Raymond T. GOLOMB, Plaintiff-Appellant, v. the PRUDENTIAL Ins. Co. OF Am., Defendant-Appellee, 688 F.2d 547 (7th Cir. 1982). · Go Syfert
Raymond T. GOLOMB, Plaintiff-Appellant, v. the PRUDENTIAL Ins. Co. OF Am., Defendant-Appellee, 688 F.2d 547 (7th Cir. 1982). Cases Citing This Book View Copy Cite
68 citation events across 13 distinct courts.
Strongest positive: Eaton v. Onan Corp. (insd, 2000-09-29)
Treatment trajectory · 1982 → 2026 · click a year to view as-of
1982 2004 2026
Top citers, strongest first. 29 distinct citers. How cited ↗
cited Cited as authority (rule) Eaton v. Onan Corp.
S.D. Ind. · 2000 · confidence medium
Co. of America, 688 F.2d 547, 550 (7th Cir.1982).
cited Cited as authority (rule) Bentley v. Cleveland County Board Of County Commissioners
10th Cir. · 1994 · confidence medium
Co. of America, 688 F.2d 547, 550-51 (7th Cir.1982). 32 Because we find the sole factor test was not applicable, we need not decide whether the "determining factor" test is the proper standard.
cited Cited as authority (rule) Bentley v. Cleveland County Board of County Commissioners ex rel. Cleveland County
10th Cir. · 1994 · confidence medium
Co. of America, 688 F.2d 547, 550-51 (7th Cir.1982).
examined Cited as authority (rule) Dick Mayall v. Peabody Coal Company (4×) also: Cited "see, e.g."
7th Cir. · 1993 · confidence medium
Co. of Am., 688 F.2d 547, 551-52 (7th Cir.1982). 2 Thus, if a jury accepts the plaintiff's contention that age was a "determining factor" in his discharge, it has necessarily rejected the employer's contention that it would have terminated the plaintiff regardless of his age; both cannot simultaneously be true. 21 The district court itself seemed to acknowledge the inherent contradiction, explaining: 22 You cannot have both of these situations existing in the same case.
cited Cited as authority (rule) Dennis Grohs, Cross-Appellant v. Gold Bond Building Products, a Division of National Gypsum Company, Defendant- Cross-Appellee
7th Cir. · 1988 · confidence medium
Co. of North Am., 688 F.2d 547, 550 (7th Cir.1982) (emphasis in original).
discussed Cited as authority (rule) Harris v. Marsh
E.D.N.C. · 1987 · confidence medium
LaMontagne v. American Convenience Products, Inc., 750 F.2d 1405, 1414-15 (7th Cir.1984); Golomb v. Prudential Insurance Co., 688 F.2d 547, 551 (7th Cir.1982); Rogers v. Illinois Department of Children and Family Services, 43 FEP Cases 1134, 1136 (N.D.Ill.1987) [Available on WESTLAW, 1987 WL 6630 ], 133 .
cited Cited as authority (rule) Santiago AYALA, Et Al., Plaintiffs-Appellees, v. MAYFAIR MOLDED PRODUCTS CORP., Defendant-Appellant
7th Cir. · 1987 · confidence medium
Co., 688 F.2d 547, 550 (7th Cir.1982).
discussed Cited as authority (rule) 47 Fair empl.prac.cas. 865, 43 Empl. Prac. Dec. P 37,062, 23 Fed. R. Evid. Serv. 17 Gerard A. Cassino and Sally Cassino v. Reichhold Chemicals, Inc., a New York Corporation
9th Cir. · 1987 · confidence medium
Co. of America, 688 F.2d 547, 551-52 (7th Cir.1982) (holding that it was not error to instruct on pretext); Loeb, 600 F.2d at 1017-18 (stating that, where appropriate, jury should be instructed on all steps of McDonnell Douglas formula including pretext). 26 The Eighth and the Sixth Circuits have approved jury instructions that omitted any mention of pretext and focused only on the plaintiff's burden of proving that the challenged action would not have been taken but for the plaintiff's age.
discussed Cited as authority (rule) Cassino v. Reichhold Chemicals, Inc.
9th Cir. · 1987 · confidence medium
Co. of America, 688 F.2d 547, 551-52 (7th Cir.1982) (holding that it was not error to instruct on pretext); Loeb, 600 F.2d at 1017-18 (stating that, where appropriate, jury should be instructed on all steps of McDonnell Douglas formula including pretext).
discussed Cited as authority (rule) Charles DALE, Plaintiff-Appellant, v. CHICAGO TRIBUNE COMPANY, Defendant-Appellee
7th Cir. · 1986 · confidence medium
