2 PJI 1.1 | GENERAL DISCRIMINATION: PRETEXT
5{An “adverse employment action” is one that, standing alone, actually causes damage, tangible or intangible, to an employee. The fact that an employee is unhappy with something his or her employer did or failed to do is not enough to make that act or omission an adverse employment action.6 An employer takes adverse action against an employee only if it: (1) takes something of consequence away from the employee, for example by discharging or demoting the employee, reducing his or her salary, or taking away significant responsibilities; or (2) fails to give the employee something that is a customary benefit of the employment relationship, for example, by failing to follow a customary practice of considering the employee for promotion after a particular period of service.7 An adverse employment action by a supervisor is an action of the employer.8}
[Plaintiff] need not show that [protected characteristic] discrimination was the only or predominant factor9 that motivated10 [defendant]. In fact, you may decide that other factors were involved as well in [defendant]’s decisionmaking process. In that event, in order for you to find for [plaintiff], you must find that [she/he] has proven that, although there were other factors, [she/he] would not have been [specify adverse action] without the [protected characteristic] discrimination.11
An employer is free to [specify adverse action] an employee for any nondiscriminatory reason even if its business judgment seems objectively unwise.12 But you may consider the believability of an explanation in determining whether it is a cover-up or pretext for discrimination. In order to succeed on the discrimination claim, [plaintiff] must persuade you, by a preponderance of the evidence, that were it not for [protected characteristic] discrimination,13 [she/he] would not have been [specify adverse action].14
15{[Plaintiff] is not required to produce direct evidence of unlawful motive.16 You may infer knowledge and/or motive as a matter of reason and common sense from the existence of other evidence ― for example, explanations that you find were really pretextual. “Pretextual” means false or, though true, not the real reason for the action taken.}
Footnotes
McDonnell Douglas was not written as a prospective jury charge; to read its technical aspects to a jury,... will add little to the juror’s understanding of the case and, even worse, may lead jurors to abandon their own judgment and to seize upon poorly understood legalisms to decide the ultimate question of discrimination. Since the advantages of trial by jury lie in utilization of the jurors’ common sense, we would have serious reservations about using McDonnell Douglas if doing so meant engulfing a lay jury in the legal niceties discussed in this opinion.600 F.2d at 1016. Moreover, using McDonnell Douglas can result in error unless great care is taken to conform it to the facts of the case. See, e.g., Rodriguez-Torres v. Caribbean Forms Mfr., Inc., 399 F.3d 52, 58-59 (1st Cir. 2005).
2 In Title VII cases, “the terms ‘employer’ and ‘employee’ are to be defined with reference to common law agency principles.” Delia v. Verizon Communications, Inc., __ F.3d __, 2011 WL 3688995, at *3 (1st Cir. Aug. 24, 2011) (internal quotes omitted). “[T]he principal guidepost” is “‘the common-law element of control [by the putative employer over the putative employee].’” Id. An instruction on this issue may be given when there is a dispute about whether the plaintiff is the defendant’s employee. see id. at *2-4; Lopez v. Massachusetts, 588 F.3d 69, 83 (1st Cir. 2009).
3 This instruction is designed for race, color, national origin, religion, sex, pregnancy or age discrimination cases. The ADEA’s prohibition against age discrimination is limited to “individuals who are at least 40 years of age.” 29 U.S.C. § 631(a) (2001). The Introductory Notes at the beginning of these instructions outline the statutory basis for each of these claims. For sexual harassment cases, see Instructions 2.1-2.3. For disability discrimination cases, see Instruction 3.1. For Equal Pay Act cases, see Instruction 4.1. For retaliation cases, see Instruction 5.1.
4 The following language may be used in a pregnancy discrimination case:
Under federal law, employers must treat women affected by pregnancy the same, for all employment-related purposes, as other persons not affected by pregnancy but similar in their ability or inability to work. Concern for their safety or that of their unborn children is no justification for different treatment. Safety is a justification only when pregnancy actually interferes with an employee’s ability to perform her job.See Int’l Union, United Auto., Aerospace and Agric. Implement Workers v. Johnson Controls, Inc., 499 U.S. 187, 204 (1991) (Title VII) (“Our case law, therefore, makes clear that the safety exception is limited to instances in which sex or pregnancy actually interferes with the employee’s ability to perform the job.”). In Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 76 (2002), the Supreme Court held that, under the ADA, concern for an employee’s own health is a permissible criterion in employee screening. In light of Johnson Controls, any policy seeking the benefit of Chevron would have to be facially neutral, and not single out pregnant women. see also Smith v. F.W. Morse & Co., 76 F.3d 413, 424-25 (1st Cir. 1996) (“At bottom, Title VII requires a causal nexus between the employer’s state of mind and the protected trait (here, pregnancy). The mere coincidence between that trait and the employment decision may give rise to an inference of discriminatory animus, but it is not enough to establish a per se violation of the statute....” (internal citation omitted)).
