concurring separately.
While I agree, for the reasons stated in the majority opinion, that the district court erred in granting the judgment notwithstanding the verdict, and agree that the court erred in granting, alternatively, a new trial, I do not subscribe entirely to the reasoning in support of the new trial issue as developed in part II.B. of the majority opinion. I should like, therefore, to offer a somewhat different analysis.
The majority opinion, in my judgment, correctly concludes that the district court erroneously granted a new trial in this case.
The court holds that:
[T]he district court examined the sufficiency of the comparable evidence, and not merely whether this evidence had *1347“any tendency” to support a consequential fact[,]
and therefore drew a
conclusion about the value of the plaintiff’s evidence ... based on ... [a] ... determination of the sufficiency of the evidence, not the relevance.”
(Emphasis in original.) Respectfully, while the district court did so and should not have, it should not have for a reason apparently not recognized in the majority opinion.
The district court ruled, as a preliminary finding of fact under Fed.R.Evid. 104(a), that the eleven alleged incidents of employee misconduct were not in fact comparable to Douglass’ situation and, therefore, were not admissible on relevancy grounds.
It is quite proper, indeed, mandated by Fed.R.Evid. 104(a), that the trial court, in a jury trial, decide preliminary questions of fact “concerning ... the admissibility of evidence....” The court, therefore, and not the jury, is the fact finder in a host of threshold fact issues that must be resolved preliminarily in order to determine the admissibility of evidence. Thus, for example, the court, not the jury, decides, for purposes of determining the admissibility of a confession, whether it was voluntarily given or, where applicable, given only after compliance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Jackson v. Denno, 378 U.S. 368, 378-79, 84 S.Ct. 1774, 1781-82, 12 L.Ed.2d 908 (1964). So too the court decides, as a preliminary fact question, whether a statement is made “during the course and in furtherance of [a] conspiracy” under Fed. R.Evid. 801(d)(2)(E), United States v. Enright, 579 F.2d 980, 984 (6th Cir.1978); and whether a prior statement of a witness concerning the identification of a person was made “after perceiving [the person]” under Fed.R.Evid. 801(d)(1)(C), United States v. Hudson, 564 F.2d 1377, 1379 (9th Cir.1977). All of the stated examples, and a host of others, are situations in which the trial court is required to make a preliminary finding of fact in jury trials, in order to determine whether proffered evidence bearing on the relevant issues shall be admitted. In all such preliminary fact finding, the trial court must necessarily make “eonclusion[s] about the value of the plaintiff’s evidence ... based on the district court’s determination of the sufficiency of the evidence ...” relating to the preliminary question.
That is what the district court did with respect to the preliminary question at issue in this case: it determined whether the alleged comparable situations at Eaton were in fact comparable. But the court’s error was in failing to apply the “subject to subdivision (b)” exception of Rule 104(a) which directs, in effect, that in one specific situation, and this case presented that situation, the decision on the preliminary question of fact determining the admissibility of evidence must be shared with the jury. That one circumstance is where the preliminary fact question determines the relevancy of evidence.
Fed.R.Evid. 104(a) states:
(a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
Thus, Fed.R.Evid. 104(a) directs the judge to make preliminary fact determinations governing the admissibility of evidence subject, however, to the provisions of subdivision (b).
Subsection (b) of Rule 104 states:
(b) Relevancy conditioned on fact. When the relevance of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
Thus, Rule 104(b) commands that with respect to the relevance of evidence, as distinguished from some other basis for admissibility, the court must receive the evidence “subject to the introduction of *1348evidence sufficient to support a finding of the fulfillment of the condition.”
The somewhat opaque language of Rule 104(b) means that when the admissibility of evidence is properly challenged on relevancy grounds, and a preliminary question of fact must be decided in order to determine whether the proffered evidence is relevant, the trial court’s duty is to share the admissibility question with the jurors. It does so by admitting the challenged evidence, providing there is any evidence at all that would support a finding that the condition has been fulfilled, and leaving it to the jurors to determine both the preliminary question that determines the relevance of the underlying evidence and the value of the underlying evidence.