Golomb v. Prudential Insurance Co. of America, 688 F.2d 547, 550 (7th Cir.1982); 29 U.S.C. § 623 (a). 7 Dale need not prove that age was the only factor motivating his discharge, but he must prove that age was “a determining factor,” Smith v. Flax, 618 F.2d 1062, 1066 (4th Cir.1980), Loeb, 600 F.2d at 1011-12 , “in the sense that he would not have been discharged ‘but for’ his employer’s motive to discriminate against him because of his age.” La Montagne, 750 F.2d at 1049 .
examined Cited as authority (rule) Grabb v. Bendix Corp. (4×) also: Cited "see, e.g."
N.D. Ind. · 1986 · confidence medium
Dorsch, supra at 1423 ; La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409 (7th Cir.1984); Parker v. Federal National Mortgage Ass’n, 741 F.2d 975, 978 (7th Cir.1984); Huhn v. Koehring Co., 718 F.2d 239, 243 (7th Cir.1983); Golomb v. Prudential Insurance Co. of America, 688 F.2d 547, 550 (7th Cir.1982).
discussed Cited as authority (rule) Metz v. Transit Mix, Inc.
N.D. Ind. · 1986 · confidence medium
Co. of America, 688 F.2d 547, 551 (7th Cir.1982) (“the employer’s articulated reason may in fact have been true, but if age was also a determining factor in the employer’s decision, the plaintiff has carried his burden of proof”); Kephart v. Institute of Gas Technology, 630 F.2d 1217 (7th Cir. 1980).
cited Cited as authority (rule) Rizzo v. Means Services, Inc.
N.D. Ill. · 1986 · confidence medium
Golomb v. Prudential Insurance Co. of America, 688 F.2d 547, 550 (7th Cir.1982); 29 U.S.C. § 623 (a).
cited Cited as authority (rule) Graefenhain v. Pabst Brewing Co.
E.D. Wis. · 1985 · confidence medium
Co. of America, 688 F.2d 547, 550 (7th Cir.1982).
discussed Cited as authority (rule) Robert G. TICE, Plaintiff-Appellant, v. LAMPERT YARDS, INC., Defendant-Appellee (2×) also: Cited "see, e.g."
7th Cir. · 1985 · confidence medium
Co. of America, 688 F.2d 547, 551 (7th Cir.1982); Geller v. Markham, 635 F.2d 1027 (2d Cir.1980), cert. denied, 451 U.S. 945 , 101 S.Ct. 2028 , 68 L.Ed.2d 332 (1981); Smith v. University of North Carolina, 632 F.2d 316, 333 (4th Cir.1980); Loeb v. Textron, Inc., 600 F.2d 1003, 1019 (1st Cir.1979).
examined Cited as authority (rule) Holly v. City of Naperville (3×) also: Cited "see"
N.D. Ill. · 1985 · confidence medium
If the defendant successfully produces such evidence, the burden then shifts back to the plaintiff to prove that his proffered reasons are pretextual, “by showing either that a discriminatory reason more than likely motivated the employer or that the employer’s proffered explanation is unworthy of credence.” Id.; Golomb v. Prudential Insurance Co. of America, 688 F.2d 547, 550 (7th Cir.1982).
cited Cited as authority (rule) Donald K. Trembath and Norman J. Loftus v. St. Regis Paper Company
7th Cir. · 1985 · confidence medium
Co. of America, 688 F.2d 547, 550-51 (7th Cir.1982); Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1222-23 (7th Cir.1980). 3 .
discussed Cited as authority (rule) Roderick LA MONTAGNE, Plaintiff-Appellant, v. AMERICAN CONVENIENCE PRODUCTS, INC., Defendant-Appellee (2×) also: Cited "see"
7th Cir. · 1984 · confidence medium
Golomb v. Prudential Insurance Co. of America, 688 F.2d 547, 550 (7th Cir.1982); 29 U.S.C. § 623 (a).
cited Cited as authority (rule) Cletus PARKER, Plaintiff-Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Defendant-Appellee
7th Cir. · 1984 · confidence medium
See Monroe v. EEOC, 736 F.2d 394 at 402-403 (7th Cir. 1984); Golomb v. Prudential Insurance Co., 688 F.2d 547, 550 (7th Cir. 1982).
cited Cited as authority (rule) Roe v. International Harvester Co.
N.D. Ind. · 1984 · confidence medium
Golomb v. Prudential Insurance Co. of America, 688 F.2d 547, 549 (7th Cir.1982).
discussed Cited as authority (rule) Zebedeo v. Martin E. Segal Co., Inc.
D. Conn. · 1984 · confidence medium
