Appellants were employed by Consol as salaried foremen and mine engineers at the company's Arkwright mine in Monongalia County during the period immediately preceding its closure in October 1995. Beginning in March 1994, Consol began offering a number of employees transfers to other company facilities. In determining which employees would be extended such offers, Consol employed a ranking system predicated upon employee performance evaluation scores, with transfer decisions normally being made with respect to individual performance in specific job classifications, although consideration was at times given to transferring employees to other positions for which they were qualified.

        Appellant's theory of the case was that Consol intentionally lowered the evaluation scores of older employees during the period leading up to the mine closure, such that the performance-based method chosen by the company for allotting transfer opportunities would result in the ultimate termination of a greater proportion of older workers. The only direct evidence supporting this version of events was testimony by appellant Harold Moore, who stated that soon after rumors surfaced that the Arkwright mine would be closing, he was told in 1993 by Arkwright's superintendent, Terry Suder, to “watch out for the evaluations,” as “there's a good chance that evaluations on persons that they are going to get rid of [are] going to be low.” (Mr. Suder testified at trial and denied making such statements.) Mr. Moore further testified that in fact, the evaluation scores he received for the annual period ending in July 1993 were significantly lower than those he would receive just one year later.

        Appellants relied heavily upon statistical evidence to buttress their claim that Consol's conduct was at least partially motivated by discriminatory intent. Appellants' expert in labor economics and econometrics, Professor Clifford Hawley, Ph.D., testified to having reviewed data regarding Consol's transfer decisions concerning 29 persons holding positions comparable to those of appellants who were employed at the Arkwright mine during the period preceding closure. Of these 29 employees, a total of 24 were over the age of 40. While according to appellants' version of the facts all five of the employees under the age of 40 were permitted to transfer to other jobs, only nine of the 24 persons over the age of 40 were given similar offers. Professor Hawley testified that this disparity was statistically significant in that the odds of an age-neutral process obtaining such a result was one in 59. Consol's expert statistician, Dennis Brady, Ph.D., criticized Professor's Hawley's methodology, particularly the choice to concentrate only on a limited number of job categories. Doctor Brady also testified that his analysis of the closure of the Arkwright mine indicated that it resulted in a greater overall percentage of younger workers retaining employment with Consol.

        After a trial conducted on August 14-21, 2000, the jury found in favor of Consol in all respects. Appellants' subsequent motion for a new trial, which raised the same arguments as advanced herein, was denied on April 13, 2001, and this appeal followed.

        The evidence at issue is set forth in a deposition taken of Consol's human resources manager, Joseph Nypaver. Mr. Nypaver testified that Consol had used as many as seven different ranking methods to make employment decisions in implementing reductions in force. At least two of the seven ranking procedures took into consideration either the employee's years of service or both service and age, and were utilized by Consol at approximately the same time as it used the straightforward evaluation scoring method at the Arkwright mine. One of these was described by Mr. Nypaver as involving “evaluation scores and service,” which consisted of a method where we would take evaluation scores from the last couple of years . . . and come up with . . . either a 70, 75, or 80 percent weight for that particular part of the evaluation score and then give them the corresponding 20, 25, or 30 percent weight for length of service.

    Mr. Nypaver testified that this method had been employed at a number of Consol's mines dating from the late 1980s until the late 1990s. The second such ranking method employed by Consol was based upon a similar weighting technique involving the three factors of “evaluation scores, service, and age,” which, according to Mr. Nypaver, was used in connection with at least three mines from the early 1990s until the present.

        In addition to the testimony of Mr. Nypaver, appellants also indicated that they intended to elicit testimony from their expert, Professor Hawley, regarding the statistical effect that such alternative procedures would have had on older workers had they been utilized in connection with the closure of the Arkwright mine.

    Prior to trial, Consol brought a motion in limine objecting to the introduction of any evidence dealing with such alternative ranking systems, arguing that it was not relevant to any matter at issue in the case. The circuit court granted Consol's motion during a hearing conducted on August 14, 2000, stating from the bench that any “method that [Consol] used to determine whose job was saved and whose job was not is not relevant unless it can be demonstrated that there's a discriminatory animus, and that was the Court's ruling before.”   (See footnote 3) 
    In support of the circuit court's ruling, Consol argues that it is permitted under West Virginia law to choose any non-discriminatory method for effectuating its employment decisions. Consol points to language from Romney Housing Auth. v. West Virginia Human Rights Comm'n, 185 W. Va. 208, 406 S.E.2d 434 (1991), where we stated that
       

     [i]n a human rights case . . . the question is not whether an employment decision was essentially fair or whether it was made in accordance with pre-established procedures. The question is whether the individual was discriminated against because of race, religion, color, national origin, ancestry, sex, age, blindness, or handicap.

