In order for [plaintiff] to recover on this discrimination claim against [defendant], [plaintiff] must prove that [defendant] intentionally discriminated against [plaintiff]. This means that [plaintiff] must prove that [his/her] [protected status] was a determinative factor in [defendant’s] decision to [describe action] [plaintiff].
To prevail on this claim, [plaintiff] must prove both of the following by a preponderance of the evidence:
Second: [Plaintiff’s] [protected status] was a determinative factor in [defendant's] decision.
You should weigh all the evidence received in the case in deciding whether [defendant] intentionally discriminated against [plaintiff]. [For example, you have been shown statistics in this case. Statistics are one form of evidence that you may consider when deciding whether a defendant intentionally discriminated against a plaintiff. You should evaluate statistical evidence along with all the other evidence.]
[Defendant] has given a nondiscriminatory reason for its [describe defendant’s action]. If you believe [defendant’s] stated reason and if you find that the [adverse employment action] would have occurred because of defendant’s stated reason regardless of [plaintiff’s] [protected status], then you must find for [defendant]. If you disbelieve [defendant’s] stated reason for its conduct, then you may, but need not, find that [plaintiff] has proved intentional discrimination. In determining whether [defendant's] stated reason for its actions was a pretext, or excuse, for discrimination, you may not question defendant's managerial judgment. You cannot find intentional discrimination simply because you disagree with the managerial judgment of [defendant] or believe it is harsh or unreasonable. You are not to consider [defendant's] wisdom. However, you may consider whether [plaintiff] has proven that [defendant's] reason is merely a cover-up for discrimination.
Ultimately, you must decide whether [plaintiff] has proven that [his/her] [protected status] was a determinative factor in [defendant’s employment decision.] “Determinative factor” means that if not for [plaintiff’s] [protected status], the [adverse employment action] would not have occurred.
COMMENT
The McDonnell Douglas framework applies to Section 1983 employment discrimination claims. See, e.g., St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 n.1 (1993) (assuming “that the McDonnell Douglas framework is fully applicable to racial-discrimination-in-employment claims under 42 U.S.C. § 1983”); Stewart v. Rutgers, The State University, 120 F.3d 426, 432 (3d Cir. 1997) (“Our application of the McDonnell Douglas-Burdine framework is applicable to Stewart's allegation of racial discrimination under 42 U.S.C. §§ 1981 and 1983.”); McKenna v. Pacific Rail Service, 32 F.3d 820, 826 n.3 (3d Cir. 1994) (“Although McDonnell Douglas itself involved [Title VII claims], the shifting burden analysis with which the case name is now synonymous also has been applied in section 1983 cases....”); Lewis v. University of Pittsburgh, 725 F.2d 910, 915 & n.5 (3d Cir. 1983).Instruction 7.2 largely mirrors Instruction 5.1.2 (Title VII pretext instruction). Instruction 7.2’s discussion of pretext substitutes the term “managerial judgment” for “business judgment,” because the latter might seem incongruous in an instruction concerning a government entity.
A complaint does not need to specify whether the plaintiff intends to proceed under a mixed motive theory, addressed in Instruction 7.1, or a pretext theory, addressed in Instruction 7.2. Indeed, the court of appeals explained in a Title VII case that “even at trial, an employee may present his case under both theories, provided that, prior to instructing the jury, the judge decides whether one or both theories applies.” Connelly v. Lane Construction, 809 F.3d 780, 788 (3d Cir. 2016) (internal quotation marks and citation omitted).
The instruction given above is designed for use with respect to a claim against an individual official who took an adverse employment action against the plaintiff. Such claims will not present a difficult question concerning supervisory liability: If the defendant is proven to have taken the adverse employment action, then the defendant meets the requirements for imposing supervisory liability, on the ground that the defendant had authority over the plaintiff and personally participated in the adverse action. If the plaintiff also asserts a claim against the supervisor of a person who took the adverse employment action, then the instruction should be augmented to present the question of supervisory liability to the jury. See supra Instruction 4.6.1. If the plaintiff is asserting a claim against a municipal defendant, the instruction should be augmented to present the jury with the question of municipal liability. See supra Instructions 4.6.3 - 4.6.8.
