzkowski, however, did not read those applications. Both men believed that they did not need to spend time reviewing the personnel files of each applicant since the applicants already worked at the book center and the men had personal knowledge of the work history and the work habits of each. Within one week after posting the notice of vacancy, Mr. Fong and Mr. Kierzkowski chose Jean Aiello.

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While still a student at Pitt, Ms. Aiello had worked part time at the Book Center as a sales clerk. She became a fulltime clerk in the Trade Book Department in 1972 after she withdrew from school. She worked as a salesclerk in the Trade Book Department under the supervision of Mr. Fong and Mr. Kierzkowski from 1972 until October, 1976, when she was chosen for the assistant buyer’s position. Ms. Aiello is still the assistant buyer in the Trade Book Department.

Ms. Lewis contends that she was more qualified for the position of assistant buyer than Ms. Aiello by virtue or her educational background and previous experience as a buyer; she asserts that she was denied the promotion because of her race. Mr. Fong and Mr. Kierzkowski testified that the reason she was not promoted was her poor and inefficient work habits. They stated that while she was a buyer of technical books, she had a history of not following store procedure properly, i.e. she did not do her book returns and stock checks, and they gave many examples of these deficiencies. Ms. Aiello, on the other hand, had learned and followed store procedures very well, and, according to Messrs. Fong and Kierzkowski, did what she was told to do efficiently, requiring only minimal supervision. We find that Ms. Lewis did have a poor work record, as a buyer from 1967 until 1975, and due to that poor record, was denied the promotion. There is absolutely no direct or circumstantial evidence that she was denied the promotion due to her race.

App. at 42-45.

3 . See supra note 2.

4 . A prima facie case may be shown in a variety of ways, and no one set of criteria is applicable in all situations. McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13. The McDonnell Douglas Court described one method which is often useful: (1) plaintiff must belong to a racial minority; (2) he applied and was qualified for a job for which the employer was seeking applications; (3) despite his qualifications, he was rejected; and (4) after his rejection, the position remained open and the employer continued to seek applications from persons of the complainant’s qualifications. Id at 802, 93 S.Ct. at 1824.

5 . While the cases cited above do not mention actions brought under § 1981 and § 1983, such claims require the same elements of proof as a Title VII action. Gray v. Board of Higher Education, 692 F.2d 901, 905 (2d Cir.1982); Setser v. Novack Investment Co., 657 F.2d 962, 967 & n. 5 (8th Cir.1981); Whiting v. Jackson State University, 616 F.2d 116, 121 (5th Cir.1980); Patterson v. American Tobacco Co., 535 F.2d 257, 270 (4th Cir.1976); see also New York Transit Authority v. Beazer, 440 U.S. 568, 583-84 n. 24, 99 S.Ct. 1355, 1364-65 n. 24, 59 L.Ed.2d 587 (1979) (“§ 1981 provides no greater substantive protection than Title VII).

6 . The parties’ requests for jury charges, which were to have been filed on December 10, 1982, are for some reason not contained in the record before us and no notation of their filing is disclosed on the district court docket sheet. Thus, we do not have Lewis’ actual proposed charge and we have been obliged to construct Lewis’ argument from the in chambers colloquy in which the parties and the court engaged on December 15, 1982.

7 . See supra note 6.

8 . There may be several determinative factors which lead to any given decision, all of which can be “but for” causes of the challenged action. The ultimate “but for” test, however, subsumes within its determination all such factors. See Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir.1979); Laugesen v. Anaconda Co., 510 F.2d 307 (6th Cir.1975); Bentley v. Stromberg-Carlson Corp., 638 F.2d 9 (2d Cir.1981); discussed in text infra.

In an analogous situation, Judge Aldisert, writing for the Court in Smithers v. Bailar, 629 F.2d 892 (3d Cir.1980), dealt with a similar argument in the context of an age discrimination challenge. Judge Aldisert addressed himself to the relevant language as follows:

Appellant contends that the court erred in burdening the plaintiff with proving that age was “the determinative factor” instead of “a determinative factor” in the selection of Barry. This argument has a superficial appeal because obviously the plaintiff need only prove that age was somehow determinative of the Board’s decision. Perhaps the formulation by the district court would have been more clear if it had used the indefinite rather than the definite article. This difference should not be overemphasized, however, because important statements may easily and critically be altered simply by removing them from context. Recognizing this possibility of distortion in jury instructions, an appellate court reviews the charge as a whole, preserving context.

