PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ------------------------------------------- ELEVENTH CIRCUIT 08/12/99 No. 98-6054 THOMAS K. KAHN -------------------------------------------- CLERK D. C. Docket No. CV-95-D-1283-E
JAMES PULLIAM,
Plaintiff-Appellant,
versus
TALLAPOOSA COUNTY JAIL, TALLAPOOSA COUNTY PERSONNEL BOARD, et al.,
Defendants-Appellees.
---------------------------------------------------------------- Appeal from the United States District Court for the Middle District of Alabama ---------------------------------------------------------------- (August 12, 1999)
Before EDMONDSON, COX and BIRCH, Circuit Judges.
EDMONDSON, Circuit Judge: Plaintiff, a former employee of Defendant Tallapoosa County, appeals from the
district court’s judgment against him on his claim of unlawful retaliation and from the
district court’s post-judgment denial of his motion to alter or amend the judgment or
in the alternative for a new trial. Because we see no reversible error, we affirm.
Background
Beginning in December 1992, Plaintiff James Pulliam, a black male, worked
as a correctional officer for the Tallapoosa County Jail (the “Jail”) in Alabama.
During his employment, Plaintiff filed a charge of discrimination with the Equal
Employment Opportunity Commission (the “EEOC”). Plaintiff’s EEOC charge
alleged discrimination on the basis of race and disability and unlawful retaliation for
his protected complaints of discrimination. Plaintiff later amended the EEOC charge,
realleging the same basic claims. About two months after Plaintiff filed the amended
charge, in October of 1994, Plaintiff was terminated.
Plaintiff brought the instant action against Tallapoosa County (the “County”),1
claiming unlawful retaliation and discrimination based on race and disability. The
1 Also named as defendants in the complaint were Joe Waters, a supervisor at the Jail, Joe Smith, Sheriff of the County, Bill McCoy, the Jail Administrator, the Jail, and the County Personnel Board. But, at trial, Plaintiff dismissed the charges against all defendants other than the County.
2 only claim that ultimately went to the jury was Plaintiff’s claim that the Jail had
retaliated against him, in violation of Title VII and 42 U.S.C. § 1981, by terminating
his employment because he had filed a charge against the Jail with the EEOC.
At trial, Defendant introduced testimony and documentary evidence of many
disciplinary acts taken against Plaintiff during the course of Plaintiff’s employment.
Defendant presented evidence that Pulliam was fired because of his poor work
performance and that Plaintiff’s EEOC charge did not enter into the decision to fire
Plaintiff. According to Defendant, Plaintiff was fired only for legitimate reasons.
Plaintiff presented evidence to try to prove that Defendant’s proffered reasons for
discharge were pretext for unlawful retaliation.
At the close of the evidence, these special interrogatories were submitted to the
jury:
1. Do you find, by preponderance of the evidence, that the defendant, acting through its employees, terminated the plaintiff’s employment in retaliation because the plaintiff had filed an EEOC charge of race discrimination and retaliation?
2. Do you find, by preponderance of the evidence, that the retaliation was a determining factor in defendant’s decision to terminate the plaintiff’s employment?
3. Do you find, by preponderance of the evidence, that the defendant would have made the same decision to terminate the plaintiff’s employment notwithstanding the fact that he filed a charge of race discrimination and retaliation?
3 The jury answered “yes” to all three interrogatories.
Following the jury verdict, the district court entered judgment for Defendant,
stating, “[b]y reason of the jury’s affirmative answer to Interrogatory No. 3,
[Defendant] is entitled to judgment.” Plaintiff then filed a motion to alter or amend
the judgment or in the alternative for new trial. The court denied Plaintiff’s motion,
and Plaintiff appeals.
Discussion
In an employment discrimination or retaliation case, even if the plaintiff
provides evidence that the defendant, in making an adverse employment decision, was
motivated in part by an impermissible consideration, the defendant can prevail if it can
prove by a preponderance of the evidence that it would have made the same decision
even in the absence of the discriminatory consideration. Price Waterhouse v.
Hopkins, 490 U.S. 228, 258 (1989) (plurality opinion). “Defendants in Title VII [and
section 1981] cases may prove as an affirmative defense that they would have reached
the same employment decision even in the absence of bias.” Harris v. Shelby County
Bd. of Educ., 99 F.3d 1078, 1084 (11th Cir. 1996) (citing Price Waterhouse, 490 U.S.
4 at 246). Plaintiff’s arguments on appeal focus mainly2 on Defendant’s assertion of the
Price Waterhouse/mixed-motives defense to liability.
1.