Id. at 212, 406 S.E.2d at 438 (citation omitted).   (See footnote 4)  This line of reasoning simply proves too much.   (See footnote 5)  Appellants did not seek to have the evidence dealing with alternative procedures admitted for the mere purpose of showing that the method used at the Arkwright mine was inequitable or unfair; rather, it was intended to serve as circumstantial proof that Consol intentionally chose to employ a purely performance-based evaluation method in the present case in order to insure that a greater proportion of older workers would be terminated. According to appellants, this evidence would have bolstered their claim that Consol had purposely manipulated the evaluation scores given to these employees in order to effect such a result.

        This case is predicated solely upon a claim of disparate treatment. Under the Human Rights Act, such a claim of discrimination is governed by the familiar three-step evidentiary framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 1824-25, 36 L. Ed. 2d 668, 677-79 (1973), and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). Under the McDonnell Douglas/Burdine structure,
      

      “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.”

    Shepherdstown Volunteer Fire Dep't v. State ex rel. West Virginia Human Rights Comm'n, 172 W. Va. 627, 637, 309 S.E.2d 342, 352 (1983) (quoting Burdine, 450 U.S. at 252-53, 101 S. Ct. at 1093, 67 L. Ed. 2d at 215); see also Barefoot v. Sundale Nursing Home, 193 W. Va. 475, 483, 457 S.E.2d 152, 160 (1995); Conaway v. Eastern Associated Coal Corp., 178 W. Va. 164, 358 S.E.2d 423 (1986).

        As was pointed out in Skaggs v. Elk Run Coal Co., Inc., 198 W. Va. 51, 479 S.E.2d 561 (1996), “'[t]he shifting burdens of proof set forth in McDonnell Douglas are designed to assure that the “plaintiff [has] his day in court despite the unavailability of direct evidence.”'” Id. at 71, 479 S.E.2d at 581 (quoting Trans World Airline, Inc. v. Thurston, 469 U.S. 111, 121, 105 S. Ct. 613, 622, 83 L. Ed. 2d 523, 533 (1985)). Under the third step of the ordering of proof, a plaintiff is required to show, by a preponderance of the evidence, that the defendant's proffered reason was not the actual motivating force behind its adverse employment action. See Wynne v. Tufts University School of Medicine, 976 F.2d 791, 796 (1st Cir. 1992) (“When pretext is at issue in a discrimination case, it is a plaintiff's duty to produce specific facts which, reasonably viewed, tend logically to undercut the defendant's position.”). Such a demonstration of pretext permits a jury to infer discriminatory motive on the part of the employer:

            In disparate treatment cases under the West Virginia Human Rights Act, W. Va. Code, 5-11-9 (1992), proof of pretext can by itself sustain a conclusion that the defendant engaged in unlawful discrimination. Therefore, if the plaintiff raised an inference of discrimination through his or her prima facie case and the fact-finder disbelieves the defendant's explanation for the adverse action taken against the plaintiff, the factfinder justifiably may conclude that the logical explanation for the action was the unlawful discrimination.

Syl. pt. 5, Skaggs, supra; accord syl. pt. 5, in part, Barefoot, supra (“A finding of pretextuality allows a juror to reject a defendant's proffered reasons for a challenged employment action and, thus, permits the ultimate inference of discrimination.”).

        Importantly, we have made clear that a plaintiff in a disparate treatment case may establish an inference of discriminatory motive on the part of an employer through the introduction of circumstantial as well as direct evidence:
          

      In disparate treatment discrimination cases under the West Virginia Human Rights Act, W. Va. Code, 5-11-9 (1992), a plaintiff can create a triable issue of discrimination animus through direct or circumstantial evidence. Thus, a plaintiff who can offer sufficient circumstantial evidence on intentional discrimination may prevail, just as in any other civil case where the plaintiff meets his or her burden of proof. The question should not be whether the evidence was circumstantial or direct, but whether the evidence in its entirety was strong enough to meet the plaintiff's burden of proof.

    Syl. pt. 7, Skaggs, supra. As we explained in Conaway, “[b]ecause discrimination is essentially an element of the mind, there will probably be very little direct proof available. Direct proof, however, is not required. What is required of the plaintiff is to show some evidence which would sufficiently link the employer's decision and the plaintiff's status as a member of a protected class so as to give rise to an inference that the employment decision was based on an illegal discriminatory criterion.” 178 W. Va. at 170-71, 358 S.E.2d at 429-30 (footnote omitted).

        While this case is not predicated upon an allegation of disparate impact,   (See footnote 6)  we nevertheless find instructive the concepts developed and applied under this separate approach to proving discrimination. This Court established a framework for litigating claims of disparate impact in syllabus point three of West Virginia Univ./West Virginia Bd. of Regents v. Decker, 191 W. Va. 567, 447 S.E.2d 259 (1994):
           

     In proving a prima facie case of disparate impact under the Human Rights Act . . ., the plaintiff bears the burden of (1) demonstrating that the employer uses a particular employment practice or policy and (2) establishing that such particular employment practice or policy causes a disparate impact on a class protected by the Human Rights Act. The employer then must prove that the practice is “job related” and “consistent with business necessity.” If the employer proves business necessity, the plaintiff may rebut the employer's defense by showing that a less burdensome alternative practice exists which the employer refuses to adopt. Such a showing would be evidence that employer's policy is a “pretext” for discrimination.