Id. at 896 (emphasis in original).

9 . Judge Adams’ dissent, in discussing “the determinative factor” and his “illustration” (see Dissenting Opinion, at 922) mischaracterizes our discussion which took pains to point out that, when adequate “but for” instructions are given, reference to “the determinative factor” may not necessarily constitute error. That discussion follows Smithers v. Bailar, 629 F.2d 892 (3d Cir. 1980); see supra note 8. Thus, Judge Adams’ illustration would lead to the opposite conclusion than that which he proposes, i.e. if a black, unsuccessful plaintiff-employee could show that, but for his race, he would have been promoted or hired or not discharged, such a plaintiff would prevail, and he would do so whether the subsidiary instructions spoke of race as a determinative factor or as the determinative factor.

10 . The dissenting opinion would find error in the district court’s refusal to permit the introduction of evidence which would tend to show that nepotism entered into the decision to promote Aiello instead of Lewis. (Aiello was apparently the niece of Mary Bonasso, the operations manager of the Bookstore). We cannot find, however, that the district court abused .its discretion in excluding this evidence. As the district court noted, whether or not nepotism entered into the decision to promote was not relevant to a finding of racial discrimination. Indeed, a showing that any other factor other than race was a determinative factor in the decision would actually buttress the University’s defense.

The dissenting opinion would also remand this case for a new trial, due to what it perceives to be a defective charge to the jury by the district court regarding inferential or circumstantial proof of intent to discriminate. We note at the outset, as the dissenting opinion itself conceded, that Lewis never requested a special charge on inferential proof of intent, nor did she object to the instructions in this regard. Normally, this would foreclose our review of any alleged insufficiency in the jury instructions. Fed.R.Civ.P. 51. We also note that Lewis never raised this issue on appeal. Although the dissenting opinion argues strenuously that the absence of a special instruction constitutes plain error, we cannot agree that it is required that we raise this issue sua sponte.

Moreover, we believe that the charge actually given adequately addresses Judge Adams’ concerns. We find nothing to indicate that the district court ever prevented Lewis from presenting proofs which might discredit the University’s articulated reason for not promoting her. We have no quarrel with the contention that proof of intent can be shown by either direct or indirect proof. The trial judge, however, gave explicit instructions in this regard, when he charged:

Now, there are, generally speaking, two types of evidence from which the jury may properly find the truth as to the facts of this case. Once is direct evidence, such as the testimony of any eyewitness. And both attorneys have told you, and I am inclined to agree with them, that there has been little or no direct evidence in this case with respect to the ultimate question involved here.

The other type of evidence is indirect or circumstantial evidence pointing to the existence or nonexistence of certain facts....

As a general rule, the law makes no distinction between direct and circumstantial evidence, but simply requires that the jury find the facts in accordance with the preponderance of all the evidence in the case, both direct and indirect.

App. at 515-16. Later, the district court returned to this theme:

Now, intent ordinarily may not be proved directly because there is no way of fathoming or scrutinizing the operations of the human mind. But you may infer a person’s intent from surrounding circumstances. You may consider any statement made or act done or omitted by any party whose intent is in issue, and all other facts and circumstances which indicate his or her state of mind.

You may consider it reasonable to draw the inference and find that a person intends the natural and probable consequences of acts done knowingly or knowingly omitted, but it is for you to determine what facts have been established by the evidence.

App. at 523-24.

The dissent would apparently require that a new element be added to the McDonnell Douglas/Burdine instructions which would restate the instructions already given in a more emphatic manner. We find no support for the creation of such a requirement, nor has it ever been recommended in any handbook or treatise. See Devitt & Blackmar, Federal Jury Practice and Instructions § 92.25 (Supp.1982) (proposing model instructions, but in ADEA context, citing in “Notes,” Burdine and McDonnell Douglas as authority).