RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Brown v. Packaging Corp. of America No. 01-5864 ELECTRONIC CITATION: 2003 FED App. 0257P (6th Cir.) File Name: 03a0257p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: Victor I. Fleitas, Tupelo, Mississippi, for FOR THE SIXTH CIRCUIT Appellant. Marcus M. Crider, WALLER, LANSDEN, _________________ DORTCH & DAVIS, Nashville, Tennessee, for Appellee. ON BRIEF: Victor I. Fleitas, Tupelo, Mississippi, Jim D. BOBBY BROWN , X Waide, WAIDE & ASSOCIATES, Tupelo, Mississippi, for Plaintiff-Appellant, - Appellant. Marcus M. Crider, WALLER, LANSDEN, - DORTCH & DAVIS, Nashville, Tennessee, Mark E. - No. 01-5864 Stamelos, KING & BALLOW, Nashville, Tennessee, for v. - Appellee. > , NELSON, J., announced the judgment of the court and PACKAGING CORPORATION OF - AMERICA , delivered an opinion, in which CLAY, J. and HAYNES, D. J., - concurred except as to Part II B. CLAY, J. (pp. 17-25), Defendant-Appellee. - delivered a separate opinion, in which HAYNES, D. J., - concurred, which constitutes the opinion of the court on the - issue discussed in Part II B. N Appeal from the United States District Court _________________ for the Western District of Tennessee at Jackson. No. 00-01049—James D. Todd, Chief District Judge. OPINION _________________ Argued: January 28, 2003 DAVID A. NELSON, Circuit Judge. This is an appeal from Decided and Filed: July 29, 2003 a judgment entered on a verdict for the employer in an age discrimination case. The main issue we are asked to decide is Before: NELSON and CLAY, Circuit Judges; HAYNES, whether the district court committed reversible error by District Judge.* including instructions in its charge to the jury that replicated the prima-facie-case and “burden-shifting” guidelines set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981). Unlike my colleagues on the panel, I am inclined to think that trial courts should be discouraged from parroting the legal * The Honorable William J. Haynes, Jr., United States District Judge technicalities of McDonnell Douglas and Burdine in charging for the Middle District of Tennessee, sitting by designation.
1 No. 01-5864 Brown v. Packaging Corp. of America 3 4 Brown v. Packaging Corp. of America No. 01-5864
juries. Whether or not the inclusion of McDonnell Douglas conviction or the photograph incident, and he testified at trial verbiage in jury instructions may create an unnecessary risk that the information “dismayed” him. that the jury will be confused, however, none of the members of the panel is persuaded that any potential for confusion in the Synyard promptly decided not to promote Brown after all, case at bar was sufficiently great to necessitate a reversal here. and he instructed area supervisor David Ellison to have Brown Accordingly, and because we are not persuaded by the report for work on the next shift as a crew leader and not as a plaintiff’s remaining assignments of error, we shall affirm the foreman. When Brown asked what had happened to his challenged judgment. promotion, Ellison allegedly told him that Mr. Kowlzan “wanted younger people and engineers to fill the job.” Ellison I testified that he never said any such thing. The plaintiff in this case, Bobby Brown, went to work for Synyard met with Brown a day or two after the withdrawal the defendant, Packaging Corporation of America, in 1962, of the promotion. This time Brown was told he was being kept when he was about 20 years old. In 1996 Mr. Brown was on as crew leader because the man who was in line to succeed promoted to a crew leader’s job. In that capacity he was him in that job was far weaker than Brown as far as experience responsible for the operation of one of two large paper went. Synyard did not mention the arson or the nude machines at a plant in Counce, Tennessee. The promotion to photographs, testifying later that “I thought it was very crew leader was based entirely on seniority and was mandated humiliating and embarrassing, and I just didn’t see the need of by a collective bargaining agreement. further embarrassing Bobby . . . .” In 1999, when Mr. Brown was 57 years of age, plant Synyard ultimately filled the temporary foreman’s slot by manager Michael Synyard offered him a promotion to the promoting an employee named Jamie Mims. Mr. Mims was position of temporary foreman. Brown accepted. The new 40 years old. job, unlike the old one, was not covered by the collective bargaining agreement. Aggrieved by his failure to get the promotion he had been promised, Mr. Brown filed an age discrimination charge with Although Synyard did not need anyone’s approval to the Equal Employment Opportunity Commission. The promote Mr. Brown, he mentioned his decision to Mark company submitted a response denying that Brown had been Kowlzan, a vice president of the company. Kowlzan voiced discriminated against because of age and asserting that Mims serious reservations about Brown, asserting that he “lacked “displayed more initiative and exhibited better leadership leadership” and pointing out that he had been convicted of characteristics.” The response did not mention Brown’s arson for burning down his house. (The company had fired conviction for arson or the nude photograph incident. Brown at the time of the conviction, which occurred in 1989, but subsequently rehired him under a threat of litigation.) Unable to conclude that a violation of the Age Kowlzan further told Synyard about an incident in which Discrimination Act had been established, the EEOC closed its Brown had shown photographs of his wife in the nude to file and notified Mr. Brown of his right to sue the employer fellow employees at the plant – behavior that was not only within 90 days of his receipt of the notice. Brown exercised bizarre, but that violated the company’s sexual harassment this right, filing an action in the United States District Court policy. Synyard had not known about either the arson No. 01-5864 Brown v. Packaging Corp. of America 5 6 Brown v. Packaging Corp. of America No. 01-5864