To prove pretext means to demonstrate, by a preponderance of the evidence, that “the legitimate reasons offered by the defendant were not its true reasons.” Id., quoting Bur dine, supra. In so doing, the plaintiff is “not required to show that the reasons offered were false, but that they were not [the defendant’s] only reasons and that age made a difference.” Id., citing Golomb v. Prudential, 688 F.2d 547, 551 (7th Cir.1982) and Parcinski, supra, at 36 .
discussed Cited as authority (rule) Monroe v. United Air Lines, Inc.
N.D. Ill. · 1983 · confidence medium
Every ADEA action poses the question of intent: whether an employer in fact “discriminated against [an employee] because of his age.” Golomb v. Prudential Insurance Co. of America, 688 F.2d 547, 550 (7th Cir.1982) (emphasis in original).
cited Cited as authority (rule) Popko v. City of Clairton
W.D. Pa. · 1983 · confidence medium
Co. of America, supra at 551; Smithers v. Bailar, supra at 897; EEOC v. Baltimore and Ohio Railroad, supra at 1110; Loeb v. Textron, Inc., supra at 1019.
discussed Cited as authority (rule) Parker v. Federal National Mortgage Ass'n
N.D. Ill. · 1983 · confidence medium
Controlling Legal Principles 2 Section 623(a) makes it unlawful for an employer: (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age; (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or (3) to reduce the wage rate of any employee in orde…
discussed Cited as authority (rule) Parker v. FEDERAL NAT. MORTG. ASS'N
N.D. Ill. · 1983 · confidence medium
Controlling Legal Principles [2] Section 623(a) makes it unlawful for an employer: *266 (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age; (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age; or (3) to reduce the wage rate of any employee in o…
discussed Cited as authority (rule) 33 Fair empl.prac.cas. 977, 32 Empl. Prac. Dec. P 33,683 Thomas Hagelthorn, Plaintiff-Appellant-Cross-Appellee v. Kennecott Corporation, Defendant-Appellee-Cross-Appellant
2d Cir. · 1983 · confidence medium
Golomb v. Prudential, 688 F.2d 547, 551 (7th Cir.1982); Parcinski v. Outlet Co., 673 F.2d 34, 36 (2d Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 725 , 74 L.Ed.2d 950 (1983). 34 The jury was entitled to take Preisner's alleged statements as evidence that age had been a factor in Kennecott's decision.
cited Cited as authority (rule) Hagelthorn v. Kennecott Corp.
2d Cir. · 1983 · confidence medium
Golomb v. Prudential, 688 F.2d 547, 551 (7th Cir.1982); Parcinski v. Outlet Co., 673 F.2d 34, 36 (2d Cir.1982), cert. denied, ___ U.S. ___, 103 S.Ct. 725 , 74 L.Ed.2d 950 (1983).
discussed Cited as authority (rule) Maxfield v. Central States, Southeast & Southwest Areas Health, Welfare & Pension Funds
N.D. Ill. · 1982 · confidence medium
Maxfield alleges that his age was the real underlying reason for his discharge. 5 Defendants argue that Maxfield has failed to establish a prima facie case sufficient to withstand a motion for summary judgment and that his discharge was clearly justified and done for cause. 6 The Seventh Circuit recently stated that “... to establish a cause of action under ADEA, a claimant must show that he was discriminated against because of his age.” Golomb v. Prudential Insurance Company of America, 688 F.2d 547, 550 (7th *162 Cir.1982) (original emphasis). 7 The Supreme Court has set forth a standard…
cited Cited "see" Puetz Motor Sales, Inc. v. Labor & Industry Review Commission
Wis. Ct. App. · 1985 · signal: see · confidence high
See Golomb v. Prudential Insurance Co. of America, 688 F.2d 547, 551-52 (7th Cir. 1982).
Retrieving the full opinion text from the archive…
29 Fair empl.prac.cas. 1491, 30 Empl. Prac. Dec. P 33,057 Raymond T. Golomb
v.
the Prudential Insurance Company of America
81-2296.
Court of Appeals for the Seventh Circuit.
Sep 22, 1982.
688 F.2d 547
1982 U.S. App. LEXIS 25425
Jack A. Strellis, Waterloo, 111., for plaintiff-appellant., Russell M. Pelton, Peterson, Ross, Schloerb & Seidel, Chicago, 111., for defendant-appellee.
Wood, Coffey, Campbell.
Cited by 41 opinions  |  Published
COFFEY, Circuit Judge.