Plaintiff first contends that Defendant waived the defense by failing properly
to assert it affirmatively, pursuant to Fed. R. Civ. P. 8(c),3 by pleading it or otherwise
asserting it during the presentation of evidence. According to Plaintiff, Defendant
never raised the mixed-motives defense in its answer, in the jointly submitted pretrial
order, or at any other time before the close of evidence. So, Plaintiff contends that
Defendant waived the defense and that it was, therefore, error for the district court to
submit interrogatory number three to the jury.
That Defendant failed to plead the defense affirmatively in its answer is not
contested. But, Defendant argues that it gave sufficient notice to Plaintiff in the
pretrial order. And omission of an affirmative defense is not fatal as long as it is
2 Plaintiff also argues that the district court erred by refusing to admit documentary evidence about an alleged white comparator and by admitting after-acquired evidence about inaccuracies in Plaintiff’s employment application. Plaintiff further contends that he is entitled to a new trial based on alleged juror misconduct. We find no merit in these arguments and do not discuss them further. 3 Rule 8(c) says that “[i]n pleading to a preceding pleading, a party shall set forth affirmatively . . . any other matter constituting an avoidance or affirmative defense.” Fed. R. Civ. P. 8(c).
5 included in the pretrial order. See Hargett v. Valley Fed. Sav. Bank, 60 F.3d 754, 763
(11th Cir. 1995) (stating that failure to assert affirmative defense in answer curable by
insertion of defense in pretrial order); Fed. R. Civ. P. 16(e) (stating that pretrial order
"shall control the subsequent course of action"). The district court agreed with
Defendant that the pretrial order gave Plaintiff sufficient notice.
The pretrial order states in part: “The defendants, Tallapoosa County Jail, et
al., contend that the plaintiff was an unsatisfactory employee and that any reprimands,
demotions or changes in his employment status were either a result of his own request
or of his unsatisfactory performance in his position.” The district court concluded that
the pretrial order warned Plaintiff of a mixed-motives defense. And, we cannot say
that the district court’s interpretation of the pretrial order was an abuse of discretion.
See Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1461 (11th Cir. 1998) (“We review
the trial court's interpretation of a pretrial order for abuse of discretion.”); Risher v.
United States, 465 F.2d 1, 5 (5th Cir. 1972) ("We are not inclined to disturb the
district court's interpretation of a stipulation agreed upon by the parties during pretrial
proceedings and approved by the court.").
The district court believed (and we will assume, for the sake of argument) that
the mixed-motives theory is the kind of defense which must be pleaded or asserted
sometime before the close of evidence. See Harris, 99 F.3d at 1084 (referring to
6 mixed-motives defense as affirmative defense).4 Requiring a defendant to plead
certain defenses affirmatively serves the important purpose of providing notice to the
plaintiff and the court. North Georgia Elec. Membership Corp. v. City of Calhoun,
989 F.2d 429, 432 (11th Cir. 1993); see also Blonder-Tongue Lab., Inc. v. University
of Illinois Foundation, 402 U.S. 313, 350 (1971) (stating that purpose of Rule 8(c) is
to give opposing party notice of affirmative defense and opportunity to rebut it). But
we accept that sufficient notice was given in this case: The pretrial order did make it
plain that it would be impossible to determine the issue of whether Defendant’s
retaliatory acts caused Plaintiff’s discharge without considering Plaintiff’s own acts.
The pretrial order allowed Plaintiff fair notice of what the trial would be about. That
Defendant’s motives and Plaintiff’s conduct would be in issue was no unfair surprise.5
4 We know that the mixed-motives defense is an affirmative one in terms of placing the burden of proof on the defendant. But, the range of Rule 8(c)’s pleading requirements, beyond the defenses expressly denoted in the rule, is uncertain. And no court in our circuit has previously addressed the issue of whether a mixed-motives defense must be set forth in the answer or pretrial order, or otherwise asserted before the close of evidence. Because we conclude that Plaintiff’s argument lacks merit even if we accept his contention, we need not (and do not) decide that issue today. 5 Our decision in Hidle v. Geneva County Bd. of Educ., 792 F.2d 1098 (11th Cir. 1986), is not contrary to our conclusion. In Hidle, the plaintiff sued a school board alleging unlawful failure to hire based on gender discrimination. The district court in Hidle initially found that the employer had discriminated against the plaintiff. But, seven months after rendering its judgment, the district court reversed itself, finding that the employer was entitled to prevail on a mixed-motives theory. We reversed the district court and reinstated the plaintiff’s verdict, noting, among other things, that “[t]he [mixed-motives] issue, on the basis of which the trial court reversed itself, was neither pleaded by the defendant nor referred to in the pre-trial order.” Id. at 1100. But we do not know precisely what the pretrial order said. The Hidle court did not decide that the mixed-motives defense may never be implicit in a defendant’s statement denying
7 A defendant need not admit a discriminatory motive to assert a mixed-motives
defense. Indeed, the burden is on the plaintiff to establish that the defendant had a
discriminatory motive; a defendant need not admit it, even in the alternative. If a
plaintiff does succeed in presenting evidence to prove that the impermissible reason
was at least a motivating factor for the adverse employment action, the defendant can
respond by arguing that the plaintiff has failed to prove that the impermissible reason
was even a motivating factor, or by proving that the defendant would have taken the
same action for a permissible reason alone, or by pursuing both tactics. The same
occurrences can be material to either or both.