for the Western District of Tennessee and demanding a jury Counsel for Mr. Brown objected that the proposed trial. instructions were improper for two reasons. First, he maintained, Brown was offering not only indirect evidence of After denying a defense motion for summary judgment, the wrongful discrimination – the type of evidence dealt with in district court denied a motion in limine wherein Brown sought McDonnell Douglas – but direct evidence as well. Second, to exclude evidence of his arson conviction. The court granted counsel argued, even where the evidence is purely indirect, it a motion to exclude evidence that David Ellison, the area is confusing for a jury to be instructed on the elements of a supervisor who first advised Brown that he was not being prima facie case and (as counsel put it) “all that burden shifting promoted, had been convicted of a misdemeanor. (In August business.” of 1999 – after he had become an area supervisor – Ellison pleaded no contest to a misdemeanor charge of criminal The trial court was unmoved by either argument, and the trespass.) instruction was incorporated without change in the charge given the jury at the end of the case. The jury found in favor When Brown’s case went to trial, the district court took of the defendant, as we have said, and there has been a timely advantage of a recess to review its proposed jury instructions appeal from the judgment entered on the verdict. with the lawyers. The proposed charge included five pages of text adapted from the Supreme Court’s opinion in McDonnell II Douglas, 411 U.S. at 802-805. The language covered the four McDonnell Douglas elements of a prima facie case, the A defendant’s burden of articulating a nondiscriminatory reason for the challenged employment action, the plaintiff’s We turn first to Mr. Brown’s “direct evidence” argument. obligation to prove that the proffered reason was a pretext, and The gist of the argument is that the McDonnell Douglas methods by which pretext may be shown. The court also paradigm relates only to cases where there is no direct proposed to add the following caution: evidence of wrongful discrimination; a plaintiff who has presented “some direct evidence of age discrimination,” this “Remember, the ultimate burden remains at all times on court has said, “. . . need not make out a prima facie case under plaintiff to prove by a preponderance of the evidence that the McDonnell Douglas framework.” LaPointe v. United he was discriminated against because of age; therefore, it Autoworkers Local 600, 103 F.3d 485, 488 n.3 (6th Cir. 1996). is not enough for plaintiff to simply prove or claim that Mr. Brown submits that he presented direct evidence of the stated reasons for PCA’s actions with regard to discrimination when he testified that area manager Ellison told plaintiff were not believable or are not the true reasons for him he was not getting the promised promotion because vice the actions. The reason for this is because plaintiff always president Kowlzan “wanted younger people . . . .” must prove by a preponderance of the evidence that he was discriminated against because of his age. You must Although Mr. Brown characterizes his testimony as direct determine whether plaintiff has proved that the reasons evidence of discriminatory intent, our precedents suggest that given by PCA were a pretext for unlawful age it may be more accurate to characterize it as circumstantial discrimination, and you may consider all the evidence in evidence. See Hopson v. Daimler Chrysler Corp., 306 F.3d making this determination.” 427, 433 (6th Cir. 2002) (evidence that one of the plaintiff’s supervisors held the opinion that race was a factor in the No. 01-5864 Brown v. Packaging Corp. of America 7 8 Brown v. Packaging Corp. of America No. 01-5864
defendant’s decision not to promote the plaintiff was not direct If an instruction based on McDonnell Douglas could pass evidence of discrimination where the supervisor had no muster without the circumstantial evidence involving Ellison, involvement in the decision and did not reveal the basis for his we are not persuaded that introduction of the Ellison evidence opinion). Ellison had no involvement in the decision not to would necessitate a reversal – at least as long as the charge as promote Brown, and Ellison did not reveal the basis for his a whole gave the jury to understand that its first task was to alleged insight into Kowlzan’s thought processes. decide whether Packaging Corporation of America had been shown, by a preponderance of the evidence, to have We agree that the testimony in question does not fall within discriminated against the plaintiff because of his being at least any of the four categories of proof described by the McDonnell 40 years old. The court’s charge did that, as we read it. Douglas Court in discussing the establishment of a prima facie case of discrimination.1 On the other hand, the fact that the B testimony fell outside the McDonnell Douglas paradigm does not detract from the fact that Brown also presented evidence Turning to Mr. Brown’s second argument – the argument that fit the paradigm exactly. In other words, Brown produced that it was confusing to instruct the jury on the details of the evidence that (1) he was over the age of 40, (2) he accepted a framework erected by the Supreme Court in the McDonnell job for which he was qualified, (3) the job offer was Douglas case – I start with the observation that there was no withdrawn despite his qualifications, and (4) the position was jury (and thus no jury charge) in McDonnell Douglas itself. ultimately filled by a much younger person. The evidence of Decided by the Supreme Court in 1973, McDonnell Douglas Kowlzan’s alleged bias tended to strengthen Brown’s prima was a race discrimination case brought under Title VII of the facie case, but it certainly did not render these four elements Civil Rights Act of 1964.2 Not until enactment of the Civil irrelevant – and Brown would have had a prima facie case Rights Act of 1991 did Congress provide for jury trials in Title under McDonnell Douglas even without the evidence of what VII cases. See 105 Stat. 1072, 42 U.S.C. § 1981a. Prior to Ellison was supposed to have said about Kowlzan. that time a suit under Title VII was treated as a suit in equity, a type of case historically tried by the court without a jury. See In re Lewis, 845 F.2d 624, 626 n.1 (6th Cir. 1988).