5 This bracketed paragraph may be used in cases where there is a dispute about whether the action that the defendant allegedly took against the plaintiff constituted an adverse employment action. Although this question, if it arises, is one for the jury, see Melendez-Arroyo v. Cutler-Hammer de P.R. Co., Inc., 273 F.3d 30, 36 (1st Cir. 2001)
(ADEA) (jury could find that plaintiff who was given a raise but assigned less challenging, largely menial responsibilities suffered an adverse employment action), in most cases the dispute will be about whether the defendant’s challenged conduct was motivated by discriminatory animus, not whether it amounted to an adverse employment action. If there is no dispute about whether the alleged conduct, if proven, would constitute an adverse employment action, the bracketed paragraph may be deleted and the words “took adverse employment action against” in the second sentence of the first paragraph may be replaced by a brief description of the adverse employment action the defendant allegedly took.
6 Blackie v. Maine, 75 F.3d 716, 725 (1st Cir. 1996) (FLSA) (“[T]he inquiry must be cast in objective terms. Work places are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer's act or omission does not elevate that act or omission to the level of a materially adverse employment action.”). Blackie uses the term “materially adverse employment action,” but does not define the term (or, more precisely, the significance of the word “materially”) beyond what is included in the text of this instruction. Three other cases also use the modifier “materially” when discussing adverse employment actions, but none of these cases indicates that a materially adverse employment action is different from an adverse employment action. Marrero v. Goya of P.R., Inc., 304 F.3d 7, 23 (1st Cir. 2002) (Title VII sexual harassment retaliation); Simas v. First Citizens’ Fed. Credit Union, 170 F.3d 37, 49-50 (1st Cir. 1999) (Federal Credit Union Act; whistleblower retaliation) (applying Title VII definition of adverse employment action); Larou v. Ridlon, 98 F.3d 659, 663 n.6 (1st Cir. 1996) (First Amendment political discrimination) (applying, with reservation, Blackie definition of adverse employment action). Furthermore, none of these cases uses the term “materially adverse employment action” exclusively; all the cases describe employment actions as “materially adverse” and “adverse” interchangeably. Other employment discrimination cases decided after Blackie have referred to adverse employment action without the modifier “materially.” See, e.g., Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 33 (1st Cir. 2001) (Title VII and § 1981); Suarez v. Pueblo Int’l, Inc., 229 F.3d 49, 53-54 (1st Cir. 2000) (ADEA); White v. N.H Dep’t of Corrections, 221 F.3d 254, 262 (1st Cir. 2000) (Title VII).
7 Blackie v. Maine, 75 F.3d 716, 725 (1st Cir. 1996) (FLSA). This definition is generalized because “[d]etermining whether an action is materially adverse necessarily requires a case-by-case inquiry.” Id. There is little explicit guidance in the case law about what constitutes an adverse employment action. In Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 62 (2006), a case interpreting Title VII’s antiretaliation provision, the Supreme Court distinguished the antiretaliation provision from Title VII’s “substantive” antidiscrimination language in part by noting that the words of the substantive provision “explicitly limit the scope of that provision to actions that affect employment or alter the conditions of the workplace.” The Court held that Title VII’s antiretaliation provision was not so narrow. see infra 5.1 note 8. In the majority of cases, the court does not explicitly analyze whether the challenged conduct constitutes an adverse employment action, presumably because certain actions, such as layoffs, salary reductions, and demotions, are generally recognized as adverse employment actions. See, e.g., Straughn v. Delta Air Lines, Inc., 250 F.3d 23 (1st Cir. 2001) (Title VII and § 1981) (termination); Rodriguez-Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15 (1st Cir. 1999) (Title VII) (demotion); Mullin v. Raytheon Co., 164 F.3d 696 (1st Cir. 1999) (salary reduction) abrogated in part on other grounds by Smith v. City of Jackson, 544 U.S. 228 (2005); see also Welsh v. Derwinski, 14 F.3d 85, 86 (1st Cir. 1994) (ADEA) (“Most cases involving a retaliation claim are based on an employment action which has an adverse impact on the employee, i.e., discharge, demotion, or failure to promote.”). In some cases, the court has defined what actions are insufficient to constitute an adverse employment action by upholding a trial court’s conclusion that the defendant’s conduct was not, as a matter of law, actionable. See, e.g., Marrero v. Goya of P.R., Inc., 304 F.3d 7, 24 (1st Cir. 2002) (“minor, likely temporary, changes in... working conditions,” extra supervision and probationary period in new post); Hernandez-Torres v. Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir. 1998) (Title VII) (plaintiff was subjected to increased email messages, disadvantageous assignments and “admonition that [he] complete his work within an eight hour [day]”); Blackie, 75 F.3d at 726 (plaintiffs claimed defendants refused to negotiate a “side agreement” to supplement their employment contract); Connell v. Bank of Boston, 924 F.2d 1169, 1179 (1st Cir. 1991) (ADEA) (plaintiff who had already been fired and whose severance package was already calculated was forced to leave office two weeks early). In another class of cases, the court held that the challenged employment action could constitute an adverse employment action by either upholding a jury verdict for the plaintiff, see, e.g., White v. N.H. Dep’t of Corrections, 221 F.3d 254, 262 (1st Cir. 2000) (Title VII) (“ample evidence” of adverse employment action where plaintiff was harassed, transferred without her consent, not reassigned to another position, “and ultimately constructively discharged”), or holding that the defendant was not entitled to summary judgment on this issue, see, e.g., Melendez-Arroyo v. Cutler-Hammer de P.R. Co., Inc., 273 F.3d 30, 36 (1st Cir. 2001) (ADEA) (plaintiff given standard salary increase but assigned less challenging, largely menial responsibilities); DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997) (Title VII) (plaintiff given five month assignment to job for which he had no experience and deprived of meaningful duties); Randlett v. Shalala, 118 F.3d 857, 862 (1st Cir. 1997) (Title VII) (defendant refused to grant plaintiff a hardship transfer); see also Simas v. First Citizens’ Fed. Credit Union, 170 F.3d 37, 48, 50 (1st Cir. 1999) (Federal Credit Union Act; whistleblower retaliation) (plaintiff given negative performance evaluations and deprived of responsibility for major account) (applying Title VII definition of adverse employment action).
8 In Foley v. Commonwealth Electric Co., 312 F.3d 517, 521 (1st Cir. 2002), the court states that “this instruction optimally should have been included in the charge.”
9 see Carey v. Mt. Desert Island Hosp., 156 F.3d 31, 39 (1st Cir. 1998) (Title VII) (instruction “requiring [a verdict for the defendant] if any reason other than gender played, however minimal, a part” in the challenged employment decision places too heavy a burden on plaintiff); see also Hazen Paper Co. v. Biggins, 507 U.S. 604, 617 (1993) (ADEA) (“Once a ‘willful’ violation has been shown, the employee need not additionally demonstrate that the employer's conduct was outrageous, or provide direct evidence of the employer’s motivation, or prove that age was the predominant, rather than a determinative, factor in the employment decision.” (emphasis added)).
10 Although there is dispute about the propriety of the use of the term “a motivating factor,” the First Circuit does not appear to be troubled by the word “motivated” when used by itself. See, e.g., Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 34 (1st Cir. 2001) (Title VII and § 1981) (citing Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 54 (1st Cir. 2000) (Title VII) (“termination was motivated by [protected characteristic] discrimination”)).
11 In Staub v. Proctor Hosp., ___ U.S. ___, 131 S. Ct. 1186 (2011), the Supreme Court dealt with so-called cat’s paw liability under the Uniformed Services Employment and Reemployment Rights Act ― according to the Court, “very similar to Title VII” in its use of the phrase “a motivating factor in the employer’s action.” The Court held that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable” even if the supervisor who ultimately took the adverse action did not share the discriminatory animus. Id. at 1194. The principle seems applicable generally to employment discrimination cases. The Court expressed no view about liability “if a co-worker, rather than a supervisor, committed a discriminatory act that influenced the ultimate employment decision.” Id. at n.4.
12 Webber v. Int’l Paper Co., 417 F.3d 229, 238 (1st Cir. 2005); Thomas v. Eastman Kodak Co., 183 F.3d 38, 64 (1st Cir. 1999) (Title VII) (citing Smith v. Stratus Computer, Inc., 40 F.3d 11, 16 (1st Cir. 1996)) (Title VII) (“Title VII does not grant relief to a plaintiff who has been discharged unfairly, even by the most irrational of managers, unless facts and circumstances indicate that discriminatory animus was the reason for the decision.”); see also Feliciano de la Cruz v. El Conquistador Resort and Country Club, 218 F.3d 1, 8 (1st Cir. 2000) (Title VII) (proof that decision is unfair “is not sufficient to state a claim under Title VII”); Rodriguez-Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15, 22 (1st Cir. 1999) (Title VII) (“Title VII does not stop a company from demoting an employee for any reason — fair or unfair — so long as the decision to demote does not stem from a protected characteristic.” (citations omitted)); Mesnick v. General Elec. Co., 950 F.2d 816, 825 (1st Cir. 1991) (ADEA) (“Courts may not sit as super personnel departments, assessing the merits — or even the rationality — of employers’ nondiscriminatory business decisions.” (citations omitted)). Other circuits have said that subjectivity in an evaluation is not itself grounds for challenging the evaluation as discriminatory. E.g., Vaughan v. Metrahealth Co., 145 F.3d 197, 204 (4th Cir. 1998) abrogated in part by Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 780 (8th Cir. 1995); Haskell v. Kaman Corp., 743 F.2d 113, 119 (2d Cir. 1984).