This is an appeal of an order of the United States District Court for the Northern District of Illinois, Eastern Division, entered in an action brought under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (1960) (“ADEA”). The order appealed from denied the plaintiff-appellant’s motion for a new trial after a jury verdict in favor of the defendant. The plaintiff-appellant Golomb argues that the district court committed reversible error when it instructed the jury that the plaintiff in an ADEA case must prove that the defendant-employer’s stated reason for demoting the plaintiff was a “pretext”. We hold that the district court’s jury instruction, including the use of the word “pretext”, was proper because the instruction clearly and accurately stated the law regarding the plaintiff’s burden of proof in an age discrimination suit. Affirmed.

This case involves the demotion of the plaintiff Raymond Golomb from the position of sales manager for the defendant Prudential Insurance Company of America (hereinafter “Prudential”) to the position of[*549] a regular salesman for Prudential. The plaintiff Golomb brought an action in the Northern District of Illinois against Prudential alleging that he was demoted because of age, in violation of the Age Discrimination in Employment Act.

The plaintiff Golomb was hired by Prudential as a sales agent in 1946 and was promoted in 1954 to the position of sales manager in Prudential’s Boulevard Manor District Office in Forestview, Illinois. There were five sales managers in the Boulevard Manor Office, including the plaintiff Golomb, each of whom supervised a separate team of insurance salesmen. Golomb’s responsibilities as a sales manager consisted primarily of promoting team sales and recruiting new sales agents for Prudential.

In February 1977, the plaintiff Golomb, then age sixty, was demoted from sales manager down to the position of a sales agent. In October of the same year, the plaintiff brought suit under the Age Discrimination in Employment Act against his employer Prudential, alleging that he was demoted because of: (1) his age and (2) his refusal to dismiss the older members of his sales staff. The defendant Prudential, however, successfully showed at trial that Golomb was demoted not because of his age or because of his refusal to dismiss older members of his sales staff, but rather because of his unsatisfactory performance as a sales manager. Prudential introduced evidence at trial showing that Golomb was the least productive of the five sales managers in the Boulevard Manor Office, in that Golomb’s sales team had trailed the other four sales teams in the office in terms of gross sales for the years of 1975 and 1976. Prudential also presented evidence demonstrating that the plaintiff Golomb had not fulfilled his employer’s expectations in the area of recruiting new sales personnel for Prudential.

At the close of the trial, the district court, over plaintiff counsel’s objection, gave the jury the following instruction pertinent to this appeal:

“In order to prove his claim, the burden is upon the plaintiff to establish by a preponderance of the evidence the following five elements:
1. Plaintiff was within the age group protected by the Age Discrimination in Employment Act, that is, he was between 40 and 70.
2. Plaintiff was performing his job at a level that met defendant’s legitimate expectations.
3. Plaintiff was nevertheless — plaintiff nevertheless was demoted.
4. Either plaintiff’s age or plaintiff’s resistance to defendant’s attempts to have him discriminate against members of his staff within the protected age group because of age was a determining factor in the plaintiff’s demotion.
5. Defendant replaced plaintiff with someone else.

The term ‘determining factor’ means that but for defendant’s motive to discriminate against him because of age, plaintiff would not have been demoted.

If you find that the plaintiff has proved these five elements by a fair preponderance of the evidence, you must then decide whether the defendant’s stated reason or determining factor for the demotion was a pretext. The defendant has stated that the plaintiff was demoted because his overall job performance was unsatisfactory. This is a legitimate reason to demote the plaintiff and it dispells any inference that the demotion was improper, unless you find that the stated reason or the determining factor for the demotion was a pretext, i.e., a cover-up for age discrimination.

Plaintiff must establish by a preponderance of the evidence that the defendant’s stated reason or the determining factor for the demotion was a pretext. If you find that plaintiff has proved by a preponderance of the evidence that the defendant’s stated reason or determining factor was a pretext, then you should find for the plaintiff.