1 The posture in which the McDonnell Douglas case reached It is worth noting that the Supreme Co urt did not intend its the Supreme Court may be outlined as follows. The district discussion to limit the ways in which a plaintiff could establish a prima court had dismissed on jurisdictional grounds a claim asserted facie case. As the Court explained in a footnote, “[t]he facts necessarily will vary in [discrimination] cases, and the specification above of the by the plaintiff under § 703(a)(1) of the 1964 Civil Rights Act. prima facie proof required . . . is not necessarily applicable in every The Eighth Circuit had reversed the dismissal and attempted, respect to differing factual situations.” McDonnell Douglas, 411 U.S. at in the opinion it published, to set forth the standards that 802 n.13. would govern the district court’s adjudication of the claim on remand. The Supreme Court granted certiorari “[i]n order to To illustrate the p oint, we invite the reader to suppose that in the case at bar the re had been a wealth of circumstantial evidence of clarify the standards governing the disposition of an action discriminatory animus based on Brown’s age, but to suppose further that Synyard had never taken an y steps to fill the temporary forem an’s job after withdrawing the offer to Bro wn. B rown might well have been able 2 to make out a case for the jury, under this hypothesis, notwithstanding the Burdine, a sex discrimina tion case decided in 198 1, was also absence of the fourth element in the McDonnell Douglas paradigm. brought under Title VII. No. 01-5864 Brown v. Packaging Corp. of America 9 10 Brown v. Packaging Corp. of America No. 01-5864
challenging employment discrimination . . . .” McDonnell The Supreme Court has never rejected Loeb’s gloss on Douglas, 411 U.S. at 497-98. “The critical issue,” as the McDonnell Douglas. Neither has the Sixth Circuit. In our Supreme Court explained, “. . . concerns the order and Kitchen opinion, on the contrary, after quoting the passage allocation of proof in a private, non-class-action challenging from Loeb set forth above, we declared that “a jury instruction employment discrimination.” Id. at 800 (emphasis supplied). will not automatically be erroneous simply because it does not precisely follow the legal niceties of McDonnell Douglas and The “order and allocation of proof” are not matters for Burdine.” Kitchen, 825 F.2d at 1012.3 which juries are responsible – and, as the First Circuit pointed out in a leading case decided six years after McDonnell In re Lewis, 845 F.2d 624 (6th Cir. 1988), represents this Douglas, the McDonnell Douglas opinion “was not written as circuit’s strongest endorsement of the view taken by the First a prospective jury charge . . . .” Loeb v. Textron, Inc., 600 Circuit in Loeb. The Lewis case arose prior to the 1991 F.2d 1003, 1016 (1st Cir. 1979). Heavily freighted with legislation that provided for jury trials in Title VII cases, and technical legal language (“prima facie case,” e.g.), the the portion of the appeal in Lewis that is relevant here dealt McDonnell Douglas opinion was written for an audience of with jury instructions on a race discrimination claim brought judges and lawyers. “[T]o read [the opinion’s] technical under Michigan’s Elliott-Larsen Civil Rights Act. Michigan’s aspects to a jury,” the Loeb court said, “. . . will add little to the standard jury instructions, which the district court had used juror’s understanding of the case and, even worse, may lead after rejecting a request for a McDonnell Douglas-type jurors to abandon their own judgment and to seize upon poorly instruction, “deliberately eschewed” the McDonnell Douglas understood legalisms to decide the ultimate question of model. The Michigan Supreme Court Committee on Jury discrimination.” Id. Cf. Kitchen v. Chippawa Valley Schools, Instructions, which drafted the instruction at issue in Lewis (II 825 F.2d 1004, 1012 (6th Cir. 1987), where we quoted this Michigan Standard Jury Instructions 2d § 105.04 (quoted at passage from Loeb with approval. 845 F.2d 634)), quoted the language of Loeb in explaining why the committee had purposely steered clear of the McDonnell I do not mean to suggest that there can never be a case in Douglas formulation: a McDonnell Douglas instruction, said which the trial court will have discretion to use the framework the committee, would “‘add little to the juror’s understanding of McDonnell Douglas as a guide in drafting plain-English instructions to the jury. See Rowlett v. Anheuser Bush, Inc., 832 F.2d 194, 200 (1st Cir. 1987). Obviously, however, it 3 In Cronich v. Wayne County Community College, 874 F.2d 359, 366 remains the responsibility of the judge to determine whether (6th Cir. 1989), we remark ed, citing Kitchen, that “[a]n instruction the plaintiff has presented a prima facie case capable of incorporating [the shifting b urden of proof standards articulated in withstanding a motion for summary judgment or a directed McDonnell Douglas and Burdine] has been approved but not abso lutely verdict – and the First Circuit has made it very clear that “the required by this court.” W hat the court actually did in Kitchen, however, term ‘prima facie case’ need never be mentioned to the jurors.” was uphold as “not erroneo us” a jury charge challenged by the appe llants precisely beca use it “failed to instruct the jury on the shifting burden of Loeb, 600 F.2d at 1016. Where there is a dispute as to whether proof requirements [of McDonnell Douglas and Burdine].” Kitchen, 825 the employer has met its burden of articulating a F.2d at 1012 and 1011 (emphasis supplied). And it hardly constitutes nondiscriminatory reason for the challenged employment approval of instructions parroting the language of McDonnell Douglas to action, similarly, “it will be for the judge to decide whether say that such instructions “will add little to the juror’s understanding of defendant has stated a legitimate reason with such specificity the case and, even worse, may lead jurors to abandon their own judgment and to seize upon poorly understood legalisms to decide the ultimate as to require plaintiff to prove it to be a pretext.” Id. n. 16. question of discrimination.” Id. at 1012, quoting Loeb, 600 F.2d at 1016. No. 01-5864 Brown v. Packaging Corp. of America 11 12 Brown v. Packaging Corp. of America No. 01-5864