In this case, Sheriff Smith, who was responsible for the final decision to fire
Plaintiff, testified that Plaintiff was fired only because of Plaintiff’s poor work
performance and disciplinary problems; Smith said no other reasons entered into his
decision. This line of evidence -- that Plaintiff was fired for permissible reasons --
also supported the less sweeping (but not inconsistent) defense that, even if some
impermissible reasons had entered into the decision-making process, Plaintiff would
that unlawful motives had played a part in an adverse-employment decision. The Hidle court was faced with only one decisive issue, as the court stated it: “whether a party’s motion to alter or amend a judgment pursuant to Rule 59 F.R.C.P. empowers the district court to, in effect, vacate a judgment in favor of the moving party so as to rule in favor of the non-moving party.” Id. at 1098. The Hidle court was faced with a question of civil procedure, and the court stressed, “[t]he lapse of time is of real concern.” Id. at 1100. The court ultimately decided that the district court exceeded its authority because of the eight-month delay. Hidle thus could not and did not resolve the issue now before us.
8 have been fired anyway, for legitimate reasons. In other words, the legitimate reasons
alone were enough.
Defendant’s proof in asserting that Plaintiff was terminated for legitimate
reasons is the same as the proof in asserting that Defendant would have terminated
Plaintiff even in the absence of discriminatory reasons. In Spanier v. Morrison’s
Management Servs., Inc., 822 F.2d 975, 980 (11th Cir. 1987), we discussed the role
of nondiscriminatory reasons articulated at the second stage of the typical McDonnell
Douglas pretext case and the role those reasons play in a mixed-motives defense. We
said,
In the McDonnell Douglas context these reasons serve to suggest the absence of discriminatory motive. In the [mixed-motives] context -- in which a discriminatory motive has already been found to have been a determining factor -- these same reasons may serve to show that there was a mixture of legal and illegal motives and that the legal motives standing alone would have brought about the plaintiff’s dismissal.
Id. at 980 n.5. In either situation, the reasons -- the proof -- is the same. See also
Fields v. New York State Office of Mental Retardation & Developmental Disabilities,
115 F.3d 116, 124 n.4 (2d Cir. 1997) (explaining that only difference between mixed-
motives instruction and typical discrimination charge is in asking additional question
of whether Defendant has established its affirmative defense that it would have taken
same action in absence of impermissible reason); Starceski v. Westinghouse Elec.
Corp., 54 F.3d 1089, 1098 n.8 (3d Cir. 1995) (“As a practical matter, the proofs
9 required to defend this [ADEA] case under either a pretext or ‘mixed-motives’ theory
differed little.”).6
In some cases, defendants may choose to make no mixed-motives defense. See
Spanier, 822 F.2d at 980 n.4 (“It is possible that a defendant might decide as a tactical
matter to forego a [mixed-motives] defense.”). But the nature of Defendant’s mixed-
motives defense required no speculation on Plaintiff’s part in this case. With the
pretrial order, Plaintiff knew that Defendant would try to prove that Plaintiff was
correctly fired for good reason (Plaintiff’s unsatisfactory work performance) and that
he (Plaintiff) had to discredit the proffered evidence as pretext or unworthy of belief.
Defendant never stated that it would not assert a mixed-motives defense. And
Plaintiff has pointed to no additional evidence he would have developed if he had be
given the kind of notice he says was lacking.
This point is the important one: Unfair surprise to Plaintiff in these
circumstances is not apparent. Therefore, we will not overrule the district court’s
determination that the defense of mixed-motives was in the case by virtue of the
pretrial order’s language.
6 As a corollary, the substance of a plaintiff’s response is not significantly different: the plaintiff will seek to prove that the adverse employment action was motivated by improper considerations regardless of the defendant’s defense.