13 Case law talks about the “true reason,” “determining factor,” “determinative factor” and “motivating factor,” sometimes using the definite article “the” and sometimes using the indefinite article “a.” The debate recalls causation analysis in tort law with many of the same ambiguities. What does seem clear, however, is that “but for” causation is the standard in pretext cases. Hidalgo v. Overseas Condado Ins. Agencies, Inc., 120 F.3d 328, 332 (1st Cir. 1997) (ADEA) (citing Mesnick v. General Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991) (ADEA)); see also Thomas v. Eastman Kodak Co., 183 F.3d 38, 58 (1st Cir. 1999) (Title VII) (“The ultimate question is whether the employee has been treated disparately ‘because of [the protected characteristic].’”); Price Waterhouse v. Hopkins, 490 U.S. 228, 262 (1989) (Title VII) (“Thus, I disagree with the plurality's dictum that the words ‘because of’ do not mean ‘but-for’ causation; manifestly they do.”), abrogated in part on other grounds by statute as stated in Gross v. FBL Fin. Servs., ___ U.S. ___, 129 S. Ct. 2343, 2352 n.5 (2009); Ward v. Mass. Health Research Instit., Inc., 209 F.3d 29, 38 (1st Cir. 2000) (ADA) (describing the analysis of whether the plaintiff was fired “because of” his disability as “but/for reasoning”). We have therefore chosen to avoid the listed terms, which seem to provoke endless debate in charge conferences, and use a simple “but for” instruction (the actual words “but for” are not used because they are less familiar to lay jurors than to lawyers and judges). We thereby avoid the debate over those terms as reflected in the following case law: Provencher v. CVS Pharmacy, 145 F.3d 5, 10 (1st Cir. 1998) (Title VII retaliation) (“a motivating factor” and “played a part” are problematic phrases; defendant is liable only if discrimination is “the determinative factor”); Carey v. Mt. Desert Island Hosp., 156 F.3d 31, 38-39 (1st Cir. 1998) (Title VII) (The First Circuit has not yet decided whether “the ‘a motivating factor’ language in 42 U.S.C. § 2000e-2(m) applies to all discrimination cases” or only to mixed motive cases.); id. at 46 (Stahl, J., dissenting) (“[A] district court errs by giving a jury instruction pursuant to § 2000e-2(m) [e.g., ‘a motivating factor’ language], unless the court determines that the plaintiff has adduced evidence of discrimination sufficient to take the case outside the McDonnell Douglas paradigm....”); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 542 (1993) (Title VII) (Souter, J., dissenting) (“Congress has taken no action to indicate that we were mistaken in McDonnell Douglas and Burdine.”).
14 The following sentence may be used in age discrimination cases where the defendant argues that the challenged employment decision was based on a factor, other than age, that is often associated with age or is correlated with age, such as seniority or pension status:
A defendant is entitled to base an employment decision on a factor other than age, such as seniority, even if that factor is often correlated with age, as long as the defendant is not using that other factor as a pretext to hide age discrimination.See Hazen Paper Co. v. Biggins, 507 U.S. 604, 611 (1993) (ADEA) (“When the employer’s decision is wholly motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes disappears. This is true even if the motivating factor is correlated with age, as pension status typically is.”); see also id. (“Yet an employee’s age is analytically distinct from his years of service.”); Bramble v. Am. Postal Workers Union, 135 F.3d 21, 26 (1st Cir. 1998) (ADEA) (union that reduced union president’s salary based on president’s status as a retiree did not discriminate because, although “there is a positive correlation between active pay status and age,... one is not an exact proxy for the other”). In Ky. Ret. Sys. v. EEOC, 554 U.S. 135, 148 (2008), the Supreme Court held: “Where an employer adopts a pension plan that includes age as a factor, and that employer then treats employees differently based on pension status, a plaintiff, to state a disparate treatment claim under the ADEA, must adduce sufficient evidence to show that the differential treatment was “actually motivated” by age, not pension status.” (emphasis in original).