of the case and, even worse, may lead jurors to abandon their declining “to walk the jury through the paradigm established own judgment and to seize upon poorly understood legalisms by McDonnell Douglas”);4 Williams v. Valentec Kisco, Inc., to decide the ultimate question of discrimination.’ . . .” Id. 964 F.2d 723, 731 (8th Cir. 1992) (reiterating that “the McDonnell Douglas ‘ritual is not well suited as a detailed This court agreed. Holding that there was no error in instruction to the jury’ . . .”); Costa v. Desert Palace, Inc., 299 rejecting the McDonnell Douglas instruction tendered by the F.3d 838, 855 (9th Cir. 2002) (en banc) (“it is not normally defendant at the time of trial, we voiced a clear preference for appropriate to introduce the McDonnell Douglas burden- the instructions that eschewed the McDonnell Douglas model: shifting framework to the jury”), aff’d, ___ U.S. ___, 123 S.Ct. 816 (2003); Messina v. Kroblin Transportation Systems, Inc., “We agree with the Committee on Jury Instructions. 903 F.2d 1306, 1308 (10th Cir. 1990) (“The McDonnell Rather than confuse the jurors with legal definitions of the Douglas inferences provide assistance to a judge as he burdens of proof, persuasion and production and how they addresses motions to dismiss, for summary judgment, and for shift under McDonnell Douglas, we find that the above directed verdict, but they are of little relevance to the jury”); instruction was a clear and preferable statement of the Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1322 (11th law. We therefore find no error in the district court’s Cir. 1999) (“We stress that it is unnecessary and inappropriate decision not to give defendant’s Proposed Instruction No. to instruct the jury on the McDonnell Douglas analysis”). 4.” Id. But while most courts of appeals would agree that it is Other courts of appeals have likewise followed Loeb’s lead. normally inappropriate to instruct the jury on the McDonnell See, e.g., Cabrera v. Jakabovitz, 24 F.3d 372, 380 (2d Cir. Douglas analysis, seldom is it held to be reversible error for a 1994) (bemoaning the fact that “lawyers are still prone to trial court to do so as long as the instruction summarizes the include in requested jury charges language that was written by law accurately. See, e.g., Dudley, Messina, Mullen, and appellate courts in the context of bench trials – language that Sharkey, all of which are cases where the giving of McDonnell is at best irrelevant, and at worst misleading to a jury”); Douglas instructions was held not to constitute prejudicial Sharkey v. Lasmo (AUL LTD.), 214 F.3d 371, 374 (2d Cir. error. The use of such an instruction was cited as error in 2000) (“We agree that juries should not be charged on the Gordon, but there were several grounds for reversal in that McDonnell Douglas burdening-shifting framework”); Gordon case and we do not know whether the Second Circuit panel v. New York City Bd. of Educ., 232 F.3d 111, 118 (2d Cir. would have been prepared to reverse solely on the McDonnell 2000) (“The jury . . . does not need to be lectured on the Douglas ground. concepts that guide a judge in determining whether a case should go to the jury”); Mullen v. Princess Anne Volunteer In the case at bar, after examining the instructions as a Fire Co., Inc., 853 F.2d 1130, 1137 (4th Cir. 1988) (burden- whole, we do not find that the potential for prejudice, if any, shifting instructions “are beyond the function and expertise of rises to a level that would require reversal. The question “is the jury, which need never hear the term ‘prima facie case’”); not whether an instruction was faultless in every respect, but Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir. 1992) (“Instructing the jury on the elements of a prima facie case, presumptions, and the shifting burden of proof is 4 unnecessary and confusing”); Gehring v. Case Corp., 43 F.3d But see Lynch v. Belden and Co., Inc., 882 F.2d 262, 26 9 (7th Cir. 340, 343 (7th Cir. 1994) (trial judge acted correctly in 1989) (“it was prope r for the d istrict court to instruct the jury as to the Mc Do nne ll Douglas/Burdine formula for evaluating indirect evidence”). No. 01-5864 Brown v. Packaging Corp. of America 13 14 Brown v. Packaging Corp. of America No. 01-5864
whether the jury, considering the instructions as a whole, was to support the prima facie case described in McDonnell misled.” Messina, 903 F.3d at 1309. We do not believe that Douglas. The instruction given here told the jury no such the jury was misled here. thing. C III During oral argument, counsel for Mr. Brown argued that A the instruction quoted in Part I of this opinion – an instruction that included the words “it is not enough for plaintiff simply to In his next assignment of error, Mr. Brown says that “[t]he prove or claim that the stated reasons for PCA’s actions with district court committed reversible error in admitting evidence regard to plaintiff were not believable or are not the true of Mr. Brown’s 12 year old arson conviction to impeach his reasons for the actions” – adopted the “pretext-plus” theory credibility.” But impeachment of credibility pursuant to Rule rejected by the Supreme Court in Reeves v. Sanderson 609, Fed. R. Evid.,5 was not the only basis on which the Plumbing