Brown v. Packaging Corp

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.