10 2.
Plaintiff next argues that even if Defendant did not waive the defense, the
mixed-motives issue was not properly before the jury based on the evidence presented
at trial. Like Plaintiff’s previous argument, Plaintiff stresses the absence of an
admission by Defendant that an illegitimate motive played a part in its decision to
terminate Plaintiff’s employment. For a court to instruct on a proposition of law about
which there is no evidence is improper. Collins v. Metropolitan Life Ins. Co., 729
F.2d 1402, 1405 (11th Cir. 1984); see also United States v. Morris, 20 F.3d 1111,
1114-15 (11th Cir. 1994) (“A defendant is entitled to have the court instruct the jury
on the theory of the defense, as long as it has some basis in the evidence and has legal
support.") (quotations and citations omitted). In this case, sufficient evidence
supported the instruction; so, the district court did not err.
The availability of the mixed-motives instruction depends on whether the
plaintiff has established that consideration of an impermissible factor was in fact a
determining factor in the adverse employment action taken by the employer. See
Fields, 115 F.3d at 124 n.4 (explaining that first question in mixed-motives instruction
is whether consideration of an impermissible reason was a motivating factor in the
adverse employment action taken by the employer); Ostrowski v. Atlantic Mutual Ins.
11 Co., 968 F.2d 171, 181 (2d Cir. 1992) (“The [mixed-motives] issue does not arise for
the trier of fact until the plaintiff has carried the burden of persuading the trier that the
forbidden animus was a motivating factor in the employment decision . . . .”). Here,
based on the jury’s answers to interrogatories number one and two, Plaintiff
established that an impermissible reason was a determining factor in Defendant’s
decision. So, on all the evidence (including Plaintiff’s evidence), we cannot say that
it was error to pose the mixed-motives question to the jury: Defendant was entitled
to have the jury decide -- as the jury did decide -- that Defendant would have
discharged Plaintiff even if he had never filed an EEOC charge.
3.
On appeal, Plaintiff argues that, even if a mixed-motives instruction were
warranted, he is entitled to a new trial because the district court failed to instruct the
jury properly on the burden of proof for a mixed-motives defense. About the burden
of proof and the elements of Plaintiff’s claim, the court instructed the jury this way:
The question with respect to the retaliation claimed is whether the fact that the Plaintiff had earlier filed a charge of race discrimination retaliation against the Defendant was a determining factor in the Defendant’s decision to terminate the Plaintiff’s employment. The burden of proof or persuasion remains with the Plaintiff at all times. The
12 Defendant need not prove that it did not retaliate against the Plaintiff in order to prevail.
A determining factor. In order for you to find that retaliation for an earlier EEOC charge was a determining factor in the Defendant’s decision to terminate Plaintiff’s employment, you need not find that it was the sole reason. However, if you find by a preponderance of the evidence that the Plaintiff would not have been subjected to termination but for his earlier charge of race discrimination and retaliation, then you may find that retaliation for filing the charge was a determining factor in the decision to terminate Plaintiff’s employment.
...
Same decision regardless of EEOC charge. If you find there were other factors upon which the Defendant relied in making the decision to terminate the Plaintiff’s employment, and that such decision based on those factors would have been made regardless of Plaintiff’s prior EEOC charge, you must find for the Defendant.
(emphasis added). The court failed to specify that the defendant has the burden of
proof on the mixed-motives defense. Plaintiff contends that this omission misled the
jury and caused prejudice to Plaintiff.
We accept that the district court did not properly explain to the jury that
Defendant had the burden of proof on the mixed-motives issue. See Price
Waterhouse, 490 U.S. at 254, 261 (1989) (placing burden of proof on defendant for
mixed-motives defense); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 287 (1977) (same).
13 But not every error in a trial requires a reversal. And, Plaintiff did not object
to the instruction or request a charge on the burden of proof after the instruction was
given. So, our review here is highly limited: the plain error doctrine governs. See
Iervolino v. Delta Air Lines, Inc., 796 F.2d 1408, 1415 (11th Cir. 1986). Under the
plain error doctrine, appellant’s burden is an especially heavy one: In the absence of
a proper objection to jury instructions, “we will reverse only in exceptional cases
where the error is so fundamental as to result in a miscarriage of justice.” Id. at 1414
(citations and quotations omitted). Furthermore, a court’s failure to instruct on a
burden of proof does not automatically constitute plain error. See, e.g., G.A.
Thompson & Co. v. Partridge, 636 F.2d 945, 955-56 (5th Cir. 1981) (concluding that
erroneous charge on burden of proof was not plain error); see also United States v.