Products, Inc., 530 U.S. 133 (2000). This argument district court decided to admit evidence of the conviction. As was not presented to the district court, nor was it mentioned in the court pointed out during the pretrial conference at which Mr. Brown’s briefs on appeal; accordingly, we need not Brown’s motion in limine was denied, the jury was going to address it. If we were to address the argument, however, we hear about the arson conviction in any event, the company should have no hesitancy in saying that it is without merit. having declared its intent to show that the conviction was one of the reasons Brown was not promoted. The district court The instruction in question properly reminded the jury that ruled that the company could use the evidence for either “plaintiff must always prove by a preponderance of the purpose or both purposes. evidence that he was discriminated against because of his age.” The instruction also told the jury that Mr. Brown had to do more than prove that the company’s stated reason for its action 5 Under Rule 609(a), the credibility of a witness other than the was a pretext. This was an accurate statement of the law: “It defendant in a criminal trial may be attacked by evidence of his is not enough . . . to disbelieve the employer; the factfinder conviction of a crime punishable by imprisonment in excess of one year must believe the plaintiff’s explanation of intentional (or regardless of punishment if the crime involved dishon esty or false discrimination.” St. Mary’s Honor Center v. Hicks, 509 U.S. statement). 502, 524, 519 (1993), as quoted in Reeves, 530 U.S. at 146-47. W ith respect to convictions more than 10 years old, Rule 609(b) Even if the jury in the case at bar disbelieved the company’s provides as follows: explanation for denying Mr. Brown the promotion, the Reeves and St. Mary’s Honor Center cases teach, the jury could not “Evidence of a conviction under this rule is not admissible return a verdict for Mr. Brown unless it was prepared to draw if a period of more than ten years has elapsed since the date of the inference from all of Mr. Brown’s evidence that the the conviction . . . unless the court determ ines, in the interests of justice, that the probative value of the conviction supported by company was guilty of intentional age discrimination. specific facts and circum stances substantially outweighs its prejudicial effect. However, evidence of a conviction more than To be improper under Reeves, the instruction would have 10 years old . . . is not adm issible unless the proponent gives to had to tell the jury that evidence of pretext must be the adve rse party sufficient ad vance written notice o f intent to supplemented by evidence more extensive than that necessary use such evidence to provide the adverse party with a fair opp ortunity to contest the use of such evidence.” No. 01-5864 Brown v. Packaging Corp. of America 15 16 Brown v. Packaging Corp. of America No. 01-5864
As far as the impeachment purpose is concerned, the district AFFIRMED. court satisfied itself that the advance written notice required by Rule 609(b) had been given. The court obviously thought that the “prejudicial effect” spoken of in Rule 609(b) would be minimal, given that the evidence could be put before the jury anyway for a purpose having nothing to do with Rule 609. The district court’s conclusion did not represent an abuse of discretion, as we see it. In any event, we are satisfied that the decision to admit evidence of Mr. Brown’s conviction did not result in substantial prejudice. The challenged ruling thus provides no ground for reversal. See United States v. Sloman, 909 F.2d 176, 180-81 (6th Cir. 1990). B Finally, Mr. Brown maintains that evidence of David Ellison’s misdemeanor criminal trespass conviction should have been admitted for the limited purpose of showing that the company’s professed reliance on Mr. Brown’s arson conviction as a reason for denying Brown the promised promotion was a pretext for age discrimination. If Ellison suffered no adverse employment action as a result of pleading to a misdemeanor charge, Brown’s lawyer wanted the jury to infer, the denial of a promotion to Mr. Brown must have been attributable to something other than his arson conviction. Brown submits that the court’s decision to exclude the Ellison evidence was reversible error. We disagree. The district court relied heavily on the fact that the decision not to promote Brown occurred prior to Ellison’s conviction. Ellison was not promoted following his misdemeanor conviction, moreover, but simply remained in the job he held before the conviction, just as Brown himself did. Under these circumstances, and given the disparity in the seriousness of the offenses, Ellison’s conviction was pretty thin gruel as evidence of pretext. The court’s exclusion of the misdemeanor conviction was not an abuse of discretion, in our opinion, and we do not think it was prejudicial in any event. No. 01-5864 Brown v. Packaging Corp. of America 17 18 Brown v. Packaging Corp. of America No. 01-5864