How does that apply here?
The preliminary question of fact in this case is whether the eleven proffered instances of Eaton disciplining employees of different races for fighting on the premises are comparable to its disciplining of Douglass. If the answer is yes, the eleven instances may be relevant as tending to prove a pattern of discrimination. If the answer is no, the eleven incidents are not relevant and, theoretically, are not to be considered by the jury. But someone must decide the preliminary comparability question. Since that preliminary fact question (there are actually eleven such preliminary questions) determines the relevancy of the eleven incidents, Rule 104(b) commands that the issue be given to the jury subject to proof “sufficient to support a finding [by the jury] of the fulfillment of the condition.”
The district court did not do that. Failing to recognize, apparently, that the preliminary question (whether the other incidents were comparable) determined the relevancy of the evidence as distinguished from some other basis for admissibility, the court decided the preliminary questions itself rather than submitting them to the jury under 104(b).
If the district court had recognized the interplay of Fed.R.Evid. 104(a) and (b), it would have let the jury decide whether the “comparables” were indeed comparable, because that determines their relevance, subject only to the court’s threshold determination of whether there was enough evidence to permit a reasonable juror to find that they were comparable.
Rule 104(b)’s conditional relevancy concept is abstruse, to say the least, and not easy to apply. This case presents a textbook example of its application.
It may be objected, however, that the district court, while not articulating all of the foregoing analysis, nevertheless got it right because it correctly ruled, in effect, that the condition precedent for admissibility under Rule 104(b) was not met. That is, it may be objected that there was absolutely no “evidence sufficient to support a finding” by the jury that the eleven incidents or any of them were comparable.
This is, after all, what the district court appears to have said:
The court must conclude that plaintiff presented absolutely no evidence ... which met the test of relevance, and thus utterly failed in adducing anything upon which a factfinder could properly ground a decision based either in direct facts or inferences drawn from circumstances.1
But, in my judgment, even if the court’s ruling could be read in that fashion, the court was mistaken. Not all of the alleged comparable incidents were totally devoid of evidence sufficient to support a finding by a reasonable juror that they were comparable to the Douglass-McCrossen situation. It was for the jury to say whether Eaton sincerely believed that Douglass was an aggressor; whether comparability required a nonminority actor who was an aggressor; *1349whether the nonminority actors in the comparable situations were indeed not aggressors; whether a Latino is a comparable minority person; and whether the responsible person acting for the employer knew of the other instances and perceived them to be comparable.
While those are indeed preliminary questions of fact determining the admissibility of evidence, they are not matters of legal esotérica beyond the ken of the jurors. They are not questions involving such technical rules of admissibility as to require a law school education in the law of evidence — in other words, the kind that Fed. R.Evid. 104(a) reserves to the trial judge for decision. They are commonsense, everyday issues of historic fact of the kind laymen face in their own affairs and are fully capable of deciding. Stated otherwise, they are mere matters of relevancy, not matters involving technical rules of admissibility of evidence. One needs no training in the law of evidence to decide any of these questions, and that is precisely why Fed.R.Evid. 104(b) commits them to the jurors for decision.
For the foregoing reason, the district court erred, in my judgment, in ruling, as a matter of law, that the alleged comparable incidents were not comparable, thus retroactively “removing” them from the jury’s consideration. Ironically, the district court decided correctly at the trial; its error occurred in reversing itself in ruling on the defendant’s motion, in the alternative, for a new trial.
I concur, therefore, in the judgment of reversal and in the reinstatement of the verdict as reduced.
. The "test of relevance” was unmet, the court said, because:
1) [T]he evidence of two non-minority "aggressor employees" showed that each was treated the same as the plaintiff, and therefore was not admissible; and 2) the evidence of ten employees treated less stringently than plaintiff showed that each was not an aggressor, and therefore was not admissible; and 3) evidence of the eleventh of the other employees showed that he, although an aggressor, was himself a minority class member, and therefore was not admissible.