(Emphasis added.) See also syl. pt. 6, Barefoot, 193 W. Va. 475, 457 S.E.2d 152.

        Although Decker's allusion to “pretext” in relation to claims of disparate impact is somewhat misdirected, as a plaintiff is not required in this context to prove discriminatory motive on the part of the employer,   (See footnote 7)  the relationship between the existence of alternative practices and a showing of pretext is nevertheless valid. The United States Supreme Court has explained that where a plaintiff “come[s] forward with alternatives to [the employer's] hiring practices that reduce the . . . disparate impact of practices currently being used, and the [employer] refuse[s] to adopt these alternatives, such a refusal would belie a claim by [the employer] that [its] incumbent practices are being employed for nondiscriminatory reasons.” Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 660-61, 109 S. Ct. 2115, 2127, 104 L. Ed. 2d 733 (1989). Evidence of an employer's alternative practices, particularly those that have been used prior to or contemporaneous with the practice which is alleged to serve as a vehicle for intentional discrimination, is certainly no less probative of pretext or discriminatory motive when it is employed in the context of a disparate treatment claim.

        Appellants argue that this evidence of alternative procedures was all the more relevant in the present case because of their reliance upon statistical evidence to demonstrate that Consol's explanations for choosing the performance evaluation method for effectuating its reduction in force were pretextual. We agree. This Court has recognized that “'[d]isparate impact in an employment discrimination case is ordinarily proved by statistics[.]'” Syl. pt. 2, Dobson v. Eastern Assoc. Coal Corp., 188 W. Va. 17, 422 S.E.2d 494 (1992) (quoting syl. pt. 3, in part, Guyan Valley Hospital, Inc. v. West Virginia Human Rights Comm'n, 181 W. Va. 251, 382 S.E.2d 88 (1989)). We have likewise indicated with respect to disparate treatment cases that “[s]tatistical evidence may be employed by a plaintiff in proving a claim of age discrimination in employment under the West Virginia Human Rights Act, W. Va. Code, 5-11-1, et seq.” Syl. pt. 3, in part, Dobson v. Eastern Assoc. Coal Corp., 188 W. Va. 17, 422 S.E.2d 494 (1992); see also Conaway, 178 W. Va. at 171, 358 S.E.2d at 430 (stating that circumstantial evidence of purposeful discrimination may include “statistics in a large operation which show that members of the protected class received substantially worse treatment than others”) (footnote omitted). As one court has explained, such evidence is relevant because it can be used to establish a general discriminatory pattern in an employer's hiring or promotion practices. Such a discriminatory pattern is probative of motive and can therefore create an inference of discriminatory intent with respect to the individual employment decision at issue.

    Diaz v. AT&T, 752 F.2d 1356, 1363 (9th Cir.1985). “'In many cases the only available avenue of proof is the use of . . . statistics to uncover clandestine and covert discrimination by the employer or union involved.'” International Broth. of Teamsters v. United States, 431 U.S. 324, 340 n.20, 97 S. Ct. 1843, 1857 n.20, 52 L. Ed. 2d 396 (1977) (quoting United  States v. Ironworkers Local 86, 443 F.2d 544, 551 (9th Cir.), cert. denied, 404 U.S. 984, 92 S. Ct. 447, 30 L. Ed. 2d 367 (1971)).

        Just as with cases predicated upon claims of disparate impact, the use of statistical evidence to establish improper motive on the part of an employer in choosing a particular procedure for making an employment decision raises the inherent question of whether the employer has at its disposal alternative methods for making such determinations that are less onerous with respect to the protected class than the procedure actually employed. In fact, neither of these two forms of proof standing alone are particularly helpful to a trier of fact who is faced with the question of whether an employer has acted with discriminatory purpose: “[W]hile statistics may be used to demonstrate that the employer's proffered reason for discharge is pretextual, standing alone they are not likely to establish a case of individual disparate treatment.” Rummery v. Illinois Bell Telephone Co., 250 F.3d 553, 559 (7th Cir. 2001) (citation omitted); see also Sengupta v. Morrison-Knudsen Co., Inc., 804 F.2d 1072, 1075 (9th Cir. 1986) (recognizing that while “statistics have a place in a disparate treatment case, their utility 'depends on all of the surrounding facts and circumstances'”) (quoting International Bhd. of Teamsters, 431 U.S. at 340, 97 S. Ct. at 1857).

        This Court consequently holds that in disparate treatment discrimination cases arising under the Human Rights Act, W. Va. Code § 5-11-9 (1998), where a plaintiff seeks to introduce statistical evidence in an effort to prove that a particular procedure utilized by the employer is intentionally discriminatory based upon its disproportionate impact upon workers in a protected class, evidence of the employer's utilization of alternative procedures having a more proportionate impact upon the protected class is relevant and admissible to further prove that the employer acted with discriminatory purpose. The circuit court therefore abused its discretion in this case by refusing to admit crucial evidence of Consol's alternative procedures for effectuating workforce reductions.   (See footnote 8)