____________________ instruct a jury in a retaliation case, brought under Michigan state law, on the burden-shifting test. This Court decided that CONCURRENCE the district court did not err “because the jury’s proper concern ____________________ was with the ultimate question of retaliation and not with the potentially confusing shifting of evidentiary burdens.” CLAY, Circuit Judge, concurring. Although I agree with the Kitchen, 825 F.2d at 1012. But affirming the district court’s outcome reached in this case, as well as much of the reasoning decision not to give an instruction cannot be equated with expressed in the lead opinion, I write separately to express my reversing a district court’s decision to give the instruction. disagreement with Part II.B of the lead opinion, which seeks Kitchen’s comment about potential confusion amounts to no to discourage district courts from utilizing the burden-shifting more than dicta. Similarly, in In re Lewis, 845 F.2d 624, 634 test enunciated in McDonnell Douglas Corp. v. Green, 411 (6th Cir. 1988), this Court affirmed the district court’s decision U.S. 792 (1973) when giving jury instructions.1 not to give the McDonnell Douglas instruction. The Court made no finding that giving a McDonnell Douglas instruction Ordinarily, a district court should give a requested jury would have been legally erroneous. It should not be gleaned instruction when such instruction offers a correct statement of from either of these cases that a district court errs in giving a the law and is not irrelevant, redundant, or confusing. See McDonnell Douglas instruction on the basis of its allegedly King v. Ford Motor Co., 209 F.3d 886, 897 (6th Cir. 2000) confusing nature, since holding that an instruction is (holding that the “district court had discretion to instruct the unnecessary or superfluous is quite different from holding that jury in any manner it deemed appropriate, as long as it an instruction is actually detrimental to the jury’s correctly stated [the appropriate] substantive law, instructed on understanding of what it is to decide. the issues relevant to the case at hand, and did not mislead the jury”); Kitchen v. Chippewa Valley Schs., 825 F.2d 1004, 1011 In determining that juries are not sufficiently sophisticated (6th Cir. 1987) (“A judgment can be reversed if the to understand the McDonnell Douglas test, the lead opinion instructions, viewed as a whole, were confusing, misleading essentially relies on dicta from other circuits disapproving of and prejudicial.”) (citing DSG Corp. v. Anderson, 754 F.2d including the McDonnell Douglas test in jury instructions, but 678, 679 (6th Cir. 1985)). No one contests that the McDonnell declining to reverse on such grounds.2 Sharkey v. Lasmo Douglas burden-shifting test offers a correct description of the prima facie case required to establish circumstantial evidence of employment discrimination. Moreover, the test is not 2 Actually, some of the lead opinion’s cited cases, like Kitchen and irrelevant, redundant, or confusing. Lewis, rejected the notion that the burden-shifting framework is a necessary component of jury instructions in an employment Certainly, this Court has never forbidden the use of the discrimination case, but the cases did not expressly prohibit the McDonnell Douglas test. In Kitchen, the issue was whether framework’s use. These cases merely provide some dicta suggesting that the burden-shifting approach is co nfusing to explain to juro rs. See Loeb the district court committed reversible error in refusing to v. Textro n, Inc ., 600 F.2d 1 003, 101 6 (1st Cir. 1979) (acknowledging that “the subtleties of M cDonne ll Douglas are confusing” for judges and juries and that “to read its technica l aspec ts to a jury [may confuse a juror],” but 1 then stating that the use of McDonnell Douglas is workable because “we This concurring opinion, which Judge Haynes joins, constitutes the do not equate use of McDonne ll Douglas with a requirement that the full majority view regarding the use of the McDonnell Douglas burden- formulation be read in haec verba to the jury”); see also Gehring v. Case shifting test in jury instructions. Corp., 43 F.3d 34 0, 343 (7th Cir. 1994) (rejecting the plaintiff’s argument No. 01-5864 Brown v. Packaging Corp. of America 19 20 Brown v. Packaging Corp. of America No. 01-5864
(AUL Ltd.), 214 F.3d 371, 374 (2d Cir. 2000); Dudley v. Wal- complicated terminology abounds in such areas of law as Mart Stores, Inc., 166 F.3d 1317, 1321-22 (11th Cir. 1999); medical malpractice. See, e.g., Joseph H. King, Jr., Cabrera v. Jakabovitz, 24 F.3d 372, 380-84 (2d Cir. 1994); Reconciling the Exercise of Judgment and the Objective Walther v. Lone Star Gas Co., 952 F.2d 119, 126 (5th Cir. Standard of Care in Medical Malpractice, 52 OKLA . L. REV . 1992); Messina v. Kroblin Transp. Sys. Inc., 903 F.2d 1306, 49, 69-70 (noting the potential confusion of “best judgment” 1308-09 (10th Cir. 1990); Mullen v. Princess Anne Volunteer language in jury instructions for medical malpractice lawsuits). Fire Co., Inc., 853 F.2d 1130, 1137 (4th Cir. 1988); see also Yet courts have not jettisoned these frameworks from jury Gordon v. New York City Bd. of Educ., 232 F.3d 111, 118 (2d instructions on the theory that juries are incapable of Cir. 2000) (observing that the inclusion of the McDonnell comprehending sophisticated nomenclature. Indeed, no Douglas test in the jury instructions was erroneous but legitimate distinction has been asserted between the products reversing on other grounds). The largely conclusory rationales liability and medical malpractice contexts and the present detailed in those cases are less than persuasive. context of employment discrimination. Thus, if a jury is capable of understanding the terms used in contexts such as Two main reasons generally are advanced in support of those of products liability and medical malpractice, then there excluding the McDonnell Douglas test from jury instructions. is no apparent reason why a jury should not be able to The first rationale, based on the idea that judges should only understand the terms used in the employment discrimination use language that jurors can understand, implies that lay context. persons do not easily understand such terms as “prima facie case,” “shifting burden,” and “burden of proof.” See Cabrera, Moreover, the notion that juries are too easily confused by 24 F.3d at 381; Loeb v. Textron, Inc., 600 F.2d 1003, 1016 (1st such terminology is unexplained and unproven. The cases Cir. 1979); Gerrilyn G. Brill, Instructing the Jury in an advancing this viewpoint do not cite any empirical data in Employment Discrimination Case, 1998 FED . CTS. L. REV . 