If you find that the plaintiff has not proved by a preponderance of the evidence that the defendant’s stated reason or determining factor was not a pretext, then you should find for the defendant.

[*550] The Age Discrimination in Employment Act does not require that advanced age and substantial length of service entitle employees to special favorable consideration and does not require that an employer adopt a policy that will maximize the number of older persons in its work force.
Defendant is entitled to make its own policy and business judgment, and may, for example, demote an adequate employee, if its reason is to replace him or her with one who the defendant believes will be even better, as long as this is not a pretext for discrimination.”

The jury then retired and, after deliberating, returned a verdict for the defendant Prudential.

In this appeal, the plaintiff argues that the district court’s instructions to the jury, quoted above, constitute reversible error because the instructions failed to properly instruct the jury on “the causative effect of age discrimination.” [Plaintiff-appellant’s brief at 1]. While the plaintiff’s briefs are somewhat less than clear as to his exact argument in this appeal, the crux of his argument appears to be: “The court, requiring plaintiff to prove that the defendant’s stated reason for Golomb’s demotion was a pretext, required in the jury’s eye that the plaintiff had to prove the defendant’s stated reason was false.” [Plaintiff-appellant’s brief at 15]. More specifically, the plaintiff argues that the use of the word “pretext” in the jury instruction was improper because: (1) “pretext”, to the average juror, is synonymous with “false”; (2) the plaintiff was thus required to prove to the jury that Prudential’s stated reason for demoting the plaintiff (i.e., plaintiff’s unsatisfactory job performance) was false; and (3) requiring the plaintiff to prove that Prudential’s stated reason for the demotion was false equates with requiring the plaintiff to prove that age was the sole motivating factor for the plaintiff’s demotion, contrary to well established case law under the ADEA.

We agree that a successful claimant in an ADEA action need not prove that age was the sole determining factor for the defendant-employer’s action, but rather that age was a determining factor. We reject Golomb’s argument presented in this appeal, though, and we hold that the use of the word “pretext” under these circumstances was proper because: (1) the use of “pretext” is an integral part of the burden of proof framework established by the United States Supreme Court for employment discrimination suits; and (2) in common usage, the word “pretext” is not synonymous with “false”.

Issue

Did the district court commit reversible error by using the word “pretext” in its jury instructions regarding the plaintiff’s burden of proof in an age discrimination suit?

The Plaintiff’s Burden of Proof

The Age Discrimination in Employment Act recites in pertinent part:

“(a) It shall be unlawful for an employer — •
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;”

29 U.S.C. § 623(a). Thus, to establish a cause of action under the ADEA, a claimant must show that he was discriminated against because of his age. In the seminal case of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court established a framework by which a claimant may establish the crucial “because of” element in an employment discrimination suit. The plaintiff in McDonnell Douglas alleged that he had been discharged from his employment because he was a Negro. [1] The Court held[*551] that a claimant in a suit alleging job discrimination must first establish a prima facie case of discrimination, after which the burden shifts to the defendant-employer “to articulate some legitimate, non-discriminatory reason,” id. at 803, 93 S.Ct. at 1824, for its action. Should the defendant articulate such a valid business reason, the plaintiff must then prove that the employer’s articulated reason is actually “a pretext for the sort of discrimination prohibited” and that the employer’s “stated reason [for its action] was in fact a pretext.” Id. at 804, 93 S.Ct. at 1825 (emphasis added). “In short, [the plaintiff] must be given a full and fair opportunity to demonstrate by competent evidence that the presumptively valid reasons for his rejection were in fact a coverup for a racially discriminatory decision.” Id. at 805, 93 S.Ct. at 1825 (emphasis added).

More recently, the Supreme Court in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 258, 101 S.Ct. 1089, 1093, 1094-1096, 67 L.Ed.2d 207 (1981) summarized the McDonnell Douglas formula:

“First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant ‘to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.’ Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.
[W]e are unpersuaded that the plaintiff will find it particularly difficult to prove that a proffered explanation lacking a factual basis is a pretext. We remain confident that the McDonnell Douglas framework permits the plaintiff meriting relief to demonstrate intentional discrimination.” (Emphasis added).

This court has approved the use of the McDonnell Douglas burden-of-proof formula in age discrimination suits. See Kephart v. Institute of Gas Technology, 630 F.2d 1217 (7th Cir. 1980).