Solomon, 856 F.2d 1572, 1576-77 (11th Cir. 1988) (concluding that failure to give
instruction, after closing arguments, on presumption of innocence in criminal trial,
was not plain error, where instruction was given earlier in trial); United States v.
Ferndandez, 496 F.2d 1294, 1299 (5th Cir. 1974) (stating, but reversing in conjunction
with other grounds, “[w]ith the presumption of innocence charge not requested and
its omission not objected to, we would be sorely tempted here to hold that plain error
. . . is not made out”); United States v. Harrell, 436 F.2d 606, 612 (5th Cir. 1970)
(stating, without deciding plain-error issue due to presence of other reversible error
14 in case, “we would . . . reverse for the trial court’s error [in failing to instruct the jury
as to the government’s burden of proof beyond a reasonable doubt], if objection had
been timely made to the charge”) (emphasis added).
Plaintiff was represented by counsel. A trial in a federal court is an adversarial
process, and the parties’ lawyers have a big responsibility for the trial’s proper
conduct. Without the help of lawyers, trial judges cannot realistically be expected to
pick out every problem. So, it is critical that a plaintiff raise the burden-of-proof issue
at trial and in a timely way.7 A properly timed objection will provide the trial judge
with a chance to focus on the issue and, if need be, a chance to correct the judge’s
omission at a time when the mistake can be easily and efficiently corrected. See
Partridge, 636 F.2d at 954 (stressing need for bringing “the burden of proof issue to
the trial judge’s attention so as to enable him to make a correction”).
It bears reiteration to say that there was no objection about the burden of proof
in this trial. So, to obtain a reversal or a new trial, Plaintiff must show a substantial
likelihood that a substantial right of Plaintiff’s was affected by the incomplete
instruction. See id. at 954-55 (explaining application of plain error rule to erroneous
7 In this case, the jury instructions were delivered only after the lawyers had had an evening to review them and an opportunity to make objections.
15 burden-of-proof instructions). In this case, the failure to give an instruction on
Defendant’s burden of proof does not constitute plain error.
Plaintiff has failed to convince us that, given a completely accurate instruction
on the burden of proof on mixed-motives issues, a substantial likelihood8 exists that
the jury would have found for Plaintiff and determined that Plaintiff -- in the absence
of retaliation -- would not have been fired. See id. at 955 (“Based on these facts we
must decide whether the evidence was so close that there is a substantial likelihood
that given the proper instruction on the burden of proof,” the jury would have reached
a result in favor of appellant.). Even excluding the documentary evidence that
Plaintiff contends is invalid, Defendant presented ample evidence of Plaintiff’s
unsatisfactory work performance for a jury to conclude that the termination was
warranted on nonretaliatory grounds.9 The evidence was more than sufficient to prove
a mixed-motives defense by a preponderance of the evidence. Considering the record,
we cannot say that proper instructions would probably have altered the outcome.
8 We stress that showing even a reasonable likelihood would not have been enough. See Partridge, 636 F.2d at 955 (“The difference between the harmless error and the plain error standards in the burden of proof context is thus the difference between a reasonable likelihood and a substantial likelihood.”). 9 Plaintiff, both before and after filing the EEOC charge, had a history of having been disciplined at the Jail. For example, Plaintiff was suspended in March 1994 for leaving his assigned post at the control room -- the heart of the jail’s security operation -- unattended. The Jail Administrator testified that such a security violation could alone be grounds for termination.
16 By the way, we do not think that the jury’s responses to interrogatories number
two and three reflect confusion: “It is . . . perfectly consistent to say both that
[retaliation] was a factor in a particular decision when it was made and that, when the
situation is viewed hypothetically and after the fact, the same decision would have
been made even in the absence of discrimination.” Price Waterhouse, 490 U.S. at 246
n.11 (plurality opinion).10
Conclusion
The district court thus did not commit reversible error in this case. The
judgment of the district court must be AFFIRMED.
AFFIRMED.
10 In addition, the verdict form contained a fourth interrogatory, addressing damages: “What do you find, by preponderance of the evidence, constitutes an appropriate award of compensatory damages suffered by the plaintiff as a result of having been terminated by the defendants for unlawful reasons?” But, the jury was first instructed at the end of interrogatory number three, “If your answer to interrogatory no. 3 is ‘no,’ go to interrogatory no. 4. If your answer is ‘yes,’ your work is complete.” Thus, the jury knew that an affirmative answer to interrogatory number three would bar Plaintiff’s recovery.