2, drawing the conclusion that juries are not sufficiently capable 4.5-4.6 (March 1998). Yet, as the partial dissent in Loeb of understanding McDonnell Douglas. The First Circuit’s noted, “[t]he difficulties involved in instructing a jury in a Loeb opinion was released not terribly long after McDonnell products liability case, where liability is alternately premised Douglas was decided, and it reflects the court’s own on the three theories of strict liability, negligence, and confusion as to what constituted the settled law of shifting warranty are no less complex than the shifting burdens burdens in an employment discrimination case. Indeed, the outlined in McDonnell Douglas.” Loeb, 600 F.2d at 1024 First Circuit backed away from its earlier misgivings, (Bownes, J., concurring and dissenting). Similarly, acknowledging that the Loeb decision was influenced by its own confusion: Although this framework was considered complicated and that he was entitled to a burden-shifting instruction); Williams v. Valentec cumbersome when it was first used in Kisco, Inc., 964 F.2d 723, 731 (8th Cir. 1992) (affirming the district court’s refusal to include the burden-shifting test in its jury instructions); McDonnell-Douglas, with repeated use courts have Costa v. Desert Palace, Inc., 299 F.3d 83 8, 854-55 (9th Cir. 2002) (en become more comfortable with it, both for their own use banc) (mentioning, in dicta, that “it is not normally appropriate to in ruling on Title VII claims and for the jury's use in introduce the M cDonne ll Douglas burden-shifting fram ework to the jury,” ruling on intentional discrimination. . . . It is a as part of a general discussion about the relationship between the straightforward way of explaining how to consider McDonnell-Douglas test and the single- and mixed-motive analyses), aff’d, – U.S. –, 123 S .Ct. 2148, 2003 W L 2131 0219 (June 9 , 2003). No. 01-5864 Brown v. Packaging Corp. of America 21 22 Brown v. Packaging Corp. of America No. 01-5864
whether there is intentional discrimination in situations Minuet: Disparate Treatment After Hicks, 93 MICH. L. REV . where such discrimination is not likely to be overt. 2229, 2323 (1995).3 Rowlett v. Anheuser-Busch, Inc. 832 F.2d 194, 200 (1st Cir. For thirty years, the McDonnell Douglas analysis has played 1987) (citation omitted), abrogated on other grounds by an important role in the framework of employment Iacobucci v. Boulter, 193 F.3d 14 (1st Cir. 1999). Thus, the discrimination law, and that analysis might assist a jury in First Circuit, which was the first to question the wholesale understanding the dispute it has been asked to resolve. For importation of McDonnell Douglas into jury instructions in instance, if the jury in this case had simply been told, Loeb, backed off and embraced its use just a few years later. “Packaging Corporation says that it decided not to promote Mr. Brown because of his arson conviction and an incident at When a trial court understands the law, it should be able to work involving nude photographs of his wife; you decide explain the law to a jury with relative ease. Trial courts are whether you think they are lying and that their real reason was much more comfortable with McDonnell Douglas than they age discrimination (which you may infer if you believe four were twenty years ago when the Supreme Court was still road- certain facts),” the jury might have wondered why the inquiry mapping many burden of proof issues in employment was framed in that way and focused only on that aspect of the discrimination law. The concerns that were present during the trial. Only an explanation of the parties’ initial respective time Loeb was decided have largely abated. Even assuming burdens would shed further light on the reasons for the that a jury might experience difficulty understanding an aspect inquiry’s focus. Thus, even if the giving of the McDonnell of the burden-shifting structure, it can – and presumably will Douglas test is not required, it is often beneficial in assisting – request clarification from the court. a jury’s comprehension of the issues it has been asked to resolve. The other most frequently cited rationale is that once the case has been tried and is about to be submitted to the jury, the This is particularly true when one recalls the policy grounds McDonnell Douglas analysis is no longer relevant because it underlying the formulation of the McDonnell Douglas test in is the function of the trial judge, not the jury, to engage in the the first place. As the partial dissent in Loeb noted, the burden-shifting analysis. That is, it is argued that if the judge McDonnell Douglas test sought to “accommodate both the determines that the plaintiff has not made out a prima facie strong policy reasons for allowing plaintiff to proceed on the case, the case is dismissed by way of a directed verdict in defendant’s favor; if the plaintiff has established a prima facie case and the defendant has articulated no legitimate non- 3 It is impo rtant to note that the parties’ shifting burdens of production discriminatory reason for its adverse employment action, do not form the entirety of a jury’s inquiry, which is, at its core, whether judgment is rendered for the plaintiff; and if the plaintiff has it finds by a preponderance of the evidence that the em ployer intention ally established a prima facie case and the defendant has articulated discriminated against the plaintiff. United States Postal Serv. Bd. of a legitimate non-discriminatory reason, the jury considers only Governors v. Aikens, 460 U.S. 711 , 775 (1983). Neve rtheless, eleme nts of a prim a facie case frequently are still relevant after the case has gone whether the articulated reason is pretext for unlawful to the jury. For instance, when an issue of fact remains as to one or more discrimination. See, e.g., Deborah C. Malamud, The Last of the elem ents in a plaintiff’s prima facie case, it is sometimes necessary to ask the jury, usually as part o f a special verdict form, to engage in factfinding on that particular element. Even the Loeb court had acknowledged that McDonnell Douglas would continue to be relevant in this scena rio. Loeb, 600 F.2d at 1016. No. 01-5864 Brown v. Packaging Corp. of America 23 24 Brown v. Packaging Corp. of America No. 01-5864
