dissenting.
This case arises under the Act Prohibiting Unjust Discrimination in Employment Because of Age, Neb. Rev. Stat. § 48-1001 et seq. (Reissue 1993). In age discrimination cases brought under our state law, we have held that
“although the ultimate burden of persuasion by a preponderance of the evidence at all times remains with the plaintiff, the method of proof is for the plaintiff to prove a prima facie case; if the plaintiff succeeds in so doing, the defendant has the burden of articulating some legitimate, nondiscriminatory reason for its action. Should the defendant succeed in so doing, the plaintiff must establish 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.”
Humphrey v. Nebraska Public Power Dist., 243 Neb. 872, 878, 503 N.W.2d 211, 217 (1993). See, also, Allen v. AT&T Technologies, 228 Neb. 503, 423 N.W.2d 424 (1988).
Thus, if the defendant articulates some allegedly legitimate, nondiscriminatory reason for its action, the plaintiff must establish, by a preponderance of the evidence, that the proffered reason was pretextual. Now, the majority holds that a plaintiff must not only show that the reason proffered by the employer is false but also establish that the employee’s age was the real reason for the employer’s action. In so doing, the majority relies on St. Mary’s Honor Center v. Hicks, _U.S. _, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993). However, the majority does not, in my opinion, set out the full holding of the Supreme Court of the United States in St. Mary’s Honor Center. In reliance on St. Mary’s Honor Center in its entirety, I dissent.
In St. Mary’s Honor Center, the Court addressed the issue of whether the trier of fact’s rejection of the employer’s asserted reasons for the employer’s actions mandates a finding for the plaintiff. In that case, the majority held that rejection of the defendant’s proffered reasons does not compel judgment for the plaintiff. A finding that the employer’s explanation of its action is not believable is not the equivalent of finding that the employer’s action was the product of unlawful discrimination. Id.
*255However, St. Mary’s Honor Center also holds that the “factfinder’s disbelief of the reasons put forward by the defendant . . . may, together with the elements of the [plaintiff’s] prima facie case, suffice to show intentional discrimination.” 113 S. Ct. at 2749. “[Rejection of the defendant’s proffered reasons, will permit the trier of fact to infer the ultimate fact of intentional discrimination” without any additional proof of discrimination. Id.
In this case, the majority concludes that the defendant’s proffered reason for terminating Synacek was not entirely truthful. However, the majority would require Synacek to show both that the proffered reason was false and that discrimination was the real purpose. The majority ignores the possibility that a finding of discrimination could be based solely upon the plaintiff’s prima facie case and the inferences arising from the fact that the defendant’s proffered reason was proven to be less than fully truthful.
The evidence establishes that the day Tomlinson took over as president, he asked 59-year-old Synacek when he planned to retire; that the next day a conversation took place between Synacek and Anderson during which alleged insubordination occurred; that two of the three persons present during that conversation testified that no threats, abuse, or shouting occurred; and that 4 days earlier, Tomlinson asked the 64-year-old president, Mattson, when he planned to retire, after which the board voted to remove Mattson. Based on this evidence, a jury concluded that Omaha Cold Storage had discriminated against Synacek on the basis of his age. The trial court, sitting in equity, accepted the findings of the jury and awarded front pay and attorney fees in addition to the jury’s damage award.
In an appeal of an equitable action, an appellate court tries the factual issues de novo on the record and reaches its conclusion independent of the factual findings of the trier of fact. However, where the credible evidence is in conflict on a material issue of fact, an appellate court considers and may give weight to the circumstance that the trier of fact heard and observed the witnesses and accepted one version of the facts rather than another. Upah v. Ancona Bros. Co., 246 Neb. 585, *256521 N.W.2d 895 (1994); County of Dakota v. Worldwide Truck Parts & Metals, 245 Neb. 196, 511 N.W.2d 769 (1994); Rigel Corp. v. Cutchall, 245 Neb. 118, 511 N.W.2d 519 (1994).
The elements of Synacek’s prima facie case, coupled with the inference arising from the lack of credibility contained in the employer’s evidence, suggest that we should give weight to the fact finder’s determination that Omaha Cold Storage intentionally discriminated against Synacek because of his age. Accordingly, I would affirm the judgment of the district court in this regard.
White, J., joins in this dissent.