Guided by these legal principles, we hold that the district court’s jury instructions correctly stated the law as use of the word “pretext” is an integral part of the McDonnell Douglas burden-of-proof formula. Furthermore, the district court’s jury instructions defined “pretext” as a “coverup for age discrimination;” the Supreme Court in McDonnell Douglas also referred to “pretext” as a “cover-up.” 411 U.S. at 805, 93 S.Ct. at 1825.

The plaintiff argues that, even though the reported decisions consistently refer to “pretext”, use of the word in the district court’s jury instruction was error because the average juror equates “pretext” with “false”. Thus, the plaintiff contends, the jury believed that in order to recover the plaintiff Golomb had to prove that Prudential’s articulated reason for the demotion, i.e., poor job performance, was false.

The plaintiff is correct in arguing that a claimant in an age discrimination suit need not prove that the employer’s articulated reason was false. Instead, the plaintiff must prove that age was a determining factor in the employer’s decision; the employer’s articulated reason may in fact have been true, but if age was also a determining factor in the employer’s decision, the plaintiff has carried his burden of proof.

“Plaintiff’s burden of proof in an age discrimination case is to show that age was a factor in the decision to terminate him. Age need not have been the sole motivating factor but it must have been the ‘determinative factor’ in his discharge in the sense that ‘but for’ his employer’s motive to discriminate against him be[*552] cause of age, he would not have been discharged.”

Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1222 (7th Cir. 1980) (quoting Loeb v. Textron, 600 F.2d 1003, 1019 (1st Cir. 1979)). [2]

We reject the plaintiffs argument that the use of “pretext” in a jury instruction is error as the plaintiff has failed to prove the key premise of his argument, i.e., that to the average lay juror, “pretext” is synonymous with “false”. The plaintiff points to no authority in support of this assertion, and our review of authority on the English language shows that “pretext” is not synonymous with “false”. [3]

Conclusion

We hold that the district court’s inclusion of the word “pretext” in its jury instruction regarding the plaintiff’s burden of proof in an age discrimination suit was not error because: (1) the word “pretext” is an integral part of the burden-of-proof framework established by the Supreme Court; and (2) “pretext” in common usage is not synonymous with “false” and thus use of “pretext” in the jury instruction did not impose an improper burden of proof on the plaintiff.

The order of the district court is Affirmed.

1

. Though McDonnell Douglas involved a suit brought under Title VII of the Civil Rights Act of 1964 alleging racial discrimination, the order of proof test set out in McDonnell Douglas has[*551] been adopted by the courts in the field of age discrimination as well. See e.g. Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1219 (7th Cir. 1980); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979).

2

. The courts, including this court in Kephart, have created confusion by using the terms “a determinative factor” and “the determinative factor” interchangeably when describing the plaintiff’s burden of proof in discrimination cases. Use of the definite article “the ” instead of the indefinite article “a” incorrectly suggests that the plaintiff in an ADEA action must prove that age was the sole determinative factor in his demotion or firing. See generally Smithers v. Bailar, 629 F.2d 892, 896 98 (3rd Cir. 1980). We note that the district court in the case at bar, in describing the plaintiff’s burden of proof, correctly instructed the jury that Golomb had to prove that “age was a determining factor in plaintiff’s demotion.” The district court went on to correctly state: “The term ‘determining factor’ means that but for defendant’s motive to discriminate against him because of age, plaintiff would not have been demoted.”

In the future, we urge the district courts in this circuit to avoid any possible confusion by referring, in jury instructions and written opinions, to the plaintiff’s burden in an age discrim¡nation case as requiring proof that age was “a determining factor” in the employer’s challenged decision. Furthermore, it would be wise to expressly instruct the jury that age need not be the sole determining factor in the employer’s decision but a determining factor.

3

. Since we are concerned with the average layman’s understanding of the term “pretext”, it is appropriate to rely on definitions contained in dictionaries rather than legal treatises. The following examples of commonly understood definitions do not equate “pretext” with “false”:

“pretext: a purpose or motive alleged or an appearance assumed in order to cloak the real intention or state of affairs: Excuse, Pretense, Cover.1’ Webster's Third New International Dictionary 1797 (1981).
“pretext: An ostensible or professed purpose; pretense; excuse.” American Heritage Dictionary Of The English Language 1038 (1973).