basis of a prima facie case and the further logical reason that However, the lead opinion does not explain the circumstances the employer was the person best able to explain legitimate under which a jury verdict might be overturned because of the reasons for failing to hire (or firing) an otherwise qualified use of the instruction, and when the verdict would not be person who was within the protected class.” Loeb, 600 F.2d at overturned. Indeed, it does not explain why the district court 1024 (Bownes, J., concurring and dissenting). Bearing these did not abuse its discretion in this case, and it therefore policy considerations in mind, the Supreme Court has provides little guidance to district courts in deciding whether endorsed the notion that a jury may infer discrimination if to include such an instruction. The likely result from such a (1) it finds that the plaintiff has established the four elements holding is that many district courts might simply refuse to give of the prima facie case and (2) it disbelieves the employer’s the instruction, instead determining that eliminating the risk of explanation for its adverse employment action(s). Reeves v. having a jury verdict overturned on appeal outweighs the Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) benefit of providing a jury with a fully developed jury (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 instruction on the applicable employment discrimination law (1993)).4 The policy reasons do not disappear in the face of an issues. employer’s ability to rebut a prima facie case by offering a legitimate, non-discriminatory reason for its actions. Thus, Such a development would be unfortunate because “[s]ome instruction to the jury on the prima facie case is describing the burden-shifting paradigm often can be necessary for a full appreciation of what is involved in beneficial in communicating to juries an understanding of discrimination cases.” Loeb, 600 F.2d at 1024 (Bownes, J., employment discrimination law. Specifically, as discussed concurring and dissenting). above, the McDonnell Douglas test provides jurors with a fleshed-out context for the purpose of resolving the factual Another problem with the lead opinion is that although it disputes presented by the case being considered. The risk of does not explicitly forbid district courts from giving the confusion should be minimal or nonexistent when the judge McDonnell Douglas instruction, it impliedly attempted to put explains to the jury that McDonnell Douglas provides a them on notice that giving such an instruction may place in backdrop to the jurors’ role as factfinders, and that their jeopardy the validity of a jury’s verdict on appellate review. ultimate duty is to determine whether (1) the employer’s proffered legitimate reason for an adverse employment action was pretextual and (2) the employer’s true motive for taking 4 I adhe re to this view notwithstanding language in Hicks, 509 U.S. the adverse action was illegal discrimination. See, e.g., at 510-11, that some commentators have read as dampening (or even Mullen, 853 F.2d at 1137 (finding no error in the jury eliminating) the relevance of McDonnell Douglas once the employer instructions where the trial court directed the jury to focus on asserts a legitimate explanation for its actions. See, e.g., Malamud, supra, the central issues of whether the employer’s asserted reason at 232 4. Hicks should not be read as attempting to supplant the was pretext for employment discrimination). Mc Do nne ll Douglas burd en-shifting analysis at any stage of the litigation. See W illiam R. Corbett, Of Ba bies, Bathwater, and Throwing Out Proof Struc tures: It is N ot Tim e to Jettison M cDonn ell Dou glas, 2 E MPLOYEE The lead opinion is correct in stating that “it remains the R TS . & E M P . P O L’Y J. 361, 386-89 (19 98) (arguing that the centrality of responsibility of the judge to determine whether the plaintiff Mc Do nne ll Douglas in emp loyment discrim ination cases, and its has presented a prima facie case capable of withstanding a relevance in jury instructions, remains after Hicks). Until the Supreme motion of summary judgment or a directed verdict.” However, Court indicates otherwise, the McDonnell Douglas framework remains the this does not mean that the McDonnell Douglas instruction driving force for burden of proof issues in cases resting on circumstantial evidence. does not provide a useful purpose, or that it is superfluous or No. 01-5864 Brown v. Packaging Corp. of America 25
confusing. Indeed, the average juror is not incapable of understanding such language as “prima facie case” when it is properly explained. As in any jury trial, it is the responsibility of the judge to define legal terms and to clarify any subsequent confusion during deliberations, as requested by the jury at the time. “So long as a trial court does not fall into the mistake of placing upon defendant an improper burden, its commenting on shifting burdens imports no error.” Loeb, 600 F.2d at 1024 (Bownes, J., concurring and dissenting). Therefore, the district court’s use of the McDonnell Douglas test with its burden- shifting paradigm was an appropriate tool in instructing the jury.