If a defendant requests it and the circumstances justify it, an instruction may be included on the availability of the “same-actor inference.” Such an instruction permits a jury to infer a lack of discrimination if the same individual both hired and fired the plaintiff, particularly within a short period of time. see Banks v. Travelers Cos., 180 F.3d 358, 366-67 (2d Cir. 1999) (ADEA); Proud v. Stone, 945 F.2d 796, 797-98 (4th Cir. 1991) (ADEA). The First Circuit stated without discussion that a district court may use the same-actor instruction in appropriate circumstances, citing Buhrmaster v. Overnite Transp. Co., 61 F.3d 461, 463 (6th Cir. 1995) (Title VII: sex), but also held that the absence of the instruction did not “confuse[ ] or misle[a]d the jury as to the controlling law.” Kelley v. Airborne Freight Corp., 140 F.3d 335, 351 (1st Cir. 1998) (ADEA); accord Banks, 180 F.3d at 367 (declining to adopt a rule requiring a same-actor instruction and affirming the district court’s refusal to include the instruction where the court allowed the defendant to urge the jurors to draw the inference); Kim v. Dial Serv. Int’l, Inc., 159 F.3d 1347, 1998 WL 514297, at *4 (2d Cir. June 11, 1998) (unreported table decision) (no prejudice from the district court’s refusal to give the instruction) (ADEA, Title VII: race and national origin); Menchaca v. Am. Med. Response of Ill., Inc., No. 98 C 547, 2002 WL 48073, at *2 (N.D. Ill. Jan. 14, 2002) (Title VII: sex) (same).
Courts disagree on the strength of the inference. Compare Tyndall v. Nat’l Educ. Ctrs., Inc. of Cal., 31 F.3d 209, 215 (4th Cir. 1994) (ADA) (calling it “a strong presumption of nondiscrimination”) with Waldron v. SL Indus., Inc., 56 F.3d 491, 496 n.6 (3d Cir. 1995) (ADEA) (the fact that the same person hired and fired the plaintiff within a short period of time “is simply evidence like any other and should not be accorded any presumptive value”) (internal quotation marks omitted); see also Buhrmaster, 61 F.3d at 464 (noting that “the length of time between the hiring and firing of an employee affects the strength of the inference”). The First Circuit has cited approvingly a statement by the Fourth Circuit calling it a “strong inference.” see LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 847 (1st Cir. 1993) (ADEA) (citing and quoting Proud, 945 F.2d at 797).
The First Circuit in Kelley seems to approve only limited use of the same-actor instruction (“in appropriate circumstances,” without explaining what that means, 140 F.3d at 351). Other courts and commentators warn that the inference is not always appropriate. See, e.g., Waldron, 56 F.3d at 496 n.6 (in ADEA case, the inference was inappropriate because it was plausible that the plaintiff was hired to work for a few years while the hirer “groomed” a younger person to replace the plaintiff); Susie v. Apple Tree Preschool and Child Care Ctr., Inc., 866 F. Supp. 390, 396-97 (N.D. Iowa 1994) (cautioning that the same-actor inference has little or no force in disability cases because the employer at the time of hiring may not be aware of the extent of the plaintiff’s disability and the disability may worsen over time); Anna Laurie Bryant & Richard A. Bales, Using the Same Actor “Inference” in Employment Discrimination Cases, 1999 Utah L. Rev. 255, 272 (inference is not appropriate where the decisionmaker did not know of the plaintiff’s protected status at the time of hiring). For a sample same-actor instruction, see Buhrmaster, 61 F.3d at 463.
15 The pretext language used in this bracketed paragraph is permissible and may help the jury understand the issue, but is not required in the First Circuit. Fite v. Digital Equip. Corp., 232 F.3d 3, 7 (1st Cir. 2000) (ADEA and ADA) (“While permitted, we doubt that such an explanation is compulsory, even if properly requested.”); White v. N.H, Dept. of Corrections, 221 F.3d 254 (1st Cir. 2000) (Title VII) (finding no error in refusal to give explicit instruction on pretext).
16 see DeCaire v. Mukasey, 530 F.3d 1, 20 (1st Cir. 2008) (“To the extent the district court said it required DeCaire to present evidence beyond disproving the government’s arguments as pretext, that was error.” (emphasis in original)).
You might need to reference it during your pursuit of justice.
For instance, you might need to examine this item in order to protect yourself from organizations/judges/lawyers who break the law (see this example of a Florida judge who outright committed perjury).
Nevertheless – and as always – please get the justice you deserve.
Sincerely,
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